¨
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
x
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
¨
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
¨
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
SCORPIO TANKERS INC.
|
(Exact name of Registrant as specified in its charter)
|
|
(Translation of Registrant’s name into English)
|
|
Republic of the Marshall Islands
|
(Jurisdiction of incorporation or organization)
|
|
9, Boulevard Charles III Monaco 98000
|
(Address of principal executive offices)
|
|
Mr. Emanuele Lauro
|
+377-9798-5716
|
info@scorpiotankers.com
|
9, Boulevard Charles III Monaco 98000
|
(Name, Telephone, E-mail and/or Facsimile, and address of Company Contact Person)
|
Title of each class
|
|
Name of each exchange on which registered
|
Common stock, par value $0.01 per share
|
|
New York Stock Exchange
|
7.50% Senior Notes due 2017
|
|
New York Stock Exchange
|
6.75% Senior Notes due 2020
|
|
New York Stock Exchange
|
NONE
|
(Title of class)
|
NONE
|
(Title of class)
|
Yes
|
X
|
|
No
|
|
|
|
|
|
|
Yes
|
|
|
No
|
X
|
|
|
|
|
|
Yes
|
X
|
|
No
|
|
|
|
|
|
|
Yes
|
X
|
|
No
|
|
|
|
|
|
|
Large accelerated filer
x
|
|
Accelerated filer
¨
|
|
Non-accelerated filer
¨
|
|
|
U.S. GAAP
|
X
|
|
International Financial Reporting Standards as issued by the International Accounting Standards Board
|
|
|
Other
|
|
Item 17
|
|
|
Item 18
|
Yes
|
|
|
No
|
X
|
|
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||
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||
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||
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||
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||
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||
|
•
|
the strength of world economies and currencies;
|
•
|
general market conditions, including the market for our vessels, fluctuations in spot and charter rates and vessel values;
|
•
|
availability of financing and refinancing;
|
•
|
potential liability from pending or future litigation;
|
•
|
general domestic and international political conditions;
|
•
|
potential disruption of shipping routes due to accidents or political events;
|
•
|
vessels breakdowns and instances of off-hires;
|
•
|
competition within our industry;
|
•
|
the supply of and demand for vessels comparable to ours;
|
•
|
corruption, piracy, militant activities, political instability, terrorism, ethnic unrest in locations where we may operate;
|
•
|
delays and cost overruns in construction projects;
|
•
|
our level of indebtedness;
|
•
|
our ability to obtain financing and to comply with the restrictive and other covenants in our financing arrangements;
|
•
|
our need for cash to meet our debt service obligations;
|
•
|
our levels of operating and maintenance costs, including bunker prices, drydocking and insurance costs;
|
•
|
availability of skilled workers and the related labor costs;
|
•
|
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;
|
•
|
general economic conditions and conditions in the oil and natural gas industry;
|
•
|
effects of new products and new technology in our industry;
|
•
|
the failure of counterparties to fully perform their contracts with us;
|
•
|
our dependence on key personnel;
|
•
|
adequacy of insurance coverage;
|
•
|
our ability to obtain indemnities from customers;
|
•
|
changes in laws, treaties or regulations;
|
•
|
the volatility of the price of our common shares and our other securities; and
|
•
|
other factors described from time to time in the report we file and furnish with the U.S. Securities and Exchange Commission, or the SEC.
|
|
For the year ended December 31,
|
||||||||||||||||||
In thousands of U.S. dollars except per share and share data
|
2016
|
|
2015
|
|
2014
|
|
2013
|
|
2012
|
||||||||||
Consolidated income statement data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Vessel revenue
|
$
|
522,747
|
|
|
$
|
755,711
|
|
|
$
|
342,807
|
|
|
$
|
207,580
|
|
|
$
|
115,381
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Vessel operating costs
|
(187,120
|
)
|
|
(174,556
|
)
|
|
(78,823
|
)
|
|
(40,204
|
)
|
|
(30,353
|
)
|
|||||
Voyage expenses
|
(1,578
|
)
|
|
(4,432
|
)
|
|
(7,533
|
)
|
|
(4,846
|
)
|
|
(21,744
|
)
|
|||||
Charterhire
|
(78,862
|
)
|
|
(96,865
|
)
|
|
(139,168
|
)
|
|
(115,543
|
)
|
|
(43,701
|
)
|
|||||
Depreciation
|
(121,461
|
)
|
|
(107,356
|
)
|
|
(42,617
|
)
|
|
(23,595
|
)
|
|
(14,818
|
)
|
|||||
General and administrative expenses
|
(54,899
|
)
|
|
(65,831
|
)
|
|
(48,129
|
)
|
|
(25,788
|
)
|
|
(11,536
|
)
|
|||||
Write down of vessels held for sale and net loss on sales of vessels
|
(2,078
|
)
|
|
(35
|
)
|
|
(3,978
|
)
|
|
(21,187
|
)
|
|
(10,404
|
)
|
|||||
Write-off of vessel purchase options
|
—
|
|
|
(731
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Gain on sale of VLGCs
|
—
|
|
|
—
|
|
|
—
|
|
|
41,375
|
|
|
—
|
|
|||||
Gain on sale of VLCCs
|
—
|
|
|
—
|
|
|
51,419
|
|
|
—
|
|
|
—
|
|
|||||
Gain on sale of Dorian shares
|
—
|
|
|
1,179
|
|
|
10,924
|
|
|
—
|
|
|
—
|
|
|||||
Re-measurement of investment in Dorian
|
—
|
|
|
—
|
|
|
(13,895
|
)
|
|
—
|
|
|
—
|
|
|||||
Total operating expenses
|
(445,998
|
)
|
|
(448,627
|
)
|
|
(271,800
|
)
|
|
(189,788
|
)
|
|
(132,556
|
)
|
|||||
Operating income / (loss)
|
76,749
|
|
|
307,084
|
|
|
71,007
|
|
|
17,792
|
|
|
(17,175
|
)
|
|||||
Other (expense) and income, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Financial expenses
|
(104,048
|
)
|
|
(89,596
|
)
|
|
$
|
(20,770
|
)
|
|
(2,705
|
)
|
|
(8,512
|
)
|
||||
Realized gain on derivative financial instruments
|
—
|
|
|
55
|
|
|
17
|
|
|
3
|
|
|
443
|
|
|||||
Unrealized gain / (loss) on derivative financial instruments
|
1,371
|
|
|
(1,255
|
)
|
|
264
|
|
|
567
|
|
|
(1,231
|
)
|
|||||
Financial income
|
1,213
|
|
|
145
|
|
|
203
|
|
|
1,147
|
|
|
35
|
|
|||||
Share of income from associate
|
—
|
|
|
—
|
|
|
1,473
|
|
|
369
|
|
|
—
|
|
|||||
Other expenses, net
|
(188
|
)
|
|
1,316
|
|
|
(103
|
)
|
|
(158
|
)
|
|
(97
|
)
|
|||||
Total other expense, net
|
(101,652
|
)
|
|
(89,335
|
)
|
|
(18,916
|
)
|
|
(777
|
)
|
|
(9,362
|
)
|
|||||
Net (loss) / income
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
|
$
|
17,015
|
|
|
$
|
(26,537
|
)
|
(Loss) / earnings per common share:
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Basic (loss) / earnings per share
|
$
|
(0.15
|
)
|
|
$
|
1.35
|
|
|
$
|
0.30
|
|
|
$
|
0.12
|
|
|
$
|
(0.64
|
)
|
Diluted (loss) / earnings per share
|
$
|
(0.15
|
)
|
|
$
|
1.20
|
|
|
$
|
0.30
|
|
|
$
|
0.11
|
|
|
$
|
(0.64
|
)
|
Cash dividends declared per common share
|
$
|
0.500
|
|
|
$
|
0.495
|
|
|
$
|
0.390
|
|
|
$
|
0.130
|
|
|
—
|
|
|
Basic weighted average shares outstanding
|
161,118,654
|
|
|
161,436,449
|
|
|
171,851,061
|
|
|
146,504,055
|
|
|
41,413,339
|
|
|||||
Diluted weighted average shares outstanding
|
161,118,654
|
|
|
199,739,326
|
|
|
176,292,802
|
|
|
148,339,378
|
|
|
41,413,339
|
|
|
As of December 31,
|
||||||||||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
|
2013
|
|
2012
|
||||||||||
Balance sheet data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash and cash equivalents
|
$
|
99,887
|
|
|
$
|
200,970
|
|
|
$
|
116,143
|
|
|
$
|
78,845
|
|
|
$
|
87,165
|
|
Vessels and drydock
|
2,913,254
|
|
|
3,087,753
|
|
|
1,971,878
|
|
|
530,270
|
|
|
395,412
|
|
|||||
Vessels under construction
|
137,917
|
|
|
132,218
|
|
|
404,877
|
|
|
649,526
|
|
|
50,251
|
|
|||||
Total assets
|
3,230,187
|
|
|
3,523,455
|
|
|
2,804,643
|
|
|
1,646,676
|
|
|
573,280
|
|
|||||
Current and non-current debt
(2)
|
1,882,681
|
|
|
2,049,989
|
|
|
1,571,522
|
|
|
167,129
|
|
|
142,459
|
|
|||||
Shareholders’ equity
|
1,315,200
|
|
|
1,413,885
|
|
|
1,162,848
|
|
|
1,450,723
|
|
|
414,790
|
|
|
For the year ended December 31,
|
||||||||||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
|
2013
|
|
2012
|
||||||||||
Cash flow data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Net cash inflow/(outflow)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Operating activities
|
$
|
178,511
|
|
|
$
|
391,975
|
|
|
$
|
93,916
|
|
|
$
|
(5,655
|
)
|
|
$
|
(1,928
|
)
|
Investing activities
|
31,333
|
|
|
(703,418
|
)
|
|
(1,158,234
|
)
|
|
(935,101
|
)
|
|
(90,155
|
)
|
|||||
Financing activities
|
(310,927
|
)
|
|
396,270
|
|
|
1,101,616
|
|
|
932,436
|
|
|
142,415
|
|
(1)
|
Basic (loss) / earnings per share is calculated by dividing the net (loss) / income attributable to equity holders of the parent by the weighted average number of common shares outstanding. Diluted earnings per share is calculated by adjusting the net (loss) / income attributable to equity holders of the parent and the weighted average number of common shares used for calculating basic earnings per share for the effects of all potentially dilutive shares. Such potentially dilutive common shares are excluded when the effect would be to increase earnings per share or reduce a loss per share.
|
(2)
|
Current and non-current debt as of December 31, 2016, 2015, 2014, 2013 and 2012 is shown net of deferred financing fees of $37.4 million, $55.8 million, $47.1 million, $2.4 million and $3.5 million, respectively.
|
|
For the year ended December 31,
|
||||||||||||||||||
|
2016
|
|
2015
|
|
2014
|
|
2013
|
|
2012
|
||||||||||
Average Daily Results
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
TCE per day
(1)
|
$
|
15,783
|
|
|
$
|
23,163
|
|
|
$
|
15,935
|
|
|
$
|
14,369
|
|
|
$
|
12,960
|
|
Vessel operating costs per day
(2)
|
6,576
|
|
|
6,564
|
|
|
6,802
|
|
|
6,781
|
|
|
7,605
|
|
|||||
Aframax/LR2
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
TCE per revenue day
(1)
|
20,280
|
|
|
30,544
|
|
|
18,621
|
|
|
12,718
|
|
|
10,201
|
|
|||||
Vessel operating costs per day
(2)
|
6,734
|
|
|
6,865
|
|
|
6,789
|
|
|
8,203
|
|
|
8,436
|
|
|||||
LR1/Panamax
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
TCE per revenue day
(1)
|
17,277
|
|
|
21,804
|
|
|
16,857
|
|
|
12,599
|
|
|
14,264
|
|
|||||
Vessel operating costs per day
(2)(4)
|
—
|
|
|
8,440
|
|
|
8,332
|
|
|
7,756
|
|
|
7,714
|
|
|||||
MR
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
TCE per revenue day
(1)
|
14,898
|
|
|
21,803
|
|
|
15,297
|
|
|
16,546
|
|
|
12,289
|
|
|||||
Vessel operating costs per day
(2)
|
6,555
|
|
|
6,461
|
|
|
6,580
|
|
|
6,069
|
|
|
6,770
|
|
|||||
Handymax
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
TCE per revenue day
(1)
|
12,615
|
|
|
19,686
|
|
|
14,528
|
|
|
12,862
|
|
|
13,069
|
|
|||||
Vessel operating costs per day
(2)
|
6,404
|
|
|
6,473
|
|
|
6,704
|
|
|
6,852
|
|
|
7,594
|
|
|||||
Fleet data
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Average number of owned vessels
(3)
|
77.7
|
|
|
72.7
|
|
|
31.6
|
|
|
15.9
|
|
|
10.8
|
|
|||||
Average number of time chartered-in vessels
(3)
|
12.7
|
|
|
16.9
|
|
|
26.3
|
|
|
22.9
|
|
|
9.2
|
|
|||||
Drydock
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Expenditures for drydock (in thousands of U.S. dollars)
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,290
|
|
|
$
|
—
|
|
|
$
|
2,869
|
|
(1)
|
Freight rates are commonly measured in the shipping industry in terms of time charter equivalent, or TCE (a non-IFRS measure), per revenue day. Vessels in the pool and on time charter do not incur significant voyage expenses; therefore, the revenue for pool vessels and time charter vessels is approximately the same as their TCE revenue. Please see “Item 5. Operating and Financial Review and Prospects- Important Financial and Operational Terms and Concepts” for a discussion of TCE revenue, revenue days and voyage expenses and "Item 5. Operating and Financial Review and Prospects - A. Operating Results" for a reconciliation of TCE revenue to vessel revenue.
|
(2)
|
Vessel operating costs per day represent vessel operating costs, as such term is defined in “Item 5. Operating and Financial Review and Prospects-Important Financial and Operational Terms and Concepts,” divided by the number of days the vessel is owned during the period.
|
(3)
|
For a definition of items listed under “Fleet Data,” please see the section of this annual report entitled “Item 5. Operating and Financial Review and Prospects.”
|
(4)
|
We did not own or bareboat charter-in any LR1/Panamax vessels in 2016.
|
•
|
supply and demand for energy resources and oil and petroleum products;
|
•
|
regional availability of refining capacity and inventories;
|
•
|
global and regional economic and political conditions, including armed conflicts, terrorist activities, and strikes;
|
•
|
the distance over which oil and oil products are to be moved by sea;
|
•
|
changes in seaborne and other transportation patterns;
|
•
|
environmental and other legal and regulatory developments;
|
•
|
weather and natural disasters;
|
•
|
competition from alternative sources of energy; and
|
•
|
international sanctions, embargoes, import and export restrictions, nationalizations and wars.
|
•
|
supply and demand for energy resources and oil and petroleum products;
|
•
|
the number of newbuilding orders and deliveries, including slippage in deliveries;
|
•
|
the number of shipyards and ability of shipyards to deliver vessels;
|
•
|
the scrapping rate of older vessels;
|
•
|
conversion of tankers to other uses;
|
•
|
the number of product tankers trading crude or "dirty" oil products (such as fuel oil);
|
•
|
the number of vessels that are out of service, namely those that are laid up, drydocked, awaiting repairs
|
•
|
environmental concerns and regulations;
|
•
|
product imbalances (affecting the level of trading activity);
|
•
|
developments in international trade, including refinery additions and closures;
|
•
|
port or canal congestion; and
|
•
|
speed of vessel operation.
|
•
|
\
pay dividends and make capital expenditures if we do not repay amounts drawn under our debt facilities or if there is another default under our debt facilities;
|
•
|
incur additional indebtedness, including the issuance of guarantees;
|
•
|
create liens on our assets;
|
•
|
change the flag, class or management of our vessels or terminate or materially amend the management agreement relating to each vessel;
|
•
|
sell our vessels;
|
•
|
merge or consolidate with, or transfer all or substantially all our assets to, another person; or
|
•
|
enter into a new line of business.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
29.4
|
|
|
February 2017
|
|
STI Selatar
|
|
29.0
|
|
|
March 2017
|
|
STI Rambla
|
(1)
|
•
|
The first commercial tranche of $15.0 million has a final maturity of six years from the drawdown date of each vessel, bears interest at LIBOR plus a margin of 2.25% per annum, and has a 15 year repayment profile.
|
•
|
The second commercial tranche of $25.0 million has a final maturity of nine years from the drawdown date of each vessel (assuming KEXIM or GIEK have not exercised their option to call for prepayment of the KEXIM and GIEK funded and guaranteed tranches by the date falling two months prior to the maturity of the first commercial tranche and in the event that the first commercial tranche has not been extended), bears interest at LIBOR plus a margin of 2.25% per annum, and has a 15 year repayment profile.
|
•
|
The KEXIM Funded Tranche and GIEK Guaranteed Tranche have a final maturity of 12 years from the drawdown date of each vessel (assuming the commercial tranches are refinanced through that date), bear interest at LIBOR plus a margin of 2.15% per annum, and have a 12 year repayment profile.
|
•
|
The KEXIM Guaranteed Tranche has a final maturity of 12 years from the drawdown date of each vessel (assuming the commercial tranches are refinanced through that date), bears interest at LIBOR plus a margin of 1.60% per annum, and has a 12 year repayment profile.
|
Drawdown amount
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
||
$
|
13.8
|
|
|
January 2017
|
|
STI Sapphire
|
13.8
|
|
|
February 2017
|
|
STI Emerald
|
Drawdown amount
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
||
$
|
16.5
|
|
|
February 2017
|
|
STI Duchessa
|
14.6
|
|
|
February 2017
|
|
STI Onyx
|
|
Vessel Name
|
|
Year Built
|
|
DWT
|
|
Ice class
|
|
Employment
|
|
Vessel type
|
|
|
|
|
||||
|
Owned vessels
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
1
|
|
STI Brixton
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
2
|
|
STI Comandante
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
3
|
|
STI Pimlico
|
|
2014
|
|
38,734
|
|
|
1A
|
|
Time Charter (5)
|
|
Handymax
|
|
|
|
|
||
4
|
|
STI Hackney
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
5
|
|
STI Acton
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
6
|
|
STI Fulham
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
7
|
|
STI Camden
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
8
|
|
STI Battersea
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
9
|
|
STI Wembley
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
10
|
|
STI Finchley
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
11
|
|
STI Clapham
|
|
2014
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
12
|
|
STI Poplar
|
|
2014
|
|
38,734
|
|
|
1A
|
|
Time Charter (5)
|
|
Handymax
|
|
|
|
|
||
13
|
|
STI Hammersmith
|
|
2015
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
14
|
|
STI Rotherhithe
|
|
2015
|
|
38,734
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
|
|
|
|
||
15
|
|
STI Amber
|
|
2012
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
16
|
|
STI Topaz
|
|
2012
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
17
|
|
STI Ruby
|
|
2012
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
18
|
|
STI Garnet
|
|
2012
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
19
|
|
STI Onyx
|
|
2012
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
20
|
|
STI Sapphire
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
21
|
|
STI Emerald
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
22
|
|
STI Beryl
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
23
|
|
STI Le Rocher
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
24
|
|
STI Larvotto
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
25
|
|
STI Fontvieille
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
26
|
|
STI Ville
|
|
2013
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
27
|
|
STI Duchessa
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
28
|
|
STI Opera
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
29
|
|
STI Texas City
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
30
|
|
STI Meraux
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
31
|
|
STI San Antonio
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
32
|
|
STI Venere
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
33
|
|
STI Virtus
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
34
|
|
STI Aqua
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
35
|
|
STI Dama
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
36
|
|
STI Benicia
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
37
|
|
STI Regina
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
38
|
|
STI St. Charles
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
39
|
|
STI Mayfair
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
40
|
|
STI Yorkville
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
41
|
|
STI Milwaukee
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
42
|
|
STI Battery
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
43
|
|
STI Soho
|
|
2014
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
44
|
|
STI Memphis
|
|
2014
|
|
49,995
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
45
|
|
STI Tribeca
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
46
|
|
STI Gramercy
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
47
|
|
STI Bronx
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
48
|
|
STI Pontiac
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
49
|
|
STI Manhattan
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
50
|
|
STI Queens
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
51
|
|
STI Osceola
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
52
|
|
STI Notting Hill
|
|
2015
|
|
49,687
|
|
|
1B
|
|
Time Charter (6)
|
|
MR
|
|
|
|
|
||
53
|
|
STI Seneca
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
54
|
|
STI Westminster
|
|
2015
|
|
49,687
|
|
|
1B
|
|
Time Charter (6)
|
|
MR
|
|
|
|
|
||
55
|
|
STI Brooklyn
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
56
|
|
STI Black Hawk
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
|
|
|
|
||
57
|
|
STI Elysees
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
58
|
|
STI Madison
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
59
|
|
STI Park
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
60
|
|
STI Orchard
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
61
|
|
STI Sloane
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
62
|
|
STI Broadway
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
63
|
|
STI Condotti
|
|
2014
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
64
|
|
STI Rose
|
|
2015
|
|
109,999
|
|
|
—
|
|
Time Charter (7)
|
|
LR2
|
|
|
|
|
||
65
|
|
STI Veneto
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
66
|
|
STI Alexis
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
67
|
|
STI Winnie
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
68
|
|
STI Oxford
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
69
|
|
STI Lauren
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
70
|
|
STI Connaught
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
71
|
|
STI Spiga
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
72
|
|
STI Savile Row
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
73
|
|
STI Kingsway
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
74
|
|
STI Carnaby
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
75
|
|
STI Lombard
|
|
2015
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
76
|
|
STI Grace
|
|
2016
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
77
|
|
STI Jermyn
|
|
2016
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
78
|
|
STI Selatar
|
|
2017
|
|
109,999
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
Total owned DWT
|
|
|
|
5,061,233
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
Vessel Name
|
|
Year Built
|
|
DWT
|
|
Ice class
|
|
Employment
|
|
Vessel type
|
Daily Base Rate
|
|
Expiry (8)
|
|
||||
|
Time or bareboat chartered-in vessels
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
79
|
|
Kraslava
|
|
2007
|
|
37,258
|
|
|
1B
|
|
SHTP (1)
|
|
Handymax
|
$
|
17,000
|
|
|
13-May-18
|
(9)
|
80
|
|
Krisjanis Valdemars
|
|
2007
|
|
37,266
|
|
|
1B
|
|
SHTP (1)
|
|
Handymax
|
$
|
11,250
|
|
|
13-Mar-18
|
(10)
|
81
|
|
Silent
|
|
2007
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
7,500
|
|
|
31-Mar-19
|
(11)
|
82
|
|
Single
|
|
2007
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
7,500
|
|
|
31-Mar-19
|
(11)
|
83
|
|
Star I
|
|
2007
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
7,500
|
|
|
31-Mar-19
|
(11)
|
84
|
|
Sky
|
|
2007
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
6,000
|
|
|
31-Mar-19
|
(12)
|
85
|
|
Steel
|
|
2008
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
6,000
|
|
|
31-Mar-19
|
(12)
|
86
|
|
Stone I
|
|
2008
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
6,000
|
|
|
31-Mar-19
|
(12)
|
87
|
|
Style
|
|
2008
|
|
37,847
|
|
|
1A
|
|
SHTP (1)
|
|
Handymax
|
$
|
6,000
|
|
|
31-Mar-19
|
(12)
|
88
|
|
Miss Mariarosaria
|
|
2011
|
|
47,499
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
16,350
|
|
|
26-May-17
|
|
89
|
|
Vukovar
|
|
2015
|
|
49,990
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
17,034
|
|
|
01-May-18
|
|
90
|
|
Targale
|
|
2007
|
|
49,999
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
16,200
|
|
|
17-May-17
|
|
91
|
|
Zefyros
|
|
2013
|
|
49,999
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
15,800
|
|
|
08-Jul-17
|
(13)
|
92
|
|
Gan-Trust
|
|
2013
|
|
51,561
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
13,050
|
|
|
06-Jan-18
|
(14)
|
93
|
|
CPO New Zealand
|
|
2011
|
|
51,717
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
15,250
|
|
|
12-Sep-18
|
(15)
|
94
|
|
CPO Australia
|
|
2011
|
|
51,763
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
15,250
|
|
|
01-Sep-18
|
(15)
|
95
|
|
Ance
|
|
2006
|
|
52,622
|
|
|
—
|
|
SMRP(2)
|
|
MR
|
$
|
13,500
|
|
|
12-Oct-17
|
(16)
|
96
|
|
Hellespont Progress
|
|
2006
|
|
73,728
|
|
|
—
|
|
SPTP (3)
|
|
LR1
|
$
|
17,250
|
|
|
13-Apr-17
|
|
97
|
|
Densa Alligator
|
|
2013
|
|
105,708
|
|
|
—
|
|
SLR2P (4)
|
|
LR2
|
$
|
14,360
|
|
|
17-Aug-17
|
(17)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
Total time or bareboat chartered-in DWT
|
|
|
|
924,039
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
Newbuildings currently under construction
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Vessel Name
|
|
Yard
|
|
DWT
|
|
|
|
Vessel type
|
|
|
|
|
|
|
||||
98
|
|
Hull 2601 - TBN STI Galata
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
99
|
|
Hull 2602 - TBN STI Bosphorus
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
100
|
|
Hull 2603 - TBN STI Leblon
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
101
|
|
Hull 2604 - TBN STI La Boca
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
102
|
|
Hull 2605 - TBN STI San Telmo
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
103
|
|
Hull 2606 - TBN STI Donald C Trauscht
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
104
|
|
Hull 2607 - TBN STI Esles II
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
105
|
|
Hull 2608 - TBN STI Jardins
|
|
HMD
|
(18)
|
52,000
|
|
|
|
|
MR
|
|
|
|
|
|
|
||
106
|
|
Hull S3121 - TBN STI Rambla
|
|
SSME
|
(19)
|
109,999
|
|
|
|
|
LR2
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
Total newbuilding product tankers DWT
|
|
525,999
|
|
|
|
|
|
|
|
|
|
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
Total Fleet DWT
|
|
|
|
6,511,271
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
This vessel operates in or is expected to operate in the Scorpio Handymax Tanker Pool (SHTP). SHTP is operated by Scorpio Commercial Management (SCM). SHTP and SCM are related parties to the Company.
|
(2)
|
This vessel operates in or is expected to operate in the Scorpio MR Pool (SMRP). SMRP is operated by SCM. SMRP is a related party to the Company.
|
(3)
|
This vessel operates in or is expected to operate in the Scorpio Panamax Tanker Pool (SPTP). SPTP is operated by SCM. SPTP is a related party to the Company.
|
(4)
|
This vessel operates in or is expected to operate in the Scorpio LR2 Pool (SLR2P). SLR2P is operated by SCM. SLR2P is a related party to the Company
|
(5)
|
This vessel is currently time chartered-out to an unrelated third-party for three years at $18,000 per day. This time charter is scheduled to expire in January 2019.
|
(6)
|
This vessel is currently time chartered-out to an unrelated third-party for three years at $20,500 per day. This time charter is scheduled to expire in December 2018.
|
(7)
|
This vessel is currently time chartered-out to an unrelated third-party for three years at $28,000 per day. This time charter is scheduled to expire in February 2019.
|
(8)
|
Redelivery from the charterer is plus or minus 30 days from the expiry date.
|
(9)
|
In February 2017, we entered into a new charter agreement for one year at $11,250 per day effective May 2017. We have an option to extend the charter for an additional year at $13,250 per day.
|
(10)
|
In February 2017, we entered into a new charter agreement for one year at $11,250 per day effective March 2017. We have an option to extend the charter for an additional year at $13,250 per day.
|
(11)
|
In December 2016, we entered into an agreement to bareboat-in this vessel, which was previously time chartered-in by the Company for $15,600 per day. The time charter-in contract was cancelled in January 2017 and replaced by the new bareboat contract at a rate of $7,500 per day. The agreement includes a purchase option which can be exercised through December 31, 2018. If the purchase option is not exercised, the bareboat-in agreement will expire on March 31, 2019.
|
(12)
|
In December 2016, we entered into an agreement to bareboat-in this vessel at a rate of $6,000 per day. The agreement includes a purchase option which can be exercised through December 31, 2018. If the purchase option is not exercised, the bareboat-in agreement will expire on March 31, 2019.
|
(13)
|
We have an option to extend the charter for an additional year at $17,000 per day.
|
(14)
|
In November 2016, we entered into a new charter agreement for one year at $13,050 per day effective January 2017. We have an option to extend the charter for an additional year at $15,000 per day.
|
(15)
|
We have an option to extend the charter for an additional year at $16,000 per day.
|
(16)
|
We have an option to extend the charter for an additional year at $15,000 per day.
|
(17)
|
In February 2017, we entered into a new charter agreement for six months at $14,360 per day. We have an option to extend the charter for an additional six months at $15,385 per day.
|
(18)
|
These newbuilding vessels are being constructed at HMD (Hyundai Mipo Dockyard Co. Ltd. of South Korea). Seven vessels are expected to be delivered throughout the remainder of 2017 and one vessel is expected to be delivered in the first quarter of 2018.
|
(19)
|
This newbuilding vessel was constructed at SSME (Sungdong Shipbuilding & Marine Engineering Co., Ltd) and is expected to be delivered before the end of March 2017.
|
|
|
Crude Oil
|
|
Products
|
|
Veg Oils/
Chemicals
|
|
Total
|
||||||||||||
Year
|
|
Mill T
|
|
% Y-o-Y
|
|
|
Mill T
|
|
% Y-o-Y
|
|
|
Mill T
|
|
% Y-o-Y
|
|
Mill T
|
|
% Y-o-Y
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
2001
|
|
1,751
|
|
3.2
|
%
|
|
518
|
|
3.0
|
%
|
|
121
|
|
3.5
|
%
|
|
2,390
|
|
3.2
|
%
|
2002
|
|
1,756
|
|
0.3
|
%
|
|
519
|
|
0.3
|
%
|
|
129
|
|
6.6
|
%
|
|
2,404
|
|
0.6
|
%
|
2003
|
|
1,860
|
|
5.9
|
%
|
|
550
|
|
6.0
|
%
|
|
136
|
|
4.9
|
%
|
|
2,545
|
|
5.9
|
%
|
2004
|
|
1,963
|
|
5.6
|
%
|
|
599
|
|
8.8
|
%
|
|
146
|
|
7.2
|
%
|
|
2,707
|
|
6.4
|
%
|
2005
|
|
1,994
|
|
1.6
|
%
|
|
646
|
|
8.0
|
%
|
|
161
|
|
10.3
|
%
|
|
2,801
|
|
3.5
|
%
|
2006
|
|
1,996
|
|
0.1
|
%
|
|
677
|
|
4.7
|
%
|
|
171
|
|
6.3
|
%
|
|
2,844
|
|
1.5
|
%
|
2007
|
|
2,008
|
|
0.6
|
%
|
|
723
|
|
6.8
|
%
|
|
175
|
|
2.8
|
%
|
|
2,907
|
|
2.2
|
%
|
2008
|
|
2,014
|
|
0.3
|
%
|
|
765
|
|
5.8
|
%
|
|
178
|
|
1.5
|
%
|
|
2,956
|
|
1.7
|
%
|
2009
|
|
1,928
|
|
(4.2
|
)%
|
|
777
|
|
1.6
|
%
|
|
184
|
|
3.2
|
%
|
|
2,888
|
|
(2.3
|
)%
|
2010
|
|
1,997
|
|
3.6
|
%
|
|
810
|
|
4.2
|
%
|
|
196
|
|
6.4
|
%
|
|
3,002
|
|
3.9
|
%
|
2011
|
|
1,941
|
|
(2.8
|
)%
|
|
860
|
|
6.3
|
%
|
|
205
|
|
4.9
|
%
|
|
3,007
|
|
0.1
|
%
|
2012
|
|
1,988
|
|
2.4
|
%
|
|
859
|
|
(0.2
|
)%
|
|
210
|
|
2.5
|
%
|
|
3,057
|
|
1.7
|
%
|
2013
|
|
1,918
|
|
(3.5
|
)%
|
|
904
|
|
5.3
|
%
|
|
217
|
|
3.3
|
%
|
|
3,040
|
|
(0.6
|
)%
|
2014
|
|
1,895
|
|
(1.2
|
)%
|
|
912
|
|
0.8
|
%
|
|
221
|
|
1.6
|
%
|
|
3,027
|
|
(0.4
|
)%
|
2015
|
|
1,957
|
|
3.3
|
%
|
|
953
|
|
4.5
|
%
|
|
231
|
|
4.8
|
%
|
|
3,142
|
|
3.8
|
%
|
2016 *
|
|
2,016
|
|
3.0
|
%
|
|
987
|
|
3.6
|
%
|
|
229
|
|
(0.8
|
)%
|
|
3,233
|
|
2.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
CAGR (2011-2016)
|
0.8%
|
|
|
|
2.8%
|
|
|
|
2.3%
|
|
|
|
1.5%
|
|
|
|||||
CAGR (2006-2016)
|
0.1%
|
|
|
|
3.8%
|
|
|
|
3.0%
|
|
|
|
1.3%
|
|
|
Vessel Type
|
Deadweight Tons
|
Number of
|
% of Fleet
|
Capacity
|
% of Fleet
|
|
(Dwt)
|
Vessels
|
|
(m Dwt )
|
|
|
|
|
|
|
|
Crude Tankers (1)
|
|
|
|
|
|
VLCC/ULCC
|
200,000+
|
712
|
35.1
|
218.9
|
58.1
|
Suezmax
|
120-199,999
|
517
|
25.5
|
80.3
|
21.3
|
Aframax
|
80-119,999
|
649
|
32.0
|
70.0
|
18.6
|
Panamax
|
55-79,999
|
87
|
4.3
|
6.0
|
1.6
|
Handymax
|
40-54,999
|
17
|
0.8
|
0.8
|
0.2
|
Handy
|
25-39,999
|
12
|
0.6
|
0.4
|
0.1
|
Handy
|
10-24,999
|
36
|
1.8
|
0.6
|
0.2
|
Total Fleet
|
|
2,030
|
100.0
|
377.0
|
100.0
|
|
|
|
|
|
|
Product Tankers
|
|
|
|
|
|
Long Range 3 (LR3)
|
120-199,999
|
16
|
1.2
|
2.5
|
2.9
|
Long Range 2 (LR2)
|
80,000-119,999
|
319
|
23.8
|
34.5
|
40.0
|
Long Range 1 (LR1)
|
55-79,999
|
318
|
23.8
|
23.3
|
27.0
|
Medium Range 2 (MR2)
|
40-54,999
|
429
|
32.1
|
20.1
|
23.3
|
Medium Range 1 (MR1)
|
25-39,999
|
114
|
8.5
|
3.9
|
4.5
|
Handy
|
10-24,999
|
142
|
10.6
|
2.0
|
2.3
|
Total Fleet
|
|
1,338
|
100.0
|
86.3
|
100.0
|
|
|
|
|
|
|
Product/Chemical Tankers (2)
|
|
|
|
|
|
Long Range 3 (LR3)
|
120-199,999
|
—
|
—
|
—
|
—
|
Long Range 2 (LR2)
|
80,000-119,999
|
3
|
0.2
|
—
|
—
|
Long Range 1 (LR1)
|
55-79,999
|
25
|
1.8
|
1.8
|
2.9
|
Medium Range 2 (MR2)
|
40-54,999
|
1,004
|
72.4
|
48.5
|
77.4
|
Medium Range 1 (MR1)
|
25-39,999
|
315
|
22.7
|
11.7
|
18.7
|
Handy
|
10-24,999
|
39
|
2.8
|
0.6
|
1.0
|
Total Fleet
|
|
1,386
|
100.0
|
62.6
|
100.0
|
|
|
|
|
|
|
Product & Product/Chemical Fleet
|
|
|
|
|
|
Long Range 3 (LR3)
|
120-199,999
|
16
|
0.6
|
2.5
|
1.7
|
Long Range 2 (LR2)
|
80,000-119,999
|
322
|
11.8
|
34.5
|
23.2
|
Long Range 1 (LR1)
|
55-79,999
|
343
|
12.6
|
25.1
|
16.9
|
Medium Range 2 (MR2)
|
40-54,999
|
1,433
|
52.6
|
68.6
|
46.1
|
Medium Range 1 (MR1)
|
25-39,999
|
429
|
15.7
|
15.6
|
10.5
|
Handy
|
10-24,999
|
181
|
6.6
|
2.6
|
1.7
|
Total Fleet
|
|
2,724
|
100.0
|
148.9
|
100.0
|
|
|
|
|
|
|
Crude, Product and Product/Chemical Tanker Fleet
|
|
|
|
||
VLCC/ULCC
|
200,000+
|
712
|
15.0
|
218.9
|
41.6
|
Suezmax/LR3
|
120-199,999
|
533
|
11.2
|
82.8
|
15.7
|
Aframax/LR2
|
80-119,999
|
971
|
20.4
|
104.5
|
19.9
|
Panamax/LR1
|
55-79,999
|
430
|
9.0
|
31.1
|
5.9
|
Handy/Medium Range
|
40-54,999
|
1450
|
30.5
|
69.4
|
13.2
|
Handy/Medium Range
|
25-39,999
|
441
|
9.3
|
16.0
|
3.0
|
Handy/Handymax
|
10-54,999
|
217
|
4.6
|
3.2
|
0.6
|
Total Fleet
|
|
4,754
|
100.0
|
525.9
|
100.0
|
(1)
|
Included shuttle tankers and tankers on storage duties
|
(2)
|
Includes product and product/chemical tankers, excludes chemical tankers
|
Vessel Type
|
|
Existing
|
Fleet
|
|
Orderbook
|
|
Orderbook % Fleet
|
2017
|
2018
|
2019
|
2020+
|
||||||
|
(Dwt)
|
No
|
M Dwt
|
|
No
|
M Dwt
|
|
No
|
Dwt
|
No
|
M Dwt
|
No
|
M Dwt
|
No
|
M Dwt
|
No
|
M Dwt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Crude Tankers (1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VLCC/ULCC
|
200,000+
|
712
|
218.9
|
|
86.0
|
26.6
|
|
12.1
|
12.2
|
36.0
|
11.0
|
47.0
|
14.6
|
3.0
|
1.0
|
—
|
—
|
Suezmax
|
120-199,999
|
517
|
80.3
|
|
79.0
|
12.4
|
|
15.3
|
15.4
|
60.0
|
9.4
|
19.0
|
3.0
|
—
|
—
|
—
|
—
|
Aframax
|
80-119,999
|
649
|
70.0
|
|
89.0
|
10.1
|
|
13.7
|
14.4
|
38.0
|
4.3
|
38.0
|
4.3
|
9.0
|
1.0
|
4.0
|
0.5
|
Panamax
|
55-79,999
|
87
|
6.0
|
|
6.0
|
0.4
|
|
6.9
|
6.7
|
6.0
|
0.4
|
—
|
—
|
—
|
—
|
—
|
—
|
Handymax
|
40-54,999
|
17
|
0.8
|
|
2.0
|
0.1
|
|
11.8
|
12.5
|
2.0
|
0.1
|
—
|
—
|
—
|
—
|
—
|
—
|
Handy
|
25-39,999
|
12
|
0.4
|
|
—
|
—
|
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Handy
|
10-24,999
|
36
|
0.6
|
|
4.0
|
0.1
|
|
11.1
|
16.7
|
4.0
|
0.1
|
—
|
—
|
—
|
—
|
—
|
—
|
Total Fleet
|
|
2,030
|
377.0
|
|
266.0
|
49.7
|
|
13.1
|
13.2
|
146.0
|
25.3
|
104.0
|
21.9
|
12.0
|
2.0
|
4.0
|
0.5
|
Product Tankers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long Range 3 (LR3)
|
120-199,999
|
16
|
2.5
|
|
4.0
|
0.6
|
|
25.0
|
24.0
|
2.0
|
0.3
|
2.0
|
0.3
|
—
|
—
|
—
|
—
|
Long Range 2 (LR2)
|
80,000-119,999
|
319
|
34.5
|
|
46.0
|
5.2
|
|
14.4
|
15.1
|
29.0
|
3.2
|
11.0
|
1.3
|
6.0
|
0.7
|
—
|
—
|
Long Range 1 (LR1)
|
55-79,999
|
318
|
23.3
|
|
42.0
|
3.1
|
|
13.2
|
13.3
|
25.0
|
1.8
|
14.0
|
1.0
|
1.0
|
0.1
|
2.0
|
0.2
|
Medium Range 2 (MR2)
|
40-54,999
|
429
|
20.1
|
|
38.0
|
1.9
|
|
8.9
|
9.5
|
4.0
|
0.2
|
9.0
|
0.4
|
18.0
|
0.9
|
7.0
|
0.4
|
Medium Range 1 (MR1)
|
25-39,999
|
114
|
3.9
|
|
—
|
—
|
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Handy
|
10-24,999
|
142
|
2.0
|
|
8.0
|
0.2
|
|
5.6
|
10.0
|
5.0
|
0.1
|
3.0
|
0.1
|
—
|
—
|
—
|
—
|
Total Fleet
|
|
1,338
|
86.3
|
|
138.0
|
11.0
|
|
10.3
|
12.7
|
65.0
|
5.6
|
39.0
|
3.1
|
25.0
|
1.7
|
9.0
|
0.6
|
Product/Chemical Tankers (2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long Range 3 (LR3)
|
120-199,999
|
—
|
—
|
|
—
|
—
|
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Long Range 2 (LR2)
|
80,000-119,999
|
3
|
—
|
|
—
|
—
|
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Long Range 1 (LR1)
|
55-79,999
|
25
|
1.8
|
|
—
|
—
|
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Year
|
Caribs
|
NW Europe
|
West Africa
|
AG
|
|
USAC
|
NW Europe
|
Caribs/USES
|
Japan
|
|
40-70,000 DWT
|
70-100,000 DWT
|
150-160,000 DWT
|
280-300,000 DWT
|
|
|
|
|
|
2001
|
26,300
|
35,308
|
31,992
|
36,891
|
2002
|
16,567
|
22,800
|
19,325
|
21,667
|
2003
|
28,833
|
41,883
|
37,367
|
49,342
|
2004
|
42,158
|
55,408
|
64,792
|
95,258
|
2005
|
34,933
|
57,517
|
40,883
|
59,125
|
2006
|
28,792
|
47,067
|
40,142
|
51,142
|
2007
|
30,100
|
41,975
|
35,392
|
45,475
|
2008
|
36,992
|
56,408
|
52,650
|
89,300
|
2009
|
13,450
|
19,883
|
20,242
|
29,483
|
2010
|
17,950
|
27,825
|
19,658
|
40,408
|
2011
|
5,558
|
12,183
|
12,508
|
10,100
|
2012
|
9,042
|
10,617
|
13,825
|
12,775
|
2013
|
10,417
|
12,908
|
12,900
|
12,325
|
2014
|
18,217
|
33,075
|
21,200
|
24,892
|
2015
|
28,533
|
44,567
|
40,942
|
68,600
|
2016
|
16,633
|
32,875
|
23,433
|
41,792
|
Feb-17
|
14,500
|
38,200
|
11,300
|
28,500
|
•
|
Increased trade due to higher stocking activity and improved demand for oil products
|
•
|
Longer voyage distances because of refining capacity additions in Asia
|
•
|
Product tankers also carrying crude encouraged by firm freight rates for dirty tankers
|
•
|
Lower bunker prices contributing to higher net earnings
|
Year End
|
30,000
|
50,000
|
75,000
|
110,000
|
160,000
|
300,000
|
|
DWT
|
DWT
|
DWT
|
DWT
|
DWT
|
DWT
|
|
|
|
|
|
|
|
2001
|
25.0
|
27.0
|
33.5
|
38.0
|
47.0
|
72.0
|
2002
|
24.5
|
26.5
|
31.0
|
36.0
|
44.0
|
66.0
|
2003
|
28.5
|
30.5
|
34.5
|
40.0
|
52.0
|
73.0
|
2004
|
34.0
|
39.0
|
41.0
|
57.0
|
68.0
|
105.0
|
2005
|
37.5
|
42.0
|
43.0
|
59.0
|
71.0
|
120.0
|
2006
|
40.5
|
47.5
|
50.0
|
65.0
|
78.0
|
128.0
|
2007
|
46.0
|
54.0
|
64.0
|
78.0
|
90.0
|
146.0
|
2008
|
40.0
|
46.5
|
57.0
|
71.5
|
87.0
|
142.0
|
2009
|
31.0
|
36.0
|
42.5
|
52.0
|
62.0
|
101.0
|
2010
|
33.0
|
36.0
|
46.0
|
57.0
|
67.0
|
105.0
|
2011
|
31.5
|
36.0
|
44.0
|
52.8
|
61.7
|
99.0
|
2012
|
30.0
|
33.0
|
42.0
|
48.0
|
56.5
|
92.0
|
2013
|
31.0
|
35.0
|
43.0
|
51.5
|
59.0
|
93.5
|
2014
|
33.0
|
37.0
|
45.5
|
54.0
|
65.0
|
97.0
|
2015
|
32.0
|
35.5
|
45.0
|
51.5
|
63.0
|
94.0
|
2016
|
24.0
|
32.0
|
39.0
|
45.0
|
54.0
|
83.0
|
Feb-17
|
21.0
|
32.0
|
39.0
|
43.0
|
55.0
|
81.0
|
|
|
|
|
|
|
|
Long-term average
|
32.6
|
37.1
|
43.8
|
53.5
|
64.1
|
101.0
|
Year End
|
30,000
|
45,000
|
75,000
|
95,000
|
150,000
|
300,000
|
|
DWT
|
DWT
|
DWT
|
DWT
|
DWT
|
DWT
|
Age
|
5 Yrs
|
5 Yrs
|
5 Yrs
|
5 Yrs
|
5 Yrs
|
5 Yrs
|
2001
|
25.0
|
25.0
|
25.5
|
34.5
|
41.5
|
63.0
|
2002
|
21.5
|
21.5
|
21.0
|
29.5
|
39.0
|
55.0
|
2003
|
29.5
|
29.5
|
24.0
|
37.0
|
47.0
|
70.0
|
2004
|
42.0
|
42.0
|
38.0
|
57.0
|
73.0
|
112.0
|
2005
|
40.0
|
45.5
|
46.5
|
58.0
|
75.0
|
110.0
|
2006
|
42.0
|
47.5
|
48.0
|
63.0
|
77.0
|
115.0
|
2007
|
40.5
|
52.0
|
59.0
|
68.5
|
87.0
|
130.0
|
2008
|
36.5
|
42.0
|
46.0
|
55.0
|
77.0
|
110.0
|
2009
|
20.5
|
24.0
|
32.5
|
38.0
|
53.0
|
77.5
|
2010
|
21.5
|
24.0
|
35.0
|
42.0
|
58.0
|
85.5
|
2011
|
22.5
|
27.0
|
32.0
|
33.5
|
45.5
|
58.0
|
2012
|
20.0
|
24.0
|
25.0
|
27.5
|
40.0
|
57.0
|
2013
|
25.0
|
29.0
|
31.0
|
33.0
|
42.0
|
60.0
|
2014
|
20.0
|
24.0
|
33.5
|
42.0
|
57.0
|
76.0
|
2015
|
23.0
|
27.0
|
36.0
|
46.0
|
60.0
|
80.0
|
2016
|
15.0
|
22.0
|
28.0
|
30.0
|
42.0
|
60.0
|
Feb-21
|
15.0
|
22.0
|
28.0
|
29.0
|
40.0
|
60.0
|
|
|
|
|
|
|
|
Long-term average
|
27.8
|
31.6
|
35.1
|
43.4
|
57.1
|
82.4
|
•
|
injury to, destruction or loss of, or loss of use of, natural resources and related assessment costs;
|
•
|
injury to, or economic losses resulting from, the destruction of real and personal property;
|
•
|
net loss of taxes, royalties, rents, fees or net profits resulting from injury, destruction or loss of real or personal property, or natural resources;
|
•
|
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
•
|
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources; and
|
•
|
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, such as protection from fire, safety or health hazards, and loss of subsistence use of natural resources.
|
•
|
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped ships and shore stations, including information on a ship’s identity, position, course, speed and navigational status;
|
•
|
on-board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on shore;
|
•
|
the development of vessel security plans;
|
•
|
ship identification number to be permanently marked on a vessel’s hull;
|
•
|
a continuous synopsis record kept onboard showing a vessel’s history, including the name of the ship, the state whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ship’s identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address; and
|
•
|
compliance with flag state security certification requirements.
|
•
|
Annual Surveys.
For seagoing ships, annual surveys are conducted for the hull and the machinery, including the electrical plant, and where applicable for special equipment classed, within three months before or after each anniversary date of the date of commencement of the class period indicated in the certificate.
|
•
|
Intermediate Surveys.
Extended annual surveys are referred to as intermediate surveys and typically are conducted two and one-half years after commissioning and each class renewal. Intermediate surveys are to be carried out at or between the occasion of the second or third annual survey.
|
•
|
Class Renewal Surveys.
Class renewal surveys, also known as special surveys, are carried out for the ship’s hull, machinery, including the electrical plant, and for any special equipment classed, at the intervals indicated by the character of classification for the hull. At the special survey, the vessel is thoroughly examined, including audio-gauging to determine the thickness of the steel structures. Should the thickness be found to be less than class requirements, the classification society would prescribe steel renewals. The classification society may grant a one-year grace period for completion of the special survey. Substantial amounts of money may have to be spent for steel renewals to pass a special survey if the vessel experiences excessive wear and tear. In lieu of the special survey every four or five years, depending on whether a grace period was granted, a vessel owner has the option of arranging with the classification society for the vessel’s hull or machinery to be on a continuous survey cycle, in which every part of the vessel would be surveyed within a five-year cycle.
|
•
|
Voyage charters
, which are charters for short intervals that are priced on current, or “spot,” market rates.
|
•
|
Time charters
, which are chartered to customers for a fixed period of time at rates that are generally fixed, but may contain a variable component based on inflation, interest rates, or current market rates.
|
•
|
Commercial Pools
, whereby we participate with other shipowners to operate a large number of vessels as an integrated transportation system, which offers customers greater flexibility and a higher level of service while achieving scheduling efficiencies. Pools negotiate charters primarily in the spot market, but may also arrange time charter agreements. The size and scope of these pools enable them to enhance utilization rates for pool vessels by securing backhaul voyages and COAs (described below), thus generating higher effective TCE revenues than otherwise might be obtainable in the spot market.
|
•
|
For all types of vessels in contractual relationships, we are responsible for crewing and other vessel operating costs for our owned vessels and the charterhire expense for vessels that we time charter-in.
|
|
Voyage Charter
|
|
Time Charter
|
|
Commercial Pool
|
Typical contract length
|
Single voyage
|
|
One year or more
|
|
Varies
|
Hire rate basis
(1)
|
Varies
|
|
Daily
|
|
Varies
|
Voyage expenses
(2)
|
We pay
|
|
Customer pays
|
|
Pool pays
|
Vessel operating costs for owned vessels or bareboat chartered-in
(3)
|
We pay
|
|
We pay
|
|
We pay
|
Charterhire expense for vessels time or bareboat chartered-in
(3)
|
We pay
|
|
We pay
|
|
We pay
|
Off-hire
(4)
|
Customer does not pay
|
|
Customer does not pay
|
|
Pool does not pay
|
(1)
|
“Hire rate”
refers to the basic payment from the charterer for the use of the vessel.
|
(2)
|
“Voyage expenses”
refers to expenses incurred due to a vessel’s traveling from a loading port to a discharging port, such as fuel (bunker) cost, port expenses, agent’s fees, canal dues and extra war risk insurance, as well as commissions.
|
(3)
|
“Vessel operating costs”
and
"Charterhire expens
e
"
are
defined below under “—Important Financial and Operational Terms and Concepts.”
|
(4)
|
“Off-hire”
refers to the time a vessel is not available for service due primarily to scheduled and unscheduled repairs or drydockings. For time chartered-in vessels, we do not pay the charterhire expense when the vessel is off-hire.
|
•
|
charges related to the depreciation of the historical cost of our owned vessels (less an estimated residual value) over the estimated useful lives of the vessels; and
|
•
|
charges related to the amortization of drydocking expenditures over the estimated number of years to the next scheduled drydocking.
|
•
|
global and regional economic and political conditions;
|
•
|
increases and decreases in production of and demand for crude oil and petroleum products;
|
•
|
increases and decreases in OPEC oil production quotas;
|
•
|
the distance crude oil and petroleum products need to be transported by sea; and
|
•
|
developments in international trade and changes in seaborne and other transportation patterns.
|
•
|
All of our 77 owned vessels had fair values less costs to sell less than their carrying amount. We prepared a value in use calculation for each these vessels which resulted in no impairment being recognized.
|
•
|
We did not obtain independent broker valuations for our ten vessels under construction. To assess their carrying values for impairment, we prepared value in use calculations which resulted in no impairment being recognized.
|
•
|
50 vessels had fair values less costs to sell in excess of their carrying amount.
|
•
|
30 vessels had fair values less costs to sell less than their carrying amount. We prepared a value in use calculation for each these vessels which resulted in no impairment being recognized.
|
•
|
We did not obtain independent broker valuations for our 12 vessels under construction. To assess their carrying values for impairment, we prepared value in use calculations which resulted in no impairment being recognized.
|
•
|
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
•
|
news and industry reports of similar vessel sales;
|
•
|
news and industry reports of sales of vessels that are not similar to our vessels where we have made certain adjustments in an attempt to derive information that can be used as part of our estimates;
|
•
|
approximate market values for our vessels or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally disseminated;
|
•
|
offers that we may have received from potential purchasers of our vessels; and
|
•
|
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and observers.
|
|
|
|
|
Carrying value as of,
|
|
|||||||
|
Vessel Name
|
Year Built
|
|
December 31, 2016
|
|
December 31, 2015
|
|
|||||
1
|
|
STI Amber
|
2012
|
|
32.5
|
|
(1)
|
34.0
|
|
|
||
2
|
|
STI Topaz
|
2012
|
|
32.6
|
|
(1)
|
34.1
|
|
|
||
3
|
|
STI Ruby
|
2012
|
|
32.7
|
|
(1)
|
34.2
|
|
|
||
4
|
|
STI Garnet
|
2012
|
|
32.7
|
|
(1)
|
34.3
|
|
|
||
5
|
|
STI Onyx
|
2012
|
|
32.7
|
|
(1)
|
34.3
|
|
|
||
6
|
|
STI Sapphire
|
2013
|
|
32.6
|
|
(1)
|
34.1
|
|
|
||
7
|
|
STI Emerald
|
2013
|
|
32.5
|
|
(1)
|
34.0
|
|
|
||
8
|
|
STI Beryl
|
2013
|
|
31.7
|
|
(1)
|
33.2
|
|
|
||
9
|
|
STI Le Rocher
|
2013
|
|
32.2
|
|
(1)
|
33.7
|
|
|
||
10
|
|
STI Larvotto
|
2013
|
|
32.2
|
|
(1)
|
33.7
|
|
|
||
11
|
|
STI Fontvieille
|
2013
|
|
32.3
|
|
(1)
|
33.7
|
|
|
||
12
|
|
STI Ville
|
2013
|
|
32.5
|
|
(1)
|
34.0
|
|
|
||
13
|
|
STI Duchessa
|
2014
|
|
30.8
|
|
(1)
|
32.2
|
|
|
||
14
|
|
STI Wembley
|
2014
|
|
30.2
|
|
(1)
|
31.5
|
|
|
||
15
|
|
STI Opera
|
2014
|
|
30.6
|
|
(1)
|
32.0
|
|
|
||
16
|
|
STI Texas City
|
2014
|
|
34.9
|
|
(1)
|
36.4
|
|
|
||
17
|
|
STI Meraux
|
2014
|
|
35.3
|
|
(1)
|
36.8
|
|
|
||
18
|
|
STI San Antonio
|
2014
|
|
35.3
|
|
(1)
|
36.9
|
|
|
||
19
|
|
STI Venere
|
2014
|
|
30.7
|
|
(1)
|
32.0
|
|
|
||
20
|
|
STI Virtus
|
2014
|
|
30.8
|
|
(1)
|
32.1
|
|
|
||
21
|
|
STI Aqua
|
2014
|
|
31.0
|
|
(1)
|
32.3
|
|
|
||
22
|
|
STI Dama
|
2014
|
|
31.0
|
|
(1)
|
32.3
|
|
|
||
23
|
|
STI Mythos
|
2014
|
|
N/A
|
|
(3)
|
32.0
|
|
|
||
24
|
|
STI Benicia
|
2014
|
|
36.2
|
|
(1)
|
37.7
|
|
|
||
25
|
|
STI Regina
|
2014
|
|
31.2
|
|
(1)
|
32.5
|
|
|
||
26
|
|
STI St. Charles
|
2014
|
|
34.8
|
|
(1)
|
36.3
|
|
|
||
27
|
|
STI Yorkville
|
2014
|
|
31.6
|
|
(1)
|
32.9
|
|
|
||
28
|
|
STI Milwaukee
|
2014
|
|
37.3
|
|
(1)
|
38.9
|
|
|
||
29
|
|
STI Battery
|
2014
|
|
31.8
|
|
(1)
|
33.1
|
|
|
||
30
|
|
STI Brixton
|
2014
|
|
29.6
|
|
(1)
|
30.9
|
|
|
||
31
|
|
STI Comandante
|
2014
|
|
29.5
|
|
(1)
|
30.7
|
|
|
||
32
|
|
STI Pimlico
|
2014
|
|
29.7
|
|
(1)
|
31.0
|
|
|
||
33
|
|
STI Hackney
|
2014
|
|
29.6
|
|
(1)
|
30.9
|
|
|
||
34
|
|
STI Acton
|
2014
|
|
30.2
|
|
(1)
|
31.5
|
|
|
||
35
|
|
STI Fulham
|
2014
|
|
30.0
|
|
(1)
|
31.2
|
|
|
||
36
|
|
STI Camden
|
2014
|
|
29.8
|
|
(1)
|
31.1
|
|
|
||
37
|
|
STI Finchley
|
2014
|
|
30.1
|
|
(1)
|
31.4
|
|
|
||
38
|
|
STI Clapham
|
2014
|
|
30.4
|
|
(1)
|
31.7
|
|
|
||
39
|
|
STI Poplar
|
2014
|
|
30.4
|
|
(1)
|
31.7
|
|
|
||
40
|
|
STI Elysees
|
2014
|
|
48.1
|
|
(1)
|
50.1
|
|
|
||
41
|
|
STI Madison
|
2014
|
|
48.5
|
|
(1)
|
50.4
|
|
|
42
|
|
STI Park
|
2014
|
|
48.5
|
|
(1)
|
50.4
|
|
|
||
43
|
|
STI Orchard
|
2014
|
|
48.1
|
|
(1)
|
50.0
|
|
|
||
44
|
|
STI Sloane
|
2014
|
|
49.0
|
|
(1)
|
50.9
|
|
|
||
45
|
|
STI Broadway
|
2014
|
|
48.0
|
|
(1)
|
49.9
|
|
|
||
46
|
|
STI Condotti
|
2014
|
|
49.0
|
|
(1)
|
50.9
|
|
|
||
47
|
|
STI Battersea
|
2014
|
|
30.0
|
|
(1)
|
31.2
|
|
|
||
48
|
|
STI Chelsea
|
2014
|
|
N/A
|
|
(3)
|
32.2
|
|
|
||
49
|
|
STI Lexington
|
2014
|
|
N/A
|
|
(3)
|
32.2
|
|
|
||
50
|
|
STI Memphis
|
2014
|
|
35.6
|
|
(1)
|
37.1
|
|
|
||
51
|
|
STI Powai
|
2014
|
|
N/A
|
|
(3)
|
32.2
|
|
|
||
52
|
|
STI Mayfair
|
2014
|
|
32.1
|
|
(1)
|
33.5
|
|
|
||
53
|
|
STI Soho
|
2014
|
|
31.7
|
|
(1)
|
33.0
|
|
|
||
54
|
|
STI Olivia
|
2014
|
|
N/A
|
|
(3)
|
32.3
|
|
|
||
55
|
|
STI Tribeca
|
2015
|
|
32.6
|
|
(1)
|
34.0
|
|
|
||
56
|
|
STI Hammersmith
|
2015
|
|
30.8
|
|
(1)
|
32.1
|
|
|
||
57
|
|
STI Rotherhithe
|
2015
|
|
30.9
|
|
(1)
|
32.2
|
|
|
||
58
|
|
STI Rose
|
2015
|
|
56.7
|
|
(1)
|
59.1
|
|
|
||
59
|
|
STI Gramercy
|
2015
|
|
31.8
|
|
(1)
|
33.2
|
|
|
||
60
|
|
STI Veneto
|
2015
|
|
49.2
|
|
(1)
|
51.1
|
|
|
||
61
|
|
STI Alexis
|
2015
|
|
57.0
|
|
(1)
|
59.3
|
|
|
||
62
|
|
STI Bronx
|
2015
|
|
32.6
|
|
(1)
|
34.0
|
|
|
||
63
|
|
STI Pontiac
|
2015
|
|
37.4
|
|
(1)
|
38.9
|
|
|
||
64
|
|
STI Manhattan
|
2015
|
|
32.6
|
|
(1)
|
33.9
|
|
|
||
65
|
|
STI Winnie
|
2015
|
|
50.2
|
|
(1)
|
52.1
|
|
|
||
66
|
|
STI Oxford
|
2015
|
|
50.3
|
|
(1)
|
52.3
|
|
|
||
67
|
|
STI Queens
|
2015
|
|
32.6
|
|
(1)
|
33.9
|
|
|
||
68
|
|
STI Osceola
|
2015
|
|
37.7
|
|
(1)
|
39.3
|
|
|
||
69
|
|
STI Lauren
|
2015
|
|
50.3
|
|
(1)
|
52.3
|
|
|
||
70
|
|
STI Connaught
|
2015
|
|
50.0
|
|
(1)
|
52.0
|
|
|
||
71
|
|
STI Notting Hill
|
2015
|
|
36.2
|
|
(1)
|
37.7
|
|
|
||
72
|
|
STI Spiga
|
2015
|
|
56.1
|
|
(1)
|
58.3
|
|
|
||
73
|
|
STI Seneca
|
2015
|
|
37.8
|
|
(1)
|
39.4
|
|
|
||
74
|
|
STI Savile Row
|
2015
|
|
57.2
|
|
(1)
|
59.5
|
|
|
||
75
|
|
STI Westminster
|
2015
|
|
36.4
|
|
(1)
|
37.9
|
|
|
||
76
|
|
STI Brooklyn
|
2015
|
|
32.7
|
|
(1)
|
34.1
|
|
|
||
77
|
|
STI Kingsway
|
2015
|
|
57.5
|
|
(1)
|
59.8
|
|
|
||
78
|
|
STI Lombard
|
2015
|
|
58.4
|
|
(1)
|
60.1
|
|
|
||
79
|
|
STI Carnaby
|
2015
|
|
57.7
|
|
(1)
|
60.1
|
|
|
||
80
|
|
STI Black Hawk
|
2015
|
|
36.0
|
|
(1)
|
37.5
|
|
|
||
81
|
|
STI Grace
|
2016
|
|
51.5
|
|
(1)
|
N/A
|
|
(2)
|
||
82
|
|
STI Jermyn
|
2016
|
|
52.5
|
|
(1)
|
N/A
|
|
(2)
|
||
|
|
|
|
|
|
|
|
|||||
|
|
|
|
$
|
2,913.3
|
|
|
$
|
3,087.7
|
|
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
Vessel revenue
|
|
$
|
522,747
|
|
|
$
|
755,711
|
|
|
$
|
(232,964
|
)
|
|
(31
|
)%
|
Vessel operating costs
|
|
(187,120
|
)
|
|
(174,556
|
)
|
|
(12,564
|
)
|
|
(7
|
)%
|
|||
Voyage expenses
|
|
(1,578
|
)
|
|
(4,432
|
)
|
|
2,854
|
|
|
64
|
%
|
|||
Charterhire
|
|
(78,862
|
)
|
|
(96,865
|
)
|
|
18,003
|
|
|
19
|
%
|
|||
Depreciation
|
|
(121,461
|
)
|
|
(107,356
|
)
|
|
(14,105
|
)
|
|
(13
|
)%
|
|||
General and administrative expenses
|
|
(54,899
|
)
|
|
(65,831
|
)
|
|
10,932
|
|
|
17
|
%
|
|||
Loss on sales of vessels
|
|
(2,078
|
)
|
|
(35
|
)
|
|
(2,043
|
)
|
|
(5,837
|
)%
|
|||
Write-off of vessel purchase options
|
|
—
|
|
|
(731
|
)
|
|
731
|
|
|
100
|
%
|
|||
Gain on sale of Dorian shares
|
|
—
|
|
|
1,179
|
|
|
(1,179
|
)
|
|
(100
|
)%
|
|||
Financial expenses
|
|
(104,048
|
)
|
|
(89,596
|
)
|
|
(14,452
|
)
|
|
(16
|
)%
|
|||
Realized gain on derivative financial instruments
|
|
—
|
|
|
55
|
|
|
(55
|
)
|
|
(100
|
)%
|
|||
Unrealized gain / (loss) on derivative financial instruments
|
|
1,371
|
|
|
(1,255
|
)
|
|
2,626
|
|
|
209
|
%
|
|||
Financial income
|
|
1,213
|
|
|
145
|
|
|
1,068
|
|
|
737
|
%
|
|||
Other expenses, net
|
|
(188
|
)
|
|
1,316
|
|
|
(1,504
|
)
|
|
(114
|
)%
|
|||
Net (loss) / income
|
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
(242,652
|
)
|
|
(111
|
)%
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
Pool revenue by operating segment
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
$
|
248,974
|
|
|
$
|
315,925
|
|
|
$
|
(66,951
|
)
|
|
(21
|
)%
|
LR2
|
|
156,503
|
|
|
208,132
|
|
|
(51,629
|
)
|
|
(25
|
)%
|
|||
Handymax
|
|
73,683
|
|
|
138,736
|
|
|
(65,053
|
)
|
|
(47
|
)%
|
|||
LR1/Panamax
|
|
5,843
|
|
|
34,613
|
|
|
(28,770
|
)
|
|
(83
|
)%
|
|||
Total pool revenue
|
|
485,003
|
|
|
697,406
|
|
|
(212,403
|
)
|
|
(30
|
)%
|
|||
Voyage revenue (spot market)
|
|
—
|
|
|
38,441
|
|
|
(38,441
|
)
|
|
(100
|
)%
|
|||
Time charter-out revenue
|
|
36,694
|
|
|
19,714
|
|
|
16,980
|
|
|
86
|
%
|
|||
Other revenue
|
|
1,050
|
|
|
150
|
|
|
900
|
|
|
600
|
%
|
|||
Gross revenue
|
|
522,747
|
|
|
755,711
|
|
|
(232,964
|
)
|
|
(31
|
)%
|
|||
Voyage expenses
|
|
(1,578
|
)
|
|
(4,432
|
)
|
|
2,854
|
|
|
64
|
%
|
|||
TCE revenue
(1)
|
|
$
|
521,169
|
|
|
$
|
751,279
|
|
|
$
|
(230,110
|
)
|
|
(31
|
)%
|
|
|
|
|
|
|
|
|
|
|||||||
Daily pool TCE by operating segment:
(1)
|
|
|
|
|
|
|
|
|
|||||||
|
|
|
|
|
|
|
|
|
|||||||
MR pool
|
|
$
|
14,711
|
|
|
$
|
22,400
|
|
|
$
|
(7,689
|
)
|
|
(34
|
)%
|
LR2 pool
|
|
20,019
|
|
|
30,611
|
|
|
(10,592
|
)
|
|
(35
|
)%
|
|||
Handymax pool
|
|
12,101
|
|
|
19,902
|
|
|
(7,801
|
)
|
|
(39
|
)%
|
|||
LR1/Panamax pool
|
|
17,277
|
|
|
21,991
|
|
|
(4,714
|
)
|
|
(21
|
)%
|
|||
Consolidated daily pool TCE
|
|
15,561
|
|
|
23,689
|
|
|
(8,128
|
)
|
|
(34
|
)%
|
|||
Voyage (spot market) - daily TCE
|
|
—
|
|
|
17,596
|
|
|
(17,596
|
)
|
|
(100
|
)%
|
|||
Time charter-out - daily TCE
|
|
19,599
|
|
|
18,553
|
|
|
1,046
|
|
|
6
|
%
|
|||
Consolidated daily TCE
|
|
15,783
|
|
|
23,163
|
|
|
(7,380
|
)
|
|
(32
|
)%
|
|||
|
|
|
|
|
|
|
|
|
|||||||
Pool revenue days per operating segment
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
16,915
|
|
|
14,104
|
|
|
2,811
|
|
|
20
|
%
|
|||
LR2
|
|
7,814
|
|
|
6,800
|
|
|
1,014
|
|
|
15
|
%
|
|||
Handymax
|
|
6,079
|
|
|
6,971
|
|
|
(892
|
)
|
|
(13
|
)%
|
|||
LR1/Panamax
|
|
337
|
|
|
1,574
|
|
|
(1,237
|
)
|
|
(79
|
)%
|
|||
Total pool revenue days
|
|
31,145
|
|
|
29,449
|
|
|
1,696
|
|
|
6
|
%
|
|||
Voyage (spot market) revenue days
|
|
—
|
|
|
1,967
|
|
|
(1,967
|
)
|
|
(100
|
)%
|
|||
Time charter-out revenue days
|
|
1,810
|
|
|
1,027
|
|
|
783
|
|
|
76
|
%
|
|||
Total revenue days
|
|
32,955
|
|
|
32,443
|
|
|
512
|
|
|
2
|
%
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
MR
|
|
$
|
—
|
|
|
$
|
32,564
|
|
|
$
|
(32,564
|
)
|
|
(100
|
)%
|
LR2
|
|
—
|
|
|
122
|
|
|
(122
|
)
|
|
(100
|
)%
|
|||
Handymax
|
|
—
|
|
|
3,693
|
|
|
(3,693
|
)
|
|
(100
|
)%
|
|||
LR1/Panamax
|
|
—
|
|
|
2,062
|
|
|
(2,062
|
)
|
|
(100
|
)%
|
|||
Total voyage revenue (spot market)
|
|
$
|
—
|
|
|
$
|
38,441
|
|
|
$
|
(38,441
|
)
|
|
(100
|
)%
|
•
|
Short-term time charters:
We consider short-term time charters (less than one year) as spot market voyages. Most of our vessels delivered under our Newbuilding Program and one of our time chartered-in vessels were employed on short-term time charters (ranging from 45 to 120 days) upon delivery from the shipyards. These short-term time charters accounted for 1,914 revenue days during the
year ended December 31, 2015
. There were no vessels employed on short-term time charters during the year ended December 31, 2016.
|
•
|
Spot market voyages:
One of our time chartered-in vessels operated in the spot market for 53 days during the
year ended December 31, 2015
. There were no vessels employed in the spot market during the year ended December 31, 2016.
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
MR
|
|
$
|
16,046
|
|
|
$
|
19,714
|
|
|
$
|
(3,668
|
)
|
|
(19
|
)%
|
Handymax
|
|
11,895
|
|
|
—
|
|
|
11,895
|
|
|
N/A
|
|
|||
LR2
|
|
8,753
|
|
|
—
|
|
|
8,753
|
|
|
N/A
|
|
|||
LR1/Panamax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
N/A
|
|
|||
|
|
|
|
|
|
|
|
|
|||||||
Total time charter-out revenue
|
|
$
|
36,694
|
|
|
$
|
19,714
|
|
|
$
|
16,980
|
|
|
86
|
%
|
|
Name
|
|
Year built
|
|
Type
|
|
Delivery Date to the Charterer
|
|
Charter Expiration
|
|
Rate ($/ day)
|
|
|||
1
|
|
STI Pimlico
|
|
2014
|
|
Handymax
|
|
February-16
|
|
February-19
|
(1)
|
$
|
18,000
|
|
|
2
|
|
STI Poplar
|
|
2014
|
|
Handymax
|
|
January-16
|
|
January-19
|
(1)
|
$
|
18,000
|
|
|
3
|
|
STI Notting Hill
|
|
2015
|
|
MR
|
|
November-15
|
|
November-18
|
(2)
|
$
|
20,500
|
|
|
4
|
|
STI Westminster
|
|
2015
|
|
MR
|
|
December-15
|
|
December-18
|
(2)
|
$
|
20,500
|
|
|
5
|
|
STI Rose
|
|
2015
|
|
LR2
|
|
February-16
|
|
February-19
|
(2)
|
$
|
28,000
|
|
|
6
|
|
STI Benicia
|
|
2014
|
|
MR
|
|
September-14
|
|
September-15
|
|
$
|
15,500
|
|
(3)
|
7
|
|
STI Meraux
|
|
2014
|
|
MR
|
|
May-14
|
|
May-15
|
|
$
|
15,500
|
|
(3)
|
8
|
|
STI San Antonio
|
|
2014
|
|
MR
|
|
June-15
|
|
June-15
|
|
$
|
15,500
|
|
(3)
|
9
|
|
STI Texas City
|
|
2014
|
|
MR
|
|
March-14
|
|
April-16
|
|
$
|
16,000
|
|
(3)
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
change
|
|||||||
Vessel operating costs
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
$
|
104,242
|
|
|
$
|
100,477
|
|
|
$
|
(3,765
|
)
|
|
(4
|
)%
|
LR2
|
|
50,028
|
|
|
36,681
|
|
|
(13,347
|
)
|
|
(36
|
)%
|
|||
Handymax
|
|
32,817
|
|
|
35,254
|
|
|
2,437
|
|
|
7
|
%
|
|||
LR1/Panamax
|
|
33
|
|
|
2,144
|
|
|
2,111
|
|
|
98
|
%
|
|||
Total vessel operating costs
|
|
$
|
187,120
|
|
|
$
|
174,556
|
|
|
$
|
(12,564
|
)
|
|
(7
|
)%
|
|
|
|
|
|
|
|
|
|
|||||||
Vessel operating costs per day
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
$
|
6,555
|
|
|
$
|
6,461
|
|
|
$
|
(94
|
)
|
|
(1
|
)%
|
LR2
|
|
6,734
|
|
|
6,865
|
|
|
131
|
|
|
2
|
%
|
|||
Handymax
|
|
6,404
|
|
|
6,473
|
|
|
69
|
|
|
1
|
%
|
|||
LR1/Panamax
|
|
—
|
|
(1)
|
8,440
|
|
|
8,440
|
|
|
100
|
%
|
|||
Consolidated vessel operating costs per day
|
|
6,576
|
|
6,564
|
|
(12
|
)
|
|
—
|
%
|
|||||
|
|
|
|
|
|
|
|
|
|||||||
Operating days
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
15,900
|
|
|
15,550
|
|
|
350
|
|
|
2
|
%
|
|||
LR2
|
|
7,430
|
|
|
5,343
|
|
|
2,087
|
|
|
39
|
%
|
|||
Handymax
|
|
5,124
|
|
|
5,400
|
|
|
(276
|
)
|
|
(5
|
)%
|
|||
LR1/Panamax
|
|
—
|
|
|
254
|
|
|
(254
|
)
|
|
(100
|
)%
|
|||
Total operating days
|
|
28,454
|
|
|
26,547
|
|
|
1,907
|
|
|
7
|
%
|
•
|
During the
year ended December 31, 2016
, we recorded an aggregate loss of $2.1 million on the sales of
STI Lexington, STI Mythos, STI Chelsea,
STI Powai
and
STI Olivia.
Two of these sales closed in March 2016, one in April 2016 and two in May 2016.
|
•
|
During the
year ended December 31, 2015
, we recorded a loss of $2.1 million on the sale of
STI Highlander
in October 2015. This loss was offset by an aggregate gain of $2.0 million recorded for the sales of
Venice
,
STI Harmony
and
STI Heritage,
which were sold in March 2015, April 2015 and April 2015, respectively.
|
•
|
an aggregate write-off of $14.5 million of deferred financing fees as a result of (i) $3.2 million for the sales and corresponding debt repayments on the amounts borrowed for
STI Lexington, STI Mythos, STI Chelsea, STI Olivia
and
STI Powai
, which were
|
•
|
an increase in average debt outstanding to
$2.0 billion
from
$1.9 billion
for the years ended December 31, 2016 and 2015, respectively, in addition to an increase in LIBOR rates over those same periods.
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
Vessel revenue
|
|
$
|
755,711
|
|
|
$
|
342,807
|
|
|
$
|
412,904
|
|
|
120
|
%
|
Vessel operating costs
|
|
(174,556
|
)
|
|
(78,823
|
)
|
|
(95,733
|
)
|
|
(121
|
)%
|
|||
Voyage expenses
|
|
(4,432
|
)
|
|
(7,533
|
)
|
|
3,101
|
|
|
41
|
%
|
|||
Charterhire
|
|
(96,865
|
)
|
|
(139,168
|
)
|
|
42,303
|
|
|
30
|
%
|
|||
Depreciation
|
|
(107,356
|
)
|
|
(42,617
|
)
|
|
(64,739
|
)
|
|
(152
|
)%
|
|||
General and administrative expenses
|
|
(65,831
|
)
|
|
(48,129
|
)
|
|
(17,702
|
)
|
|
(37
|
)%
|
|||
Write down of vessels held for sale and net loss from sales of vessels
|
|
(35
|
)
|
|
(3,978
|
)
|
|
3,943
|
|
|
99
|
%
|
|||
Write-off of vessel purchase options
|
|
(731
|
)
|
|
—
|
|
|
(731
|
)
|
|
N/A
|
|
|||
Gain on sale of VLCCs
|
|
—
|
|
|
51,419
|
|
|
(51,419
|
)
|
|
(100
|
)%
|
|||
Gain on sale of Dorian shares
|
|
1,179
|
|
|
10,924
|
|
|
(9,745
|
)
|
|
(89
|
)%
|
|||
Re-measurement of investment in Dorian
|
|
—
|
|
|
(13,895
|
)
|
|
13,895
|
|
|
100
|
%
|
|||
Financial expenses
|
|
(89,596
|
)
|
|
(20,770
|
)
|
|
(68,826
|
)
|
|
(331
|
)%
|
|||
Realized gain on derivative financial instruments
|
|
55
|
|
|
17
|
|
|
38
|
|
|
224
|
%
|
|||
Unrealized (loss) / gain on derivative financial instruments
|
|
(1,255
|
)
|
|
264
|
|
|
(1,519
|
)
|
|
(575
|
)%
|
|||
Financial income
|
|
145
|
|
|
203
|
|
|
(58
|
)
|
|
(29
|
)%
|
|||
Share of income from associate
|
|
—
|
|
|
1,473
|
|
|
(1,473
|
)
|
|
(100
|
)%
|
|||
Other income (expenses), net
|
|
1,316
|
|
|
(103
|
)
|
|
1,419
|
|
|
1,378
|
%
|
|||
Net income
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
|
$
|
165,658
|
|
|
318
|
%
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
Pool revenue by operating segment
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
$
|
315,925
|
|
|
$
|
112,826
|
|
|
$
|
203,099
|
|
|
180
|
%
|
LR2
|
|
208,132
|
|
|
67,054
|
|
|
141,078
|
|
|
210
|
%
|
|||
Handymax
|
|
138,736
|
|
|
54,052
|
|
|
84,684
|
|
|
157
|
%
|
|||
LR1/Panamax
|
|
34,613
|
|
|
46,925
|
|
|
(12,312
|
)
|
|
(26
|
)%
|
|||
Total pool revenue
|
|
$
|
697,406
|
|
|
$
|
280,857
|
|
|
$
|
416,549
|
|
|
148
|
%
|
Voyage (spot market)
|
|
38,441
|
|
|
48,112
|
|
|
(9,671
|
)
|
|
(20
|
)%
|
|||
Time charter-out
|
|
19,714
|
|
|
13,538
|
|
|
6,176
|
|
|
46
|
%
|
|||
Other revenue
|
|
150
|
|
|
300
|
|
|
(150
|
)
|
|
(50
|
)%
|
|||
Gross revenue
|
|
755,711
|
|
|
342,807
|
|
|
412,904
|
|
|
120
|
%
|
|||
Voyage expenses
|
|
(4,432
|
)
|
|
(7,533
|
)
|
|
(3,101
|
)
|
|
(41
|
)%
|
|||
TCE revenue
(1)
|
|
$
|
751,279
|
|
|
$
|
335,274
|
|
|
$
|
416,005
|
|
|
124
|
%
|
|
|
|
|
|
|
|
|
|
|||||||
Daily pool TCE by operating segment:
(1)
|
|
|
|
|
|
|
|
|
|||||||
MR pool
|
|
$
|
22,400
|
|
|
$
|
14,897
|
|
|
$
|
7,503
|
|
|
50
|
%
|
LR2 pool
|
|
30,611
|
|
|
18,621
|
|
|
11,990
|
|
|
64
|
%
|
|||
Handymax pool
|
|
19,902
|
|
|
14,737
|
|
|
5,165
|
|
|
35
|
%
|
|||
LR1/Panamax pool
|
|
21,991
|
|
|
16,201
|
|
|
5,790
|
|
|
36
|
%
|
|||
Consolidated daily pool TCE
|
|
23,689
|
|
|
15,837
|
|
|
7,852
|
|
|
50
|
%
|
|||
Voyage (spot market) - daily TCE
|
|
17,596
|
|
|
16,798
|
|
|
798
|
|
|
5
|
%
|
|||
Time charter-out - daily TCE
|
|
18,553
|
|
|
15,194
|
|
|
3,359
|
|
|
22
|
%
|
|||
Consolidated daily TCE
|
|
23,163
|
|
|
15,935
|
|
|
7,228
|
|
|
45
|
%
|
|||
|
|
|
|
|
|
|
|
|
|||||||
Pool revenue days per operating segment
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
14,104
|
|
|
7,573
|
|
|
6,531
|
|
|
86
|
%
|
|||
LR2
|
|
6,800
|
|
|
3,601
|
|
|
3,199
|
|
|
89
|
%
|
|||
Handymax
|
|
6,971
|
|
|
3,668
|
|
|
3,303
|
|
|
90
|
%
|
|||
LR1/Panamax
|
|
1,574
|
|
|
2,892
|
|
|
(1,318
|
)
|
|
(46
|
)%
|
|||
Total pool revenue days
|
|
29,449
|
|
|
17,734
|
|
|
11,715
|
|
|
66
|
%
|
|||
Voyage (spot market) revenue days
|
|
1,967
|
|
|
2,451
|
|
|
(484
|
)
|
|
(20
|
)%
|
|||
Time charter-out revenue days
|
|
1,027
|
|
|
852
|
|
|
175
|
|
|
21
|
%
|
|||
Total revenue days
|
|
32,443
|
|
|
21,037
|
|
|
11,406
|
|
|
54
|
%
|
|
Name
|
|
Delivery Date
|
|
1
|
|
STI Tribeca
|
|
January 2015
|
2
|
|
STI Gramercy
|
|
January 2015
|
3
|
|
STI Bronx
|
|
February 2015
|
4
|
|
STI Pontiac
|
|
March 2015
|
5
|
|
STI Manhattan
|
|
March 2015
|
6
|
|
STI Queens
|
|
April 2015
|
7
|
|
STI Osceola
|
|
April 2015
|
8
|
|
STI Notting Hill
|
|
May 2015
|
9
|
|
STI Seneca
|
|
June 2015
|
10
|
|
STI Westminster
|
|
June 2015
|
11
|
|
STI Brooklyn
|
|
July 2015
|
12
|
|
STI Memphis
|
|
August 2015
|
13
|
|
STI Black Hawk
|
|
September 2015
|
|
Name
|
|
Delivery Date
|
|
|
1
|
|
STI Rose
|
|
January 2015
|
|
2
|
|
STI Veneto
|
|
February 2015
|
|
3
|
|
STI Alexis
|
|
February 2015
|
|
4
|
|
STI Winnie
|
|
March 2015
|
|
5
|
|
STI Oxford
|
|
April 2015
|
|
6
|
|
STI Lauren
|
|
May 2015
|
|
7
|
|
STI Connaught
|
|
May 2015
|
|
8
|
|
STI Spiga
|
|
June 2015
|
|
9
|
|
STI Savile Row
|
|
June 2015
|
|
10
|
|
STI Kingsway
|
|
August 2015
|
|
11
|
|
STI Lombard
|
|
August 2015
|
(1)
|
12
|
|
STI Carnaby
|
|
September 2015
|
|
(1)
|
STI Lombard
was delivered in August 2015 under a bareboat charter-in agreement for up to nine months at $10,000 per day. We purchased the vessel at the conclusion of the bareboat charter in April 2016 and paid the remaining 90% of the contract price, or $53.1 million.
|
|
Name
|
|
Delivery Date
|
|
1
|
|
STI Hammersmith
|
|
January 2015
|
2
|
|
STI Rotherhithe
|
|
January 2015
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
MR
|
|
$
|
32,564
|
|
|
$
|
25,353
|
|
|
$
|
7,211
|
|
|
28
|
%
|
LR2
|
|
122
|
|
|
70
|
|
|
52
|
|
|
74
|
%
|
|||
Handymax
|
|
3,693
|
|
|
11,715
|
|
|
(8,022
|
)
|
|
(68
|
)%
|
|||
LR1/Panamax
|
|
2,062
|
|
|
10,974
|
|
|
(8,912
|
)
|
|
(81
|
)%
|
|||
Total voyage revenue (spot market)
|
|
$
|
38,441
|
|
|
$
|
48,112
|
|
|
$
|
(9,671
|
)
|
|
(20
|
)%
|
•
|
Short-term time charters: We consider short-term time charters (less than one year) as spot market voyages. Vessels delivered under our Newbuilding Program during 2015 and one of our time chartered-in vessels were employed on short-term time charters (up to 120 days) for a total of 1,914 days during the year ended December 31, 2015 and earned TCE revenues of $18,124 per day. Vessels delivered under our Newbuilding Program were employed on similar short-term time charters for a total of 2,177 days during the year ended December 31, 2014 and earned TCE revenues of $16,089 per day.
|
•
|
Spot market voyages: One vessel operated in the spot voyage for 53 days during the year ended December 31, 2015 and three vessels operated in the spot market for a total of 274 days during the year ended December 31, 2014.
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
MR
|
|
$
|
19,714
|
|
|
$
|
13,538
|
|
|
$
|
6,176
|
|
|
46
|
%
|
LR2
|
|
—
|
|
|
—
|
|
|
—
|
|
|
N/A
|
|
|||
Handymax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
N/A
|
|
|||
LR1/Panamax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
N/A
|
|
|||
Total time charter-out revenue
|
|
$
|
19,714
|
|
|
$
|
13,538
|
|
|
$
|
6,176
|
|
|
46
|
%
|
|
Name
|
|
Year built
|
|
Type
|
|
Delivery Date to the Charterer
|
|
Charter Expiration
|
|
Rate ($/ day)
|
|
|||
1
|
|
STI Notting Hill
|
|
2015
|
|
MR
|
|
November-15
|
|
November-18
|
(1)
|
$
|
20,500
|
|
|
2
|
|
STI Westminster
|
|
2015
|
|
MR
|
|
December-15
|
|
December-18
|
(1)
|
$
|
20,500
|
|
|
3
|
|
STI Benicia
|
|
2014
|
|
MR
|
|
September-14
|
|
September-15
|
|
$
|
15,500
|
|
(2)
|
4
|
|
STI Meraux
|
|
2014
|
|
MR
|
|
May-14
|
|
May-15
|
|
$
|
15,500
|
|
(2)
|
5
|
|
STI San Antonio
|
|
2014
|
|
MR
|
|
June-15
|
|
June-15
|
|
$
|
15,500
|
|
(2)
|
6
|
|
STI Texas City
|
|
2014
|
|
MR
|
|
March-14
|
|
April-16
|
|
$
|
16,000
|
|
(2)
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|||||||
Vessel operating costs
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
$
|
100,477
|
|
|
$
|
52,561
|
|
|
$
|
(47,916
|
)
|
|
(91
|
)%
|
LR2
|
|
36,681
|
|
|
4,830
|
|
|
(31,851
|
)
|
|
(659
|
)%
|
|||
Handymax
|
|
35,254
|
|
|
10,902
|
|
|
(24,352
|
)
|
|
(223
|
)%
|
|||
LR1/Panamax
|
|
2,144
|
|
|
10,530
|
|
|
8,386
|
|
|
80
|
%
|
|||
Total vessel operating costs
|
|
$
|
174,556
|
|
|
$
|
78,823
|
|
|
$
|
(95,733
|
)
|
|
(121
|
)%
|
|
|
|
|
|
|
|
|
|
|||||||
Vessel operating costs per day
|
|
|
|
|
|
|
|
|
|||||||
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
$
|
6,461
|
|
|
$
|
6,580
|
|
|
$
|
119
|
|
|
2
|
%
|
LR2
|
|
6,865
|
|
|
6,789
|
|
|
(76
|
)
|
|
(1
|
)%
|
|||
Handymax
|
|
6,473
|
|
|
6,706
|
|
|
233
|
|
|
3
|
%
|
|||
LR1/Panamax
|
|
8,440
|
|
|
8,332
|
|
|
(108
|
)
|
|
(1
|
)%
|
|||
Consolidated vessel operating costs per day
|
|
6,564
|
|
|
6,802
|
|
|
238
|
|
|
3
|
%
|
|||
|
|
|
|
|
|
|
|
|
|||||||
Operating days
|
|
|
|
|
|
|
|
|
|||||||
MR
|
|
15,550
|
|
|
7,957
|
|
|
7,593
|
|
|
95
|
%
|
|||
LR2
|
|
5,343
|
|
|
707
|
|
|
4,636
|
|
|
656
|
%
|
|||
Handymax
|
|
5,400
|
|
|
1,620
|
|
|
3,780
|
|
|
233
|
%
|
|||
LR1/Panamax
|
|
254
|
|
|
1,264
|
|
|
(1,010
|
)
|
|
(80
|
)%
|
|||
Total operating days
|
|
26,547
|
|
|
11,548
|
|
|
14,999
|
|
|
130
|
%
|
•
|
A reduction in the number of days for vessels employed on short-term time charter-out arrangements to 1,914 days from 2,177 days for the years ended December 31, 2015 and 2014, respectively. Newbuilding vessels delivered (including vessels under our Newbuilding Program and one time chartered-in vessel) commenced short-term time charters (less than 120 days) upon their deliveries from the shipyard during 2015 and 2014. While these time charters are agreed to at fixed TCE rates, they incurred voyage costs prior to their entry into the Scorpio Group Pools for items such as bunker expenses (to their first port of loading) and tank cleaning costs.
|
•
|
A decrease in the number of days vessels operated in the spot market (excluding short term time charters) to 53 days from 274 days during the years ended December 31, 2015 and 2014, respectively.
|
•
|
These decreases were offset by an increase in commercial management fees paid to SCM, a related party, for vessels employed on long-term time charters (with initial terms of one year or greater) to $0.7 million from $0.3 million during the years ended December 31, 2015 and 2014, respectively.
|
•
|
During the year ended December 31, 2015, we recorded a loss of $2.1 million on the sale of
STI Highlander
in October 2015. This loss was offset by an aggregate gain of $2.0 million recorded for the sales of
Venice
,
STI Harmony
and
STI Heritage,
which were sold in March 2015, April 2015 and April 2015, respectively.
|
•
|
During the year ended December 31, 2014, we recorded a $4.0 million write-down as a result of the designation of
STI Heritage
and
STI Harmony
as held for sale and the corresponding write-down to the lower of their carrying value and fair value less estimated costs to sell at that date.
|
•
|
In July 2015, we sold our investment in Dorian to two unrelated third parties and recorded an aggregate gain of $1.2 million.
|
•
|
In June 2014, we acquired 7,500,000 of our common shares from an existing shareholder in exchange for 3,422,665 common shares of Dorian in a privately negotiated transaction. As a result of the disposal of the Dorian shares, we recognized a gain of $10.9 million.
|
•
|
Financial expenses for the year ended December 31, 2015 primarily consisted of interest expense of $72.2 million and amortization of loan fees of $17.4 million.
|
•
|
Financial expenses for the year ended December 31, 2014 primarily consisted of interest expense of $15.9 million and amortization of loan fees of $4.8 million.
|
•
|
The unrealized loss for the year ended December 31, 2015 results from the unrealized loss recorded on a profit and loss sharing arrangement whereby 50% of the profits and losses above or below the charterhire rate relating to an LR2 vessel that was time chartered-in by us, were shared with a third-party that neither owns nor operates this vessel. This agreement was recorded as a derivative, recorded at fair value, with any resultant gain or loss recognized in the consolidated statement of income.
|
•
|
The unrealized gain for the year ended December 31, 2014 relates to the adjustment to record interest rate swaps that did not qualify for hedge accounting, to their fair market value. These swaps were terminated in March 2015.
|
|
|
|
Drawdown amount
|
|
|
|
|
|
|||
|
Credit Facility
|
|
(in millions of U.S. Dollars)
|
|
Drawdown date
|
|
Collateral
|
|
|||
1
|
|
BNP Paribas Credit Facility
|
|
$
|
13.8
|
|
|
January 2017
|
|
STI Sapphire
|
(1)
|
2
|
|
Credit Suisse Credit Facility
|
|
29.4
|
|
|
February 2017
|
|
STI Selatar
|
(2)
|
|
3
|
|
BNP Paribas Credit Facility
|
|
13.8
|
|
|
February 2017
|
|
STI Emerald
|
(3)
|
|
4
|
|
HSH Credit Facility
|
|
16.5
|
|
|
February 2017
|
|
STI Duchessa
|
(4)
|
|
5
|
|
HSH Credit Facility
|
|
14.6
|
|
|
February 2017
|
|
STI Onyx
|
(4)
|
|
6
|
|
Credit Suisse Credit Facility
|
|
29.0
|
|
|
March 2017
|
|
STI Rambla
|
(5)
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Cash flow data
|
|
|
|
|
|
|
|
|
|||
Net cash inflow/(outflow)
|
|
|
|
|
|
|
|
|
|||
Operating activities
|
$
|
178,511
|
|
|
$
|
391,975
|
|
|
$
|
93,916
|
|
Investing activities
|
31,333
|
|
|
(703,418
|
)
|
|
(1,158,234
|
)
|
|||
Financing activities
|
(310,927
|
)
|
|
396,270
|
|
|
1,101,616
|
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|
|||||||
Vessel revenue
|
|
$
|
522,747
|
|
|
$
|
755,711
|
|
|
$
|
(232,964
|
)
|
|
(31
|
)%
|
(1)
|
Vessel operating costs
|
|
(187,120
|
)
|
|
(174,556
|
)
|
|
(12,564
|
)
|
|
(7
|
)%
|
(1)
|
|||
Voyage expenses
|
|
(1,578
|
)
|
|
(4,432
|
)
|
|
2,854
|
|
|
64
|
%
|
(1)
|
|||
Charterhire
|
|
(78,862
|
)
|
|
(96,865
|
)
|
|
18,003
|
|
|
19
|
%
|
(1)
|
|||
General and administrative expenses - cash
|
|
(24,692
|
)
|
|
(32,144
|
)
|
|
7,452
|
|
|
23
|
%
|
(1) (2)
|
|||
Financial expenses - cash
|
|
(63,858
|
)
|
|
(61,082
|
)
|
|
(2,776
|
)
|
|
(5
|
)%
|
(1) (3)
|
|||
Change in working capital
|
|
11,778
|
|
|
3,360
|
|
|
8,418
|
|
|
251
|
%
|
(4)
|
|||
Other
|
|
96
|
|
|
1,983
|
|
|
(1,887
|
)
|
|
(95
|
)%
|
|
|||
Operating cash flow
|
|
$
|
178,511
|
|
|
$
|
391,975
|
|
|
$
|
(213,464
|
)
|
|
(54
|
)%
|
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|
|||||||
Vessel revenue
|
|
$
|
755,711
|
|
|
$
|
342,807
|
|
|
$
|
412,904
|
|
|
120
|
%
|
(1)
|
Vessel operating costs
|
|
(174,556
|
)
|
|
(78,823
|
)
|
|
(95,733
|
)
|
|
(121
|
)%
|
(1)
|
|||
Voyage expenses
|
|
(4,432
|
)
|
|
(7,533
|
)
|
|
3,101
|
|
|
41
|
%
|
(1)
|
|||
Charterhire
|
|
(96,865
|
)
|
|
(139,168
|
)
|
|
42,303
|
|
|
30
|
%
|
(1)
|
|||
General and administrative expenses - cash
|
|
(32,144
|
)
|
|
(18,403
|
)
|
|
(13,741
|
)
|
|
(75
|
)%
|
(1) (2)
|
|||
Financial expenses - cash
|
|
(61,082
|
)
|
|
(10,606
|
)
|
|
(50,476
|
)
|
|
(476
|
)%
|
(1) (3)
|
|||
Drydock payments
|
|
—
|
|
|
(1,290
|
)
|
|
1,290
|
|
|
100
|
%
|
|
|||
Change in working capital
|
|
3,360
|
|
|
6,334
|
|
|
(2,974
|
)
|
|
(47
|
)%
|
(4)
|
|||
Other
|
|
1,983
|
|
|
598
|
|
|
1,385
|
|
|
232
|
%
|
(5)
|
|||
Operating cash flow
|
|
$
|
391,975
|
|
|
$
|
93,916
|
|
|
$
|
298,059
|
|
|
317
|
%
|
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|
|||||||
Cash inflows
|
|
|
|
|
|
|
|
|
|
|||||||
Net proceeds from the sales of vessels
|
|
$
|
158,175
|
|
|
$
|
90,820
|
|
|
$
|
67,355
|
|
|
74
|
%
|
(1)
|
Net proceeds from the sale of our shares in Dorian
|
|
—
|
|
|
142,436
|
|
|
(142,436
|
)
|
|
(100
|
)%
|
(2)
|
|||
Investing cash inflows total
|
|
158,175
|
|
|
233,256
|
|
|
(75,081
|
)
|
|
(32
|
)%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Cash outflows
|
|
|
|
|
|
|
|
|
|
|||||||
Acquisition of vessels and payments for vessels under construction
|
|
(126,842
|
)
|
|
(905,397
|
)
|
|
778,555
|
|
|
86
|
%
|
(3)
|
|||
Deposit returned for vessel purchases
|
|
—
|
|
|
(31,277
|
)
|
|
31,277
|
|
|
100
|
%
|
(4)
|
|||
Total investing cash outflows
|
|
(126,842
|
)
|
|
(936,674
|
)
|
|
809,832
|
|
|
86
|
%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash inflow / (outflow) from investing activities
|
|
$
|
31,333
|
|
|
$
|
(703,418
|
)
|
|
$
|
734,751
|
|
|
104
|
%
|
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|
|||||||
Cash inflows
|
|
|
|
|
|
|
|
|
|
|||||||
Net proceeds from the sale of our shares held in Dorian
|
|
$
|
142,436
|
|
|
$
|
—
|
|
|
$
|
142,436
|
|
|
N/A
|
|
(1)
|
Net proceeds from the sale of our seven VLCCs under construction
|
|
—
|
|
|
141,710
|
|
|
(141,710
|
)
|
|
(100
|
)%
|
(2)
|
|||
Net proceeds from the sales of vessels
|
|
90,820
|
|
|
71,960
|
|
|
18,860
|
|
|
26
|
%
|
(3)
|
|||
Deposits received for vessel purchases
|
|
—
|
|
|
31,277
|
|
|
(31,277
|
)
|
|
(100
|
)%
|
(5)
|
|||
Total investing cash inflows
|
|
233,256
|
|
|
244,947
|
|
|
(11,691
|
)
|
|
(5
|
)%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Cash outflows
|
|
|
|
|
|
|
|
|
|
|||||||
Acquisition of vessels and payments for vessels under construction
|
|
(905,397
|
)
|
|
(1,403,181
|
)
|
|
497,784
|
|
|
35
|
%
|
(4)
|
|||
Deposit returned for vessel purchases
|
|
(31,277
|
)
|
|
—
|
|
|
(31,277
|
)
|
|
N/A
|
|
(5)
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Total investing cash outflows
|
|
(936,674
|
)
|
|
(1,403,181
|
)
|
|
466,507
|
|
|
33
|
%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash outflow from investing activities
|
|
$
|
(703,418
|
)
|
|
$
|
(1,158,234
|
)
|
|
$
|
454,816
|
|
|
39
|
%
|
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|
|||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
favorable / (unfavorable)
|
|
Change
|
|
|||||||
Cash inflows
|
|
|
|
|
|
|
|
|
|
|||||||
Drawdowns from our secured credit facilities
|
|
$
|
565,028
|
|
|
$
|
643,550
|
|
|
$
|
(78,522
|
)
|
|
(12
|
)%
|
(1)
|
Gross proceeds from the issuance of common stock
|
|
—
|
|
|
159,747
|
|
|
(159,747
|
)
|
|
(100
|
)%
|
(2)
|
|||
Total financing cash inflows
|
|
565,028
|
|
|
803,297
|
|
|
(238,269
|
)
|
|
(30
|
)%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Cash outflows
|
|
|
|
|
|
|
|
|
|
|||||||
Repayments on our secured credit facilities
|
|
(753,431
|
)
|
|
(226,260
|
)
|
|
(527,171
|
)
|
|
(233
|
)%
|
(1)
|
|||
Dividend payments
|
|
(86,923
|
)
|
|
(87,056
|
)
|
|
133
|
|
|
—
|
%
|
(3)
|
|||
Common stock repurchases
|
|
(16,505
|
)
|
|
(76,028
|
)
|
|
59,523
|
|
|
78
|
%
|
(4)
|
|||
Debt issuance costs
|
|
(10,679
|
)
|
|
(8,497
|
)
|
|
(2,182
|
)
|
|
(26
|
)%
|
(5)
|
|||
Repurchase of Convertible Notes
|
|
(8,393
|
)
|
|
(1,632
|
)
|
|
(6,761
|
)
|
|
(414
|
)%
|
(6)
|
|||
Equity issuance costs
|
|
(24
|
)
|
|
(7,554
|
)
|
|
7,530
|
|
|
100
|
%
|
(2)
|
|||
Total financing cash outflows
|
|
(875,955
|
)
|
|
(407,027
|
)
|
|
(468,928
|
)
|
|
(115
|
)%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash (outflow) / inflow from financing activities
|
|
$
|
(310,927
|
)
|
|
$
|
396,270
|
|
|
$
|
(707,197
|
)
|
|
(178
|
)%
|
|
|
|
2016
|
|
2015
|
||||||||||||
|
|
Drawdowns
|
|
Repayments
|
|
Drawdowns
|
|
Repayments
|
||||||||
In thousands of U.S. dollars
|
|
|
|
|
|
|
|
|
||||||||
2010 Revolving Credit Facility
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(41,456
|
)
|
2011 Credit Facility
|
|
—
|
|
|
(7,935
|
)
|
|
—
|
|
|
(7,935
|
)
|
||||
Newbuilding Credit Facility
|
|
—
|
|
|
(71,843
|
)
|
|
—
|
|
|
(5,998
|
)
|
||||
2013 Credit Facility
|
|
—
|
|
|
(428,253
|
)
|
|
127,700
|
|
|
(83,970
|
)
|
||||
K-Sure Credit Facility
|
|
—
|
|
|
(125,968
|
)
|
|
261,100
|
|
|
(18,261
|
)
|
||||
KEXIM Credit Facility
|
|
—
|
|
|
(33,650
|
)
|
|
30,300
|
|
|
(29,350
|
)
|
||||
Nomura Term Margin Loan Facility
|
|
—
|
|
|
—
|
|
|
30,000
|
|
|
(30,000
|
)
|
||||
ABN AMRO Credit Facility
|
|
—
|
|
|
(13,480
|
)
|
|
142,200
|
|
|
(2,370
|
)
|
||||
ING Credit Facility
|
|
95,640
|
|
|
(6,058
|
)
|
|
35,000
|
|
|
(292
|
)
|
||||
BNP Paribas Credit Facility
|
|
17,250
|
|
|
(2,300
|
)
|
|
17,250
|
|
|
—
|
|
||||
Scotiabank Credit Facility
|
|
33,300
|
|
|
(1,110
|
)
|
|
—
|
|
|
—
|
|
||||
NIBC Credit Facility
|
|
40,838
|
|
|
(1,021
|
)
|
|
—
|
|
|
—
|
|
||||
2016 Credit Facility
|
|
288,000
|
|
|
(6,816
|
)
|
|
—
|
|
|
—
|
|
||||
DVB Credit Facility
|
|
90,000
|
|
|
(1,625
|
)
|
|
—
|
|
|
—
|
|
||||
Finance lease payments -
STI Lombard
|
|
—
|
|
|
(53,372
|
)
|
|
—
|
|
|
(6,628
|
)
|
||||
|
|
$
|
565,028
|
|
|
$
|
(753,431
|
)
|
|
$
|
643,550
|
|
|
$
|
(226,260
|
)
|
|
|
For the year ended December 31,
|
|
Change
|
|
Percentage
|
|
|||||||||
In thousands of U.S. dollars
|
|
2015
|
|
2014
|
|
favorable / (unfavorable)
|
|
Change
|
|
|||||||
Cash inflows
|
|
|
|
|
|
|
|
|
|
|||||||
Drawdowns from our secured credit facilities
|
|
$
|
643,550
|
|
|
$
|
1,114,284
|
|
|
$
|
(470,734
|
)
|
|
(42
|
)%
|
(1)
|
Gross proceeds from the issuance of our Convertible Notes
|
|
—
|
|
|
360,000
|
|
|
(360,000
|
)
|
|
(100
|
)%
|
(2)
|
|||
Gross proceeds from the issuance of our senior unsecured notes due 2020 and 2017
|
|
—
|
|
|
105,500
|
|
|
(105,500
|
)
|
|
(100
|
)%
|
(3)
|
|||
Gross proceeds from the issuance of common stock
|
|
159,747
|
|
|
—
|
|
|
159,747
|
|
|
N/A
|
|
(4)
|
|||
Total financing cash inflows
|
|
803,297
|
|
|
1,579,784
|
|
|
(776,487
|
)
|
|
(49
|
)%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Cash outflows
|
|
|
|
|
|
|
|
|
|
|||||||
Repayments on our secured credit facilities
|
|
(226,260
|
)
|
|
(74,674
|
)
|
|
(151,586
|
)
|
|
(203
|
)%
|
(1)
|
|||
Dividend payments
|
|
(87,056
|
)
|
|
(70,495
|
)
|
|
(16,561
|
)
|
|
(23
|
)%
|
(5)
|
|||
Common stock repurchases
|
|
(76,028
|
)
|
|
(276,294
|
)
|
|
200,266
|
|
|
72
|
%
|
(6)
|
|||
Debt issuance costs
|
|
(8,497
|
)
|
|
(45,670
|
)
|
|
37,173
|
|
|
81
|
%
|
(7)
|
|||
Equity issuance costs
|
|
(7,554
|
)
|
|
(42
|
)
|
|
(7,512
|
)
|
|
(17,886
|
)%
|
(4)
|
|||
Repurchase of our Convertible Notes
|
|
(1,632
|
)
|
|
—
|
|
|
(1,632
|
)
|
|
N/A
|
|
(8)
|
|||
Convertible Notes issuance costs
|
|
—
|
|
|
(10,993
|
)
|
|
10,993
|
|
|
100
|
%
|
(2)
|
|||
Total financing cash outflows
|
|
(407,027
|
)
|
|
(478,168
|
)
|
|
71,141
|
|
|
15
|
%
|
|
|||
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash inflow from financing activities
|
|
$
|
396,270
|
|
|
$
|
1,101,616
|
|
|
$
|
(705,346
|
)
|
|
(64
|
)%
|
|
|
|
2015
|
|
2014
|
||||||||||||
|
|
Drawdowns
|
|
Repayments
|
|
Drawdowns
|
|
Repayments
|
||||||||
In thousands of U.S. dollars
|
|
|
|
|
|
|
|
|
||||||||
2010 Revolving Credit Facility
|
|
$
|
—
|
|
|
$
|
(41,456
|
)
|
|
$
|
72,416
|
|
|
$
|
(30,960
|
)
|
2011 Credit Facility
|
|
—
|
|
|
(7,935
|
)
|
|
52,008
|
|
|
(7,103
|
)
|
||||
STI Spirit Credit Facility
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(21,736
|
)
|
||||
Newbuilding Credit Facility
|
|
—
|
|
|
(5,998
|
)
|
|
—
|
|
|
(5,998
|
)
|
||||
2013 Credit Facility
|
|
127,700
|
|
|
(83,970
|
)
|
|
393,400
|
|
|
(8,877
|
)
|
||||
K-Sure Credit Facility
|
|
261,100
|
|
|
(18,261
|
)
|
|
197,160
|
|
|
—
|
|
||||
KEXIM Credit Facility
|
|
30,300
|
|
|
(29,350
|
)
|
|
399,300
|
|
|
—
|
|
||||
Nomura Term Margin Loan Facility
|
|
30,000
|
|
|
(30,000
|
)
|
|
—
|
|
|
—
|
|
||||
ABN AMRO Credit Facility
|
|
142,200
|
|
|
(2,370
|
)
|
|
—
|
|
|
—
|
|
||||
ING Credit Facility
|
|
35,000
|
|
|
(292
|
)
|
|
—
|
|
|
—
|
|
||||
BNP Paribas Credit Facility
|
|
17,250
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Finance lease payments -
STI Lombard
|
|
—
|
|
|
(6,628
|
)
|
|
—
|
|
|
—
|
|
||||
|
|
$
|
643,550
|
|
|
$
|
(226,260
|
)
|
|
$
|
1,114,284
|
|
|
$
|
(74,674
|
)
|
•
|
a first priority mortgage over the relevant collateralized vessels;
|
•
|
a first priority assignment of earnings, insurances and charters from the mortgaged vessels for the specific facility;
|
•
|
a pledge of earnings generated by the mortgaged vessels for the specific facility; and
|
•
|
a pledge of the equity interests of each vessel owning subsidiary under the specific facility.
|
In thousands of U.S. dollars
|
|
Amount outstanding at December 31, 2016
|
|
Amount Outstanding at March 15, 2017
|
|
Availability as of March 15, 2017
|
|
||||||
2011 Credit Facility
(1)
|
|
$
|
93,041
|
|
|
$
|
43,006
|
|
|
$
|
—
|
|
|
K-Sure Credit Facility
|
|
314,032
|
|
|
299,104
|
|
|
—
|
|
|
|||
KEXIM Credit Facility
|
|
366,600
|
|
|
349,775
|
|
|
—
|
|
|
|||
Credit Suisse Credit Facility
(2)
|
|
—
|
|
|
58,350
|
|
|
—
|
|
|
|||
ABN AMRO Credit Facility
|
|
126,350
|
|
|
124,053
|
|
|
—
|
|
|
|||
ING Credit Facility
|
|
124,290
|
|
|
122,353
|
|
|
—
|
|
|
|||
BNP Paribas Credit Facility
(3)
|
|
32,200
|
|
|
59,800
|
|
|
—
|
|
|
|||
Scotiabank Credit Facility
|
|
32,190
|
|
|
31,635
|
|
|
—
|
|
|
|||
NIBC Credit Facility
|
|
39,817
|
|
|
38,796
|
|
|
—
|
|
|
|||
2016 Credit Facility
|
|
281,184
|
|
|
274,368
|
|
|
—
|
|
|
|||
DVB Credit Facility
|
|
88,375
|
|
|
88,375
|
|
|
—
|
|
|
|||
HSH Nordbank Credit Facility
(4)
|
|
—
|
|
|
31,125
|
|
|
—
|
|
|
|||
2017 Credit Facility
(5)
|
|
—
|
|
|
—
|
|
|
172,000
|
|
|
|||
Senior unsecured notes
|
|
105,500
|
|
|
105,500
|
|
|
—
|
|
|
|||
Convertible Notes
|
|
348,500
|
|
|
348,500
|
|
|
—
|
|
|
|||
Total
|
|
$
|
1,952,079
|
|
|
$
|
1,974,740
|
|
|
$
|
172,000
|
|
|
•
|
The ratio of net debt to capitalization shall be no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth was revised to no less than $1.0 billion plus 25% of cumulative positive net income (on a consolidated basis) for each fiscal quarter from January 1, 2016 going forward and 50% of the net proceeds of any new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to interest expense (excluding non-cash items) shall be no less than 2.00 to 1.00. Such ratio shall be calculated quarterly on a trailing four quarter basis. In addition, we are restricted from paying dividends unless our EBITDA to interest expense ratio is 2.00 to 1.00 or greater. EBITDA, as defined in the loan agreement, excludes non-cash charges such as impairment.
|
•
|
Consolidated liquidity (defined as cash and cash equivalents) was revised to less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The aggregate fair market value of the collateral vessels shall at all times be no less than 150% of the then aggregate outstanding principal amount of loans under the credit facility.
|
|
|
|
Repayment amount
|
|
|
|
||
|
Collateral
|
|
(in millions of U.S. dollars)
|
|
Repayment date
|
|
||
1
|
STI Battery
|
|
$
|
18.2
|
|
|
January 2016
|
|
2
|
STI Mythos
|
|
17.9
|
|
|
March 2016
|
(1)
|
|
3
|
STI Osceola
|
|
18.3
|
|
|
April 2016
|
|
|
4
|
STI Rose
|
|
32.5
|
|
|
June 2016
|
|
|
5
|
STI Fontvieille
|
|
18.4
|
|
|
July 2016
|
|
|
6
|
STI Ville
|
|
18.5
|
|
|
July 2016
|
|
|
7
|
STI Opera
|
|
17.4
|
|
|
September 2016
|
|
|
8
|
STI Texas City
|
|
17.4
|
|
|
September 2016
|
|
|
9
|
STI Meraux
|
|
16.7
|
|
|
September 2016
|
|
|
10
|
STI San Antonio
|
|
16.7
|
|
|
September 2016
|
|
|
11
|
STI Virtus
|
|
17.2
|
|
|
September 2016
|
|
|
12
|
STI Venere
|
|
16.9
|
|
|
September 2016
|
|
|
13
|
STI Aqua
|
|
17.5
|
|
|
September 2016
|
|
|
14
|
STI Dama
|
|
17.5
|
|
|
September 2016
|
|
|
15
|
STI Benicia
|
|
17.2
|
|
|
September 2016
|
|
|
16
|
STI Regina
|
|
17.5
|
|
|
September 2016
|
|
|
17
|
STI St. Charles
|
|
17.2
|
|
|
September 2016
|
|
|
18
|
STI Yorkville
|
|
17.6
|
|
|
September 2016
|
|
|
19
|
STI Wembley
|
|
16.2
|
|
|
September 2016
|
|
|
20
|
STI Alexis
|
|
32.5
|
|
|
September 2016
|
|
|
21
|
STI Milwaukee
|
|
18.4
|
|
|
September 2016
|
|
|
22
|
STI Seneca
|
|
17.2
|
|
|
September 2016
|
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth was revised to no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity was revised to not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The minimum threshold for the aggregate fair market value of the vessels as a percentage of the then aggregate principal amount in each facility was also revised and shall at all times be no less than the following:
|
From
|
|
To
|
|
Minimum ratio
|
01-Jan-16
|
|
31-Dec-16
|
|
165%
|
01-Jan-17
|
|
31-Dec-17
|
|
160%
|
01-Jan-18
|
|
31-Dec-18
|
|
155%
|
01-Jan-19
|
|
31-Dec-19
|
|
150%
|
01-Jan-20
|
|
Thereafter
|
|
145%
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth was revised to no less than $1.0 billion plus (i) 25% of cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of any new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity was revised to not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The minimum threshold for the aggregate fair market value of the vessels as a percentage of the then aggregate principal amount in each facility was revised and shall at all times be no less than the following:
|
From
|
|
To
|
|
Minimum ratio
|
01-Jan-16
|
|
31-Dec-16
|
|
165%
|
01-Jan-17
|
|
31-Dec-17
|
|
160%
|
01-Jan-18
|
|
31-Dec-18
|
|
155%
|
01-Jan-19
|
|
31-Dec-19
|
|
150%
|
01-Jan-20
|
|
Thereafter
|
|
145%
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
26.0
|
|
|
March 2016
|
|
STI Grace
|
|
26.5
|
|
|
April 2016
|
|
STI Lombard
|
|
|
17.1
|
|
|
April 2016
|
|
STI Osceola
|
(1)
|
|
26.0
|
|
|
June 2016
|
|
STI Jermyn
|
|
•
|
The ratio of net debt to total capitalization not more than 0.60 to 1:00.
|
•
|
Consolidated tangible net worth of not less than $677.3 million plus (a) 25% of the positive consolidated net income for each fiscal quarter commencing on or after October 1, 2013 and (b) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 135% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 135% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
17.3
|
|
|
February 2016
|
|
STI Battery
|
(1)
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall at all times be no less than 125% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall be: 130% from the first drawdown date and ending on the second anniversary of the first drawdown date; 135% from the second anniversary of the first drawdown date and expiring on the fourth anniversary of the first drawdown date; and 140% at all times thereafter.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
18.5
|
|
|
September 2016
|
|
STI Opera
|
(1)
|
18.5
|
|
|
September 2016
|
|
STI Texas City
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Meraux
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI San Antonio
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Virtus
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Venere
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Aqua
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Dama
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Benicia
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Regina
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI St. Charles
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Yorkville
|
(1)
|
|
16.7
|
|
|
September 2016
|
|
STI Amber
|
(2)
|
|
16.7
|
|
|
September 2016
|
|
STI Topaz
|
(2)
|
|
16.7
|
|
|
September 2016
|
|
STI Ruby
|
(2)
|
|
16.7
|
|
|
September 2016
|
|
STI Garnet
|
(2)
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
18.5
|
|
|
September 2016
|
|
STI Wembley
|
(1)
|
19.5
|
|
|
September 2016
|
|
STI Milwaukee
|
(1)
|
|
20.5
|
|
|
September 2016
|
|
STI Seneca
|
(1)
|
|
31.5
|
|
|
September 2016
|
|
STI Alexis
|
(1)
|
•
|
The first commercial tranche of $15.0 million has a final maturity of six years from the drawdown date of each vessel, bears interest at LIBOR plus a margin of 2.25% per annum, and has a 15 year repayment profile.
|
•
|
The second commercial tranche of $25.0 million has a final maturity of nine years from the drawdown date of each vessel (assuming KEXIM or GIEK have not exercised their option to call for prepayment of the KEXIM and GIEK funded and guaranteed tranches by the date falling two months prior to the maturity of the first commercial tranche and in the event that the first commercial tranche has not been extended), bears interest at LIBOR plus a margin of 2.25% per annum, and has a 15 year repayment profile.
|
•
|
The KEXIM Funded Tranche and GIEK Guaranteed Tranche have a final maturity of 12 years from the drawdown date of each vessel (assuming the commercial tranches are refinanced through that date), bear interest at LIBOR plus a margin of 2.15% per annum, and have a 12 year repayment profile.
|
•
|
The KEXIM Guaranteed Tranche has a final maturity of 12 years from the drawdown date of each vessel (assuming the commercial tranches are refinanced through that date), bears interest at LIBOR plus a margin of 1.60% per annum, and has a 12 year repayment profile.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel and $250,000 each time chartered-in vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 135% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
||
$
|
16.5
|
|
|
February 2017
|
|
STI Duchessa
|
14.6
|
|
|
February 2017
|
|
STI Onyx
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel and $250,000 each time chartered-in vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
Net borrowings shall not equal or exceed 70% of total assets.
|
•
|
Net worth shall always exceed $650.0 million.
|
•
|
during any calendar quarter commencing after the calendar quarter ending on September 30, 2014 (and only during such calendar quarter), if the last reported sale price of the common stock for at least 15 trading days (whether or not consecutive) during a period of 25 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day;
|
•
|
during the five business day period after any five consecutive trading day period, or the Measurement Period, in which the trading price (as defined below) per $1,000 principal amount of Convertible Notes for each trading day of the Measurement Period was less than 98% of the product of the last reported sale price of our common stock and the conversion rate on each such trading day;
|
•
|
if the Company calls any or all of the Convertible Notes for redemption, at any time prior to the close of business on the scheduled trading day immediately preceding the redemption date; or
|
•
|
upon the occurrence of specified corporate events as defined in the indenture (e.g. consolidations, mergers, a binding share exchange or the transfer or lease of all or substantially all of our assets).
|
•
|
Net borrowings shall not equal or exceed 70% of total assets.
|
•
|
Net worth shall always exceed $650.0 million.
|
|
In millions of U.S. Dollars
|
||
Q1 2017 - installment payments made
|
$
|
29.2
|
|
Q1 2017 - remaining installment payments
|
52.7
|
|
|
Q2 2017
|
35.9
|
|
|
Q3 2017
|
68.2
|
|
|
Q4 2017
|
50.5
|
|
|
Q1 2018
|
21.6
|
|
|
|
|
||
Total
|
$
|
258.1
|
|
|
Less than
|
|
1 to 3
|
|
3 to 5
|
|
More than
|
||||||||
In thousands of U.S. dollars
|
1 year
|
|
years
|
|
years
|
|
5 years
|
||||||||
Secured bank loans
(1)
|
$
|
305,562
|
|
|
$
|
268,434
|
|
|
$
|
870,874
|
|
|
$
|
53,208
|
|
Estimated interest payments on secured bank loans
(2)
|
56,215
|
|
|
97,396
|
|
|
58,758
|
|
|
1,122
|
|
||||
Bank loans - commitment fees
(3)
|
200
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Time and bareboat charter-in commitments
(4)
|
57,018
|
|
|
30,933
|
|
|
—
|
|
|
—
|
|
||||
Technical management fees
(5)
|
10,727
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Commercial management fees
(6)
|
10,149
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Newbuilding installments
(7)
|
236,483
|
|
|
21,638
|
|
|
—
|
|
|
—
|
|
||||
Convertible Notes
(8)
|
—
|
|
|
348,500
|
|
|
—
|
|
|
—
|
|
||||
Convertible Notes - estimated interest payments
(9)
|
8,277
|
|
|
16,554
|
|
|
—
|
|
|
—
|
|
||||
Senior unsecured notes
(10)
|
51,750
|
|
|
—
|
|
|
53,750
|
|
|
—
|
|
||||
Senior unsecured notes - estimated interest payments
(11)
|
7,509
|
|
|
7,256
|
|
|
1,784
|
|
|
—
|
|
||||
Total
|
$
|
743,890
|
|
|
$
|
790,711
|
|
|
$
|
985,166
|
|
|
$
|
54,330
|
|
(1)
|
Represents principal payments due on our secured credit facilities, as described above in "Item 5B. Liquidity and Capital Resources - Long-Term Debt Obligations and Credit Arrangements". These payments are based on our outstanding borrowings as of
December 31, 2016
.
|
(2)
|
Represents estimated interest payments on our secured credit facilities. These payments were estimated by taking into consideration: (i) the margin on each credit facility and (ii) the forward interest rate curve calculated from interest swap rates, as published by a third party, as of
December 31, 2016
.
|
Year 1
|
1.19
|
%
|
|
Year 2
|
1.75
|
%
|
|
Year 3
|
2.15
|
%
|
|
Year 4
|
2.34
|
%
|
|
Year 5
|
2.44
|
%
|
|
Year 6
|
2.51
|
%
|
(1)
|
Year 7
|
2.69
|
%
|
|
(1)
|
Third party published six year interest swap rates were unavailable. As such, we interpolated the year six forward rate using an average of the five and seven year published swap rates from the third party.
|
Facility
|
Margin
|
|
|
2011 Credit Facility
|
3.50
|
%
|
|
KEXIM
|
3.25
|
%
|
|
KEXIM Commercial Tranche
|
3.25
|
%
|
(1)
|
KEXIM Guarantee Notes
|
1.70
|
%
|
|
K-Sure
|
2.25
|
%
|
|
K-Sure Commercial Tranche
|
3.25
|
%
|
(2)
|
ABN AMRO Credit Facility
|
2.15
|
%
|
|
ING Credit Facility
|
1.95
|
%
|
|
BNP Paribas Credit Facility
|
1.95
|
%
|
|
Scotiabank Credit Facility
|
1.50
|
%
|
|
NIBC Credit Facility
|
2.50
|
%
|
|
2016 Credit Facility
|
2.50
|
%
|
|
DVB Credit Facility
|
1.60
|
%
|
|
(1)
|
Borrowings under the KEXIM Commercial Tranche bear interest at LIBOR plus an applicable margin of 3.25% from the effective date of the agreement to the fifth anniversary thereof and 3.75% thereafter until the maturity date.
|
(2)
|
Borrowings under the K-Sure Commercial Tranche bear interest at LIBOR plus an applicable margin of 3.25% from the effective date of the agreement to the fifth anniversary thereof and 3.75% thereafter until the maturity date in respect of the Commercial Tranche.
|
(3)
|
As of
December 31, 2016
, a commitment fee equal to 40% of the applicable margin was payable on the unused daily portion of our BNP Paribas Credit Facility (which was upsized in December 2016) and a commitment fee equal to 1% of the amounts available was payable on the unused daily portion of our Credit Suisse Credit Facility. Our 2011 Credit Facility, KEXIM Credit Facility, K-Sure Credit Facility ING Credit Facility, ABN AMRO Credit Facility, 2016 Credit Facility, Scotiabank Credit Facility, NIBC Credit Facility and DVB Credit Facility were fully drawn as of
December 31, 2016
.
|
(4)
|
Represents amounts due under our time and bareboat charter-in agreements as of
December 31, 2016
.
|
(5)
|
We pay our technical manager, SSM, $685 per day per owned vessel. These fees are subject to a notice period of three months and a payment equal to three months of management fees which would be due and payable upon the sale of a vessel, so long as such termination does not amount to a change of control of the Company, including a sale of all or substantially all vessels, in which case, a payment equal to 24 months of management fees will apply.
|
(6)
|
We pay our commercial manager, SCM, $250 per vessel per day for LR2 vessels, $300 per vessel per day for LR1 vessels, $325 per vessel per day for MR and Handymax vessels plus a 1.50% commission on gross revenue for vessels that are in one of the Scorpio Group Pools. When the vessels are not in the pools, SCM charges fees of $250 per vessel per day for the LR1 and LR2 vessels, $300 per vessel per day for the Handymax and MR vessels plus a 1.25% commission on gross revenue. These fees are subject to a notice period of three months and a payment equal to three months of management fees which would be due and payable upon the sale of a vessel, so long as such termination does not amount to a change of control of the Company, including a sale of all or substantially all vessels, in which case, a payment equal to 24 months of management fees will apply.
|
(7)
|
Represents obligations under our agreements with HMD for the construction of eight MRs and with SSME for the construction of two LR2s under our Newbuilding Program as of
December 31, 2016
.
|
(8)
|
Represents the principal due at maturity on our Convertible Notes as of
December 31, 2016
.
|
(9)
|
Represents estimated coupon interest payments on our Convertible Notes. The Convertible Notes bear interest at a coupon rate of 2.375% per annum and mature in July 2019.
|
(10)
|
Represents the principal due at maturity on our Senior Unsecured Notes Due 2020 and our Senior Unsecured Notes Due 2017 as of
December 31, 2016
.
|
(11)
|
Represents estimated coupon interest payments on our Senior Unsecured Notes Due 2020 and our Senior Unsecured Notes Due 2017 as of
December 31, 2016
. These notes bear interest at coupon rates of 6.75% and 7.50%, respectively.
|
Name
|
|
Age
|
|
Position
|
Emanuele A. Lauro
|
|
38
|
|
Chairman, Class I Director, and Chief Executive Officer
|
Robert Bugbee
|
|
56
|
|
President and Class II Director
|
Cameron Mackey
|
|
48
|
|
Chief Operating Officer and Class III Director
|
Brian Lee
|
|
50
|
|
Chief Financial Officer
|
Filippo Lauro
|
|
40
|
|
Vice President
|
Luca Forgione
|
|
40
|
|
General Counsel
|
Anoushka Kachelo
|
|
37
|
|
Secretary
|
Alexandre Albertini
|
|
40
|
|
Class III Director
|
Ademaro Lanzara
|
|
74
|
|
Class I Director
|
Marianne Økland
|
|
54
|
|
Class III Director
|
Jose Tarruella
|
|
45
|
|
Class II Director
|
Reidar Brekke
|
|
55
|
|
Class II Director
|
|
For the year ended December 31,
|
||||||||||
In thousands of US dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Short-term employee benefits (salaries)
|
$
|
8,786
|
|
|
$
|
15,601
|
|
|
$
|
7,454
|
|
Share-based compensation
(1)
|
25,575
|
|
|
26,911
|
|
|
23,553
|
|
|||
Total
|
$
|
34,361
|
|
|
$
|
42,512
|
|
|
$
|
31,007
|
|
(1)
|
Represents the amortization of restricted stock issued under our equity incentive plans. See Note 14 to our Consolidated Financial Statements included herein for further description.
|
•
|
In October 2013, we reserved an additional 6,376,044 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In September 2014, we reserved an additional 1,088,131 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In May 2015, we reserved an additional 1,755,443 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In June 2016, we reserved an additional 2,301,115 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In December 2016, we reserved an additional 1,348,992 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
Name
|
|
No. of Shares
|
|
% Owned
(5)
|
||
Emanuele A. Lauro
(1)
|
|
3,464,086
|
|
|
1.98
|
%
|
Robert Bugbee
(2)
|
|
3,097,419
|
|
|
1.77
|
%
|
Cameron Mackey
(3)
|
|
2,749,376
|
|
|
1.57
|
%
|
Brian M. Lee
(4)
|
|
2,088,399
|
|
|
1.20
|
%
|
All other executive officers and directors individually
|
|
*
|
|
|
*
|
|
(1)
|
Includes 2,507,988 shares of restricted stock from the 2013 Equity Incentive Plan.
|
(2)
|
Includes 2,507,988 shares of restricted stock from the 2013 Equity Incentive Plan.
|
(3)
|
Includes 1,702,314 shares of restricted stock from the 2013 Equity Incentive Plan.
|
(4)
|
Includes 1,229,351 shares of restricted stock from the 2013 Equity Incentive Plan.
|
(5)
|
Based on
174,629,755
common shares outstanding as of March 15, 2017.
|
Name
|
|
No. of Shares
|
|
% Owned
(4)
|
||
Wellington Management Group LLP
*
|
|
19,248,982
|
|
(1)
|
11.0
|
%
|
FMR LLC
|
|
18,696,116
|
|
(2)
|
10.7
|
%
|
Dimensional Fund Advisors LP
*
|
|
14,273,545
|
|
(3)
|
8.2
|
%
|
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
|
2016
|
|
2015
|
|
2014
|
||||||
Pool revenue
(1)
|
|
|
|
|
|
|
|
|
|
|||
Scorpio MR Pool Limited
|
|
$
|
248,974
|
|
|
$
|
315,925
|
|
|
$
|
112,826
|
|
Scorpio LR2 Pool Limited
|
|
156,503
|
|
|
208,132
|
|
|
67,054
|
|
|||
Scorpio Handymax Tanker Pool Limited
|
|
73,683
|
|
|
138,736
|
|
|
54,052
|
|
|||
Scorpio Panamax Tanker Pool Limited
|
|
5,843
|
|
|
34,613
|
|
|
46,925
|
|
|||
Voyage expenses
(2)
|
|
(1,128
|
)
|
|
(2,127
|
)
|
|
(2,052
|
)
|
|||
Vessel operating costs
(3)
|
|
(19,484
|
)
|
|
(18,393
|
)
|
|
(7,947
|
)
|
|||
Administrative expenses
(4)
|
|
(9,462
|
)
|
|
(7,950
|
)
|
|
(3,542
|
)
|
(1)
|
These transactions relate to revenue earned in the Scorpio Group Pools. The Scorpio Group Pools are related party affiliates. When our vessels are in the Scorpio Group Pools, SCM, the pool manager, charges fees of $300 per vessel per day with respect to our LR1/Panamax vessels, $250 per vessel per day with respect to our LR2 vessels, and $325 per vessel per day with respect to each of our Handymax and MR vessels, plus a commission of 1.50% on gross revenue per charter fixture. These are the same fees that SCM charges other vessels in these pools, including third party owned vessels.
|
(2)
|
These transactions represent the expense due to SCM, a related party affiliate, for commissions related to the commercial management services provided by SCM under the Commercial Management Agreement for vessels that are not in one of the Scorpio Group Pools. When not in one of the Scorpio Group Pools, each vessel pays (i) flat fees of $250 per day for LR1/Panamax and LR2 vessels and $300 per day for Handymax and MR vessels and (ii) commissions of 1.25% of their gross revenue. These expenses are included in voyage expenses in the consolidated statements of income or loss.
|
(3)
|
These transactions represent technical management fees charged by SSM, a related party affiliate, which are included in vessel operating costs in the consolidated statements of income or loss. We believe our technical management fees are at arms-length rates as they were based on contracted rates that were the same as those charged to other vessels managed by SSM at the time the management agreements were entered into. This fee is $685 per vessel per day.
|
(4)
|
We have an Amended Administrative Services Agreement with SSH, for the provision of administrative staff and office space, and administrative services, including accounting, legal compliance, financial and information technology services. SSH is a related party to us. We reimburse SSH for the reasonable direct or indirect expenses that are incurred on our behalf. SSH also arranges vessel sales and purchases for us. The services provided to us by SSH may be sub-contracted to other entities within the Scorpio Group. The expenses incurred under this agreement were as follows, and were recorded in general and administrative expenses in the consolidated statements of income or loss.
|
•
|
The expense for the year ended December 31, 2016 of
$9.5 million
included (i) administrative fees of
$7.3 million
charged by SSH, (ii) restricted stock amortization of
$1.6 million
, which relates to the issuance of an aggregate of 795,000 shares of restricted stock to SSH employees for no cash consideration in May 2014, September 2014, July 2015 and July 2016, and (iii) the reimbursement of expenses of
$0.6 million
.
|
•
|
The expense for the year ended December 31, 2015 of $7.9 million included (i) administrative fees of $6.8 million charged by SSH, (ii) restricted stock amortization of $0.9 million, which relates to the issuance of an aggregate of 508,500 shares of restricted stock to SSH employees for no cash consideration in May 2014, September 2014 and July 2015 and (iv) the reimbursement expenses of $0.2 million.
|
•
|
The expense for the year ended December 31, 2014 of $3.5 million included (i) administrative fees of $3.1 million charged by SSH, (ii) restricted stock amortization of $0.3 million, which relates to the issuance of an aggregate 218,000 shares of restricted stock to SSH employees for no cash consideration in May and September 2014 and (iii) the reimbursement of expenses of $0.1 million.
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Assets:
|
|
|
|
|
|
||
Accounts receivable (due from the Scorpio Group Pools)
(1)
|
$
|
40,680
|
|
|
$
|
59,475
|
|
Accounts receivable and prepaid expenses (SSM)
(2)
|
4,233
|
|
|
2,348
|
|
||
Other assets (pool working capital contributions)
(3)
|
19,217
|
|
|
19,256
|
|
||
Liabilities:
|
|
|
|
|
|
||
Accounts payable and accrued expenses (SSM)
|
653
|
|
|
484
|
|
||
Accounts payable and accrued expenses (SSH)
|
90
|
|
|
77
|
|
||
Accounts payable and accrued expenses (SCM)
|
53
|
|
|
175
|
|
||
Accounts payable and accrued expenses (owed to the Scorpio Group Pools)
|
15
|
|
|
610
|
|
(1)
|
Accounts receivable due from the Scorpio Group Pools relate to hire receivables for revenues earned and receivables from working capital contributions. The amounts as of December 2016 and 2015 include
$24.1 million
and
$8.6 million
, respectively, of working capital contributions made on behalf of our vessels to the Scorpio Group Pools. Upon entrance into such pools, all vessels are required to make working capital contributions of both cash and bunkers. Additional working capital contributions can be made from time to time based on the operating needs of the pools. These amounts are accounted for and repaid as follows:
|
•
|
For vessels in the Scorpio Handymax Tanker Pool, the initial contribution amount is repaid, without interest, upon a vessel’s exit from each pool no later than six months after the exit date. Bunkers on board a vessel exiting the pool are credited against such repayment at the actual invoice price of the bunkers. For all owned vessels we assume that these contributions will not be repaid within 12 months and are thus classified as non-current within other assets on the consolidated balance sheets. For time chartered-in vessels we classify the initial contributions as current (within accounts receivable) or non-current (within other assets) according to the expiration of the contract. Any additional working capital contributions are repaid when sufficient net revenues become available to cover such amounts.
|
•
|
For vessels in the Scorpio MR Pool and Scorpio Panamax Tanker Pool, any contributions are repaid, without interest, when such vessel has earned sufficient net revenues to cover the value of such working capital contributed. Accordingly, we classify such amounts as current (within accounts receivable).
|
•
|
For vessels in the Scorpio LR2 Pool, the initial contribution amount is repaid, without interest, upon a vessel’s exit from each pool. Bunkers on board a vessel exiting the pool are credited against such repayment at the actual invoice price of the bunkers. For all owned vessels we assume that these contributions will not be repaid within 12 months and are thus classified as non-current within other assets on the consolidated balance sheets. For time chartered-in vessels we classify the initial contributions as current (within accounts receivable) or non-current (within other assets) according to the expiration of the contract. Any additional working capital contributions are repaid when sufficient net revenues become available to cover such amounts.
|
(2)
|
Accounts receivable and prepaid expenses from SSM relate to advances made for vessel operating expenses (such as crew wages) that will either be reimbursed or applied against future costs.
|
(3)
|
Represents the non-current portion of working capital receivables as described above.
|
•
|
During the year ended December 31, 2016, we paid SSH an aggregate fee of $1.7 million in connection with the sales of
STI Lexington, STI Mythos, STI Chelsea
,
STI Powai
, and
STI Olivia
and a fee of $0.6 million for the purchase and delivery of S
TI Lombard
. Additionally, we paid SCM an aggregate termination fee of $2.7 million that was due under the commercial management agreements and we paid SSM an aggregate termination fee of $2.5 million that was due under the technical management agreements as a result of the aforementioned vessel sales. The agreements to sell and acquire the aforementioned vessels were entered into prior to the September 29, 2016 amendments to the Master Agreement and Administrative Service Agreement. The aggregate fees paid to SCM, SSH and SSM are recorded within loss on sales of the vessels within the consolidated statements of income or loss.
|
•
|
During the year ended December 31, 2015, we paid SSH an aggregate fee of $12.6 million in connection with the purchase and delivery of 29 vessels
and the sales of four vessels. Additionally, as a result of the sale of
STI Highlander
in 2015, we paid a $0.5 million termination fee due under the vessel's commercial management agreement with SCM and a $0.5 million termination fee due under the vessel's technical management agreement with SSM.
|
•
|
During the year ended December 31, 2014, we paid SSH an aggregate fee of $26.1 million, which consisted of $11.7 million related to the purchase and delivery of 33 vessels under our Newbuilding Program, $14.0 million relating to the purchase and sale of our seven VLCCs under construction, and $0.4 million relating to the sales of two vessels.
|
Date Paid
|
|
Dividends per Share
|
March 26, 2014
|
|
$0.080
|
June 12, 2014
|
|
$0.090
|
September 10, 2014
|
|
$0.100
|
December 12, 2014
|
|
$0.120
|
March 30, 2015
|
|
$0.120
|
June 10, 2015
|
|
$0.125
|
September 4, 2015
|
|
$0.125
|
December 11, 2015
|
|
$0.125
|
March 30, 2016
|
|
$0.125
|
June 24, 2016
|
|
$0.125
|
September 29, 2016
|
|
$0.125
|
December 22, 2016
|
|
$0.125
|
March 30, 2017*
|
|
$0.01
|
For the Year Ended
|
|
High
|
|
Low
|
December 31, 2012
|
|
$7.50
|
|
$4.93
|
December 31, 2013
|
|
12.48
|
|
6.92
|
December 31, 2014
|
|
11.91
|
|
6.48
|
December 31, 2015
|
|
11.64
|
|
7.50
|
December 31, 2016
|
|
7.99
|
|
3.61
|
|
|
|
|
|
For the Quarter Ended:
|
|
High
|
|
Low
|
March 31, 2015
|
|
$9.64
|
|
$7.64
|
June 30, 2015
|
|
10.51
|
|
8.92
|
September 30, 2015
|
|
11.64
|
|
8.34
|
December 31, 2015
|
|
10.33
|
|
7.50
|
March 31, 2016
|
|
7.99
|
|
4.66
|
June 30, 2016
|
|
6.70
|
|
4.10
|
September 30, 2016
|
|
5.53
|
|
4.05
|
December 31, 2016
|
|
5.00
|
|
3.61
|
March 31, 2017 (through and including March 15, 2017)
|
|
4.93
|
|
3.50
|
|
|
|
|
|
Most Recent Six Months:
|
|
High
|
|
Low
|
September 2016
|
|
$5.33
|
|
$4.51
|
October 2016
|
|
5.00
|
|
3.68
|
November 2016
|
|
4.63
|
|
3.61
|
December 2016
|
|
4.82
|
|
3.92
|
January 2017
|
|
4.93
|
|
3.66
|
February 2017
|
|
4.48
|
|
3.50
|
March 2017 (through and including March 15, 2017)
|
|
4.17
|
|
3.73
|
•
|
any person who is the beneficial owner of 15% or more of our outstanding voting stock; or
|
•
|
any person who is our affiliate or associate and who held 15% or more of our outstanding voting stock at any time within three years before the date on which the person's status as an interested shareholder is determined, and the affiliates and associates of such person.
|
•
|
certain mergers or consolidations of us or any direct or indirect majority-owned subsidiary of ours;
|
•
|
any sale, lease, exchange, mortgage, pledge, transfer or other disposition of our assets or of any subsidiary of ours having an aggregate fair market value equal to 10% or more of either the aggregate fair market value of all of our assets, determined on a combined basis, or the aggregate value of all of our outstanding stock;
|
•
|
certain transactions that result in the issuance or transfer by us of any stock of ours to the interested shareholder;
|
•
|
any transaction involving us or any of our subsidiaries that has the effect of increasing the proportionate share of any class or series of stock, or securities convertible into any class or series of stock, of ours or any such subsidiary that is owned directly or indirectly by the interested shareholder or any affiliate or associate of the interested shareholder; and
|
•
|
any receipt by the interested shareholder of the benefit directly or indirectly (except proportionately as a shareholder) of any loans, advances, guarantees, pledges or other financial benefits provided by or through us.
|
•
|
before a person became an interested shareholder, our board of directors approved either the business combination or the transaction in which the shareholder became an interested shareholder;
|
•
|
upon consummation of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, other than certain excluded shares;
|
•
|
at or following the transaction in which the person became an interested shareholder, the business combination is approved by our board of directors and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of the holders of at least two-thirds of our outstanding voting stock that is not owned by the interest shareholder;
|
•
|
the shareholder was or became an interested shareholder prior to the closing of our initial public offering in 2010;
|
•
|
a shareholder became an interested shareholder inadvertently and (i) as soon as practicable divested itself of ownership of sufficient shares so that the shareholder ceased to be an interested shareholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between us and such shareholder, have been an interested shareholder but for the inadvertent acquisition of ownership; or
|
•
|
the business combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or the notice required under our amended and restated articles of incorporation which (i) constitutes one of the transactions described in the following sentence; (ii) is with or by a person who either was not an interested shareholder during the previous three years or who became an interested shareholder with the approval of the board; and (iii) is approved or not opposed by a majority of the members of the board of directors then in office (but not less than one) who were directors prior to any person becoming an interested shareholder during the previous three years or were recommended for election or elected to succeed such directors by a majority of such directors. The proposed transactions referred to in the preceding sentence are limited to:
|
(i)
|
a merger or consolidation of us (except for a merger in respect of which, pursuant to the BCA, no vote of our shareholders is required);
|
(ii)
|
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of us or of any direct or indirect majority-owned subsidiary of ours (other than to any direct or indirect wholly-owned subsidiary or to us) having an aggregate fair market value equal to 50% or more of either the aggregate fair market value of all of our assets determined on a consolidated basis or the aggregate fair market value of all the outstanding shares; or
|
(iii)
|
a proposed tender or exchange offer for 50% or more of our outstanding voting stock.
|
•
|
we have, or are considered to have, a fixed place of business in the United States involved in the earning of United States Source Shipping Income; and
|
•
|
substantially all of our United States Source Shipping Income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
|
•
|
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
•
|
at least 50% of the average value of our assets during such taxable year produce, or are held for the production of, passive income.
|
•
|
the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for the common shares;
|
•
|
the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC, would be taxed as ordinary income and would not be “qualified dividend income”; and
|
•
|
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
•
|
the gain is effectively connected with the Non-United States Holder’s conduct of a trade or business in the United States (and, if the Non-United States Holder is entitled to the benefits of a United States income tax treaty with respect to that gain, that gain is attributable to a permanent establishment maintained by the Non-United States Holder in the United States); or
|
•
|
the Non-United States Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
•
|
fail to provide an accurate taxpayer identification number;
|
•
|
are notified by the IRS that you have failed to report all interest or dividends required to be shown on your United States federal income tax returns; or
|
•
|
in certain circumstances, fail to comply with applicable certification requirements.
|
|
|
As of December 31,
|
||||||||||||||
In thousands of U.S. dollars
|
|
2017
|
|
2018 - 2019
|
|
2020 - 2021
|
|
Thereafter
|
||||||||
Principal payments floating rate debt (unhedged)
|
|
$
|
305,562
|
|
|
$
|
268,434
|
|
|
$
|
870,874
|
|
|
$
|
53,208
|
|
Principal payments fixed rate debt
|
|
51,750
|
|
|
348,500
|
|
|
53,750
|
|
|
—
|
|
||||
Total principal payments on outstanding debt
|
|
$
|
357,312
|
|
|
$
|
616,934
|
|
|
$
|
924,624
|
|
|
$
|
53,208
|
|
•
|
an aggregate of 2,956,760 of our common shares that are being held as treasury shares at an average price of $5.58 per share.
|
•
|
$10.0 million aggregate principal amount of our Convertible Notes at an average price of $839.28 per $1,000 principal amount.
|
Period
|
|
Total number of shares purchased
|
|
Average price paid per share
|
|
Total number of shares purchased as part of publicly announced program
|
|
Maximum amount that may yet be expected on share repurchases under program
|
|
||||||
January 2016
|
|
2,299,606
|
|
|
$
|
5.96
|
|
|
2,299,606
|
|
|
$
|
164,539,494
|
|
|
July 2016
|
|
657,154
|
|
|
$
|
4.26
|
|
|
657,154
|
|
|
$
|
153,348,320
|
|
(1)
|
Total
|
|
2,956,760
|
|
|
$
|
5.58
|
|
|
2,956,760
|
|
|
$
|
153,348,320
|
|
|
(1)
|
Filed as an Exhibit to the Company’s Amended Registration Statement on Form F-1/A (Amendment No. 1) (File No. 333-164940) on March 10, 2010, and incorporated by reference herein.
|
(2)
|
Filed as an Exhibit to the Company’s Amended Registration Statement on Form F-1/A (Amendment No. 2) (File No. 333-164940) on March 18, 2010, and incorporated by reference herein.
|
(3)
|
Filed as an Exhibit to the Company’s Annual Report filed on Form 20-F on June 29, 2010, and incorporated by reference herein.
|
(4)
|
Filed as an Exhibit to the Company’s Annual Report filed on Form 20-F on April 21, 2011, and incorporated by reference herein.
|
(5)
|
Filed as an Exhibit to the Company’s Registration Statement on Form F-3 (File No. 333-173929) on May 4, 2011, and incorporated by reference herein.
|
(6)
|
Filed as an Exhibit to the Company’s Annual Report on Form 20-F on April 13, 2012, as amended, and incorporated by reference herein.
|
(7)
|
Filed as an Exhibit to the Company’s Annual Report on Form 20-F on March 29, 2013, and incorporated by reference herein.
|
(8)
|
Filed as an Exhibit to the Company's Annual Report on Form 20-F on March 31, 2014, and incorporated by reference herein.
|
(9)
|
Filed as an Exhibit to the Company’s Report on Form 6-K on May 13, 2014, and incorporated by reference herein.
|
(10)
|
Filed as an Exhibit to the Company’s Report on Form 6-K on October 31, 2014, and incorporated by reference herein.
|
(11)
|
Filed as an Exhibit to the Company's Annual Report on Form 20-F on March 31, 2015, and incorporated by reference herein.
|
(12)
|
Filed as an Exhibit to the Company's Annual Report on Form 20-F on March 18, 2016, and incorporated by reference herein.
|
Scorpio Tankers Inc.
|
(Registrant)
|
|
/s/ Emanuele Lauro
|
Emanuele Lauro
|
Chief Executive Officer
|
|
Page
|
|
|
|
As of
|
||||||
In thousands of U.S. dollars
|
Notes
|
|
December 31, 2016
|
|
December 31, 2015
|
||||
Assets
|
|
|
|
|
|
|
|||
Current assets
|
|
|
|
|
|
|
|||
Cash and cash equivalents
|
2
|
|
$
|
99,887
|
|
|
$
|
200,970
|
|
Accounts receivable
|
3
|
|
42,329
|
|
|
69,017
|
|
||
Prepaid expenses and other current assets
|
|
|
9,067
|
|
|
3,585
|
|
||
Derivative financial instruments
|
12
|
|
116
|
|
|
—
|
|
||
Inventories
|
|
|
6,122
|
|
|
6,575
|
|
||
Total current assets
|
|
|
157,521
|
|
|
280,147
|
|
||
Non-current assets
|
|
|
|
|
|
|
|||
Vessels and drydock
|
4/6
|
|
2,913,254
|
|
|
3,087,753
|
|
||
Vessels under construction
|
5/6
|
|
137,917
|
|
|
132,218
|
|
||
Other assets
|
7
|
|
21,495
|
|
|
23,337
|
|
||
Total non-current assets
|
|
|
3,072,666
|
|
|
3,243,308
|
|
||
Total assets
|
|
|
$
|
3,230,187
|
|
|
$
|
3,523,455
|
|
Current liabilities
|
|
|
|
|
|
|
|||
Current portion of long-term debt
|
11
|
|
353,012
|
|
|
124,503
|
|
||
Finance lease liability
|
11
|
|
—
|
|
|
53,372
|
|
||
Accounts payable
|
9
|
|
9,282
|
|
|
25,683
|
|
||
Accrued expenses
|
10
|
|
23,024
|
|
|
32,643
|
|
||
Derivative financial instruments
|
12
|
|
—
|
|
|
1,175
|
|
||
Total current liabilities
|
|
|
385,318
|
|
|
237,376
|
|
||
Non-current liabilities
|
|
|
|
|
|
|
|||
Long-term debt
|
11
|
|
1,529,669
|
|
|
1,872,114
|
|
||
Derivative financial instruments
|
12
|
|
—
|
|
|
80
|
|
||
Total non-current liabilities
|
|
|
1,529,669
|
|
|
1,872,194
|
|
||
Total liabilities
|
|
|
1,914,987
|
|
|
2,109,570
|
|
||
Shareholders’ equity
|
|
|
|
|
|
|
|||
Issued, authorized and fully paid-in share capital:
|
|
|
|
|
|
|
|||
Common stock, $0.01 par value per share; 400,000,000 shares authorized; 174,629,755 and 175,335,400 issued and outstanding shares as of December 31, 2016 and December 31, 2015, respectively.
|
14
|
|
2,247
|
|
|
2,224
|
|
||
Additional paid-in capital
|
14
|
|
1,756,769
|
|
|
1,729,314
|
|
||
Treasury shares
|
14
|
|
(443,816
|
)
|
|
(427,311
|
)
|
||
Retained earnings
|
|
|
—
|
|
|
109,658
|
|
||
Total shareholders’ equity
|
|
|
1,315,200
|
|
|
1,413,885
|
|
||
Total liabilities and shareholders’ equity
|
|
|
$
|
3,230,187
|
|
|
$
|
3,523,455
|
|
|
|
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars except per share and share data
|
|
Notes
|
|
2016
|
|
2015
|
|
2014
|
||||||
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|||
Vessel revenue
|
|
16
|
|
$
|
522,747
|
|
|
$
|
755,711
|
|
|
$
|
342,807
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|||
Vessel operating costs
|
|
|
|
(187,120
|
)
|
|
(174,556
|
)
|
|
(78,823
|
)
|
|||
Voyage expenses
|
|
|
|
(1,578
|
)
|
|
(4,432
|
)
|
|
(7,533
|
)
|
|||
Charterhire
|
|
17
|
|
(78,862
|
)
|
|
(96,865
|
)
|
|
(139,168
|
)
|
|||
Depreciation
|
|
4
|
|
(121,461
|
)
|
|
(107,356
|
)
|
|
(42,617
|
)
|
|||
General and administrative expenses
|
|
18
|
|
(54,899
|
)
|
|
(65,831
|
)
|
|
(48,129
|
)
|
|||
Write down of vessels held for sale and net loss on sales of vessels
|
|
4
|
|
(2,078
|
)
|
|
(35
|
)
|
|
(3,978
|
)
|
|||
Write-off of vessel purchase options
|
|
5
|
|
—
|
|
|
(731
|
)
|
|
—
|
|
|||
Gain on sale of VLCCs
|
|
5
|
|
—
|
|
|
—
|
|
|
51,419
|
|
|||
Gain on sale of Dorian shares
|
|
8
|
|
—
|
|
|
1,179
|
|
|
10,924
|
|
|||
Re-measurement of investment in Dorian
|
|
8
|
|
—
|
|
|
—
|
|
|
(13,895
|
)
|
|||
Total operating expenses
|
|
|
|
(445,998
|
)
|
|
(448,627
|
)
|
|
(271,800
|
)
|
|||
Operating income
|
|
|
|
76,749
|
|
|
307,084
|
|
|
71,007
|
|
|||
Other (expense) and income, net
|
|
|
|
|
|
|
|
|
||||||
Financial expenses
|
|
19
|
|
(104,048
|
)
|
|
(89,596
|
)
|
|
(20,770
|
)
|
|||
Realized gain on derivative financial instruments
|
|
12
|
|
—
|
|
|
55
|
|
|
17
|
|
|||
Unrealized gain / (loss) on derivative financial instruments
|
|
12
|
|
1,371
|
|
|
(1,255
|
)
|
|
264
|
|
|||
Financial income
|
|
|
|
1,213
|
|
|
145
|
|
|
203
|
|
|||
Share of income from associate
|
|
8
|
|
—
|
|
|
—
|
|
|
1,473
|
|
|||
Other expenses, net
|
|
|
|
(188
|
)
|
|
1,316
|
|
|
(103
|
)
|
|||
Total other expense, net
|
|
|
|
(101,652
|
)
|
|
(89,335
|
)
|
|
(18,916
|
)
|
|||
Net (loss) / income
|
|
|
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
Attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
|||
Equity holders of the parent
|
|
|
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
(Loss) / earnings per share
|
|
|
|
|
|
|
|
|
|
|
|
|||
Basic
|
|
21
|
|
$
|
(0.15
|
)
|
|
$
|
1.35
|
|
|
$
|
0.30
|
|
Diluted
|
|
21
|
|
$
|
(0.15
|
)
|
|
$
|
1.20
|
|
|
$
|
0.30
|
|
Basic weighted average shares outstanding
|
|
21
|
|
161,118,654
|
|
|
161,436,449
|
|
|
171,851,061
|
|
|||
Diluted weighted average shares outstanding
|
|
21
|
|
161,118,654
|
|
|
199,739,326
|
|
|
176,292,802
|
|
|
|
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
|
Notes
|
|
2016
|
|
2015
|
|
2014
|
||||||
Net (loss) / income
|
|
|
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
Other comprehensive income / (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|||
Items that may be reclassified subsequently to profit or loss
|
|
|
|
|
|
|
|
|
|
|
|
|||
Change in value of available for sale investment
|
|
8
|
|
—
|
|
|
10,801
|
|
|
(10,801
|
)
|
|||
Cash flow hedges
|
|
|
|
|
|
|
|
|
|
|
|
|||
Unrealized gain on derivative financial instruments
|
|
12
|
|
—
|
|
|
77
|
|
|
135
|
|
|||
Other comprehensive income / (loss)
|
|
|
|
—
|
|
|
10,878
|
|
|
(10,666
|
)
|
|||
Total comprehensive (loss) / income
|
|
|
|
$
|
(24,903
|
)
|
|
$
|
228,627
|
|
|
$
|
41,425
|
|
Attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
|||
Equity holders of the parent
|
|
|
|
$
|
(24,903
|
)
|
|
$
|
228,627
|
|
|
$
|
41,425
|
|
In thousands of U.S. dollars except share data
|
Number of shares outstanding
|
|
Share capital
|
|
Additional paid-in capital
|
|
Treasury shares
|
|
(Accumulated deficit) / retained earnings
|
|
Accumulated other comprehensive (loss) / income
|
|
Total
|
|||||||||||||
Balance as of January 1, 2014
|
198,791,502
|
|
|
$
|
1,999
|
|
|
$
|
1,536,945
|
|
|
$
|
(7,938
|
)
|
|
$
|
(80,071
|
)
|
|
$
|
(212
|
)
|
|
$
|
1,450,723
|
|
Net income for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
52,091
|
|
|
—
|
|
|
52,091
|
|
||||||
Other comprehensive loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(10,666
|
)
|
|
(10,666
|
)
|
||||||
Issuance of restricted stock
|
3,362,176
|
|
|
34
|
|
|
(34
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Amortization of restricted stock
|
—
|
|
|
—
|
|
|
29,726
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
29,726
|
|
||||||
Dividends paid, $0.39 per share
(1)
|
—
|
|
|
—
|
|
|
(70,495
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(70,495
|
)
|
||||||
Purchase of treasury shares
|
(37,579,136
|
)
|
|
—
|
|
|
—
|
|
|
(343,345
|
)
|
|
—
|
|
|
—
|
|
|
(343,345
|
)
|
||||||
Equity component of the Convertible Notes, net of issuance costs (see Note 11)
|
—
|
|
|
—
|
|
|
59,464
|
|
|
—
|
|
|
—
|
|
|
|
|
|
59,464
|
|
||||||
Shares issued for acquisition of vessels
|
—
|
|
|
—
|
|
|
(4,650
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(4,650
|
)
|
||||||
Balance as of December 31, 2014
|
164,574,542
|
|
|
$
|
2,033
|
|
|
$
|
1,550,956
|
|
|
$
|
(351,283
|
)
|
|
$
|
(27,980
|
)
|
|
$
|
(10,878
|
)
|
|
$
|
1,162,848
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance as of January 1, 2015
|
164,574,542
|
|
|
$
|
2,033
|
|
|
$
|
1,550,956
|
|
|
$
|
(351,283
|
)
|
|
$
|
(27,980
|
)
|
|
$
|
(10,878
|
)
|
|
$
|
1,162,848
|
|
Net income for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
217,749
|
|
|
—
|
|
|
217,749
|
|
||||||
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
10,878
|
|
|
10,878
|
|
||||||
Net proceeds from follow on offerings
|
17,177,123
|
|
|
172
|
|
|
152,022
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
152,194
|
|
||||||
Issuance of restricted stock
|
1,857,444
|
|
|
19
|
|
|
(19
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Amortization of restricted stock
|
—
|
|
|
—
|
|
|
33,687
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
33,687
|
|
||||||
Dividends paid, $0.495 per share
(1)
|
—
|
|
|
—
|
|
|
(6,945
|
)
|
|
—
|
|
|
(80,111
|
)
|
|
—
|
|
|
(87,056
|
)
|
||||||
Purchase of treasury shares
|
(8,273,709
|
)
|
|
—
|
|
|
—
|
|
|
(76,028
|
)
|
|
—
|
|
|
—
|
|
|
(76,028
|
)
|
||||||
Equity component of repurchase of the Convertible Notes (see Note 11)
|
—
|
|
|
—
|
|
|
(387
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(387
|
)
|
||||||
Balance as of Balance as of December 31, 2015
|
175,335,400
|
|
|
$
|
2,224
|
|
|
$
|
1,729,314
|
|
|
$
|
(427,311
|
)
|
|
$
|
109,658
|
|
|
$
|
—
|
|
|
$
|
1,413,885
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance as of January 1, 2016
|
175,335,400
|
|
|
$
|
2,224
|
|
|
$
|
1,729,314
|
|
|
$
|
(427,311
|
)
|
|
$
|
109,658
|
|
|
$
|
—
|
|
|
$
|
1,413,885
|
|
Net loss for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(24,903
|
)
|
|
—
|
|
|
(24,903
|
)
|
||||||
Issuance of restricted stock, net of forfeitures
|
2,251,115
|
|
|
23
|
|
|
(23
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Amortization of restricted stock, net of forfeitures
|
—
|
|
|
—
|
|
|
30,207
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
30,207
|
|
||||||
Dividends paid, $0.50 per share
(1)
|
—
|
|
|
—
|
|
|
(2,168
|
)
|
|
—
|
|
|
(84,755
|
)
|
|
—
|
|
|
(86,923
|
)
|
||||||
Purchase of treasury shares
|
(2,956,760
|
)
|
|
—
|
|
|
—
|
|
|
(16,505
|
)
|
|
—
|
|
|
—
|
|
|
(16,505
|
)
|
||||||
Equity issuance costs
|
—
|
|
|
—
|
|
|
(24
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(24
|
)
|
||||||
Equity component of repurchase of the Convertible Notes (see Note 11)
|
—
|
|
|
—
|
|
|
(537
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(537
|
)
|
||||||
Balance as of December 31, 2016
|
174,629,755
|
|
|
$
|
2,247
|
|
|
$
|
1,756,769
|
|
|
$
|
(443,816
|
)
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,315,200
|
|
|
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
Notes
|
|
2016
|
|
2015
|
|
2014
|
||||||
Operating activities
|
|
|
|
|
|
|
|
|
|
||||
Net (loss) / income
|
|
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
Gain on sale of VLCCs
|
|
|
—
|
|
|
—
|
|
|
(51,419
|
)
|
|||
Gain on sale of Dorian Shares
|
8
|
|
—
|
|
|
(1,179
|
)
|
|
(10,924
|
)
|
|||
Re-measurement of investment in Dorian
|
8
|
|
—
|
|
|
—
|
|
|
13,895
|
|
|||
Loss from sales of vessels
|
4
|
|
2,078
|
|
|
35
|
|
|
3,978
|
|
|||
Write-off of vessel purchase options
|
5
|
|
—
|
|
|
731
|
|
|
—
|
|
|||
Depreciation
|
4
|
|
121,461
|
|
|
107,356
|
|
|
42,617
|
|
|||
Amortization of restricted stock
|
14
|
|
30,207
|
|
|
33,687
|
|
|
29,726
|
|
|||
Amortization of deferred financing fees
|
|
|
14,149
|
|
|
14,688
|
|
|
4,362
|
|
|||
Write-off of deferred financing fees
|
|
|
14,479
|
|
|
2,730
|
|
|
472
|
|
|||
Straight-line adjustment for charterhire expense
|
|
|
—
|
|
|
—
|
|
|
3
|
|
|||
Share of profit from associate
|
8
|
|
—
|
|
|
—
|
|
|
(1,473
|
)
|
|||
Unrealized (gain) / loss on derivative financial instruments
|
12
|
|
(1,371
|
)
|
|
1,255
|
|
|
(264
|
)
|
|||
Amortization of acquired time charter contracts
|
|
|
65
|
|
|
513
|
|
|
478
|
|
|||
Accretion of Convertible Notes
|
11
|
|
11,562
|
|
|
11,096
|
|
|
5,330
|
|
|||
Gain on repurchase of Convertible Notes
|
|
|
(994
|
)
|
|
(46
|
)
|
|
—
|
|
|||
|
|
|
166,733
|
|
|
388,615
|
|
|
88,872
|
|
|||
Changes in assets and liabilities:
|
|
|
|
|
|
|
|
|
|
||||
Drydock payments
|
|
|
—
|
|
|
—
|
|
|
(1,290
|
)
|
|||
Decrease / (increase) in inventories
|
|
|
564
|
|
|
(1,909
|
)
|
|
(3,218
|
)
|
|||
Decrease / (increase) in accounts receivable
|
|
|
26,688
|
|
|
9,184
|
|
|
(5,660
|
)
|
|||
Increase in prepaid expenses and other current assets
|
|
|
(5,546
|
)
|
|
(1,615
|
)
|
|
(154
|
)
|
|||
Decrease / (increase) in other assets
|
|
|
2,045
|
|
|
(14,153
|
)
|
|
(2,901
|
)
|
|||
(Decrease) / increase in accounts payable
|
|
|
(2,487
|
)
|
|
775
|
|
|
6,471
|
|
|||
(Decrease) / increase in accrued expenses
|
|
|
(9,486
|
)
|
|
11,206
|
|
|
12,070
|
|
|||
Interest rate swap termination payment
|
|
|
—
|
|
|
(128
|
)
|
|
(274
|
)
|
|||
|
|
|
11,778
|
|
|
3,360
|
|
|
5,044
|
|
|||
Net cash inflow from operating activities
|
|
|
178,511
|
|
|
391,975
|
|
|
93,916
|
|
|||
Investing activities
|
|
|
|
|
|
|
|
|
|
||||
Acquisition of vessels and payments for vessels under construction
|
|
|
(126,842
|
)
|
|
(905,397
|
)
|
|
(1,403,181
|
)
|
|||
Proceeds from disposal of vessels
|
|
|
158,175
|
|
|
90,820
|
|
|
213,670
|
|
|||
Proceeds from sale of Dorian shares
|
|
|
—
|
|
|
142,436
|
|
|
—
|
|
|||
Deposit (returned)/received for vessel purchases
|
|
|
—
|
|
|
(31,277
|
)
|
|
31,277
|
|
|||
Net cash inflow / (outflow) from investing activities
|
|
|
31,333
|
|
|
(703,418
|
)
|
|
(1,158,234
|
)
|
|||
Financing activities
|
|
|
|
|
|
|
|
|
|
||||
Debt repayments
|
|
|
(753,431
|
)
|
|
(226,260
|
)
|
|
(74,674
|
)
|
|||
Issuance of debt
|
|
|
565,028
|
|
|
643,550
|
|
|
1,219,784
|
|
|||
Debt issuance costs
|
|
|
(10,679
|
)
|
|
(8,497
|
)
|
|
(45,670
|
)
|
|||
(Repayment) / proceeds of Convertible Notes
|
|
|
(8,393
|
)
|
|
(1,632
|
)
|
|
360,000
|
|
|||
Convertible Notes issuance costs
|
|
|
—
|
|
|
—
|
|
|
(10,993
|
)
|
Gross proceeds from issuance of common stock
|
|
|
—
|
|
|
159,747
|
|
|
—
|
|
|||
Equity issuance costs
|
|
|
(24
|
)
|
|
(7,554
|
)
|
|
(42
|
)
|
|||
Dividends paid
|
|
|
(86,923
|
)
|
|
(87,056
|
)
|
|
(70,495
|
)
|
|||
Repurchase of common stock
|
|
|
(16,505
|
)
|
|
(76,028
|
)
|
|
(276,294
|
)
|
|||
Net cash (outflow) / inflow from financing activities
|
|
|
(310,927
|
)
|
|
396,270
|
|
|
1,101,616
|
|
|||
(Decrease) / increase in cash and cash equivalents
|
|
|
(101,083
|
)
|
|
84,827
|
|
|
37,298
|
|
|||
Cash and cash equivalents at January 1,
|
|
|
200,970
|
|
|
116,143
|
|
|
78,845
|
|
|||
Cash and cash equivalents at December 31,
|
|
|
$
|
99,887
|
|
|
$
|
200,970
|
|
|
$
|
116,143
|
|
Supplemental information:
|
|
|
|
|
|
|
|
|
|
||||
Interest paid
|
|
|
$
|
69,008
|
|
|
$
|
63,418
|
|
|
$
|
24,507
|
|
1.
|
General information and significant accounting policies
|
(1)
|
Pool revenue for each vessel is determined in accordance with the profit sharing terms specified within each pool agreement. In particular, the pool manager aggregates the revenues and expenses of all of the pool participants and distributes the net earnings to participants based on:
|
•
|
the pool points (vessel attributes such as cargo carrying capacity, fuel consumption, and construction characteristics are taken into consideration); and
|
•
|
the number of days the vessel participated in the pool in the period
.
We recognize pool revenue on a monthly basis, when the vessel has participated in a pool during the period and the amount of pool revenue for the month can be estimated reliably. We receive estimated vessel earnings based on the known number of days the vessel has participated in the pool, the contract terms, and the estimated monthly pool revenue. On a quarterly basis, we receive a report from the pool which identifies the number of days the vessel participated in the pool, the
|
(2)
|
Time charter revenue is recognized as services are performed based on the daily rates specified in the time charter contract.
|
(3)
|
Voyage charter agreements are charter hires, where a contract is made in the spot market for the use of a vessel for a specific voyage for a specified charter rate. Revenue from voyage charter agreements is recognized as voyage revenue on a pro-rata basis over the duration of the voyage on a discharge to discharge basis. In the application of this policy, we do not begin recognizing revenue until (i) the amount of revenue can be measured reliably, (ii) it is probable that the economic benefits associated with the transaction will flow to the entity, (iii) the transactions stage of completion at the balance sheet date can be measured reliably and (iv) the costs incurred and the costs to complete the transaction can be measured reliably.
|
•
|
it has been acquired principally for the purpose of selling in the near future; or
|
•
|
it is a part of an identified portfolio of financial instruments that we manage together and has a recent actual pattern of short-term profit-taking; or
|
•
|
it is a derivative that is not designated and effective as a hedging instrument.
|
•
|
significant financial difficulty of the issuer or counterparty; or
|
•
|
default or delinquency in interest or principal payments; or
|
•
|
it becomes probable that the borrower will enter bankruptcy or financial re-organization.
|
•
|
All 77 vessels had fair values less costs to sell that were less than their carrying amount. Accordingly, we prepared a value in use calculation for each of these vessels which resulted in no impairment being recognized.
|
•
|
We did not obtain independent broker valuations for our ten vessels under construction. To assess their carrying values for impairment, we prepared value in use calculations which resulted in no impairment being recognized.
|
•
|
IFRS 14 - Regulatory deferral accounts
|
•
|
Amendment to IFRS 11 - Joint arrangements
|
•
|
Amendment to IAS 16 & IAS 38 - Clarification of Acceptable Methods of Depreciation and Amortization
|
•
|
Amendment to IAS 16 & IAS 41 - Agriculture: Bearer Plants
|
•
|
Amendment to IAS 27 - Equity Method in Separate Financial Statements
|
•
|
Amendment to IFRS 10, IFRS 12 and IAS 28 - Investment entities: Applying the Consolidation Exception
|
•
|
Amendment to IAS 1 - Disclosure Initiative
|
•
|
Annual improvements for IFRS Standards 2012-2014 cycle
|
•
|
Annual improvements for IFRS Standards 2014 - 2016 cycle - Effective for annual periods beginning on or after January 1, 2017.
|
•
|
IFRS 9 - Financial Instruments - The standard reduces the number of categories of financial assets to three and simplifies the rules regarding hedge accounting. This standard is effective for annual periods beginning on or after January 1, 2018.
|
•
|
IAS 12 - Recognition of deferred tax assets for unrealized losses - clarifies certain aspects of IAS 12, Income Taxes. Effective for annual periods beginning on or after January 1, 2017.
|
•
|
IAS 7 - Disclosure initiative - statement of cash flows - requires disclosures on reconciliation of net interest-bearing debt. Effective for annual periods beginning on or after January 1, 2017.
|
•
|
Amendment to IFRS 2 - Share Based Payment Transactions - clarifies the standard in relation to the accounting for cash settled share based payment transactions that include a performance condition, the classification of share based payment transactions with net settlement features and the accounting for modifications of share based payment transactions from cash settled to equity settled. Effective for annual periods beginning on or after January 1, 2018.
|
•
|
IFRIC 22 - Foreign Currency Transactions and Advance Consideration - establishes the date for which to determine the exchange rate to use on the date of initial recognition of a non-monetary prepayment asset or deferred income liability. Effective for annual periods beginning on or after January 1, 2018.
|
•
|
Amendment to IAS 40 - Investment Property - Amends IAS 40 paragraph 57 to state that an entity shall transfer a property to, or from, investment property when, and only when, there is evidence of a change in use. Effective for annual periods beginning on or after January 1, 2018.
|
•
|
Amendment to IFRS 10 and IAS 28 - Sale or Contribution of Assets between an Investor and its Associate or Joint Venture. Clarifies the recognition of gains and losses arising on the sale or contribution of assets that constitute a business and assets do not constitute a business. The effective date is pending.
|
2.
|
Cash and cash equivalents
|
|
At December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Cash at banks
|
$
|
99,053
|
|
|
$
|
200,187
|
|
Cash on vessels
|
834
|
|
|
783
|
|
||
|
$
|
99,887
|
|
|
$
|
200,970
|
|
3.
|
Accounts receivable
|
|
At December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Scorpio MR Pool Limited
|
$
|
28,611
|
|
|
$
|
35,238
|
|
Scorpio LR2 Pool Limited
|
7,552
|
|
|
15,301
|
|
||
Scorpio Panamax Tanker Pool Limited
|
1,392
|
|
|
4,459
|
|
||
Scorpio Handymax Tanker Pool Limited
|
3,125
|
|
|
4,477
|
|
||
Receivables from the Scorpio Group Pools
|
40,680
|
|
|
59,475
|
|
||
|
|
|
|
||||
SSM
|
—
|
|
|
2,346
|
|
||
Freight and time charter receivables
|
—
|
|
|
498
|
|
||
Insurance receivables
|
1,362
|
|
|
3,012
|
|
||
Other receivables
|
287
|
|
|
3,686
|
|
||
|
$
|
42,329
|
|
|
$
|
69,017
|
|
4.
|
Vessels
|
In thousands of U.S. dollars
|
Vessels
|
|
Drydock
|
|
Total
|
|||||||
Cost
|
|
|
|
|
|
|
||||||
|
As of January 1, 2016
|
$
|
3,188,367
|
|
|
$
|
62,039
|
|
|
$
|
3,250,406
|
|
|
Additions
(1)
|
105,415
|
|
|
1,800
|
|
|
107,215
|
|
|||
|
Disposal of vessels
(2)
|
(166,992
|
)
|
|
(3,750
|
)
|
|
(170,742
|
)
|
|||
|
As of December 31, 2016
|
3,126,790
|
|
|
60,089
|
|
|
3,186,879
|
|
|||
|
|
|
|
|
|
|
||||||
Accumulated depreciation and impairment
|
|
|
|
|
|
|||||||
|
As of January 1, 2016
|
(146,063
|
)
|
|
(16,590
|
)
|
|
(162,653
|
)
|
|||
|
Charge for the period
|
(109,433
|
)
|
|
(12,028
|
)
|
|
(121,461
|
)
|
|||
|
Disposal of vessels
(2)
|
9,286
|
|
|
1,203
|
|
|
10,489
|
|
|||
|
As of December 31, 2016
|
(246,210
|
)
|
|
(27,415
|
)
|
|
(273,625
|
)
|
|||
Net book value
|
|
|
|
|
|
|||||||
|
As of December 31, 2016
|
$
|
2,880,580
|
|
|
$
|
32,674
|
|
|
$
|
2,913,254
|
|
|
|
|
|
|
|
|
||||||
Cost
|
|
|
|
|
|
|
||||||
|
As of January 1, 2015
|
$
|
1,992,229
|
|
|
$
|
41,012
|
|
|
$
|
2,033,241
|
|
|
Additions
(3)
|
1,221,361
|
|
|
21,838
|
|
|
1,243,199
|
|
|||
|
Disposal of vessel
(4)
|
(25,223
|
)
|
|
(811
|
)
|
|
(26,034
|
)
|
|||
|
As of December 31, 2015
|
3,188,367
|
|
|
62,039
|
|
|
3,250,406
|
|
|||
|
|
|
|
|
|
|
||||||
Accumulated depreciation and impairment
|
|
|
|
|
|
|||||||
|
As of January 1, 2015
|
(54,928
|
)
|
|
(6,435
|
)
|
|
(61,363
|
)
|
|||
|
Charge for the period
|
(96,390
|
)
|
|
(10,966
|
)
|
|
(107,356
|
)
|
|||
|
Disposal of vessel
(4)
|
5,255
|
|
|
811
|
|
|
6,066
|
|
|||
|
As of December 31, 2015
|
(146,063
|
)
|
|
(16,590
|
)
|
|
(162,653
|
)
|
|||
Net book value
|
|
|
|
|
|
|||||||
|
As of December 31, 2015
|
$
|
3,042,304
|
|
|
$
|
45,449
|
|
|
$
|
3,087,753
|
|
(1)
|
Additions in 2016 primarily relate to the deliveries of
STI Grace
and
STI Jermyn
and the corresponding calculation of notional drydock on these vessels.
|
(2)
|
Represents the net book value of
STI Chelsea, STI Lexington, STI Powai, STI Olivia
and
STI Mythos
, which were sold during the year ended December 31, 2016.
|
(3)
|
Additions in 2015 primarily relate to the deliveries of 27 vessels and corresponding calculations of notional drydock on these vessels.
|
(4)
|
Represents the net book value of
STI Highlander
, which was sold in October 2015.
|
|
|
|
Month
|
|
Vessel
|
|
|
Name
|
|
Delivered
|
|
Type
|
|
1
|
|
STI Grace
|
|
March 2016
|
|
LR2
|
2
|
|
STI Jermyn
|
|
June 2016
|
|
LR2
|
|
|
|
Month
|
|
Vessel
|
|
|
|
Name
|
|
Delivered
|
|
Type
|
|
|
1
|
|
STI Tribeca
|
|
January 2015
|
|
MR
|
|
2
|
|
STI Hammersmith
|
|
January 2015
|
|
Handymax
|
|
3
|
|
STI Rotherhithe
|
|
January 2015
|
|
Handymax
|
|
4
|
|
STI Rose
|
|
January 2015
|
|
LR2
|
|
5
|
|
STI Gramercy
|
|
January 2015
|
|
MR
|
|
6
|
|
STI Veneto
|
|
February 2015
|
|
LR2
|
|
7
|
|
STI Alexis
|
|
February 2015
|
|
LR2
|
|
8
|
|
STI Bronx
|
|
February 2015
|
|
MR
|
|
9
|
|
STI Pontiac
|
|
March 2015
|
|
MR
|
|
10
|
|
STI Manhattan
|
|
March 2015
|
|
MR
|
|
11
|
|
STI Winnie
|
|
March 2015
|
|
LR2
|
|
12
|
|
STI Oxford
|
|
April 2015
|
|
LR2
|
|
13
|
|
STI Queens
|
|
April 2015
|
|
MR
|
|
14
|
|
STI Osceola
|
|
April 2015
|
|
MR
|
|
15
|
|
STI Lauren
|
|
May 2015
|
|
LR2
|
|
16
|
|
STI Connaught
|
|
May 2015
|
|
LR2
|
|
17
|
|
STI Notting Hill
|
|
May 2015
|
|
MR
|
|
18
|
|
STI Spiga
|
|
June 2015
|
|
LR2
|
|
19
|
|
STI Seneca
|
|
June 2015
|
|
MR
|
|
20
|
|
STI Savile Row
|
|
June 2015
|
|
LR2
|
|
21
|
|
STI Westminster
|
|
June 2015
|
|
MR
|
|
22
|
|
STI Brooklyn
|
|
July 2015
|
|
MR
|
|
23
|
|
STI Kingsway
|
|
August 2015
|
|
LR2
|
|
24
|
|
STI Memphis
|
|
August 2015
|
|
MR
|
|
25
|
|
STI Lombard
|
|
August 2015
|
|
LR2
|
(1)
|
26
|
|
STI Carnaby
|
|
September 2015
|
|
LR2
|
|
27
|
|
STI Black Hawk
|
|
September 2015
|
|
MR
|
|
Credit Facility
|
|
Vessel Name
|
|
Net Book Value
(In millions of U.S. dollars) |
|
||
2011 Credit Facility
|
|
STI Beryl
|
|
$
|
31.7
|
|
|
2011 Credit Facility
|
|
STI Duchessa
|
|
30.8
|
|
|
|
2011 Credit Facility
|
|
STI Emerald
|
|
32.5
|
|
|
|
2011 Credit Facility
|
|
STI Larvotto
|
|
32.2
|
|
|
|
2011 Credit Facility
|
|
STI Le Rocher
|
|
32.2
|
|
|
|
2011 Credit Facility
|
|
STI Onyx
|
|
32.7
|
|
|
|
2011 Credit Facility
|
|
STI Sapphire
|
|
32.6
|
|
|
|
2016 Credit Facility
|
|
STI Amber
|
|
32.5
|
|
|
|
2016 Credit Facility
|
|
STI Aqua
|
|
31.0
|
|
|
|
2016 Credit Facility
|
|
STI Benicia
|
|
36.2
|
|
|
|
2016 Credit Facility
|
|
STI Dama
|
|
31.0
|
|
|
|
2016 Credit Facility
|
|
STI Garnet
|
|
32.7
|
|
|
|
2016 Credit Facility
|
|
STI Meraux
|
|
35.3
|
|
|
|
2016 Credit Facility
|
|
STI Opera
|
|
30.6
|
|
|
|
2016 Credit Facility
|
|
STI Regina
|
|
31.2
|
|
|
|
2016 Credit Facility
|
|
STI Ruby
|
|
32.7
|
|
|
|
2016 Credit Facility
|
|
STI San Antonio
|
|
35.3
|
|
|
|
2016 Credit Facility
|
|
STI St. Charles
|
|
34.8
|
|
|
|
2016 Credit Facility
|
|
STI Texas City
|
|
34.9
|
|
|
|
2016 Credit Facility
|
|
STI Topaz
|
|
32.6
|
|
|
|
2016 Credit Facility
|
|
STI Venere
|
|
30.7
|
|
|
|
2016 Credit Facility
|
|
STI Virtus
|
|
30.8
|
|
|
|
2016 Credit Facility
|
|
STI Yorkville
|
|
31.6
|
|
|
|
ABN AMRO Credit Facility
|
|
STI Carnaby
|
|
57.7
|
|
|
|
ABN AMRO Credit Facility
|
|
STI Kingsway
|
|
57.5
|
|
|
|
ABN AMRO Credit Facility
|
|
STI Savile Row
|
|
57.2
|
|
|
|
ABN AMRO Credit Facility
|
|
STI Spiga
|
|
56.1
|
|
|
|
BNP Paribas Credit Facility
|
|
STI Battery
|
|
31.8
|
|
|
BNP Paribas Credit Facility
|
|
STI Memphis
|
|
35.6
|
|
|
|
DVB Credit Facility
|
|
STI Alexis
|
|
57.0
|
|
|
|
DVB Credit Facility
|
|
STI Milwaukee
|
|
37.3
|
|
|
|
DVB Credit Facility
|
|
STI Seneca
|
|
37.8
|
|
|
|
DVB Credit Facility
|
|
STI Wembley
|
|
30.2
|
|
|
|
ING Credit Facility
|
|
STI Black Hawk
|
|
36.0
|
|
|
|
ING Credit Facility
|
|
STI Grace
|
|
51.5
|
|
|
|
ING Credit Facility
|
|
STI Jermyn
|
|
52.5
|
|
|
|
ING Credit Facility
|
|
STI Lombard
|
|
58.4
|
|
|
|
ING Credit Facility
|
|
STI Osceola
|
|
37.7
|
|
|
|
ING Credit Facility
|
|
STI Pontiac
|
|
37.4
|
|
|
|
KEXIM Credit Facility
|
|
STI Acton
|
|
30.2
|
|
|
|
KEXIM Credit Facility
|
|
STI Brixton
|
|
29.6
|
|
|
|
KEXIM Credit Facility
|
|
STI Broadway
|
|
48.0
|
|
|
|
KEXIM Credit Facility
|
|
STI Camden
|
|
29.8
|
|
|
|
KEXIM Credit Facility
|
|
STI Clapham
|
|
30.4
|
|
|
|
KEXIM Credit Facility
|
|
STI Comandante
|
|
29.5
|
|
|
|
KEXIM Credit Facility
|
|
STI Condotti
|
|
49.0
|
|
|
|
KEXIM Credit Facility
|
|
STI Elysees
|
|
48.1
|
|
|
|
KEXIM Credit Facility
|
|
STI Finchley
|
|
30.1
|
|
|
|
KEXIM Credit Facility
|
|
STI Fulham
|
|
30.0
|
|
|
|
KEXIM Credit Facility
|
|
STI Hackney
|
|
29.6
|
|
|
|
KEXIM Credit Facility
|
|
STI Madison
|
|
48.5
|
|
|
|
KEXIM Credit Facility
|
|
STI Orchard
|
|
48.1
|
|
|
|
KEXIM Credit Facility
|
|
STI Park
|
|
48.5
|
|
|
|
KEXIM Credit Facility
|
|
STI Pimlico
|
|
29.7
|
|
|
|
KEXIM Credit Facility
|
|
STI Poplar
|
|
30.4
|
|
|
|
KEXIM Credit Facility
|
|
STI Sloane
|
|
49.0
|
|
|
|
KEXIM Credit Facility
|
|
STI Veneto
|
|
49.2
|
|
|
|
K-Sure Credit Facility
|
|
STI Battersea
|
|
30.0
|
|
|
|
K-Sure Credit Facility
|
|
STI Bronx
|
|
32.6
|
|
|
|
K-Sure Credit Facility
|
|
STI Brooklyn
|
|
32.7
|
|
|
|
K-Sure Credit Facility
|
|
STI Connaught
|
|
50.0
|
|
|
|
K-Sure Credit Facility
|
|
STI Gramercy
|
|
31.8
|
|
|
|
K-Sure Credit Facility
|
|
STI Hammersmith
|
|
30.8
|
|
|
|
K-Sure Credit Facility
|
|
STI Lauren
|
|
50.3
|
|
|
|
K-Sure Credit Facility
|
|
STI Manhattan
|
|
32.6
|
|
|
|
K-Sure Credit Facility
|
|
STI Mayfair
|
|
32.1
|
|
|
|
K-Sure Credit Facility
|
|
STI Notting Hill
|
|
36.2
|
|
|
|
K-Sure Credit Facility
|
|
STI Oxford
|
|
50.3
|
|
|
|
K-Sure Credit Facility
|
|
STI Queens
|
|
32.6
|
|
|
|
K-Sure Credit Facility
|
|
STI Rotherhithe
|
|
30.9
|
|
|
|
K-Sure Credit Facility
|
|
STI Soho
|
|
31.7
|
|
|
|
K-Sure Credit Facility
|
|
STI Tribeca
|
|
32.6
|
|
|
|
K-Sure Credit Facility
|
|
STI Westminster
|
|
36.4
|
|
|
|
K-Sure Credit Facility
|
|
STI Winnie
|
|
50.2
|
|
|
NIBC Credit Facility
|
|
STI Fontvieille
|
|
32.3
|
|
|
|
NIBC Credit Facility
|
|
STI Ville
|
|
32.5
|
|
|
|
Scotiabank Credit Facility
|
|
STI Rose
|
|
56.7
|
|
|
|
|
|
|
|
|
|
||
|
|
Total
|
|
$
|
2,913.3
|
|
|
5.
|
Vessels under construction
|
In thousands of U.S. dollars
|
|
||
Balance as of January 1, 2015
|
$
|
404,877
|
|
Installment payments and other capitalized expenses
|
873,179
|
|
|
Capitalized interest
|
5,571
|
|
|
Transferred to operating vessels and drydock
|
(1,150,678
|
)
|
|
Write-off of vessel purchase options
|
(731
|
)
|
|
Balance as of December 31, 2015
|
$
|
132,218
|
|
|
|
||
Installment payments and other capitalized expenses
|
106,034
|
|
|
Capitalized interest
|
6,274
|
|
|
Transferred to operating vessels and drydock
|
(106,609
|
)
|
|
Balance as of December 31, 2016
|
$
|
137,917
|
|
|
In millions of U.S. dollars
|
||
Q1 2017 - installment payments made
|
$
|
29.2
|
|
Q1 2017 - remaining installment payments
|
52.7
|
|
|
Q2 2017
|
35.9
|
|
|
Q3 2017
|
68.2
|
|
|
Q4 2017
|
50.5
|
|
|
Q1 2018
|
21.6
|
|
|
Total
|
$
|
258.1
|
|
6.
|
Carrying values of vessels and vessels under construction
|
•
|
77 vessels in our fleet had fair values less costs to sell less than their carrying amount. We prepared a value in use calculation for each these vessels which resulted in no impairment being recognized.
|
•
|
We did not obtain independent broker valuations for our ten vessels under construction. To assess their carrying values for impairment, we prepared value in use calculations for each vessel which resulted in no impairment being recognized.
|
•
|
50 vessels had fair values less costs to sell in excess of their carrying amount.
|
•
|
30 vessels had fair values less costs to sell less than their carrying amount. We prepared a value in use calculation for each these vessels which resulted in no impairment being recognized.
|
•
|
We did not obtain independent broker valuations for our 12 vessels under construction. To assess their carrying values for impairment, we prepared value in use calculations for each vessel which resulted in no impairment being recognized.
|
•
|
Based on the sensitivity analysis performed for
December 31, 2016
, a 1.0% increase in the discount rate would result in an impairment of $20.2 million being recognized. Alternatively, a 5% decrease in forecasted time charter rates would result in an impairment of $22.4 million being recognized.
|
•
|
Based on the sensitivity analysis performed for
December 31, 2015
, a 1.0% increase in the discount rate would result in no impairment being recognized. Alternatively, a 5% decrease in forecasted time charter rates would also result in no impairment being recognized.
|
7.
|
Other non-current assets
|
|
At December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Scorpio LR2 Tanker Pool Ltd. pool working capital contributions
(1)
|
$
|
13,600
|
|
|
$
|
13,600
|
|
Scorpio Handymax Tanker Pool Ltd. pool working capital contributions
(2)
|
5,617
|
|
|
5,656
|
|
||
Working capital contributions to Scorpio Group Pools
|
19,217
|
|
|
19,256
|
|
||
|
|
|
|
||||
Capitalized loan fees
(3)
|
2,278
|
|
|
2,527
|
|
||
Security deposits for vessel claims
(4)
|
—
|
|
|
1,554
|
|
||
|
$
|
21,495
|
|
|
$
|
23,337
|
|
(1)
|
Upon entrance into the Scorpio LR2 Tanker Pool, all vessels are required to make initial working capital contributions of both cash and bunkers. Initial working capital contributions are repaid, without interest, upon a vessel’s exit from the pool. Bunkers on board a vessel exiting the pool are credited against such repayment at the actual invoice price of the bunkers. For all owned vessels we assume that these contributions will not be repaid within 12 months and are thus classified as non-current within other assets on the consolidated balance sheets. For time chartered-in vessels we classify the amounts as current (within accounts receivable) or non-current (within other assets) according to the expiration of the contract.
|
(2)
|
Upon entrance into the Scorpio Handymax Tanker Pool, all vessels are required to make initial working capital contributions of both cash and bunkers. Initial working capital contributions are repaid, without interest, upon a vessel's exit from each pool no later than six months after the exit date. Bunkers on board a vessel exiting the pool are credited against such repayment at the actual invoice price of the bunkers. For all owned vessels we assume that these contributions will not be repaid within 12 months and are thus classified as non-current within other assets on the consolidated balance sheets. For time chartered-in vessels we classify the amounts as current (within accounts receivable) or non-current (within other assets) according to the expiration of the contract.
|
(3)
|
Primarily represents upfront loan fees on our credit facilities that are expected to be used to finance vessels under our Newbuilding Program. These are reclassified to debt when the tranche of the loan to which the vessel relates is drawn.
|
(4)
|
Represents security deposits paid in 2015 in order for two of our vessels to be promptly released from the arrest instigated by an unpaid bunkers supplier. These vessels were on time charter to an unrelated third party when the bunkers in question were purchased. These security deposits were repaid in June and August of 2016.
|
8.
|
Investment in Dorian
|
In thousands of U.S. dollars
|
Rollforward of carrying value of investment in Dorian
|
|
||
Carrying value at January 1, 2014
|
$
|
209,803
|
|
|
Disposal of shares
|
(56,124
|
)
|
(1)
|
|
Our share of net income through October 29, 2014
|
1,473
|
|
|
|
Loss recognized upon change in accounting method
|
(13,895
|
)
|
(2)
|
|
Carrying value at October 29, 2014
|
141,257
|
|
|
|
Other comprehensive loss
|
(10,801
|
)
|
(3)
|
|
Carrying value at December 31, 2014
|
$
|
130,456
|
|
|
Other comprehensive income
|
10,801
|
|
|
|
Carrying value at date of sales, July 2015
|
$
|
141,257
|
|
|
Net proceeds from sales
|
142,436
|
|
|
|
Gain on disposal
|
$
|
1,179
|
|
|
(1)
|
In May 2014, we acquired 7,500,000 of our common shares from an existing shareholder in exchange for the sale to said shareholder of 3,422,665 common shares in Dorian in a privately negotiated transaction. As a result, we recognized a gain of $10.9 million.
|
(2)
|
Calculated based on the difference between the carrying value as of October 28, 2014 and the opening share price on October 29, 2014.
|
(3)
|
Amount recorded within equity, through other comprehensive income. Calculated based on the difference between the carrying value as of October 29, 2014 and closing share price on December 31, 2014.
|
|
|
|
|
Adjustments
|
|
|
||||||
In thousands of U.S. dollars
|
|
Dorian for the calendar year ended December 31, 2014
(1)
|
|
Impact of conversion to IFRS
(2)
|
|
Adjusted Dorian for the calendar year ended December 31, 2014
|
||||||
Revenue
|
|
$
|
78,575
|
|
|
—
|
|
|
$
|
78,575
|
|
|
Operating income
|
|
20,712
|
|
|
(614
|
)
|
|
20,098
|
|
|||
Net income
|
|
15,459
|
|
|
(614
|
)
|
|
14,845
|
|
|||
|
|
|
|
|
|
|
||||||
Our share of net income
(3)
|
|
$
|
1,604
|
|
|
$
|
(131
|
)
|
|
$
|
1,473
|
|
(1)
|
Prepared in accordance with US GAAP using Dorian's unaudited financial statements for the three months ended March 31, 2014 and the nine months ended December 31, 2014.
|
(2)
|
This represents the (i) excess depreciation calculated as a result of our stepped up basis recorded upon our initial investment and (ii) our conversion of depreciation expense from US GAAP to IFRS.
|
(3)
|
Our share of net income captures Dorian's financial results from January 1, 2014 through October 29, 2014, the date we ceased equity method accounting.
|
9.
|
Accounts payable
|
|
At December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Accounts payable to SSM
|
$
|
653
|
|
|
$
|
484
|
|
Accounts payable to SSH
|
90
|
|
|
—
|
|
||
Accounts payable to Scorpio LR2 Pool Ltd
|
15
|
|
|
63
|
|
||
Accounts payable to Scorpio MR Pool Ltd
|
—
|
|
|
175
|
|
||
Accounts payable to SCM
|
—
|
|
|
170
|
|
||
Accounts payable to Scorpio Handymax Pool Ltd
|
—
|
|
|
167
|
|
||
|
758
|
|
|
1,059
|
|
||
|
|
|
|
||||
Suppliers
|
8,524
|
|
|
10,874
|
|
||
Progress payments due for vessels under construction
|
—
|
|
|
13,750
|
|
||
|
$
|
9,282
|
|
|
$
|
25,683
|
|
|
At December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Accrued expenses to Scorpio Handymax Tanker Pool Ltd.
|
$
|
—
|
|
|
$
|
205
|
|
Accrued expenses to SSH
|
—
|
|
|
77
|
|
||
Accrued expenses to SCM
|
53
|
|
|
5
|
|
||
|
53
|
|
|
287
|
|
||
|
|
|
|
||||
Accrued interest
|
$
|
11,216
|
|
|
$
|
11,154
|
|
Suppliers
|
5,745
|
|
|
5,696
|
|
||
Accrued short-term employee benefits
|
5,487
|
|
|
13,738
|
|
||
Other accrued expenses
|
523
|
|
|
1,768
|
|
||
|
$
|
23,024
|
|
|
$
|
32,643
|
|
11.
|
Current and long-term debt
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Current portion
(1)
|
$
|
353,012
|
|
|
$
|
124,503
|
|
Finance lease
|
—
|
|
|
53,372
|
|
||
Current portion of long-term debt
|
353,012
|
|
|
177,875
|
|
||
|
|
|
|
||||
Non-current portion
(2)
|
1,529,669
|
|
|
1,872,114
|
|
||
|
$
|
1,882,681
|
|
|
$
|
2,049,989
|
|
(1)
|
The current portion at
December 31, 2016
was net of unamortized deferred financing fees of
$4.3 million
. The current portion at
December 31, 2015
was net of unamortized deferred financing fees of $3.8 million.
|
(2)
|
The non-current portion at
December 31, 2016
was net of unamortized deferred financing fees of
$33.1 million
. The non-current portion at
December 31, 2015
was net of unamortized deferred financing fees of $52.0 million.
|
|
As of December 31, 2016
|
|
||||||||||||||
In thousands of U.S. dollars
|
Current
|
|
Non-Current
|
|
Total outstanding
|
|
Available
|
|
||||||||
2011 Credit Facility
|
$
|
93,041
|
|
|
$
|
—
|
|
|
$
|
93,041
|
|
|
—
|
|
|
|
K-Sure Credit Facility
|
36,522
|
|
|
277,510
|
|
|
314,032
|
|
|
—
|
|
|
||||
KEXIM Credit Facility
|
33,650
|
|
|
332,950
|
|
|
366,600
|
|
|
—
|
|
|
||||
Credit Suisse Credit Facility
|
—
|
|
|
—
|
|
|
—
|
|
|
61,200
|
|
(1)
|
||||
ABN AMRO Credit Facility
|
9,189
|
|
|
117,161
|
|
|
126,350
|
|
|
—
|
|
|
||||
ING Credit Facility
|
8,917
|
|
|
115,373
|
|
|
124,290
|
|
|
—
|
|
|
||||
BNP Paribas Credit Facility
|
2,300
|
|
|
29,900
|
|
|
32,200
|
|
|
27,600
|
|
(2)
|
||||
Scotiabank Credit Facility
|
2,220
|
|
|
29,970
|
|
|
32,190
|
|
|
—
|
|
|
||||
NIBC Credit Facility
|
4,084
|
|
|
35,733
|
|
|
39,817
|
|
|
—
|
|
|
||||
2016 Credit Facility
|
27,264
|
|
|
253,920
|
|
|
281,184
|
|
|
—
|
|
|
||||
DVB Credit Facility
|
88,375
|
|
|
—
|
|
|
88,375
|
|
|
—
|
|
|
||||
Senior Notes Due 2020
|
—
|
|
|
53,750
|
|
|
53,750
|
|
|
—
|
|
|
||||
Senior Notes Due 2017
|
51,750
|
|
|
—
|
|
|
51,750
|
|
|
—
|
|
|
||||
Convertible Notes
|
—
|
|
|
316,507
|
|
|
316,507
|
|
|
—
|
|
|
||||
|
357,312
|
|
|
1,562,774
|
|
|
1,920,086
|
|
|
88,800
|
|
|
||||
Less: deferred financing fees
|
(4,300
|
)
|
|
(33,105
|
)
|
|
(37,405
|
)
|
|
—
|
|
|
||||
|
$
|
353,012
|
|
|
$
|
1,529,669
|
|
|
$
|
1,882,681
|
|
|
$
|
88,800
|
|
|
(1)
|
Availability can be used to finance the lesser of $30.6 million and 60% of the fair market value of each vessel that is expected to be collateralized under this facility,
STI Selatar
and
STI Rambla
.
|
(2)
|
Availability can be used to finance the lesser of $13.8 million and 48% of the fair market value of each vessel that is expected to be collateralized under this facility,
STI Emerald
and
STI Sapphire
.
|
|
|
|
|
Activity
|
|
|
||||||||||||||
In thousands of U.S. dollars
|
|
Outstanding balance as of December 31, 2015
|
|
Drawdowns
|
|
Repayments
|
|
Other Activity
|
|
Outstanding balance as of December 31, 2016
|
||||||||||
2011 Credit Facility
|
|
$
|
100,976
|
|
|
$
|
—
|
|
|
$
|
(7,935
|
)
|
|
$
|
—
|
|
|
$
|
93,041
|
|
Newbuilding Credit Facility
|
|
71,843
|
|
|
—
|
|
|
(71,843
|
)
|
|
—
|
|
|
—
|
|
|||||
2013 Credit Facility
|
|
428,253
|
|
|
—
|
|
|
(428,253
|
)
|
|
—
|
|
|
—
|
|
|||||
K-Sure Credit Facility
|
|
440,000
|
|
|
—
|
|
|
(125,968
|
)
|
|
—
|
|
|
314,032
|
|
|||||
KEXIM Credit Facility
|
|
400,250
|
|
|
—
|
|
|
(33,650
|
)
|
|
—
|
|
|
366,600
|
|
|||||
ABN AMRO Credit Facility
|
|
139,830
|
|
|
—
|
|
|
(13,480
|
)
|
|
—
|
|
|
126,350
|
|
|||||
ING Credit Facility
|
|
34,708
|
|
|
95,640
|
|
|
(6,058
|
)
|
|
—
|
|
|
124,290
|
|
|||||
BNP Paribas Credit Facility
|
|
17,250
|
|
|
17,250
|
|
|
(2,300
|
)
|
|
—
|
|
|
32,200
|
|
|||||
Scotiabank Credit Facility
|
|
—
|
|
|
33,300
|
|
|
(1,110
|
)
|
|
—
|
|
|
32,190
|
|
|||||
NIBC Credit Facility
|
|
—
|
|
|
40,838
|
|
|
(1,021
|
)
|
|
—
|
|
|
39,817
|
|
|||||
2016 Credit Facility
|
|
—
|
|
|
288,000
|
|
|
(6,816
|
)
|
|
—
|
|
|
281,184
|
|
|||||
DVB Credit Facility
|
|
—
|
|
|
90,000
|
|
|
(1,625
|
)
|
|
—
|
|
|
88,375
|
|
|||||
Unsecured Senior Notes Due 2020
|
|
53,750
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
53,750
|
|
|||||
Unsecured Senior Notes Due 2017
|
|
51,750
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
51,750
|
|
|||||
Convertible Notes
|
|
313,793
|
|
|
—
|
|
|
—
|
|
|
2,714
|
|
(1)
|
316,507
|
|
|||||
Finance lease
|
|
53,372
|
|
|
—
|
|
|
(53,372
|
)
|
|
—
|
|
|
—
|
|
|||||
|
|
$
|
2,105,775
|
|
|
$
|
565,028
|
|
|
$
|
(753,431
|
)
|
|
$
|
2,714
|
|
|
$
|
1,920,086
|
|
•
|
a first priority mortgage over the relevant collateralized vessels;
|
•
|
a first priority assignment of earnings, insurances and charters from the mortgaged vessels for the specific facility;
|
•
|
a pledge of earnings generated by the mortgaged vessels for the specific facility; and
|
•
|
a pledge of the equity interests of each vessel owning subsidiary under the specific facility.
|
•
|
The ratio of net debt to capitalization shall be no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth was revised to no less than $1.0 billion plus 25% of cumulative positive net income (on a consolidated basis) for each fiscal quarter from January 1, 2016 going forward and 50% of the net proceeds of any new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to interest expense (excluding non-cash items) shall be no less than 2.00 to 1.00. Such ratio shall be calculated quarterly on a trailing four quarter basis. In addition, we are restricted from paying dividends unless our EBITDA to interest expense ratio is 2.00 to 1.00 or greater. EBITDA, as defined in the loan agreement, excludes non-cash charges such as impairment.
|
•
|
Consolidated liquidity (defined as cash and cash equivalents) was revised to less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The aggregate fair market value of the collateral vessels shall at all times be no less than 150% of the then aggregate outstanding principal amount of loans under the credit facility.
|
|
|
|
Repayment amount
|
|
|
|
||
|
Collateral
|
|
(in millions of U.S. dollars)
|
|
Repayment date
|
|
||
1
|
STI Battery
|
|
$
|
18.2
|
|
|
January 2016
|
|
2
|
STI Mythos
|
|
17.9
|
|
|
March 2016
|
(1)
|
|
3
|
STI Osceola
|
|
18.3
|
|
|
April 2016
|
|
|
4
|
STI Rose
|
|
32.5
|
|
|
June 2016
|
|
|
5
|
STI Fontvieille
|
|
18.4
|
|
|
July 2016
|
|
|
6
|
STI Ville
|
|
18.5
|
|
|
July 2016
|
|
|
7
|
STI Opera
|
|
17.4
|
|
|
September 2016
|
|
|
8
|
STI Texas City
|
|
17.4
|
|
|
September 2016
|
|
|
9
|
STI Meraux
|
|
16.7
|
|
|
September 2016
|
|
|
10
|
STI San Antonio
|
|
16.7
|
|
|
September 2016
|
|
|
11
|
STI Virtus
|
|
17.2
|
|
|
September 2016
|
|
|
12
|
STI Venere
|
|
16.9
|
|
|
September 2016
|
|
|
13
|
STI Aqua
|
|
17.5
|
|
|
September 2016
|
|
|
14
|
STI Dama
|
|
17.5
|
|
|
September 2016
|
|
|
15
|
STI Benicia
|
|
17.2
|
|
|
September 2016
|
|
|
16
|
STI Regina
|
|
17.5
|
|
|
September 2016
|
|
|
17
|
STI St. Charles
|
|
17.2
|
|
|
September 2016
|
|
|
18
|
STI Yorkville
|
|
17.6
|
|
|
September 2016
|
|
|
19
|
STI Wembley
|
|
16.2
|
|
|
September 2016
|
|
|
20
|
STI Alexis
|
|
32.5
|
|
|
September 2016
|
|
|
21
|
STI Milwaukee
|
|
18.4
|
|
|
September 2016
|
|
|
22
|
STI Seneca
|
|
17.2
|
|
|
September 2016
|
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth was revised to no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity was revised to not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The minimum threshold for the aggregate fair market value of the vessels as a percentage of the then aggregate principal amount in each facility was also revised and shall at all times be no less than the following:
|
From
|
|
To
|
|
Minimum ratio
|
01-Jan-16
|
|
31-Dec-16
|
|
165%
|
01-Jan-17
|
|
31-Dec-17
|
|
160%
|
01-Jan-18
|
|
31-Dec-18
|
|
155%
|
01-Jan-19
|
|
31-Dec-19
|
|
150%
|
01-Jan-20
|
|
Thereafter
|
|
145%
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth was revised to no less than $1.0 billion plus (i) 25% of cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of any new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity was revised to not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The minimum threshold for the aggregate fair market value of the vessels as a percentage of the then aggregate principal amount in each facility was revised and shall at all times be no less than the following:
|
From
|
|
To
|
|
Minimum ratio
|
01-Jan-16
|
|
31-Dec-16
|
|
165%
|
01-Jan-17
|
|
31-Dec-17
|
|
160%
|
01-Jan-18
|
|
31-Dec-18
|
|
155%
|
01-Jan-19
|
|
31-Dec-19
|
|
150%
|
01-Jan-20
|
|
Thereafter
|
|
145%
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
26.0
|
|
|
March 2016
|
|
STI Grace
|
|
26.5
|
|
|
April 2016
|
|
STI Lombard
|
|
|
17.1
|
|
|
April 2016
|
|
STI Osceola
|
(1)
|
|
26.0
|
|
|
June 2016
|
|
STI Jermyn
|
|
•
|
The ratio of net debt to total capitalization not more than 0.60 to 1:00.
|
•
|
Consolidated tangible net worth of not less than $677.3 million plus (a) 25% of the positive consolidated net income for each fiscal quarter commencing on or after October 1, 2013 and (b) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 135% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 135% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
17.3
|
|
|
February 2016
|
|
STI Battery
|
(1)
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall at all times be no less than 125% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall be: 130% from the first drawdown date and ending on the second anniversary of the first drawdown date; 135% from the second anniversary of the first drawdown date and expiring on the fourth anniversary of the first drawdown date; and 140% at all times thereafter.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel plus $250,000 per each time chartered-in vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
18.5
|
|
|
September 2016
|
|
STI Opera
|
(1)
|
18.5
|
|
|
September 2016
|
|
STI Texas City
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Meraux
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI San Antonio
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Virtus
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Venere
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Aqua
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Dama
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Benicia
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Regina
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI St. Charles
|
(1)
|
|
18.5
|
|
|
September 2016
|
|
STI Yorkville
|
(1)
|
|
16.7
|
|
|
September 2016
|
|
STI Amber
|
(2)
|
|
16.7
|
|
|
September 2016
|
|
STI Topaz
|
(2)
|
|
16.7
|
|
|
September 2016
|
|
STI Ruby
|
(2)
|
|
16.7
|
|
|
September 2016
|
|
STI Garnet
|
(2)
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $677.3 million plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after October 1, 2013 and (ii) 50% of the net proceeds of new equity issues occurring on or after October 1, 2013.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel.
|
•
|
The aggregate of the fair market value of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
18.5
|
|
|
September 2016
|
|
STI Wembley
|
(1)
|
19.5
|
|
|
September 2016
|
|
STI Milwaukee
|
(1)
|
|
20.5
|
|
|
September 2016
|
|
STI Seneca
|
(1)
|
|
31.5
|
|
|
September 2016
|
|
STI Alexis
|
(1)
|
•
|
Net borrowings shall not equal or exceed 70% of total assets.
|
•
|
Net worth shall always exceed $650.0 million.
|
•
|
during any calendar quarter commencing after the calendar quarter ending on September 30, 2014 (and only during such calendar quarter), if the last reported sale price of the common stock for at least 15 trading days (whether or not consecutive) during a period of 25 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day;
|
•
|
during the five business day period after any five consecutive trading day period, or the Measurement Period, in which the trading price (as defined below) per $1,000 principal amount of Convertible Notes for each trading day of the Measurement Period was less than 98% of the product of the last reported sale price of our common stock and the conversion rate on each such trading day;
|
•
|
if the Company calls any or all of the Convertible Notes for redemption, at any time prior to the close of business on the scheduled trading day immediately preceding the redemption date; or
|
•
|
upon the occurrence of specified corporate events as defined in the indenture (e.g. consolidations, mergers, a binding share exchange or the transfer or lease of all or substantially all of our assets).
|
•
|
Net borrowings shall not equal or exceed 70% of total assets.
|
•
|
Net worth shall always exceed $650.0 million.
|
12.
|
Derivative financial instruments
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Assets
|
|
|
|
||||
Derivative financial instrument (profit and loss agreement - current)
|
$
|
116
|
|
|
$
|
—
|
|
|
|
|
|
||||
Liabilities
|
|
|
|
||||
Derivative financial instrument (profit and loss agreement - current)
|
—
|
|
|
(1,175
|
)
|
||
Derivative financial instrument (profit and loss agreement - non-current)
|
—
|
|
|
(80
|
)
|
||
Total liabilities
|
$
|
—
|
|
|
$
|
(1,255
|
)
|
|
Fair value adjustments
|
||||||||||
|
Statement of income
|
|
|
||||||||
Amounts in thousands of U.S. dollars
|
Realized gain
|
|
Unrealized gain/ (loss)
|
|
Recognized in equity
|
||||||
|
|
|
|
|
|
||||||
Profit and loss agreement
|
$
|
—
|
|
|
$
|
1,371
|
|
|
$
|
—
|
|
|
|
|
|
|
|
||||||
Total year ended December 31, 2016
|
$
|
—
|
|
|
$
|
1,371
|
|
|
$
|
—
|
|
|
|
|
|
|
|
||||||
Profit and loss agreement
|
$
|
—
|
|
|
$
|
(1,255
|
)
|
|
$
|
—
|
|
Interest rate swaps
|
55
|
|
|
—
|
|
|
77
|
|
|||
|
|
|
|
|
|
||||||
Total year ended December 31, 2015
|
$
|
55
|
|
|
$
|
(1.255
|
)
|
|
$
|
77
|
|
|
|
|
|
|
|
||||||
Interest rate swaps
|
17
|
|
|
264
|
|
|
135
|
|
|||
|
|
|
|
|
|
||||||
Total year ended December 31, 2014
|
$
|
17
|
|
|
$
|
264
|
|
|
$
|
135
|
|
13.
|
Segment reporting
|
In thousands of U.S. dollars
|
|
LR1/Panamax
|
|
Handymax
|
|
LR2
|
|
MR
|
|
Reportable segments subtotal
|
|
Corporate and eliminations
|
|
Total
|
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Vessel revenue
|
|
$
|
5,843
|
|
|
$
|
85,578
|
|
|
$
|
165,256
|
|
|
$
|
265,020
|
|
|
$
|
521,697
|
|
|
$
|
1,050
|
|
|
$
|
522,747
|
|
Vessel operating costs
|
|
(33
|
)
|
|
(32,817
|
)
|
|
(50,028
|
)
|
|
(104,242
|
)
|
|
(187,120
|
)
|
|
—
|
|
|
(187,120
|
)
|
|||||||
Voyage expenses
|
|
(19
|
)
|
|
(479
|
)
|
|
(375
|
)
|
|
(705
|
)
|
|
(1,578
|
)
|
|
—
|
|
|
(1,578
|
)
|
|||||||
Charterhire
|
|
(5,657
|
)
|
|
(26,292
|
)
|
|
(16,025
|
)
|
|
(30,888
|
)
|
|
(78,862
|
)
|
|
—
|
|
|
(78,862
|
)
|
|||||||
Depreciation
|
|
—
|
|
|
(18,014
|
)
|
|
(41,900
|
)
|
|
(61,547
|
)
|
|
(121,461
|
)
|
|
—
|
|
|
(121,461
|
)
|
|||||||
General and administrative expenses
|
|
(7
|
)
|
|
(1,410
|
)
|
|
(1,983
|
)
|
|
(4,485
|
)
|
|
(7,885
|
)
|
|
(47,014
|
)
|
|
(54,899
|
)
|
|||||||
Loss on sales of vessels
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,078
|
)
|
|
(2,078
|
)
|
|
—
|
|
|
(2,078
|
)
|
|||||||
Financial expenses
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(104,048
|
)
|
|
(104,048
|
)
|
|||||||
Unrealized gain on derivative financial instruments
|
|
—
|
|
|
—
|
|
|
1,371
|
|
|
—
|
|
|
1,371
|
|
|
—
|
|
|
1,371
|
|
|||||||
Financial income
|
|
—
|
|
|
6
|
|
|
37
|
|
|
47
|
|
|
90
|
|
|
1,123
|
|
|
1,213
|
|
|||||||
Other expenses, net
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(9
|
)
|
|
(9
|
)
|
|
(179
|
)
|
|
(188
|
)
|
|||||||
Segment income or loss
|
|
$
|
127
|
|
|
$
|
6,572
|
|
|
$
|
56,353
|
|
|
$
|
61,113
|
|
|
$
|
124,165
|
|
|
$
|
(149,068
|
)
|
|
$
|
(24,903
|
)
|
In thousands of U.S. dollars
|
LR1/Panamax
|
|
Handymax
|
|
LR2
|
|
MR
|
|
Reportable segments subtotal
|
|
Corporate and eliminations
|
|
Total
|
||||||||||||||
Vessel revenue
|
$
|
36,679
|
|
|
$
|
142,429
|
|
|
$
|
208,250
|
|
|
$
|
368,203
|
|
|
$
|
755,561
|
|
|
$
|
150
|
|
|
$
|
755,711
|
|
Vessel operating costs
|
(2,144
|
)
|
|
(35,254
|
)
|
|
(36,682
|
)
|
|
(100,476
|
)
|
|
(174,556
|
)
|
|
—
|
|
|
(174,556
|
)
|
|||||||
Voyage expenses
|
(1,186
|
)
|
|
(536
|
)
|
|
(194
|
)
|
|
(2,516
|
)
|
|
(4,432
|
)
|
|
—
|
|
|
(4,432
|
)
|
|||||||
Charterhire
|
(21,616
|
)
|
|
(26,755
|
)
|
|
(27,816
|
)
|
|
(20,678
|
)
|
|
(96,865
|
)
|
|
—
|
|
|
(96,865
|
)
|
|||||||
Depreciation
|
—
|
|
|
(18,372
|
)
|
|
(29,125
|
)
|
|
(59,859
|
)
|
|
(107,356
|
)
|
|
—
|
|
|
(107,356
|
)
|
|||||||
General and administrative expenses
|
(96
|
)
|
|
(1,390
|
)
|
|
(1,456
|
)
|
|
(4,329
|
)
|
|
(7,271
|
)
|
|
(58,560
|
)
|
|
(65,831
|
)
|
|||||||
Write down of vessels held for sale and gain / (loss) from sales of vessels
|
2,019
|
|
|
(2,054
|
)
|
|
—
|
|
|
—
|
|
|
(35
|
)
|
|
—
|
|
|
(35
|
)
|
|||||||
Write-off of vessel purchase options
|
—
|
|
|
—
|
|
|
—
|
|
|
(731
|
)
|
|
(731
|
)
|
|
—
|
|
|
(731
|
)
|
|||||||
Gain on sale of Dorian shares
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,179
|
|
|
1,179
|
|
|||||||
Financial expenses
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(89,596
|
)
|
|
(89,596
|
)
|
|||||||
Realized gain on derivative financial instruments
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
55
|
|
|
55
|
|
|||||||
Unrealized loss on derivative financial instruments
|
—
|
|
|
—
|
|
|
(1,255
|
)
|
|
—
|
|
|
(1,255
|
)
|
|
—
|
|
|
(1,255
|
)
|
|||||||
Financial income
|
—
|
|
|
7
|
|
|
12
|
|
|
27
|
|
|
46
|
|
|
99
|
|
|
145
|
|
|||||||
Other expenses, net
(1)
|
1,397
|
|
|
—
|
|
|
—
|
|
|
(20
|
)
|
|
1,377
|
|
|
(61
|
)
|
|
1,316
|
|
|||||||
Segment income or loss
|
$
|
15,053
|
|
|
$
|
58,075
|
|
|
$
|
111,734
|
|
|
$
|
179,621
|
|
|
$
|
364,483
|
|
|
$
|
(146,734
|
)
|
|
$
|
217,749
|
|
In thousands of U.S. dollars
|
LR1/Panamax
|
|
Handymax
|
|
LR2
|
|
MR
|
|
Reportable segments subtotal
|
|
Corporate and eliminations
|
|
Total
|
||||||||||||||
Vessel revenue
|
$
|
57,901
|
|
|
$
|
65,766
|
|
|
$
|
67,124
|
|
|
$
|
151,716
|
|
|
$
|
342,507
|
|
|
$
|
300
|
|
|
$
|
342,807
|
|
Vessel operating costs
|
(10,530
|
)
|
|
(10,902
|
)
|
|
(4,830
|
)
|
|
(52,561
|
)
|
|
(78,823
|
)
|
|
—
|
|
|
(78,823
|
)
|
|||||||
Voyage expenses
|
(4,826
|
)
|
|
(671
|
)
|
|
(73
|
)
|
|
(1,963
|
)
|
|
(7,533
|
)
|
|
—
|
|
|
(7,533
|
)
|
|||||||
Charterhire
|
(27,250
|
)
|
|
(38,390
|
)
|
|
(45,756
|
)
|
|
(27,772
|
)
|
|
(139,168
|
)
|
|
—
|
|
|
(139,168
|
)
|
|||||||
Depreciation
|
(3,194
|
)
|
|
(5,436
|
)
|
|
(3,067
|
)
|
|
(30,920
|
)
|
|
(42,617
|
)
|
|
—
|
|
|
(42,617
|
)
|
|||||||
General and administrative expenses
|
(409
|
)
|
|
(450
|
)
|
|
(237
|
)
|
|
(2,315
|
)
|
|
(3,411
|
)
|
|
(44,718
|
)
|
|
(48,129
|
)
|
|||||||
Write down of vessels held for sale
|
(3,978
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(3,978
|
)
|
|
—
|
|
|
(3,978
|
)
|
|||||||
Gain on sale of VLCCs
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
51,419
|
|
|
51,419
|
|
|||||||
Gain on sale of Dorian shares
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
10,924
|
|
|
10,924
|
|
|||||||
Re-measurement of investment in Dorian
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(13,895
|
)
|
|
(13,895
|
)
|
|||||||
Financial expenses
|
—
|
|
|
—
|
|
|
(509
|
)
|
|
—
|
|
|
(509
|
)
|
|
(20,261
|
)
|
|
(20,770
|
)
|
|||||||
Realized gain on derivative financial instruments
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
17
|
|
|
17
|
|
|||||||
Unrealized gain on derivative financial instruments
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
264
|
|
|
264
|
|
|||||||
Financial income
|
—
|
|
|
2
|
|
|
1
|
|
|
8
|
|
|
11
|
|
|
192
|
|
|
203
|
|
|||||||
Share of income from associate
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,473
|
|
|
1,473
|
|
|||||||
Other expenses, net
|
—
|
|
|
—
|
|
|
—
|
|
|
(51
|
)
|
|
(51
|
)
|
|
(52
|
)
|
|
(103
|
)
|
|||||||
Segment income or loss
|
$
|
7,714
|
|
|
$
|
9,919
|
|
|
$
|
12,653
|
|
|
$
|
36,142
|
|
|
$
|
66,428
|
|
|
$
|
(14,337
|
)
|
|
$
|
52,091
|
|
In thousands of U.S. dollars
|
|
|
|
For the year ended December 31,
|
||||||||||
Segment
|
|
Customer
|
|
2016
|
|
2015
|
|
2014
|
||||||
MR
|
|
Scorpio MR Pool Limited
(1)
|
|
$
|
248,974
|
|
|
$
|
315,925
|
|
|
$
|
112,826
|
|
LR2
|
|
Scorpio LR2 Pool Limited
(1)
|
|
156,503
|
|
|
208,132
|
|
|
67,054
|
|
|||
Handymax
|
|
Scorpio Handymax Tanker Pool Limited
(1)
|
|
73,683
|
|
|
138,736
|
|
|
54,052
|
|
|||
LR1/Panamax
|
|
Scorpio Panamax Tanker Pool Limited
(1)
|
|
5,843
|
|
|
34,613
|
|
|
46,925
|
|
|||
|
|
|
|
$
|
485,003
|
|
|
$
|
697,406
|
|
|
$
|
280,857
|
|
(1)
|
These customers are related parties as described in Note 15.
|
14.
|
Common shares
|
•
|
On June 18, 2010, we issued 559,458 shares of restricted stock to our employees for no cash consideration. The share price at the date of issue was $10.99 per share. One-third of these shares vested on April 6, 2013, one-third vested on April 6, 2014, and one-third vested on April 6, 2015.
|
•
|
On January 31, 2011, we issued 281,000 shares of restricted stock to our employees for no cash consideration. The share price at the date of issue was $9.83 per share. One-third of these shares vested on January 31, 2012, one-third vested on January 31, 2013, and one-third vested on January 31, 2014.
|
•
|
On January 31, 2012, we issued 281,000 shares of restricted stock to employees for no cash consideration. The share price at the date of issue was $5.65 per share. One-third of the shares vested on January 31, 2013, one-third vested on January 31, 2014, and one-third vested on January 31, 2015.
|
•
|
In October 2013, we reserved an additional 6,376,044 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In September 2014, we reserved an additional 1,088,131 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In May 2015, we reserved an additional 1,755,443 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In June 2016, we reserved an additional 2,301,115 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
•
|
In December 2016, we reserved an additional 1,348,992 common shares, par value $0.01 per share, for issuance pursuant to the 2013 Equity Incentive Plan. All other terms of the 2013 Equity Incentive Plan remained unchanged.
|
|
|
|
Number of Shares
|
|
Weighted Average Grant Date Fair Value
|
|||
Outstanding and non-vested, December 31, 2014
|
|
12,387,327
|
|
|
$
|
9.16
|
|
|
|
Granted
|
|
1,857,444
|
|
|
10.32
|
|
|
|
Vested
|
|
(633,501
|
)
|
|
9.19
|
|
|
Outstanding and non-vested, December 31, 2015
|
|
13,611,270
|
|
|
9.32
|
|
||
|
Granted
|
|
2,301,115
|
|
|
4.74
|
|
|
|
Vested
|
|
(3,248,800
|
)
|
|
9.19
|
|
|
|
Forfeited
|
|
(50,000
|
)
|
|
7.80
|
|
|
Outstanding and non-vested, December 31, 2016
|
|
12,613,585
|
|
|
$
|
8.52
|
|
In thousands of U.S. dollars
|
|
Employees
|
|
Directors
|
|
Total
|
||||||
For the year ending December 31, 2017
|
|
$
|
20,980
|
|
|
$
|
302
|
|
|
$
|
21,282
|
|
For the year ending December 31, 2018
|
|
11,390
|
|
|
—
|
|
|
11,390
|
|
|||
For the year ending December 31, 2019
|
|
4,549
|
|
|
—
|
|
|
4,549
|
|
|||
For the year ending December 31, 2020
|
|
1,570
|
|
|
—
|
|
|
1,570
|
|
|||
For the year ending December 31, 2021
|
|
293
|
|
|
—
|
|
|
293
|
|
|||
|
|
$
|
38,782
|
|
|
$
|
302
|
|
|
$
|
39,084
|
|
Dividends
|
|
Date
|
per share
|
|
Paid
|
$0.08
|
|
March 26, 2014
|
$0.09
|
|
June 12, 2014
|
$0.10
|
|
September 10, 2014
|
$0.12
|
|
December 12, 2014
|
$0.12
|
|
March 30, 2015
|
$0.125
|
|
June 10, 2015
|
$0.125
|
|
September 4, 2015
|
$0.125
|
|
December 11, 2015
|
$0.125
|
|
March 30, 2016
|
$0.125
|
|
June 24, 2016
|
$0.125
|
|
September 29, 2016
|
$0.125
|
|
December 22, 2016
|
•
|
an aggregate of
2,956,760
of our common shares that are being held as treasury shares at an average price of
$5.58
per share.
|
•
|
$10.0 million aggregate principal amount of our Convertible Notes at an average price of $839.28 per $1,000 principal amount.
|
15.
|
Related party transactions
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Pool revenue
(1)
|
|
|
|
|
|
|
|
|
|||
Scorpio MR Pool Limited
|
$
|
248,974
|
|
|
$
|
315,925
|
|
|
$
|
112,826
|
|
Scorpio LR2 Pool Limited
|
156,503
|
|
|
208,132
|
|
|
67,054
|
|
|||
Scorpio Handymax Tanker Pool Limited
|
73,683
|
|
|
138,736
|
|
|
54,052
|
|
|||
Scorpio Panamax Tanker Pool Limited
|
5,843
|
|
|
34,613
|
|
|
46,925
|
|
|||
Voyage expenses
(2)
|
(1,128
|
)
|
|
(2,127
|
)
|
|
(2,052
|
)
|
|||
Vessel operating costs
(3)
|
(19,484
|
)
|
|
(18,393
|
)
|
|
(7,947
|
)
|
|||
Administrative expenses
(4)
|
(9,462
|
)
|
|
(7,950
|
)
|
|
(3,542
|
)
|
(1)
|
These transactions relate to revenue earned in the Scorpio Group Pools. The Scorpio Group Pools are related party affiliates. When our vessels are in the Scorpio Group Pools, SCM, the pool manager, charges fees of $300 per vessel per day with respect to our LR1/Panamax vessels, $250 per vessel per day with respect to our LR2 vessels, and $325 per vessel per day with respect to each of our Handymax and MR vessels, plus a commission of 1.50% on gross revenue per charter fixture. These are the same fees that SCM charges other vessels in these pools, including third party owned vessels.
|
(2)
|
These transactions represent the expense due to SCM, a related party affiliate, for commissions related to the commercial management services provided by SCM under the commercial management agreement for vessels that are not in one of the Scorpio Group Pools. SCM’s services include securing employment, in the spot market and on time charters, for our vessels. When not in one of the Scorpio Group Pools, each vessel pays (i) flat fees of $250 per day for LR1/Panamax and LR2 vessels and $300 per day for Handymax and MR vessels and (ii) commissions of 1.25% of their gross revenue. These expenses are included in voyage expenses in the consolidated statements of income or loss.
|
(3)
|
These transactions represent technical management fees charged by SSM, a related party affiliate, which are included in vessel operating costs in the consolidated statements of income or loss. SSM’s services include day-to-day vessel operation, performing general maintenance, monitoring regulatory and classification society compliance, customer vetting procedures, supervising the maintenance and general efficiency of vessels, arranging the hiring of qualified officers and crew, arranging and supervising drydocking and repairs, purchasing supplies, spare parts and new equipment for vessels, appointing supervisors and technical consultants and providing technical support. We believe our technical management fees are at arms-length rates as they are based on contracted rates that were the same as those charged to other vessels managed by SSM at the time the management agreements were entered into. This fee is $685 per vessel per day.
|
(4)
|
We have an Amended Administrative Services Agreement with SSH, for the provision of administrative staff and office space, and administrative services, including accounting, legal compliance, financial and information technology services. SSH is a related party to us. We reimburse SSH for the reasonable direct or indirect expenses that are incurred on our behalf. SSH also arranges vessel sales and purchases for us. The services provided to us by SSH may be sub-contracted to other entities within the Scorpio Group. The expenses incurred under this agreement were as follows, and were recorded in general and administrative expenses in the consolidated statement of income or loss.
|
•
|
The expense for the year ended December 31, 2016 of
$9.5 million
included (i) administrative fees of
$7.3 million
charged by SSH, (ii) restricted stock amortization of
$1.6 million
, which relates to the issuance of an aggregate of 795,000 shares of restricted stock to SSH employees for no cash consideration in May 2014, September 2014, July 2015 and July 2016, and (iii) the reimbursement of expenses of
0.6 million
.
|
•
|
The expense for the year ended December 31, 2015 of $7.9 million included (i) administrative fees of $6.8 million charged by SSH, (ii) restricted stock amortization of $0.9 million, which relates to the issuance of an aggregate 508,500 shares of restricted stock to SSH employees for no cash consideration in May 2014, September 2014 and July 2015 and (iii) the reimbursement expenses of $0.2 million.
|
•
|
The expense for the year ended December 31, 2014 of $3.5 million included (i) administrative fees of $3.1 million charged by SSH, (ii) restricted stock amortization of $0.3 million, which relates to the issuance of an aggregate 218,000 shares of restricted stock to SSH employees for no cash consideration in May and September 2014 and (iii) the reimbursement of expenses of $0.1 million.
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Assets:
|
|
|
|
|
|
||
Accounts receivable (due from the Scorpio Group Pools)
(1)
|
$
|
40,680
|
|
|
$
|
59,475
|
|
Accounts receivable and prepaid expenses (SSM)
(2)
|
4,233
|
|
|
2,348
|
|
||
Other assets (pool working capital contributions)
(3)
|
19,217
|
|
|
19,256
|
|
||
Liabilities:
|
|
|
|
|
|
||
Accounts payable and accrued expenses (SSM)
|
653
|
|
|
484
|
|
||
Accounts payable and accrued expenses (SSH)
|
90
|
|
|
77
|
|
||
Accounts payable and accrued expenses (SCM)
|
53
|
|
|
175
|
|
||
Accounts payable and accrued expenses (owed to the Scorpio Group Pools)
|
15
|
|
|
610
|
|
(1)
|
Accounts receivable due from the Scorpio Group Pools relate to hire receivables for revenues earned and receivables from working capital contributions. The amounts as of December 2016 and 2015 include $24.1 million and $8.6 million, respectively, of working capital contributions made on behalf of our vessels to the Scorpio Group Pools. Upon entrance into such pools, all vessels are required to make working capital contributions of both cash and bunkers. Additional working capital contributions can be made from time to time based on the operating needs of the pools. These amounts are accounted for and repaid as follows:
|
•
|
For vessels in the Scorpio Handymax Tanker Pool, the initial contribution amount is repaid, without interest, upon a vessel’s exit from each pool no later than six months after the exit date. Bunkers on board a vessel exiting the pool are credited against such repayment at the actual invoice price of the bunkers. For all owned vessels we assume that these contributions will not be repaid within 12 months and are thus classified as non-current within other assets on the consolidated balance sheets. For time chartered-in vessels we classify the initial contributions as current (within accounts receivable) or non-current (within other assets) according to the expiration of the contract. Any additional working capital contributions are repaid when sufficient net revenues become available to cover such amounts.
|
•
|
For vessels in the Scorpio MR Pool and Scorpio Panamax Tanker Pool, any contributions are repaid, without interest, when such vessel has earned sufficient net revenues to cover the value of such working capital contributed. Accordingly, we classify such amounts as current (within accounts receivable).
|
•
|
For vessels in the Scorpio LR2 Pool, the initial contribution amount is repaid, without interest, upon a vessel’s exit from each pool. Bunkers on board a vessel exiting the pool are credited against such repayment at the actual invoice price of the bunkers. For all owned vessels we assume that these contributions will not be repaid within 12 months and are thus classified as non-current within other assets on the consolidated balance sheets. For time chartered-in vessels we classify the initial contributions as current (within accounts receivable) or non-current (within other assets) according to the expiration of the contract. Any additional working capital contributions are repaid when sufficient net revenues become available to cover such amounts.
|
(2)
|
Accounts receivable and prepaid expenses from SSM relate to advances made for vessel operating expenses (such as crew wages) that will either be reimbursed or applied against future costs.
|
(3)
|
Represents the non-current portion of working capital receivables as described above.
|
•
|
During the year ended December 31, 2016, we paid SSH an aggregate fee of $1.7 million in connection with the sales of
STI Lexington, STI Mythos, STI Chelsea
,
STI Powai
, and
STI Olivia
and a fee of $0.6 million for the purchase and delivery of S
TI Lombard
. Additionally, we paid SCM an aggregate termination fee of $2.7 million that was due under the commercial management agreements and we paid SSM an aggregate termination fee of $2.5 million that was due under the technical management agreements as a result of the aforementioned vessel sales. The agreements to sell and acquire the aforementioned vessels were entered into prior to the September 29, 2016 amendments to the Master Agreement and Administrative Service Agreement. The aggregate fees paid to SCM, SSH and SSM are recorded within write down of vessels held for sale and net loss on sales of vessels within the consolidated statement of income or loss.
|
•
|
During the year ended December 31, 2015, we paid SSH an aggregate fee of $12.6 million in connection with the purchase and delivery of 29 vessels
and the sales of four vessels. Additionally, as a result of the sale of
STI Highlander
in 2015, we paid a $0.5 million termination fee due under the vessel's commercial management agreement with SCM and a $0.5 million termination fee due under the vessel's technical management agreement with SSM.
|
•
|
During the year ended December 31, 2014, we paid SSH an aggregate fee of $26.1 million, which consisted of $11.7 million related to the purchase and delivery of 33 vessels under our Newbuilding Program, $14.0 million relating to the purchase and sale of our seven VLCCs under construction, and $0.4 million relating to the sales of two vessels.
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Short-term employee benefits (salaries)
|
$
|
8,786
|
|
|
$
|
15,601
|
|
|
$
|
7,454
|
|
Share-based compensation
(1)
|
25,575
|
|
|
26,911
|
|
|
23,553
|
|
|||
Total
|
$
|
34,361
|
|
|
$
|
42,512
|
|
|
$
|
31,007
|
|
(1)
|
Represents the amortization of restricted stock issued under our equity incentive plans as described in Note 14.
|
16.
|
Vessel revenue
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Pool revenue
|
$
|
485,003
|
|
|
$
|
697,406
|
|
|
$
|
280,857
|
|
Voyage revenue (spot market)
|
—
|
|
|
38,441
|
|
|
48,112
|
|
|||
Time charter revenue
|
36,694
|
|
|
19,714
|
|
|
13,538
|
|
|||
Other revenue
|
1,050
|
|
|
150
|
|
|
300
|
|
|||
|
$
|
522,747
|
|
|
$
|
755,711
|
|
|
$
|
342,807
|
|
17.
|
Charterhire
|
(1)
|
Represents delivery date or estimated delivery date.
|
(2)
|
In December 2016, we entered into an agreement to cancel the time charter agreement for this vessel and enter into a new bareboat charter agreement. The time charter-in contract was cancelled in January 2017 and replaced by the new bareboat contract at a rate of $7,500 per day. The agreement includes a purchase option which can be exercised through December 31, 2018. If the purchase option is not exercised, the bareboat-in agreement will expire on March 31, 2019.
|
(3)
|
In December 2016, we entered into an agreement to bareboat-in this vessel at a rate of $6,000 per day. The agreement includes a purchase option which can be exercised through December 31, 2018. If the purchase option is not exercised, the bareboat-in agreement will expire on March 31, 2019.
|
(4)
|
We have an option to extend the charter for an additional year at $17,000 per day.
|
(5)
|
In November 2016, we entered into a new charter agreement for a year at $13,050 per day effective January 2017. We have an option to extend the charter for an additional year at $15,000 per day.
|
(6)
|
We have an option to extend the charter for an additional year at $16,000 per day.
|
(7)
|
We have an option to extend the charter for an additional one year at $15,000 per day.
|
(8)
|
We have entered into an agreement with a third party whereby we split all of the vessel's profits and losses above or below the daily base rate. This agreement is being accounted for as derivative financial instrument as described in Note 12.
|
(9)
|
In February 2017, we entered into a new charter agreement for six months at $14,360 per day. We have an option to extend the charter for an additional six months at $15,385 per day.
|
(10)
|
In April 2016, we took delivery of
STI Lombard
, an LR2 product tanker that was previously bareboat chartered-in under a finance lease arrangement, and paid the remaining 90% of the purchase price or $53.1 million.
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Less than 1 year
|
$
|
57,018
|
|
|
$
|
38,033
|
|
1 - 5 years
|
30,933
|
|
|
9,399
|
|
||
Total
|
$
|
87,951
|
|
|
$
|
47,432
|
|
18.
|
General and administrative expenses
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Short term employee benefits (salaries)
|
$
|
12,330
|
|
|
$
|
19,978
|
|
|
$
|
9,268
|
|
Share based compensation (see Note 14)
|
30,207
|
|
|
33,687
|
|
|
29,726
|
|
|||
|
$
|
42,537
|
|
|
$
|
53,665
|
|
|
$
|
38,994
|
|
19.
|
Financial expenses
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
|
2014
|
||||||
Interest payable on debt
(1)
|
$
|
75,420
|
|
|
$
|
72,178
|
|
|
$
|
15,888
|
|
Amortization of deferred financing fees
(2)
|
28,628
|
|
|
17,418
|
|
|
4,834
|
|
|||
Commitment fees on undrawn portions of debt
|
—
|
|
|
—
|
|
|
48
|
|
|||
Total financial expenses
|
$
|
104,048
|
|
|
$
|
89,596
|
|
|
$
|
20,770
|
|
(1)
|
The increase in interest payable in each year is primarily attributable to increases in the Company’s debt balance. Average debt outstanding during the years ended December 31, 2016, 2015 and 2014 was $1,986.6 million, $1,941.0 million and $783.9 million, respectively. Interest payable during those periods was offset by interest capitalized as part of our Newbuilding Program (as described in Note 5) of $6.3 million, $5.6 million and $16.6 million, respectively.
|
(2)
|
The amortization of deferred financing fees in the years ended December 31, 2016, 2015 and 2014 included charges of $14.4 million, $2.7 million and $0.5 million, respectively for the write-offs of deferred financing fees during those periods. The write-off of deferred financing fees in the year ended December 31, 2016 includes $3.2 million related to the repayment of debt as a result of the sales of five vessels and $11.2 million related to the refinancing of outstanding borrowings under various credit facilities and the repurchase of our Convertible Notes as described in Note 11. The write-off of deferred financing fees in the year ended December 31, 2015 relates to the refinancing of outstanding indebtedness. The write-off of deferred financing fees in the year ended December 31, 2014 relates to the repayment of debt as a result of the sales of four vessels
.
Amortization of deferred financing fees was reduced by the capitalization of deferred financing fee amortization as part of our Newbuilding Program of $0.8 million during the year ended December 31, 2014. No deferred financing amortization was capitalized during the years ended December 31, 2016 and 2015.
|
20.
|
Tax
|
21.
|
(Loss) / earnings per share
|
|
For the year ended December 31,
|
||||||||||
In thousands of U.S. dollars except for share data
|
2016
|
|
2015
|
|
2014
|
||||||
Net (loss) or income attributable to equity holders of the parent - basic
|
$
|
(24,903
|
)
|
|
$
|
217,749
|
|
|
$
|
52,091
|
|
Convertible Notes interest expense
|
—
|
|
|
19,630
|
|
|
—
|
|
|||
Convertible Notes deferred financing amortization
|
—
|
|
|
1,756
|
|
|
—
|
|
|||
Net (loss) or income attributable to equity holders of the parent - diluted
|
$
|
(24,903
|
)
|
|
$
|
239,135
|
|
|
$
|
52,091
|
|
|
|
|
|
|
|
||||||
Basic weighted average number of shares
|
161,118,654
|
|
|
161,436,449
|
|
|
171,851,061
|
|
|||
Effect of dilutive potential basic shares:
|
|
|
|
|
|
|
|
||||
Restricted stock
|
—
|
|
|
7,323,894
|
|
|
4,441,741
|
|
|||
Convertible Notes
|
—
|
|
|
30,978,983
|
|
|
—
|
|
|||
|
—
|
|
|
38,302,877
|
|
|
4,441,741
|
|
|||
Diluted weighted average number of shares
|
161,118,654
|
|
|
199,739,326
|
|
|
176,292,802
|
|
|||
|
|
|
|
|
|
||||||
(Loss) / Earnings Per Share:
|
|
|
|
|
|
||||||
Basic
|
$
|
(0.15
|
)
|
|
$
|
1.35
|
|
|
$
|
0.30
|
|
Diluted
|
$
|
(0.15
|
)
|
|
$
|
1.20
|
|
|
$
|
0.30
|
|
22.
|
Financial instruments - financial and other risks
|
|
|
As of December 31, 2016
|
|
As of December 31, 2015
|
||||||||||
Amounts in thousands of U.S. dollars
|
|
Fair value
|
Carrying Value
|
|
Fair value
|
Carrying Value
|
||||||||
Financial assets
|
|
|
|
|
|
|
||||||||
Cash and cash equivalents
(1)
|
|
$
|
99,887
|
|
$
|
99,887
|
|
|
$
|
200,970
|
|
$
|
200,970
|
|
Loans and receivables
(2)
|
|
42,329
|
|
42,329
|
|
|
69,017
|
|
69,017
|
|
||||
Derivatives at fair value through profit or loss
(3)
|
|
116
|
|
116
|
|
|
—
|
|
—
|
|
||||
|
|
|
|
|
|
|
||||||||
Financial liabilities
|
|
|
|
|
|
|
||||||||
Accounts payable
(4)
|
|
$
|
9,282
|
|
$
|
9,282
|
|
|
$
|
25,683
|
|
$
|
25,683
|
|
Accrued expenses
(4)
|
|
23,024
|
|
23,024
|
|
|
32,643
|
|
32,643
|
|
||||
Derivatives at fair value through profit or loss
(3)
|
|
—
|
|
—
|
|
|
1,255
|
|
1,255
|
|
||||
Secured bank loans
(5)
|
|
1,466,940
|
|
1,466,940
|
|
|
1,586,396
|
|
1,586,396
|
|
||||
Finance lease
(6)
|
|
—
|
|
—
|
|
|
53,372
|
|
53,372
|
|
||||
Unsecured Senior Notes Due 2020
(7)
|
|
48,252
|
|
53,750
|
|
|
47,300
|
|
53,750
|
|
||||
Unsecured Senior Notes Due 2017
(7)
|
|
52,330
|
|
51,750
|
|
|
51,129
|
|
51,750
|
|
||||
Convertible Notes
(8)
|
|
286,321
|
|
348,500
|
|
|
334,301
|
|
358,500
|
|
(1)
|
Cash and cash equivalents are considered Level 1 items as they represent liquid assets with short-term maturities.
|
(2)
|
We consider that the carrying amount of accounts receivable approximate their fair value due to the relative short maturity of these instruments.
|
(3)
|
The derivative financial instrument at
December 31, 2016
and
December 31, 2015
consists of the profit or loss agreement relating to
Densa Crocodile
whereby the profits or losses above or below the daily time charter rate are shared with a third party who neither owns nor operates the vessel. This instrument is recorded at the present value of estimated future cash flows which are derived from observable time charter rates and discounted based on the applicable yield curves to determine the fair value. As such, we classify this liability as a Level 2 fair value measurement.
|
(4)
|
We consider that the carrying amount of accounts payable and accrued expenses approximate the fair value due to the relative short maturity of these instruments.
|
(5)
|
The carrying value of our secured bank loans are measured at amortized cost using the effective interest method. We consider that their carrying value approximates fair value because the interest rates on these instruments change with, or approximate, market interest rates. Accordingly, we consider its fair value to be a Level 2 measurement. These amounts are shown net of $31.1 million and $46.7 million of unamortized deferred financing fees as of
December 31, 2016
and 2015, respectively.
|
(6)
|
We considered that the carrying value of our finance lease approximated fair value due to the relative short maturity of the instrument.
|
(7)
|
The carrying value of our Unsecured Senior Notes Due 2020 and 2017 are measured at amortized cost using the effective interest method. The carrying values shown in the table are the face value of the notes. These notes are shown net of $0.5 million and $1.1 million of unamortized deferred financing fees, respectively, on our consolidated balance sheet as of
December 31, 2016
. Our Senior Notes Due 2020 and 2017 are quoted on the New York Stock Exchange under the symbols 'SBNA' and 'SBNB', respectively. We consider their fair values to be Level 1 measurements due to their quotation on an active exchange.
|
(8)
|
The carrying value of our Convertible Notes shown in the table above is its face value. The liability component of the Convertible Notes has been recorded within Long-term debt on the consolidated balance sheet as of
December 31, 2016
, net of $4.6 million of unamortized deferred financing fees. The equity component of the Convertible Notes has been recorded within Additional paid-in capital on the consolidated balance sheet, net of $1.9 million of deferred financing fees. We consider its fair value to be a Level 2 measurement.
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Less than 1 month
|
$
|
32,997
|
|
|
$
|
28,065
|
|
1-3 months
|
41,577
|
|
|
41,901
|
|
||
3 months to 1 year
|
354,738
|
|
|
187,305
|
|
||
1-5 years
|
1,723,306
|
|
|
1,700,643
|
|
||
5+ years
|
54,330
|
|
|
525,888
|
|
||
Total
|
$
|
2,206,948
|
|
|
$
|
2,483,802
|
|
|
As of December 31,
|
||||||
In thousands of U.S. dollars
|
2016
|
|
2015
|
||||
Asset
|
|
|
|
||||
Less than 1 month
|
$
|
—
|
|
|
$
|
—
|
|
1-3 months
|
116
|
|
|
—
|
|
||
Liability
|
|
|
|
||||
Less than 1 month
|
—
|
|
|
—
|
|
||
1-3 months
|
—
|
|
|
320
|
|
||
3 months to 1 year
|
—
|
|
|
880
|
|
||
1-5 years
|
—
|
|
|
84
|
|
||
Total
|
$
|
116
|
|
|
$
|
1,284
|
|
23.
|
Subsequent events
|
Drawdown amount
|
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
|
||
$
|
29.4
|
|
|
February 2017
|
|
STI Selatar
|
|
29.0
|
|
|
March 2017
|
|
STI Rambla
|
(1)
|
•
|
The first commercial tranche of $15.0 million has a final maturity of six years from the drawdown date of each vessel, bears interest at LIBOR plus a margin of 2.25% per annum, and has a 15 year repayment profile.
|
•
|
The second commercial tranche of $25.0 million has a final maturity of nine years from the drawdown date of each vessel (assuming KEXIM or GIEK have not exercised their option to call for prepayment of the KEXIM and GIEK funded and guaranteed tranches by the date falling two months prior to the maturity of the first commercial tranche and in the event that the first commercial tranche has not been extended), bears interest at LIBOR plus a margin of 2.25% per annum, and has a 15 year repayment profile.
|
•
|
The KEXIM Funded Tranche and GIEK Guaranteed Tranche have a final maturity of 12 years from the drawdown date of each vessel (assuming the commercial tranches are refinanced through that date), bear interest at LIBOR plus a margin of 2.15% per annum, and have a 12 year repayment profile.
|
•
|
The KEXIM Guaranteed Tranche has a final maturity of 12 years from the drawdown date of each vessel (assuming the commercial tranches are refinanced through that date), bears interest at LIBOR plus a margin of 1.60% per annum, and has a 12 year repayment profile.
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel and $250,000 each time chartered-in vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 135% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
Drawdown amount
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
||
$
|
13.8
|
|
|
January 2017
|
|
STI Sapphire
|
13.8
|
|
|
February 2017
|
|
STI Emerald
|
Drawdown amount
|
|
|
|
|
||
(in millions of U.S. dollars)
|
|
Drawdown date
|
|
Collateral
|
||
$
|
16.5
|
|
|
February 2017
|
|
STI Duchessa
|
14.6
|
|
|
February 2017
|
|
STI Onyx
|
•
|
The ratio of net debt to total capitalization no greater than 0.60 to 1.00.
|
•
|
Consolidated tangible net worth no less than $1.0 billion plus (i) 25% of the cumulative positive net income (on a consolidated basis) for each fiscal quarter commencing on or after January 1, 2016 and (ii) 50% of the net proceeds of new equity issues occurring on or after January 1, 2016.
|
•
|
The ratio of EBITDA to net interest expense (excluding non-cash items) greater than 2.50 to 1.00 calculated on a trailing four quarter basis.
|
•
|
Minimum liquidity of not less than the greater of $25.0 million or $500,000 per each owned vessel and $250,000 each time chartered-in vessel.
|
•
|
The aggregate of the FMV of the vessels provided as collateral under the facility shall at all times be no less than 140% of the then aggregate outstanding principal amount of the loans under the credit facility.
|
1
|
Interpretation
|
2
|
Facility
|
3
|
Position of the Lenders
|
4
|
Drawdown
|
5
|
Interest
|
6
|
Interest Periods
|
7
|
Default Interest
|
8
|
Repayment, Prepayment and Reborrowing
|
9
|
Conditions Precedent
|
10
|
Representations and Warranties
|
11
|
General Undertakings
|
12
|
Corporate and Financial Undertakings
|
13
|
Insurance
|
14
|
Ship Covenants
|
15
|
Security Cover
|
16
|
Payments and Calculations
|
17
|
Application of Receipts
|
18
|
Application of Earnings
|
19
|
Events of Default
|
20
|
Fees and Expenses
|
21
|
Indemnities
|
22
|
No Set-Off or Tax Deduction
|
23
|
Illegality, etc.
|
24
|
Increased Costs
|
25
|
Set-Off
|
26
|
Transfers and Changes in Lending Offices
|
27
|
Variations and Waivers
|
28
|
Notices
|
29
|
Supplemental
|
30
|
Law and Jurisdiction
|
Schedule 1 Lenders and Commitments
|
Schedule 2 Swap Banks
|
Schedule 3 Drawdown Notice
|
Schedule 4 Condition Precedent Documents
|
Part A
|
Part B
|
Schedule 5 Transfer Certificate
|
Schedule 6 Designation Notice
|
Schedule 7 Form of Compliance Certificate
|
Execution Page
|
(1)
|
STI ROSE SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "
Borrower
")
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, as "
Lenders
"
|
(3)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in
Schedule 2
, as "
Swap Banks
"
|
(4)
|
THE BANK OF NOVA SCOTIA
, as "
Agent
"
|
(5)
|
SCOTIABANK EUROPE PLC
, as "
Security Trustee
"
|
(A)
|
The Lenders have agreed to make available to the Borrower a facility of up to $36,000,000 for the purpose of refinancing existing indebtedness in relation to "STI ROSE".
|
(B)
|
The Swap Banks have agreed to enter into interest rate swap transactions with the Borrower from time to time to hedge the Borrower's exposure under this Agreement to interest rate fluctuations.
|
(C)
|
The Lenders and the Swap Banks have agreed to share pari passu in the security to be granted to the Security Trustee pursuant to this Agreement.
|
1
|
INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
in relation to the commercial management of the Ship, Scorpio Commercial Management s.a.m. of 9, Boulevard Charles III, Monte Carlo, the Principality of Monaco (or any Affiliate or Subsidiary thereof);
|
(b)
|
in relation to the technical management of the Ship:
|
(i)
|
Scorpio Ship Management s.a.m. of 9, Rue du Gabian, Monte Carlo, the Principality of Monaco (or any Affiliate or Subsidiary thereof); or
|
(ii)
|
any of V. Ships Ship Management, D'Amico International Shipping, Hellespoint Shipping, Anglo-Eastern Ship Management, Univan Ship Management Limited, C. P. Offen, Optimum Ship Services Ltd. or Zenith Ship Management; and
|
(c)
|
in relation to either of the commercial or the technical management of the Ship, any other company proposed by the Guarantor which the Agent may (acting on the
|
(a)
|
the date falling 30 days after the date of this Agreement (or such later date as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrower); or
|
(b)
|
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated.
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms , the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time ; and
|
(b)
|
in relation to any other state, 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.
|
(a)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" 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;
|
(b)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency
|
(c)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(a)
|
the Guarantor ceases to legally and/or beneficially, and either directly or indirectly, own 100 per cent. or more of the issued share capital or voting rights of the Borrower; or
|
(b)
|
2 or more persons acting in concert or any individual person other than the Guarantor has the right or the ability to control, either directly or indirectly, the affairs or composition of the majority of the board of directors (or equivalent) of the Borrower.
|
(a)
|
it is entered into by the Borrower pursuant to a Master Agreement with a Swap Bank;
|
(b)
|
its purpose is the hedging of the Borrower's exposure under this Agreement to fluctuations in LIBOR arising from the funding of the Loan (or any part thereof) for a period expiring no later than the final Repayment Date; and
|
(c)
|
it is designated by the Borrower, by delivery by the Borrower to the Agent of a notice of designation in the form set out in Schedule 6 (
Designation Notice
), as a Designated Transaction for the purposes of the Finance Documents.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, 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 prevent that, or any other party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other parties in accordance with the terms of the Finance Documents,
|
(a)
|
except to the extent that they fall within paragraph (b):
|
(i)
|
all freight, hire and passage moneys;
|
(ii)
|
compensation payable to the Borrower or the Security Trustee in the event of requisition of the Ship for hire;
|
(iii)
|
remuneration for salvage and towage services;
|
(iv)
|
demurrage and detention moneys;
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship; and
|
(vi)
|
all moneys which are at any time payable under Insurances in respect of loss of hire; and
|
(b)
|
if and whenever the Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Ship.
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
(a)
|
any release of Environmentally Sensitive Material from the Ship; or
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than the Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Ship and/or the Borrower and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from the Ship and in connection with which the Ship is actually or potentially liable to be arrested and/or where the Borrower and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
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;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(a)
|
this Agreement;
|
(b)
|
the Agency and Trust Agreement;
|
(c)
|
the Guarantee;
|
(d)
|
the Mortgage;
|
(e)
|
the General Assignment;
|
(f)
|
the Tripartite Assignment;
|
(g)
|
the Accounts Security Deed;
|
(h)
|
the Shares Security Deed;
|
(i)
|
the Master Agreement Assignment; and
|
(j)
|
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders and/or the Swap Banks under this Agreement or any of the other documents referred to in this definition.
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereto or the completion of such services, except trade payables;
|
(e)
|
all capitalised lease obligations of the Debtor as lessee;
|
(f)
|
all Financial Indebtedness incurred under any guarantee, indemnity or similar obligation to the extent such Financial Indebtedness is guaranteed, secured, expressed to be indemnified by, or otherwise assured by the Debtor.
|
(i)
|
the amount outstanding at any time of any Financial Indebtedness issued with an original issue discount shall be deemed to be the face amount of such Financial Indebtedness less the remaining unamortised portion of such original issue discount of such Financial Indebtedness at such time; and
|
(ii)
|
the calculation of Financial Indebtedness shall not take into account any liability of the Debtor for taxes.
|
(a)
|
all policies and contracts of insurance, including entries of the Ship in any protection and indemnity or war risks association, effected in respect of the Ship, the Earnings or otherwise in relation to the Ship whether before, on or after the date of this Agreement; and
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan,
|
(a)
|
the applicable Screen Rate for dollars and for a period equal in length to the Interest Period of the Loan or that part of the Loan;
|
(b)
|
(if no Screen Rate is available for the Interest Period of that Advance, the Loan, that part of the Loan), the applicable Interpolated Screen Rate; or
|
(c)
|
if no Screen Rate is available for that period and it is not possible to calculate an Interpolated Screen Rate for the Loan or that part of the Loan, the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards to 4 decimal places) of the rates, as supplied to the Agent at its request, quoted by each Reference Bank to leading banks in the London Interbank Market;
|
(a)
|
before the Loan has been made, Lenders whose Commitments total 66.66 per cent. of the Total Commitments; and
|
(b)
|
after the Loan has been made, Lenders whose Contributions total 66.66 per cent. of the Loan.
|
(a)
|
the business, operations, property or condition (financial or otherwise) of the Borrower and/or the Guarantor; or
|
(b)
|
the ability of the Borrower and/or the Guarantor to perform its obligations under any Finance Document; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or intended to be granted pursuant to any of, the Finance Documents (except for the Approved Ship Manager's Undertakings); or
|
(d)
|
the rights or remedies of any Creditor Party under any of the Finance Documents.
|
(a)
|
Security Interests created by the Finance Documents;
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(c)
|
liens for salvage;
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in relation to the Ship not prohibited by this Agreement;
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause
14.12(a)
(vii);
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Borrower is actively prosecuting or defending such proceedings or arbitration in good faith; and
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made;]
|
(a)
|
any Finance Document;
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 13 (
Insurance
) or any other provision of this Agreement or another Finance Document;
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c).
|
(a)
|
England and Wales, the Principality of Monaco and the State of New York;
|
(b)
|
the country under the laws of which the company is incorporated or formed;
|
(c)
|
a country in which the company has the centre of its main interests or in which the company's central management and control is or has recently been exercised; and
|
(d)
|
a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax.
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a),
|
(a)
|
imposed by law or regulation of the United Kingdom, Canada, the Council of the European Union, the United Nations or its Security Council or the United States of America regardless of whether the same is or is not binding on the Borrower or any Security Party; or
|
(b)
|
otherwise imposed by any law or regulation binding on the Borrower or any Security Party or to which the Borrower or any Security Party is subject (which shall include without limitation, any extra-territorial sanctions imposed by law or regulation of the United States of America).
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
|
(b)
|
the security rights of a plaintiff under an action
in rem
; and
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.
|
(a)
|
all amounts which have become due for payment by the Borrower or any Security Party under the Finance Documents and the Master Agreements have been paid;
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document or any Master Agreement;
|
(c)
|
neither the Borrower nor any Security Party has any future or contingent liability under Clause 20 (
Fees and Expenses
), 21 (
Indemnities
) or 22 (
No Set-Off or Tax Deduction
) or any other provision of this Agreement or another Finance Document or a Master Agreement; and
|
(d)
|
the Agent, the Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document or a Master Agreement would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or a Master Agreement or any asset covered (or previously covered) by a Security Interest created by a Finance Document.
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of the Ship;
|
(b)
|
any expropriation, confiscation, requisition or acquisition of the Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension), unless it is within 1 month redelivered to the Borrower's full control; and
|
(c)
|
any arrest, capture, seizure or detention of the Ship (including any hijacking or theft) unless it is within 1 month redelivered to the Borrower's full control.
|
(a)
|
in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown, the date when the Ship was last heard of;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest of:
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with the Ship's insurers in which the insurers agree to treat the Ship as a total loss; and
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
(a)
|
a Borrower which is resident for tax purposes in the US; or
|
(b)
|
an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(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; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.2
|
Construction of certain terms
|
1.3
|
Meaning of "month"
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
1.4
|
Meaning of "subsidiary"
|
(a)
|
a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or
|
(b)
|
P has direct or indirect control over a majority of the voting rights attaching to the issued shares of S; or
|
(c)
|
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
|
(d)
|
P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of P;
|
1.5
|
General Interpretation
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;
|
(c)
|
words denoting the singular number shall include the plural and vice versa; and
|
(d)
|
Clauses 1.1 (
Definitions
) to 1.5 (
General Interpretation
) apply unless the contrary intention appears.
|
1.6
|
Headings
|
2
|
FACILITY
|
2.1
|
Amount of facility
|
2.2
|
Lenders' participations in Loan
|
2.3
|
Purpose of Loan
|
3
|
POSITION OF THE LENDERS AND SWAP BANKS
|
3.1
|
Interests several
|
3.2
|
Individual right of action
|
3.3
|
Proceedings requiring Majority Lender consent
|
3.4
|
Obligations several
|
(a)
|
the obligations of the other Lenders or Swap Banks being increased; nor
|
(b)
|
the Borrower, any Security Party, any other Lender or any other Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document or under any Master Agreement,
|
4
|
DRAWDOWN
|
4.1
|
Request for advance of Loan
|
4.2
|
Availability
|
(a)
|
the Drawdown Date has to be a Business Day during the Availability Period; and
|
(b)
|
the Loan shall be made available in a single advance.
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice
|
(a)
|
the amount of the Loan and the Drawdown Date;
|
(b)
|
the amount of that Lender's participation in the Loan; and
|
(c)
|
the duration of the first Interest Period.
|
4.4
|
Drawdown Notice irrevocable
|
4.5
|
Lenders to make available Contributions
|
4.6
|
Disbursement of Loan
|
(a)
|
to the account which the Borrower specifies in the Drawdown Notice; and
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
5
|
INTEREST
|
5.1
|
Payment of normal interest
|
5.2
|
Normal rate of interest
|
5.3
|
Payment of accrued interest
|
5.4
|
Notification of Interest Periods and rates of normal interest
|
(a)
|
each rate of interest; and
|
(b)
|
the duration of each Interest Period,
|
5.5
|
Obligation of Reference Banks to quote
|
5.6
|
Absence of quotations by Reference Banks
|
5.7
|
Market disruption
|
(a)
|
no Screen Rate is available for an Interest Period and 2 or more of the Reference Banks do not, before 1.00 p.m. (London time) on the Quotation Date, provide quotations to the Agent in order to fix LIBOR; or
|
(b)
|
at least 1 Business Day before the start of an Interest Period, Lenders having Contributions together amounting to more than 50 per cent. of the Loan (or, if the Loan has not been made, Commitments amounting to more than 50 per cent. of the Total Commitments) notify the Agent that LIBOR fixed by the Agent would not accurately reflect the cost to those Lenders of funding their respective Contributions (or any part of them) during the Interest Period in the London Interbank Market at or about 11.00 a.m. (London time) on the Quotation Date for the Interest Period; or
|
(c)
|
at least 1 Business Day before the start of an Interest Period, the Agent is notified by a Lender (the "
Affected Lender
") that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period.
|
5.8
|
Notification of market disruption
|
5.9
|
Suspension of drawdown
|
(a)
|
in a case falling within paragraph (a) or (b) of Clause 5.7 (
Market disruption
), the Lenders' obligations to make the Loan; and
|
(b)
|
in a case falling within paragraph (c) Clause 5.7 (
Market disruption
), the Affected Lender's obligation to participate in the Loan,
|
5.10
|
Rate of interest during market disruption
|
5.11
|
Notice of prepayment
|
5.12
|
Prepayment; termination of Commitments
|
(a)
|
on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and
|
(b)
|
on the last Business Day of the interest period set by the Agent, the Borrower shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
|
5.13
|
Application of prepayment
|
6
|
INTEREST PERIODS
|
6.1
|
Commencement of Interest Periods
|
6.2
|
Duration of normal Interest Periods
|
(a)
|
1, 3 or 6 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time) 5 Business Days before the commencement of the Interest Period; or
|
(b)
|
12 months or any other period that the Borrower may request not later than 11.00 a.m. (London time) 5 Business Days before the commencement of the Interest Period
Provided that
the Lenders shall only be obliged to agree to an Interest Period of such duration if each Lender is satisfied that deposits in Dollars for a period equal to the requested Interest Period will be available to it in the London Interbank Market when the Interest Period commences; or
|
(c)
|
3 months, if the Borrower fails to notify the Agent by the time specified in paragraphs (a) or (b); or
|
(d)
|
such other period as the Agent may, with the authorisation of all the Lenders, agree with the Borrower.
|
6.3
|
Duration of Interest Periods for repayment instalments
|
6.4
|
Non-availability of matching deposits for Interest Period selected
|
7
|
DEFAULT INTEREST
|
7.1
|
Payment of default interest on overdue amounts
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or
|
(c)
|
if such amount has become immediately due and payable under Clause
19.4
(
Acceleration of Loan
), the date on which it became immediately due and payable.
|
7.2
|
Default rate of interest
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at paragraphs (a) and (b) of Clause 7.3 (
Calculation of default rate of interest
); or
|
(b)
|
in the case of any other overdue amount, the rate set out at paragraph (b) of Clause 7.3 (
Calculation of default rate of interest
).
|
7.3
|
Calculation of default rate of interest
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period);
|
(b)
|
the aggregate of the Margin plus, in respect of successive periods of any duration (including at call) up to 3 months which the Agent may select from time to time:
|
(i)
|
LIBOR; or
|
(ii)
|
if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for any such period are not being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.
|
7.4
|
Notification of interest periods and default rates
|
7.5
|
Payment of accrued default interest
|
7.6
|
Compounding of default interest
|
7.7
|
Application to Master Agreements
|
8
|
REPAYMENT AND PREPAYMENT
|
8.1
|
Amount of repayment instalments
|
(a)
|
The Borrower shall repay the Loan by 12 equal consecutive quarterly instalments of $600,000.00 each together with a balloon instalment payable on the Maturity Date in an amount equal to the Loan then outstanding.
|
(b)
|
If the amount advanced in relation to the Loan is less than $36,000,000:
|
(i)
|
the repayment instalments referred to in this Clause (including the balloon) shall be reduced pro rata and the Agent shall provide the Borrowers and the other Creditor Parties with a repayment schedule for the Loan with the amended repayment instalments (and balloon); and
|
(ii)
|
the unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the Drawdown Date.
|
8.2
|
Repayment Dates
|
8.3
|
Maturity Date
|
8.4
|
Voluntary prepayment
|
8.5
|
Conditions for voluntary prepayment
|
(a)
|
a partial prepayment shall be at least $1,000,000 or a higher integral multiple of $1,000,000 or such other amount as the Agent may approve;
|
(b)
|
the Agent has received from the Borrower at least 10 days prior written notice specifying the amount to be prepaid and the date on which the prepayment is to be made;
|
(c)
|
the Borrower has provided evidence satisfactory to the Agent that any consent required by the Borrower or any Security Party in connection with the prepayment has been obtained and remains in force, and that any regulation relevant to this Agreement which affects the Borrower or any Security Party has been complied with; and
|
(d)
|
that the Borrower has complied with Clause
8.13
(
Unwinding of Designated Transactions
) on or prior to the date of prepayment.
|
8.6
|
Effect of notice of prepayment
|
8.7
|
Notification of notice of prepayment
|
8.8
|
Mandatory prepayment on sale or Total Loss
|
(a)
|
in the case of a sale, on or before the date on which the sale is completed by delivery of the Ship to the buyer; or
|
(b)
|
in the case of a Total Loss, on the earlier of the date falling 180 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.
|
8.9
|
Mandatory prepayment on Change of Control
|
8.10
|
Amounts payable on prepayment
|
8.11
|
Application of partial prepayment
|
8.12
|
No reborrowing
|
8.13
|
Unwinding of Designated Transactions
|
9
|
CONDITIONS PRECEDENT
|
9.1
|
Documents, fees and no default
|
(a)
|
that, on or before the service of the Drawdown Notice, the Agent receives the documents described in Part A of
Schedule 4
(
Condition Precedent Documents
) in form and substance satisfactory to the Agent and its lawyers;
|
(b)
|
that, on the Drawdown Date but prior to the advance of the Loan, the Agent receives or is satisfied that it will receive on the advance of the Loan the documents described in Part B of
Schedule 4
(
Condition Precedent Documents
) in form and substance satisfactory to it and its lawyers;
|
(c)
|
that, on or before the service of the Drawdown Notice, the Agent receives the arrangement fee referred to in Clause 20.1 (
Arrangement, commitment, agency fees
), all accrued commitment fee payable pursuant to Clause 20.1 (
Arrangement, commitment, agency fees
) and has received payment of the expenses referred to in Clause
20.2
(
Costs of negotiation, preparation etc.
); and
|
(d)
|
that both at the date of the Drawdown Notice and at the Drawdown Date:
|
(i)
|
no Event of Default has occurred or would result from the borrowing of the Loan;
|
(ii)
|
the representations and warranties in Clause 10 (
Representations and Warranties
) and those of the Borrower or any Security Party which are set out in the other Finance Documents would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing; and
|
(iii)
|
none of the circumstances contemplated by Clause 5.7 (
Market disruption
) has occurred and is continuing;
|
(iv)
|
there has not occurred or developed since 20 October 2015 a change in the financial position, or state of affairs or prospects of the Borrower or any Security Party which, in the reasonable opinion of the Majority Lenders, has a Material Adverse Effect; and
|
(e)
|
that, if the ratio set out in Clause 15.1 (
Minimum required security cover
) were applied immediately following the making of the Loan, the Borrower would not be obliged to provide additional security or prepay part of the Loan under that Clause;
|
(f)
|
that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrower prior to the Drawdown Date.
|
9.2
|
Waiver of conditions precedent
|
10
|
REPRESENTATIONS AND WARRANTIES
|
10.1
|
General
|
10.2
|
Status
|
10.3
|
Ownership
|
10.4
|
Corporate power
|
(a)
|
to register the Ship in its name under the Approved Flag;
|
(b)
|
to execute the Finance Documents to which the Borrower is a party and the Master Agreements; and
|
(c)
|
to borrow under this Agreement, to enter into Designated Transactions under the Master Agreements and to make all the payments contemplated by, and to comply with, the Finance Documents to which the Borrower is a party and the Master Agreements.
|
10.5
|
Consents in force
|
10.6
|
Legal validity; effective Security Interests
|
(a)
|
constitute the Borrower's legal, valid and binding obligations enforceable against the Borrower in accordance with their respective terms; and
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
|
10.7
|
No third party Security Interests
|
(a)
|
the Borrower will have the right to create all the Security Interests which that Finance Document purports to create; and
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
10.8
|
No conflicts
|
(a)
|
any law or regulation; or
|
(b)
|
the constitutional documents of the Borrower; or
|
(c)
|
any contractual or other obligation or restriction which is binding on the Borrower or any of its assets.
|
10.9
|
No withholding taxes
|
10.10
|
No default
|
10.11
|
Information
|
10.12
|
No litigation
|
10.13
|
Compliance with certain undertakings
|
10.14
|
Taxes paid
|
10.15
|
ISM Code and ISPS Code Compliance
|
10.16
|
No money laundering
|
10.17
|
No immunity
|
10.18
|
Pari passu
|
10.19
|
Corrupt practices
|
10.20
|
Sanctions
|
(a)
|
Neither the Borrower nor any other Security Party:
|
(i)
|
is a Prohibited Person;
|
(ii)
|
to the best of the Borrower's knowledge is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;
|
(iii)
|
owns or controls a Prohibited Person; or
|
(iv)
|
has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee.
|
(b)
|
No proceeds of the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person in breach of applicable Sanctions nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose in breach of applicable Sanctions.
|
11
|
GENERAL UNDERTAKINGS
|
11.1
|
General
|
11.2
|
Title; negative pledge
|
(a)
|
hold the legal title to, and own the entire beneficial interest in the Ship, the Insurances and Earnings, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the Finance Documents and except for Permitted Security Interests; and
|
(b)
|
not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future (including, but not limited to, the Borrower's rights against a Swap Counterparty under a Master Agreement or all or any part of the Borrower's interest in any amount payable to the Borrower by a Swap Counterparty under a Master Agreement).
|
11.3
|
No disposal of assets
|
(a)
|
all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or
|
(b)
|
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation,
|
11.4
|
No other liabilities or obligations to be incurred
|
(a)
|
liabilities and obligations under the Finance Documents to which it is a party;
|
(b)
|
liabilities or obligations reasonably incurred in the ordinary course of operating and chartering the Ship; and
|
(c)
|
Designated Transactions.
|
11.5
|
Information provided to be accurate
|
11.6
|
Provision of financial statements
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of the Guarantor, the audited consolidated accounts of the Guarantor;
|
(b)
|
as soon as possible, but in no event later than 60 days after the end of each of the first three quarters in each financial year of the Guarantor, unaudited consolidated accounts of the Guarantor and which are certified as to their correctness by the chief financial officer of the Guarantor;
|
(c)
|
as soon as possible, but in no event later than 90 days after the end of each financial year of the Guarantor, consolidated cash flow projections for the following 3 years in a format approved by the Agent which shows balance sheets, statements of anticipated profit and loss and cash flow; and
|
(d)
|
together with the annual audited accounts referred to in paragraph (a) and with each set of quarterly unaudited accounts referred to in paragraph (b), a compliance certificate (together with supporting schedules, if any) signed by the chief financial officer of the Guarantor in the form attached as Schedule 7 (
Form of Compliance Certificate
) (or in any other format which the Agent may approve and with such other information as the Agent may require) evidencing compliance with the financial undertakings in clause 11 (
financial covenants
) of the Guarantee and, in the case of the compliance certificates provided together with the annual audited accounts referred to in paragraph (a) and with the second set of quarterly unaudited accounts of each financial year referred to in paragraph (b), also listing the Fair Market Value of the Ship.
|
11.7
|
Form of financial statements
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
(b)
|
fairly represent the financial condition of the Borrower or the Guarantor and its subsidiaries (as the case may be) at the date of those accounts and of its profit for the period to which those accounts relate; and
|
(c)
|
fully disclose or provide for all significant liabilities of the Borrower or the Guarantor and its subsidiaries (as the case may be).
|
11.8
|
Creditor notices
|
11.9
|
Consents
|
(a)
|
for the Borrower to perform its obligations under any Finance Document to which it is a party or any Master Agreement;
|
(b)
|
for the validity or enforceability of any Finance Document to which it is a party or any Master Agreement; and
|
(c)
|
for the Borrower to continue to own and operate the Ship,
|
11.10
|
Maintenance of Security Interests
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.11
|
Notification of litigation
|
11.12
|
No amendment to Master Agreements
|
11.13
|
Chief executive office
|
11.14
|
Confirmation of no default
|
(a)
|
states that no Event of Default has occurred; or
|
(b)
|
states that no Event of Default has occurred, except for a specified event or matter, of which all material details are given.
|
11.15
|
Notification of default
|
(a)
|
the occurrence of an Event of Default; or
|
(b)
|
any matter which indicates that an Event of Default may have occurred,
|
11.16
|
Provision of further information
|
(a)
|
to the Borrower, the Ship, the Earnings or the Insurances; or
|
(b)
|
to any other matter relevant to, or to any provision of, a Finance Document,
|
11.17
|
Provision of copies and translation of documents
|
11.18
|
"Know your customer" checks
|
(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 the Borrower or any Security Party 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,
|
11.19
|
ERISA
|
11.20
|
Taxation
|
(a)
|
The Borrower shall, and shall procure that each Security Party 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:
|
(i)
|
such payment is being contested in good faith;
|
(ii)
|
adequate reserves are maintained for those taxes and the costs required to contest them have been disclosed in its latest financial statements delivered to the Agent under Clause 11.6 (Provision of financial statements); and
|
(iii)
|
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.
|
(b)
|
The Borrower shall not and the Borrower shall procure that no Security Party will, change its residence for tax purposes.
|
11.21
|
Documents required following execution of a Master Agreement
|
(a)
|
a duly executed Master Agreement Assignment in the Agreed Form (of each document required to be delivered by the Master Agreement Assignment);
|
(b)
|
a duly executed amendment to the Mortgage in the Agreed Form and making such amendments to the Mortgage as are required to ensure that it validly secures the Borrower's obligations under the Master Agreement.
|
12
|
CORPORATE UNDERTAKINGS
|
12.1
|
General
|
12.2
|
Maintenance of status
|
(a)
|
The Borrower will maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Marshall Islands.
|
(b)
|
The Borrower shall procure that it shall not become a FATCA FFI or a US Tax Obligor.
|
12.3
|
Negative undertakings
|
(a)
|
carry on any business other than the ownership, chartering and operation of the Ship; or
|
(b)
|
provide any form of credit or financial assistance to:
|
(i)
|
a person who is directly or indirectly interested in the Borrower's share or loan capital; or
|
(ii)
|
any company in or with which such a person is directly or indirectly interested or connected,
|
(c)
|
open or maintain any account with any bank or financial institution except accounts with the Agent and the Security Trustee for the purposes of the Finance Documents;
|
(d)
|
issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital;
|
(e)
|
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative other than Designated Transactions; or
|
(f)
|
enter into any form of amalgamation, consolidation, merger or de-merger or any form of reconstruction or reorganisation.
|
12.4
|
Dividends and distributions of share capital
|
12.5
|
No Change of Control
|
13
|
INSURANCE
|
13.1
|
General
|
13.2
|
Maintenance of obligatory insurances
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
(b)
|
war risks (including terrorism, piracy and confiscation);
|
(c)
|
protection and indemnity risks; and
|
(d)
|
any other risks against which the Security Trustee considers, having regard to standard practices and other circumstances prevailing at the relevant time, it would in the opinion of the Security Trustee be reasonable for the Borrower to insure and which are specified by the Security Trustee by written notice to the Borrower.
|
13.3
|
Terms of obligatory insurances
|
(a)
|
in Dollars;
|
(b)
|
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of (i) 120 per cent of the Loan and (ii) the Fair Market Value of the Ship;
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(d)
|
in relation to protection and indemnity risks in respect of the Ship's full tonnage;
|
(e)
|
on approved terms; and
|
(f)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
13.4
|
Further protections for the Creditor Parties
|
(a)
|
subject always to paragraph (b), name the Borrower as the sole named assured unless the interest of every other named assured is limited:
|
(i)
|
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A)
|
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B)
|
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii)
|
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b)
|
whenever the Security Trustee requires, name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Lender, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
name the Security Trustee as loss payee with such directions for payment as the Security Trustee may specify;
|
(d)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
(e)
|
provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other Creditor Party; and
|
(f)
|
provide that the Security Trustee may make proof of loss if the Borrower fails to do so.
|
13.5
|
Renewal of obligatory insurances
|
(a)
|
at least 14 days before the expiry of any obligatory insurance:
|
(i)
|
notify the Security Trustee of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom the Borrower proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii)
|
obtain the Security Trustee's approval to the matters referred to in paragraph (i);
|
(b)
|
at least 7 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Security Trustee's approval pursuant to paragraph (a); and
|
(c)
|
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal.
|
13.6
|
Copies of policies; letters of undertaking
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4 (
Further protections for the Creditor Parties
);
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;
|
(d)
|
they will notify the Security Trustee, not less than 7 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the Borrower or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions; and
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of the Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non‑payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of the Ship forthwith upon being so requested by the Security Trustee.
|
13.7
|
Copies of certificates of entry
|
(a)
|
a copy of the certificate of entry for the Ship;
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Security Trustee; and
|
(c)
|
a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Ship.
|
13.8
|
Deposit of original policies
|
13.9
|
Payment of premiums
|
13.10
|
Guarantees
|
13.11
|
Compliance with terms of insurances
|
(a)
|
the Borrower shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in paragraph (c) of Clause 13.6 (
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;
|
(b)
|
the Borrower shall not make any changes relating to the classification or classification society or manager or operator of the Ship unless approved by the underwriters of the obligatory insurances;
|
(c)
|
the Borrower shall make (and promptly supply copies to the Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(d)
|
the Borrower shall not employ the Ship, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
13.12
|
Alteration to terms of insurances
|
13.13
|
Settlement of claims
|
13.14
|
Provision of copies of communications
|
(a)
|
the approved brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
|
(i)
|
the Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii)
|
any credit arrangements made between the Borrower and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
13.15
|
Provision of information
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause
13.16
(
Mortgagee's interest and additional perils
) or dealing with or considering any matters relating to any such insurances;
|
13.16
|
Mortgagee's interest and additional perils insurances
|
14
|
SHIP COVENANTS
|
14.1
|
General
|
14.2
|
Ship's name and registration
|
14.3
|
Repair and classification
|
(a)
|
consistent with first‑class ship ownership and management practice;
|
(b)
|
so as to maintain the class for the Ship with the relevant Approved Classification Society free of recommendations and conditions; and
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered under the Approved Flag on which the Ship is registered or to vessels trading to any jurisdiction to which the Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
|
14.4
|
Modification
|
14.5
|
Removal of parts
|
14.6
|
Surveys
|
14.7
|
Inspection
|
14.8
|
Prevention of and release from arrest
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship, the Earnings or the Insurances;
|
(b)
|
all taxes, dues and other amounts charged in respect of the Ship, the Earnings or the Insurances; and
|
(c)
|
all other outgoings whatsoever in respect of the Ship, the Earnings or the Insurances,
|
14.9
|
Compliance with laws etc.
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ship, its ownership, operation and management or to the business of the Borrower;
|
(b)
|
not employ the Ship nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and Sanctions (or which would be contrary to Sanctions if Sanctions were applicable to the Borrower); and
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ship to enter or trade to any zone which is declared a war zone by any government or by the Ship's war risks insurers unless the prior written consent of the Security Trustee has been given and the Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Trustee may require.
|
14.10
|
Provision of information
|
(a)
|
the Ship, its employment, position and engagements;
|
(b)
|
the Earnings and payments and amounts due to the Ship's master and crew;
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship and any payments made in respect of the Ship;
|
(d)
|
any towages and salvages; and
|
(e)
|
the Borrower's, the Approved Manager's, the Approved Sub-Manager's or the Ship's compliance with the ISM Code and the ISPS Code,
|
14.11
|
Notification of certain events
|
(a)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c)
|
any requirement or condition made by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(d)
|
any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship or the Earnings or any requisition of the Ship for hire;
|
(e)
|
any intended dry docking of the Ship;
|
(f)
|
any Environmental Claim made against the Borrower or in connection with the Ship, or any Environmental Incident;
|
(g)
|
any claim for breach of the ISM Code or the ISPS Code being made against the Borrower, the Approved Manager, the Approved Sub-Manager or otherwise in connection with the Ship; or
|
(h)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with;
|
14.12
|
Restrictions on chartering, appointment of managers etc.
|
(a)
|
The Borrower shall not:
|
(i)
|
let the Ship on demise charter for any period;
|
(ii)
|
enter into any time or consecutive voyage charter in respect of the Ship for a term which exceeds, or which by virtue of any optional extensions may exceed, 13 months other than the Charter;
|
(iii)
|
enter into any charter in relation to the Ship under which more than 2 months' hire (or the equivalent) is payable in advance other than the Charter;
|
(iv)
|
charter the Ship otherwise than on bona fide arm's length terms at the time when the Ship is fixed;
|
(v)
|
appoint a manager of the Ship other than an Approved Manager or agree to any material alteration to the terms of the relevant Approved Manager's appointment;
|
(vi)
|
de‑activate or lay up the Ship; or
|
(vii)
|
put the Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $2,500,000 (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on the Ship or the Earnings for the cost of such work or for any other reason.
|
(b)
|
The Borrower shall procure that:
|
(i)
|
no Approved Manager other than Scorpio Commercial Management s.a.m. or Scorpio Ship Management s.a.m shall appoint a sub-manager in relation to the Ship; and
|
(ii)
|
neither Scorpio Commercial Management s.a.m. or Scorpio Ship Management s.a.m shall appoint a sub-manager of the Ship other than an Approved Sub-Manager or agree to any material alteration to the terms of the relevant Approved Sub-Manager's appointment.
|
14.13
|
Notice of Mortgage
|
14.14
|
Sharing of Earnings
|
14.15
|
ISPS Code
|
(a)
|
procure that the Ship and the company responsible for the Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain for the Ship an ISSC; and
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
14.16
|
Sanctions and Ship trading
|
(a)
|
that the Ship shall not be used by or for the benefit of a Prohibited Person;
|
(b)
|
that such Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were applicable to the Borrower and each Security Party);
|
(c)
|
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and
|
(d)
|
that each charterparty in respect of that Ship shall contain, for the benefit of that Borrower, language which gives effect to the provisions of paragraph (b) of Clause 14.9 (
Compliance with laws etc.
) as regards Sanctions and of this Clause 14.16 (
Sanctions and Ship trading
) and which permits refusal of employment or voyage orders if compliance would result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were applicable to the Borrower and each Security Party).
|
15
|
SECURITY COVER
|
15.1
|
Minimum required security cover
|
(a)
|
the Fair Market Value of the Ship; plus
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15 (
Security Cover
),
|
15.2
|
Provision of additional security; prepayment
|
15.3
|
Valuation of Ship
|
(a)
|
as at a date not more than 30 days previously;
|
(b)
|
by an Approved Valuer;
|
(c)
|
with or without physical inspection of the Ship (as the Agent may require);
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
|
15.4
|
Value of additional vessel security
|
15.5
|
Valuations binding
|
15.6
|
Provision of information.
The Borrower shall promptly provide the Agent and any shipbroker or expert acting under Clause 15.3 (
Valuation of Ship
) or 15.4 (
Value of additional vessel security
) with any information which the Agent or the shipbroker or expert may request for the purposes of the valuation; and, if the Borrower fails to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the shipbroker or the Majority Lenders (or the expert appointed by them) consider prudent.
|
15.7
|
Payment of valuation expenses
|
15.8
|
Application of prepayment
|
15.9
|
Release of Additional Security
|
16
|
PAYMENTS AND CALCULATIONS
|
16.1
|
Currency and method of payments
|
(a)
|
by not later than 11.00 a.m. (London time) on the due date;
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by the Borrower to the Agent or any Lender, to the account of the Agent at The Bank of Nova Scotia, New York (Swift Code NOSCUS33 and Account No 0600830), or to such other account with such other bank as the Agent may from time to time notify to the Borrower and the other Creditor Parties; and
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrower and the other Creditor Parties.
|
16.2
|
Payment on non-Business Day
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day;
|
16.3
|
Basis for calculation of periodic payments
|
16.4
|
Distribution of payments to Creditor Parties
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, a Swap Counterparty or the Security Trustee shall be made available by the Agent to that Lender, that Swap Counterparty or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender and the Swap Counterparty or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders and/or the Swap Counterparties generally shall be distributed by the Agent to each Lender and each Swap Counterparty pro rata to the amount in that category which is due to it.
|
16.5
|
Permitted deductions by Agent
|
16.6
|
Agent only obliged to pay when monies received
|
16.7
|
Refund to Agent of monies not received
|
(a)
|
refund the sum in full to the Agent; and
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
|
16.8
|
Agent may assume receipt
|
16.9
|
Creditor Party accounts
|
16.10
|
Agent's memorandum account
|
16.11
|
Accounts prima facie evidence
|
17
|
APPLICATION OF RECEIPTS
|
17.1
|
Normal order of application
|
(a)
|
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents and the Master Agreements in the following order and proportions:
|
(i)
|
first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents other than those amounts referred to at paragraphs (ii) and (iii) (including, but without limitation, all amounts payable by the Borrower under Clauses 20 (
Fees and Expenses
), 21 (
Indemnities
) and 22 (
No Set-Off or Tax Deduction
) of this Agreement or by the Borrower or any Security Party under any corresponding or similar provision in any other Finance Document or in any Master Agreement);
|
(ii)
|
secondly, in or towards satisfaction pro rata of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents and the Master Agreements (and, for this purpose, the expression "
interest
" shall include any net amount which the Borrower shall have become liable to pay or deliver under the applicable sections of any Master Agreement but shall have failed to pay or deliver to the relevant Swap Counterparty at the time of application or distribution under this Clause 17 (
Application of Receipts
)); and
|
(iii)
|
thirdly, in or towards satisfaction pro rata of the Loan and the Swap Exposure of each Swap Counterparty (in the case of the latter, calculated as at the actual Early Termination Date applying to each particular Designated Transaction, or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the date of application or distribution hereunder);
|
(b)
|
SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document or any Master Agreement but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor Parties, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of paragraph (a) of Clause 17.1 (
Normal order of application
); and
|
(c)
|
THIRDLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
17.2
|
Variation of order of application
|
17.3
|
Notice of variation of order of application
|
17.4
|
Appropriation rights overridden
|
18
|
APPLICATION OF EARNINGS; SWAP PAYMENTS
|
18.1
|
Payment of Earnings and Swap Payments
|
(a)
|
subject only to the provisions of the General Assignment and the Tripartite Assignment, all the Earnings are paid to the Earnings Account; and
|
(b)
|
all payments by the relevant Swap Counterparty to the Borrower under each Designated Transaction are paid to the Earnings Account.
|
18.2
|
Location of accounts
|
(a)
|
comply with any requirement of the Agent as to the location or re‑location of the Earnings Account; and
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Account.
|
18.3
|
Debits for expenses etc.
|
18.4
|
Borrower's obligations unaffected
|
(a)
|
the liability of the Borrower to make payments of principal and interest on the due dates; or
|
(b)
|
any other liability or obligation of the Borrower or any Security Party under any Finance Document.
|
19
|
EVENTS OF DEFAULT
|
19.1
|
Events of Default
|
(a)
|
the Borrower or any Security Party fails to pay when due any sum payable under a Finance Document or under any document relating to a Finance Document unless its failure to pay is caused by:
|
(i)
|
an administrative or technical error; or
|
(ii)
|
a Disruption Event,
|
(b)
|
any breach occurs of Clause
9.2
(
Waiver of conditions precedent
), 11.2 (
Title; negative pledge
), 11.3 (
No disposal of assets
), 12 (
Corporate Undertakings
), 13 (
Insurance
), 14.16 (
Sanctions and Ship trading
) or 15.2 (
Provision of additional security; prepayment
) or Clause 11 (
Financial Covenants
)
of the Guarantee; or
|
(c)
|
any breach occurs of Clause 14.9 (
Compliance with laws etc.
) insofar as it relates to Sanctions; or
|
(d)
|
any breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Lenders, is capable of remedy, and such default continues unremedied 5 days after written notice from the Agent requesting action to remedy the same; or
|
(e)
|
(subject to any applicable grace period specified in the Finance Document) any breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach falling within paragraphs (a), (b) or (d)); or
|
(f)
|
any representation, warranty or statement made or repeated by, or by an officer of, the Borrower or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading when it is made or repeated; or
|
(g)
|
any of the following occurs in relation to any Financial Indebtedness of a Relevant Person (in the case of the Guarantor on a consolidated basis or the Charterer exceeding $10,000,000 in aggregate or, in the case of any other Relevant Person, $2,500,000 in aggregate (or in either case, the equivalent in any other currency):
|
(i)
|
any Financial Indebtedness of a Relevant Person is not paid when due; or
|
(ii)
|
any Financial Indebtedness of a Relevant Person becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of a Relevant Person is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of a Relevant Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
(v)
|
any Security Interest securing any Financial Indebtedness of a Relevant Person becomes enforceable; or
|
(h)
|
any of the following occurs in relation to a Relevant Person:
|
(i)
|
a Relevant Person becomes unable to pay its debts as they fall due; or
|
(ii)
|
any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $10,000,000 in the case of the Guarantor or the Charterer or $2,500,000 in the case of any other Relevant Person or more or the equivalent in another currency; or
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person; or
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings, by a lawyer acting for a Relevant Person; or
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by (aa) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (dd) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Borrower or the Guarantor which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by all the Lenders and effected not later than 3 months after the commencement of the winding up; or
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not with a view to some other insolvency law procedure being implemented instead and either (aa) the application or petition is dismissed or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed, or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of any actual, interim or pending insolvency law procedure; or
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way at all; or
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise or fail to materialise; or
|
(xi)
|
in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or commenced or any step is taken which, in the opinion of the Lenders acting reasonably is similar to any of the foregoing;
|
(i)
|
any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened against a Relevant Person or its assets which has, will have or may have a Material Adverse Effect;
|
(j)
|
a Finance Document is amended, terminated, cancelled or suspended for any reason except with the prior written consent of the Agent, acting with the authorisation of all the Lenders;
|
(k)
|
the Borrower ceases or suspends carrying on its business or a part of its business which is material in the context of this Agreement; or
|
(l)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
(i)
|
for the Borrower or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which all the Lenders consider material under a Finance Document;
|
(ii)
|
for the Agent, the Security Trustee, the Lenders or the Swap Banks to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or
|
(m)
|
any consent necessary to enable the Borrower to own, operate or charter the Ship or to enable the Borrower or any Security Party to comply with any provision which all the Lenders consider material of a Finance Document is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
|
(n)
|
any provision which all the Lenders consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest and, in each case, such default continues unremedied 15 days after written notice from the Agent requesting action to remedy the same; or
|
(o)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
(p)
|
an Event of Default (as defined in section 14 of a Master Agreement) occurs; or
|
(q)
|
a Master Agreement is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason except with the consent of the Agent, acting with the authorisation of all the Lenders; or
|
(r)
|
the Ship ceases to be employed by the relevant Approved Ship Manager on terms acceptable to the Agent or any of the circumstances described in paragraphs (h) or (k) of Clause 19.1 (
Events of Default
) occurs (
mutatis mutandis
) in relation to an Approved Manager or an Approved Manager or Approved Sub-Manager breaches any provision of its Approved Ship Manager's Undertaking which the Agent considers material and the Borrower fails within a period of 30 days of it becoming aware of the occurrence of such circumstance or breach or of the receipt of a written notification from the Agent requesting the Borrower to remedy such circumstances or breach either to remedy such circumstances or breach or to substitute the relevant Approved Ship Manager or Approved Sub-Manager with another Approved Ship Manager or Approved Sub-Manager which executes and delivers to the Security Trustee a replacement Approved Ship Manager's Undertaking; or
|
(s)
|
an event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.
|
19.2
|
Actions following an Event of Default
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
(i)
|
serve on the Borrower a notice stating that all or part of the Commitments and of the other obligations of each Lender to the Borrower under this Agreement are cancelled; and/or
|
(ii)
|
serve on the Borrower a notice stating that all or part of the Loan together with accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a)(i) or (ii), the Security Trustee, the Agent and/or the Lenders and/or the Swap Counterparties are entitled to take under any Finance Document or any applicable law.
|
19.3
|
Termination of Commitments
|
19.4
|
Acceleration of Loan
|
19.5
|
Multiple notices; action without notice
|
19.6
|
Notification of Creditor Parties and Security Parties
|
19.7
|
Creditor Party rights unimpaired
|
19.8
|
Exclusion of Creditor Party liability
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,
|
19.9
|
Relevant Persons
|
19.10
|
Interpretation
|
19.11
|
Position of Swap Counterparties
|
20
|
FEES AND EXPENSES
|
20.1
|
Arrangement, commitment, agency fees
|
(a)
|
on the date of this Agreement, an arrangement fee in an amount of $252,000, for distribution among the Lenders in the proportions agreed by the Agent and the Lenders; and
|
(b)
|
quarterly in arrears during the period from (and including) the date of this Agreement to the earlier of (i) the Drawdown Date and (ii) the last day of the Availability Period and on the last day of that period, for the account of the Lenders, a commitment fee at the rate of 35 per cent. of the Margin per annum on the amount of the Total Commitments, for distribution among the Lenders pro rata to their Commitments.
|
20.2
|
Costs of negotiation, preparation etc.
|
20.3
|
Costs of variations, amendments, enforcement etc.
|
(a)
|
any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;
|
(b)
|
any consent or waiver by the Lenders, the Swap Banks, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance Document, or any request for such a consent or waiver;
|
(c)
|
the valuation of any security provided or offered under Clause 15 (
Security Cover
) or any other matter relating to such security; or
|
(d)
|
any step taken by the Lender or the Swap Bank concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.
|
20.4
|
Documentary taxes
|
20.5
|
Financial Conduct Authority and Prudential Regulation Authority fees
|
20.6
|
Certification of amounts
|
21
|
INDEMNITIES
|
21.1
|
Indemnities regarding borrowing and repayment of Loan
|
(a)
|
the Loan not being borrowed on the date specified in the Drawdown Notice for any reason other than a default by the Lender claiming the indemnity;
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;
|
(c)
|
any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrower on the amount concerned under Clause 7 (
Default Interest
));
|
(d)
|
the occurrence of an Event of Default and/or the acceleration of repayment of the Loan under Clause 19 (
Events of Default
);
|
21.2
|
Breakage costs
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount); and
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one.
|
21.3
|
Miscellaneous indemnities
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document; or
|
(b)
|
any other Pertinent Matter,
|
21.4
|
Currency indemnity
|
(a)
|
making or lodging any claim or proof against the Borrower or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
(c)
|
enforcing any such order or judgment,
|
21.5
|
Application to Master Agreements
|
21.6
|
Certification of amounts
|
21.7
|
Sums deemed due to a Lender
|
22
|
NO SET-OFF OR TAX DEDUCTION
|
22.1
|
No deductions
|
(a)
|
without any form of set‑off, cross-claim or condition; and
|
(b)
|
free and clear of any tax deduction except a tax deduction which the Borrower is required by law to make.
|
22.2
|
Grossing-up for taxes
|
(a)
|
the Borrower shall notify the Agent as soon as it becomes aware of the requirement;
|
(b)
|
the Borrower shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and
|
(c)
|
the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received.
|
22.3
|
Evidence of payment of taxes
|
22.4
|
Exclusion of tax on overall net income
|
22.5
|
Application to Master Agreements
|
22.6
|
FATCA information
|
(a)
|
Subject to paragraph (c) below, each party to this Agreement shall, within ten Business Days of a reasonable request by another party:
|
(i)
|
confirm to that other party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party;
|
(ii)
|
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;
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
(b)
|
If a party to this Agreement confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Creditor Party to do anything, and paragraph (a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a party to this Agreement fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
22.7
|
FATCA Deduction
|
(a)
|
Each party to this Agreement 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 to this Agreement 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.
|
(b)
|
Each party to this Agreement 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), and in any case at least three Business Days prior to making a FATCA Deduction, notify the party to whom it is making the payment and, on or prior to the day on which it notifies that party in addition, shall also notify the Borrowers and the Agent and the Agent shall notify the other Creditor Parties.
|
23
|
ILLEGALITY, ETC
|
23.1
|
Illegality
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
(b)
|
contrary to, or inconsistent with, any regulation,
|
23.2
|
Notification of illegality
|
23.3
|
Prepayment; termination of Commitment
|
23.4
|
Mitigation
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
24
|
INCREASED COSTS
|
24.1
|
Increased costs
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Lender's overall net income); or
|
(b)
|
complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement,
|
24.2
|
Meaning of "increased costs"
|
(a)
|
an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or having taken an assignment of rights under this Agreement, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums;
|
(b)
|
a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;
|
(c)
|
an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or
|
(d)
|
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement;
|
(e)
|
but not an item attributable to a change in the rate of tax on the overall net income of the Notifying Lender (or a parent company of it) or an item attributable to a FATCA Deduction required to be made by a party to this Agreement or an item covered by the indemnity for tax in Clause 21.1 (
Indemnities regarding borrowing and repayment of Loan
) or by Clause 22 (
No Set-Off or Tax Deduction
) or an item arising directly out of 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 ("
Basel II
") or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Creditor Party or any of its affiliates)
Provided that
the exclusion in this paragraph shall not include Basel III irrespective of whether this is implemented or applied pursuant to Basel II.
|
24.3
|
Notification to Borrower of claim for increased costs
|
24.4
|
Payment of increased costs
|
24.5
|
Notice of prepayment
|
24.6
|
Prepayment; termination of Commitment
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrower shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
|
24.7
|
Application of prepayment
|
25
|
SET‑OFF
|
25.1
|
Application of credit balances
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Borrower to that Creditor Party under any of the Finance Documents; and
|
(b)
|
for that purpose:
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of the Borrower;
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
|
25.2
|
Existing rights unaffected
|
25.3
|
Sums deemed due to a Lender
|
25.4
|
No Security Interest
|
26
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
26.1
|
Transfer by Borrower
|
26.2
|
Transfer by a Lender
|
(a)
|
its rights in respect of all or part of its Contribution; or
|
(b)
|
its obligations in respect of all or part of its Commitment; or
|
(c)
|
a combination of (a) and (b),
|
26.3
|
Transfer Certificate, delivery and notification
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrower, the Security Parties, the Security Trustee, each of the other Lenders and each of the Swap Banks;
|
(b)
|
on behalf of the Transferee Lender, send to the Borrower and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b),
|
26.4
|
Effective Date of Transfer Certificate
|
26.5
|
No transfer without Transfer Certificate
|
26.6
|
Lender re-organisation; waiver of Transfer Certificate
|
26.7
|
Effect of Transfer Certificate
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrower or any Security Party had against the Transferor Lender;
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
(c)
|
the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro‑rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of the Borrower or any Security Party against the Transferor Lender had not existed;
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.7 (
Market disruption
) and Clause 20 (
Fees and Expenses
), and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.
|
26.8
|
Maintenance of register of Lenders
|
26.9
|
Reliance on register of Lenders
|
26.10
|
Authorisation of Agent to sign Transfer Certificates
|
26.11
|
Registration fee
|
26.12
|
Sub-participation; subrogation assignment
|
26.13
|
Disclosure of information
|
26.14
|
Change of lending office
|
(a)
|
the date on which the Agent receives the notice; and
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
26.15
|
Notification
|
26.16
|
Replacement of Reference Bank
|
26.17
|
Security over Lenders' rights
|
(a)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(b)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities;
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by the Borrower or any Security Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
27
|
VARIATIONS AND WAIVERS
|
27.1
|
Variations, waivers etc. by Majority Lenders
|
27.2
|
Variations, waivers etc. requiring agreement of all Lenders and Swap Banks
|
(a)
|
a reduction in the Margin;
|
(b)
|
a postponement to the date for, or a reduction in the amount of, any payment of principal, interest, fees or other sum payable under this Agreement;
|
(c)
|
an increase in any Lender's Commitment;
|
(d)
|
a change to the definition of "
Majority Lenders
";
|
(e)
|
a change to Clause 3 (
Position of the Lenders and Swap Banks
) or this Clause 27 (
Variations and Waivers
);
|
(f)
|
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; and
|
(g)
|
any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required.
|
27.3
|
Exclusion of other or implied variations
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
(b)
|
an Event of Default; or
|
(c)
|
a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general law; or
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law,
|
28
|
NOTICES
|
28.1
|
General
|
28.2
|
Addresses for communications
|
(a)
|
to the Borrower: Scorpio Tankers Inc.
|
(b)
|
to a Lender:
|
(c)
|
to the Agent:
|
(d)
|
to the Security Trustee:
|
28.3
|
Effective date of notices
|
(a)
|
a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered; and
|
(b)
|
a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.
|
28.4
|
Service outside business hours
|
(a)
|
on a day which is not a business day in the place of receipt; or
|
(b)
|
on such a business day, but after 5 p.m. local time,
|
28.5
|
Illegible notices
|
28.6
|
Valid notices
|
(a)
|
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or
|
(b)
|
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.
|
28.7
|
Electronic communication
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(b)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(c)
|
notify each other of any change to their respective addresses or any other such information supplied to them.
|
28.8
|
English language
|
28.9
|
Meaning of "notice"
|
29
|
SUPPLEMENTAL
|
29.1
|
Rights cumulative, non-exclusive
|
(a)
|
cumulative;
|
(b)
|
may be exercised as often as appears expedient; and
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
|
29.2
|
Severability of provisions
|
29.3
|
Counterparts
|
29.4
|
Third party rights
|
29.5
|
Contractual recognition of bail-in
|
(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
|
(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.
|
29.6
|
Parallel liability
|
(a)
|
The Borrower irrevocably and unconditionally undertakes to pay to the Security Trustee an amount equal to the aggregate amount of its Corresponding Liabilities (as these may exist from time to time).
|
(b)
|
The Parties agree that:
|
(i)
|
the Borrower’s Parallel Liability is due and payable at the same time as, for the same amount of and in the same currency as its Corresponding Liabilities;
|
(ii)
|
the Borrower’s Parallel Liability is decreased to the extent that its Corresponding Liabilities have been irrevocably paid or discharged and its Corresponding Liabilities are decreased to the extent that its Parallel Liability has been irrevocably paid or discharged;
|
(iii)
|
the Borrower’s Parallel Liability is independent and separate from, and without prejudice to, its Corresponding Liabilities, and constitutes a single obligation of the Borrower to the Security Trustee (even though the Borrower may owe more than one Corresponding Liability to the Security Parties under the Finance Documents) and an independent and separate claim of the Security Agent to receive payment of that Parallel Liability (in its capacity as the independent and separate creditor of that Parallel Liability and not as a co-creditor in respect of the Corresponding Liabilities); and
|
(iv)
|
for purposes of this Clause 29.6 (
Parallel liability
), the Security Trustee acts in its own name and not as agent, representative or trustee of the Finance Parties and accordingly holds neither its claim resulting from the Parallel Liability nor any Security Interest securing the Parallel Liability on trust.
|
30
|
LAW AND JURISDICTION
|
30.1
|
English law
|
30.2
|
Exclusive English jurisdiction
|
30.3
|
Choice of forum for the exclusive benefit of Creditor Parties
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
30.4
|
Process agent
|
30.5
|
Creditor Party rights unaffected
|
30.6
|
Meaning of "proceedings"
|
Lender
|
Lending Office
|
Commitment (US Dollars)
|
Scotiabank Europe plc
|
201 Bishopsgate
6th Floor
London
England
EC2M 3NS
|
36,000,000
|
|
Total:
|
36,000,000
|
Swap Bank
|
Booking Office
|
The Bank of Nova Scotia
|
201 Bishopsgate
6th Floor
London
England
EC2M 3NS
Attention: David Sparkes / Priya Rai
Tel. no: +44 207 826 5635 /
+44 207 826 5991
Fax no: +44 207 638 8488
Email: david.sparkes@scotiabank.com priya.rai@scotiabank.com
With copy to:
Attention: Matt Tuskin
mail: matt.tuskin@scotiabank.com |
1
|
We refer to the loan agreement (the "
Loan
Agreement
") dated [
l
] 2016 and made between ourselves, as Borrower, the Lenders referred to therein, and yourselves as Agent and as Security Trustee in connection with a facility of up to US$36,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
2
|
We request to borrow as follows:‑
|
(a)
|
Amount: US$[
l
];
|
(b)
|
Drawdown Date: [
l
];
|
(c)
|
Duration of the first Interest Period shall be [
l
] months; and
|
(d)
|
Payment instruction: account in our name and numbered [
l
] with [
l
] of [
l
].
|
3
|
We represent and warrant that:
|
(a)
|
the representations and warranties in clause 10 (
Representations and warranties
) of the Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances now existing; and
|
(b)
|
no Event of Default has occurred or will result from the borrowing of the Loan.
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
5
|
[We authorise you to deduct the arrangement fee referred to in Clause 20 (
Fees and Expenses
) from the amount of the Loan.]
|
1
|
A duly executed original of each Finance Document (and of each document required to be delivered by each Finance Document) other than those referred to in Part B.
|
2
|
Copies of the certificate of incorporation and constitutional documents of the Borrower and each Security Party.
|
3
|
Copies of resolutions of directors of the Borrower and each Security Party and of the shareholders of the Borrower and each Security Party other than the Guarantor authorising the execution of each of the Finance Documents to which the Borrower or that Security Party is a party and, in the case of the Borrower, authorising named officers to give the Drawdown Notice and other notices under this Agreement and ratifying the execution of the Charter, the Sub-Charter and, if applicable, the Sub-Charter Guarantee.
|
4
|
The original of any power of attorney under which any Finance Document is executed on behalf of the Borrower or a Security Party.
|
5
|
Copies of all consents which the Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document.
|
6
|
Evidence that the Earnings Account has been opened and is operational.
|
7
|
Valuations addressed to the Agent and the Lenders, stated to be for the purposes of this Agreement and dated not earlier than 30 days before the date of this Agreement, from Approved Valuers.
|
8
|
Copies of the Charter, the Sub-Charter and, if a nomination has been made under the Sub-Charter, the Sub-Charter Guarantee.
|
9
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of the Republic of the Marshall Islands, the Netherlands and such other relevant jurisdictions as the Agent may require.
|
10
|
The Agent and Lenders have been provided with all information and documentation they have requested in order to carry out and be reasonably satisfied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated by this Agreement and to satisfy all internal compliance policies of the Agent and the Lenders in relation to "know you customer" requirements.
|
11
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for the Ships as the Agent may require.
|
12
|
Documentary evidence that the agent for service of process named in Clause 30 (
Law and Jurisdiction
) has accepted its appointment.
|
13
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
1
|
A duly executed original of the Mortgage, the General Assignment and the Tripartite Assignment (and of each document to be delivered by each of them).
|
2
|
Evidence that all outstanding indebtedness under the Existing Loan Agreement relating to the Ship has been repaid and that all Security Interests granted by the Borrower and in respect of the Borrower's share capital in connection with the Existing Loan Agreement have been released.
|
3
|
Documentary evidence that:
|
(a)
|
the Ship is definitively and permanently registered in the name of the Borrower under the Approved Flag;
|
(b)
|
the Ship is in the absolute and unencumbered ownership of the Borrower save as contemplated by the Finance Documents;
|
(c)
|
the Ship maintains its class with the relevant Approved Classification Society free of all overdue recommendations and qualifications of such Classification Society;
|
(d)
|
the Mortgage has been duly recorded against the Ship as a valid first preferred ship mortgage in accordance with the laws of the Approved Flag; and
|
(e)
|
the Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with.
|
4
|
Documents establishing that the Ship will, as from the Drawdown Date, be managed by the Approved Manager and, if applicable, the Approved Sub-Manager on terms acceptable to the Lenders, together with:
|
(a)
|
Approved Ship Manager's Undertakings executed by each Approved Manager and any applicable Approved Sub-Manager; and
|
(b)
|
copies of the Approved Manager's (or, if applicable, the Approved Sub-Manager's) Document of Compliance and of the Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and ISSC.
|
5
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of the Republic of the Marshall Islands, Singapore and such other relevant jurisdictions as the Agent may require.
|
6
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
To:
|
[Name of Agent] for itself and for and on behalf of the Borrower, [each Security Party], the Security Trustee, each Lender and each Swap Bank, as defined in the Loan Agreement referred to below.
|
1
|
This Certificate relates to a loan agreement ("the "
Agreement
") dated [
l
] and made between (1) STI Rose Shipping Company Limited (the "
Borrower
"), (2) the banks and financial institutions named therein as Lenders, (3) the banks and financial institutions named therein as Swap Banks, (4) [
l
] as Agent and (5) [
l
] as Security Trustee for a loan facility of up to $36,000,000.
|
2
|
In this Certificate, terms defined in the Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate and:
|
3
|
The effective date of this Certificate is [
l
]
Provided that
this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4
|
[The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Agreement and every other Finance Document in relation to [
l
] per cent. of its Contribution, which percentage represents $[
l
].
|
5
|
[By virtue of this Certificate and Clause 26 (
Transfers and Changes in Lending Offices
) of the Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[
l
]] [from [
l
] per cent. of its Commitment, which percentage represents $[
l
]] and the Transferee acquires a Commitment of $[
l
].]
|
6
|
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 (
Transfers and Changes in Lending Offices
) of the Agreement provides will become binding on it upon this Certificate taking effect.
|
7
|
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 (
Transfers and Changes in Lending Offices
) of the Agreement.
|
8
|
The Transferor:
|
(a)
|
warrants to the Transferee and each Relevant Party that:
|
(i)
|
the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are required in connection with this transaction; and
|
(ii)
|
this Certificate is valid and binding as regards the Transferor;
|
(b)
|
warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4; and
|
(c)
|
undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose.
|
9
|
The Transferee:
|
(a)
|
confirms that it has received a copy of the Agreement and each of the other Finance Documents;
|
(b)
|
agrees that it will have no rights of recourse on any ground against either the Transferor, the Agent, the Security Trustee, any Lender or any Swap Bank in the event that:
|
(i)
|
any of the Finance Documents prove to be invalid or ineffective;
|
(ii)
|
the Borrower or any Security Party fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents;
|
(iii)
|
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under any of the Finance Documents;
|
(c)
|
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Lender or any Swap Bank in the event that this Certificate proves to be invalid or ineffective;
|
(d)
|
warrants to the Transferor and each Relevant Party that:
|
(i)
|
it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and
|
(ii)
|
that this Certificate is valid and binding as regards the Transferee;
|
(e)
|
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10
|
The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
11
|
The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 9 as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded by it.
|
Note
:
|
This Transfer Certificate alone may not be sufficient to transfer a proportionate share of the Transferor's interest in the security constituted by the Finance Documents in the Transferor's or Transferee's jurisdiction. It is the responsibility of each Lender to ascertain whether any other documents are required for this purpose.
|
1
|
the Loan Agreement;
|
2
|
the Master Agreement dated [
l
] made between ourselves and [
l
]; and
|
3
|
a Confirmation delivered pursuant to the said Master Agreement dated [
l
] and addressed by [
l
] to us.
|
1
|
Attached to this Certificate [are][is] the latest [audited consolidated accounts of the Guarantor for the financial year ending on [
l
]][unaudited quarterly consolidated accounts of the Guarantor in relation to the quarter ending on [
l
]] (the "
Accounts
").
|
2
|
Set out below are the respective amounts, in US Dollars, of the Minimum Tangible Net Worth, Net Income, Equity Proceeds, Minimum Liquidity, Net Debt, Consolidated Total Capitalisation, EBITDA and Consolidated Net Interest of the Guarantor as at [
l
]:
|
3
|
As at [
l
], the Guarantor and/or its subsidiaries own [
l
] Fleet Vessels.
|
4
|
Accordingly, as at the date of this Certificate the financial covenants set out in clause 11 (
financial covenants
) of the Guarantee [are] [are not] complied with, in that as at [
l
]:
|
4.1
|
Minimum Consolidated Tangible Net Worth exceeds $1,000,000,000 plus 25 per cent. of Net Income and 50 per cent. of Equity Proceeds by $[
l
];
|
4.2
|
Minimum Liquidity exceeds the greater of (i) $25,000,000 and (ii) $500,000 multiplied by the numbers of vessels referred to in paragraph 3 by $[
l
];
|
4.3
|
the ratio of Net Debt to Consolidated Total Capitalisation is [
l
]; and
|
4.4
|
the ratio of Consolidated EBITDA to Consolidated Net Interest is [
l
].
|
Name of Ship
|
Name of first shipbroker providing valuation
|
Name of second shipbroker providing valuation
|
Average market value
|
[
l
]
|
[
l
]
|
[
l
]
|
[
l
]]
|
THE BORROWER
|
|
|
|
SIGNED
by
|
|
Brian M. Lee
|
/s/Brian M. Lee
|
for and on behalf of
|
|
STI ROSE SHIPPING
|
|
COMPANY LIMITED
|
|
in the presence of:
|
|
/s/ Vikram Hiranandani
|
|
|
|
|
|
THE LENDERS
|
|
|
|
SIGNED
by
|
/s/ Philippos Arcoumanis
|
|
Name: Philippos Arcoumanis
|
for and on behalf of
|
Title: Attorney-in-Fact
|
SCOTIABANK EUROPE PLC
|
|
in the presence of:
|
/s/ Tanpreet Rooprai
|
|
Name: Tanpreet Rooprai
|
|
Title: Trainee Solicitor
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE SWAP BANKS
|
|
|
|
SIGNED
by
|
/s/ Philippos Arcoumanis
|
|
Name: Philippos Arcoumanis
|
for and on behalf of
|
Title: Attorney-in-Fact
|
THE BANK OF NOVA SCOTIA
|
|
in the presence of:
|
/s/ Tanpreet Rooprai
|
|
Name: Tanpreet Rooprai
|
|
Title: Trainee Solicitor
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE AGENT
|
|
|
|
SIGNED
by
|
/s/ Philippos Arcoumanis
|
|
Name: Philippos Arcoumanis
|
for and on behalf of
|
Title: Attorney-in-Fact
|
THE BANK OF NOVA SCOTIA
|
|
in the presence of:
|
/s/ Tanpreet Rooprai
|
|
Name: Tanpreet Rooprai
|
|
Title: Trainee Solicitor
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE SECURITY TRUSTEE
|
|
|
|
SIGNED
by
|
/s/ Philippos Arcoumanis
|
|
Name: Philippos Arcoumanis
|
for and on behalf of
|
Title: Attorney-in-Fact
|
SCOTIABANK EUROPE PLC
|
|
in the presence of:
|
/s/ Tanpreet Rooprai
|
|
Name: Tanpreet Rooprai
|
|
Title: Trainee Solicitor
|
|
15 Appold Street
|
|
London EC2A 2HB
|
1
|
INTERPRETATION
|
2
|
FACILITY
|
3
|
POSITION OF THE LENDERS AND SWAP BANKS
|
4
|
DRAWDOWN
|
5
|
INTEREST
|
6
|
INTEREST PERIODS
|
7
|
DEFAULT INTEREST
|
8
|
REPAYMENT AND PREPAYMENT
|
9
|
CONDITIONS PRECEDENT
|
10
|
REPRESENTATIONS AND WARRANTIES
|
11
|
GENERAL UNDERTAKINGS
|
12
|
CORPORATE AND FINANCIAL UNDERTAKINGS
|
13
|
INSURANCE
|
14
|
SHIP COVENANTS
|
15
|
SECURITY COVER
|
16
|
PAYMENTS AND CALCULATIONS
|
17
|
APPLICATION OF RECEIPTS
|
18
|
APPLICATION OF EARNINGS
|
19
|
EVENTS OF DEFAULT
|
20
|
FEES AND EXPENSES
|
21
|
INDEMNITIES
|
22
|
NO SET-OFF OR TAX DEDUCTION
|
23
|
ILLEGALITY, ETC
|
24
|
INCREASED COSTS
|
25
|
SET0OFF
|
26
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
27
|
VARIATIONS AND WAIVERS
|
28
|
NOTICES
|
29
|
JOINT AND SEVERAL LIABILITY AND HEDge guarantee
|
30
|
SUPPLEMENTAL
|
31
|
LAW AND JURISDICTION
|
Schedule 1 LENDERS AND COMMITMENTS
|
|
Schedule 2 SWAP BANKS
|
|
Schedule 3 DRAWDOWN NOTICE
|
|
Schedule 4 CONDITION PRECEDENT DOCUMENTS
|
|
Schedule 5 TRANSFER CERTIFICATE
|
|
Schedule 6 DESIGNATION NOTICE
|
|
Schedule 7 LIST OF APPROVED BROKERS
|
|
Schedule 8 MANDATORY COST
|
|
EXECUTION PAGES
|
(1)
|
STI FONTVIEILLE SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands ("
Borrower A
");
|
(2)
|
STI VILLE SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands ("
Borrower B
");
|
(3)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, as
Lenders
;
|
(4)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 2, as
Swap Banks
;
|
(5)
|
NIBC BANK N.V.
, as
Mandated Lead Arranger
;
|
(6)
|
NIBC BANK N.V.,
as
Agent
; and
|
(7)
|
NIBC BANK N.V.,
as
Security Trustee
.
|
(A)
|
The Lenders have agreed to make available to the Borrowers a facility of up to $44,000,000 in two tranches each of up to $22,000,000:
|
(i)
|
for the purpose of Borrower A refinancing up to 67.5 per cent. of the Fair Market Value of Ship A; and
|
(ii)
|
for the purpose of Borrower B refinancing up to 67.5 per cent. of the Fair Market Value of Ship B,
|
(B)
|
The Swap Banks may enter into interest rate swap transactions with the Borrowers from time to time to hedge the Borrowers' exposure under this Agreement to interest rate fluctuations.
|
(C)
|
The Lenders and the Swap Banks have agreed to share
pari passu
in the security to be granted to the Security Trustee pursuant to this Agreement.
|
1
|
INTERPRETATION
|
1.1
|
Definitions.
Subject to Clause 1.5, in this Agreement:
|
(a)
|
Scorpio Commercial Management s.a.m. of 9, Boulevard Charles III, Monte Carlo, the Principality of Monaco or any of its Affiliates or any Affiliate of the Guarantor; or
|
(b)
|
any other company proposed by the Borrowers and/or the Guarantor which the Agent may (acting on the instructions of all the Lenders such instructions not to be unreasonably withheld or delayed), approve from time to time as the commercial manager of that Ship;
|
(a)
|
proposed by the Borrower of that Ship;
|
(b)
|
run by any Affiliate of the Approved Commercial Ship Manager of that Ship; and
|
(c)
|
approved in writing by the Agent (acting on the instructions of the Majority Lenders) prior to that Ship’s entry into pooling such arrangement;
|
(a)
|
as at the date of this Agreement, Scorpio Ship Management s.a.m. of 9, Rue du Gabian, MC 98000, the Principality of Monaco or any of its Affiliates or any Affiliate of the Guarantor;
|
(b)
|
any of Anglo-Eastern Ship Management (Singapore) Pte. Ltd. of 200, Cantonment Road, #16-02, Southpoint, Singapore, 089763, Hellespont Ship Management GmbH & Co. KG of Beim Strohhause 28, 20097 Hamburg, Germany, Fleet Management Ltd of 11/F Dah Sing Financial Centre, 108 Gloucester Road, Wanchai, Hong Kong, Univan Ship Management Limited of 35th Floor, Citicorp Centre 18, Whitfield Road, North Point, Hong Kong, Synergy Marine Pte. Ltd. of 1 Kim Seng Promenade, #10-11/12 Great World City West Tower, Singapore 237994, C.P. Offen Tankschiffreedrel (GmbH & Co.) KG of Blichenbruecke 10, 20354 Hamburg, Zenith Gemi Islemeciligi Anonim Sirketi of FSM Mahallesi, Poligon Caddesi, Buyaka 2/B Sitesi NO:8, c-Blok Kat, Umraniye, 34771 Istanbul, Turkey, d’Amico International Shipping of 20 Boulevard de Suisse, Montecarlo, MC 98000, Monaco or V. Ships Ship Management of 1
st
Floor, 63 Queen Victoria Street, EC4N 4UA, London, United Kingdom; or
|
(c)
|
any other company proposed by the Borrowers and/or the Guarantor which the Agent may (acting on the instructions of all the Lenders such instructions not to be unreasonably withheld or delayed), approve from time to time as the technical manager of that Ship;
|
(a)
|
30 days from the date of this Agreement (or such later date as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrowers); or
|
(b)
|
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated;
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms , the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time ; and
|
(b)
|
in relation to any other state, 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;
|
(a)
|
100 per cent. of the Equity Interests of either Borrower ceasing to be ultimately owned and/or controlled by the Guarantor;
|
(b)
|
a person or group other than any holders of the Guarantor's Equity Interests as at the date of this Agreement, becoming the ultimate beneficial owner of the Guarantor including, without limitation, any change from the date of this Agreement in the ultimate beneficial owner of more than 35 per cent. of the total voting power of the voting stock of the Guarantor (calculated on a fully diluted basis); or
|
(c)
|
individuals who constitute the board of directors of the Guarantor at the beginning of any period of two consecutive calendar years and yet cease for any reason to constitute at least 50 per cent. of the total members of the Guarantor's board of directors at any time during such two year period;
|
(a)
|
either Borrower, the Guarantor or any other Security Party or any of their advisers; or
|
(b)
|
another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly from the Guarantor, either Borrower or any other Security Party or any of their advisers,
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Creditor Party of Clause 26.13; or
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by the Guarantor, either Borrower or any other Security Party or any of their advisers; or
|
(iii)
|
is known by that Creditor Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that
|
(a)
|
it is entered into by a Borrower pursuant to a Master Agreement with a Swap Bank;
|
(b)
|
its purpose is the hedging of the Borrowers’ exposure under this Agreement to fluctuations in LIBOR arising from the funding of the Loan (or any part thereof) for a period expiring no later than the Maturity Date; and
|
(c)
|
it is designated by a Borrower, by delivery by a Borrower to the Agent of a notice of designation in the form set out in Schedule 6, as a Designated Transaction for the purposes of the Finance Documents;
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, 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 prevent that, or any other party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other parties in accordance with the terms of the Finance Documents,
|
(a)
|
except to the extent that they fall within paragraph (b):
|
(i)
|
all freight, hire and passage moneys;
|
(ii)
|
compensation payable to the relevant Borrower or the Security Trustee in the event of requisition of that Ship for hire;
|
(iii)
|
remuneration for salvage and towage services;
|
(iv)
|
demurrage and detention moneys;
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and
|
(vi)
|
all moneys which are at any time payable under Insurances in respect of loss of hire; and
|
(b)
|
if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship;
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
(a)
|
any release of Environmentally Sensitive Material from a Ship; or
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which such Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or such Ship and/or the Borrower owning such Ship and/or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which such Ship is actually or potentially liable to be arrested and/or where the Borrower owning such Ship and/or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action;
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person;
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
(b)
|
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;
|
(a)
|
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;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
(a)
|
this Agreement;
|
(b)
|
the Fee Letter;
|
(c)
|
the Agency and Trust Deed;
|
(d)
|
the Guarantee;
|
(e)
|
the Mortgages;
|
(f)
|
the General Assignments
|
(g)
|
the Account Security Deeds;
|
(h)
|
any Charterparty Assignment;
|
(i)
|
any Intercompany Loan Assignment;
|
(j)
|
the Shares Pledge;
|
(k)
|
any Master Agreement Assignment; and
|
(l)
|
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrowers, the Guarantor, any other Security Party or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders and/or the Swap Banks under this Agreement or any of the other documents referred to in this definition (provided always that the Approved Ship Manager Undertakings shall be excluded from this item (l));
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereto or the completion of such services, except trade payables;
|
(e)
|
all capitalised lease obligations of the Debtor as lessee; and
|
(f)
|
all Financial Indebtedness incurred under any guarantee, indemnity or similar obligation to the extent such Financial Indebtedness is guaranteed, secured, expressed to be indemnified by, or otherwise assured by the Debtor.
|
(i)
|
the amount outstanding at any time of any Financial Indebtedness issued with an original issue discount shall be deemed to be the face amount of such Financial Indebtedness less the remaining unamortised portion of such original issue discount of such Financial Indebtedness at such time; and
|
(ii)
|
the calculation of Financial Indebtedness shall not take into account any liability of the Debtor for taxes.
|
(a)
|
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to that Ship whether before or on the date of this Agreement; and
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement;
|
(a)
|
the applicable Screen Rate; or
|
(b)
|
if no Screen Rate is available for that period, the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards to 4 decimal places) of the rates, as supplied to the Agent at its request, quoted by each Reference Bank to leading banks in the London Interbank Market;
|
(a)
|
before a Tranche has been made, Lenders whose Commitments total 66.66 per cent. of the Total Commitments; and
|
(b)
|
after a Tranche has been made, Lenders whose Contributions total 66.66 per cent. of the Loan;
|
(a)
|
0.25 per cent. per annum in the event the principal amount outstanding and owed to NIBC Bank N.V. as one of the lenders under the Existing Facility exceeds $10,000,000 on 1 January 2017; and
|
(i)
|
if (a) above applies, a further 0.25 per cent. per annum; and
|
(ii)
|
if (a) above does not apply, 0.25 per cent. per annum,
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of the Guarantors and the Borrowers taken as a whole; or
|
(b)
|
the ability of the Guarantor or either Borrower to perform its payment obligations under any Finance Documents; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest 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.
|
(a)
|
Security Interests created by the Finance Documents;
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(c)
|
liens for salvage;
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in relation to a Ship not prohibited by this Agreement or any other Finance Document;
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Borrower that owns such Ship in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.13(a)(viii);
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Borrower that owns such Ship or the Guarantor, as the case may be, is actively prosecuting or defending such proceedings or arbitration in good faith; and
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made;
|
(a)
|
any Finance Document;
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document;
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c);
|
(a)
|
England and Wales, the Principality of Monaco, New York State of the United States of America, The Netherlands and the Republic of the Marshall Islands;
|
(b)
|
if not within any of the jurisdictions referred to in (a) above, the country under the laws of which the company is incorporated or formed;
|
(c)
|
if not within any of the jurisdictions referred to in (a) above, a country in which the company has the centre of its main interests or in which the company's central management and control is or has recently been exercised;
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a),
|
(a)
|
imposed by law or regulation of the Council of the European Union or any of its member states, the United Nations or its Security Council or the United Kingdom;
|
(b)
|
under CISADA;
|
(c)
|
in respect of (i) a "national" of any "designated foreign country", within the meaning of the Foreign Assets Control Regulations or the Cuban Asset Control Regulations of the United States Department of the Treasury, 31 C.F.R., Subtitle B, Chapter V, as amended, or (ii) a "specially designated national" listed by OFAC or any regulations or rulings issued thereunder; or
|
(d)
|
otherwise imposed by any law or regulation or Executive Order by which any Creditor Party, the Guarantor, either Borrower or any Security Party is bound or, as regards a regulation, compliance with which is reasonable in the ordinary course of business of any Creditor Party, the Guarantor, either Borrower or any other Security Party, including without limitation laws or regulations or Executive Orders restricting loans to, investments in, or the export of assets to, foreign countries or entities doing business there;
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
|
(b)
|
the security rights of a plaintiff under an action
in rem
; and
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution;
|
(a)
|
all amounts which have become due for payment by the Borrowers or any Security Party under the Finance Documents and the Master Agreements have been paid;
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document or any Master Agreement;
|
(c)
|
neither either Borrower nor any Security Party has any future or contingent liability under Clause 20, 21 or 22 or any other provision of this Agreement or another Finance Document or a Master Agreement; and
|
(d)
|
the Agent, the Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document or a Master Agreement would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of either Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or a Master Agreement or any asset covered (or previously covered) by a Security Interest created by a Finance Document;
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
(b)
|
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or
|
(c)
|
any arrest, capture, seizure or detention of that Ship (including any theft) unless it is within 6 months redelivered to the full control of the Borrower owning that Ship; and
|
(d)
|
any hijacking of that ship unless it is within 6 months redelivered to the full control of the Borrower owning that Ship;
|
(a)
|
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earliest of:
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf with that Ship's insurers in which the insurers agree to treat such Ship as a total loss; and
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred;
|
(a)
|
a person that is a "United States person" within the meaning of Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended; or
|
(b)
|
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(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; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.2
|
Construction of certain terms.
In this Agreement:
|
1.3
|
Meaning of "month".
A period of one or more "
months
" ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started ("
the numerically corresponding day
"), but:
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
1.4
|
Meaning of "subsidiary".
A company (S) is a subsidiary of another company (P) if:
|
(a)
|
a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or
|
(b)
|
P has direct or indirect control over a majority of the voting rights attaching to the issued shares of S; or
|
(c)
|
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
|
(d)
|
P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of P;
|
1.5
|
General Interpretation.
In this Agreement:
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;
|
(c)
|
words denoting the singular number shall include the plural and vice versa; and
|
(d)
|
Clauses 1.1 to 1.5 apply unless the contrary intention appears.
|
1.6
|
Headings.
In interpreting a Finance Document or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall be entirely disregarded.
|
2
|
FACILITY
|
2.1
|
Amount of facility.
Subject to the other provisions of this Agreement, the Lenders agree to make a loan facility not exceeding $44,000,000 available to the Borrowers in two Tranches.
|
2.2
|
Lenders' participations in Tranches.
Subject to the other provisions of this Agreement, each Lender shall participate in each Tranche in the proportion which, as at the relevant Drawdown Date, its Commitment bears to the Total Commitments.
|
2.3
|
Purpose of each Tranche.
The Borrowers undertake with each Creditor Party to use each Tranche only for the purpose stated in the preamble to this Agreement.
|
3
|
POSITION OF THE LENDERS AND SWAP BANKS
|
3.1
|
Interests several.
The rights of the Lenders and of the Swap Banks under this Agreement and under the Master Agreements are several.
|
3.2
|
Individual right of action.
Each Lender and each Swap Bank shall be entitled to sue for any amount which has become due and payable by the Borrowers to it under this Agreement or under a Master Agreement without joining the Agent, the Security Trustee, any other Lender or any other Swap Bank as additional parties in the proceedings.
|
3.3
|
Proceedings requiring Majority Lender consent.
Except as provided in Clause 3.2, no Lender and no Swap Bank may commence proceedings against any Borrower or any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders.
|
3.4
|
Obligations several.
The obligations of the Lenders under this Agreement and of the Swap Banks under the Master Agreement to which each is a party are several; and a failure of a Lender to perform its obligations under this Agreement or a failure of a Swap Bank to perform its obligations under the Master Agreement to which it is a party shall not result in:
|
(a)
|
the obligations of the other Lenders or Swap Banks being increased; nor
|
(b)
|
any Borrower, any Security Party, any other Lender or any other Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document or under any Master Agreement,
|
4
|
DRAWDOWN
|
4.1
|
Request for advance of a Tranche.
Subject to the following conditions, the Borrowers may request a Tranche to be made by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date.
|
4.2
|
Availability.
The conditions referred to in Clause 4.1 are that:
|
(a)
|
the Drawdown Date for each Tranche has to be a Business Day during the Availability Period applicable to such Tranche; and
|
(b)
|
each Tranche shall not exceed the lower of (i) $22,000,000 and (ii) 67.5 per cent. of the Fair Market Value of the Ship which is the subject of such Tranche;
|
(c)
|
each Tranche shall be made available in a single amount and any amount undrawn in respect of a Tranche shall be cancelled and may not be borrowed by the Borrowers at a later date;
|
(d)
|
the aggregate amount of the Tranches shall not exceed the Total Commitment; and
|
(e)
|
the applicable conditions precedent stated in Clause 9 shall have been satisfied or waived as provided therein.
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice.
The Agent shall promptly notify the Lenders that it has received a Drawdown Notice and shall inform each Lender of:
|
(a)
|
the amount of the Tranche requested and the Drawdown Date;
|
(b)
|
the amount of that Lender's participation in that Tranche; and
|
(c)
|
the duration of the first Interest Period applicable to that Tranche.
|
4.4
|
Drawdown Notice irrevocable.
A Drawdown Notice must be signed by an officer or a duly authorised attorney-in-fact of the Borrower; and once served, a Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Majority Lenders.
|
4.5
|
Lenders to make available Contributions.
Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent the amount due from that Lender under Clause 2.2.
|
4.6
|
Disbursement of a Tranche.
Subject to the provisions of this Agreement, the Agent shall on each Drawdown Date pay to the Borrowers the amounts which the Agent receives from the Lenders under Clause 4.5; and that payment to the Borrowers shall be made:
|
(a)
|
to the account which the Borrowers specify in the Drawdown Notice; and
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
4.7
|
Disbursement of a Tranche to third party.
The payment of a Tranche by the Agent under Clause 4.6 to a third party shall constitute the making of that Tranche and the Borrowers shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution.
|
5
|
INTEREST
|
5.1
|
Payment of normal interest.
Subject to the provisions of this Agreement, interest on each Tranche in respect of each Interest Period shall be paid by the Borrowers on the last day of that Interest Period.
|
5.2
|
Normal rate of interest.
Subject to the provisions of this Agreement, the rate of interest on each Tranche in respect of an Interest Period shall be the aggregate of (i) the applicable Margin (ii) the Mandatory Costs (if any) and (iii) LIBOR for that Interest Period.
|
5.3
|
Payment of accrued interest.
In the case of an Interest Period longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest Period.
|
5.4
|
Notification of Interest Periods and rates of normal interest.
The Agent shall notify the Borrowers and each Lender of:
|
(a)
|
each rate of interest; and
|
(b)
|
the duration of each Interest Period,
|
5.5
|
Obligation of Reference Banks to quote.
A Reference Bank which is a Lender shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under this Agreement.
|
5.6
|
Absence of quotations by Reference Banks.
If any Reference Bank fails to supply a quotation, the Agent shall determine the relevant LIBOR on the basis of the quotations supplied by the other Reference Bank or Banks; but if 2 or more of the Reference Banks fail to provide a quotation, the relevant rate of interest shall be set in accordance with the following provisions of this Clause 5.
|
5.7
|
Market disruption.
The following provisions of this Clause 5 apply if:
|
(a)
|
no Screen Rate is available for an Interest Period and 2 or more of the Reference Banks do not, before 1.00 p.m. (London time) on the Quotation Date, provide quotations to the Agent in order to fix LIBOR; or
|
(b)
|
at least 1 Business Day before the start of an Interest Period, Lenders having Contributions together amounting to more than 50 per cent. of the Loan (or, if the Loan has not been made, Commitments amounting to more than 50 per cent. of the Total Commitments) notify the Agent that LIBOR fixed by the Agent would not accurately reflect the cost to those Lenders of funding their respective Contributions (or any part of them) during the Interest Period in the London Interbank Market at or about 11.00 a.m. (London time) on the Quotation Date for the Interest Period; or
|
(c)
|
at least 1 Business Day before the start of an Interest Period, the Agent is notified by a Lender (the "
Affected Lender
") that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period.
|
5.8
|
Notification of market disruption.
The Agent shall promptly notify the Borrowers, each of the Lenders and each of the Swap Banks stating the circumstances falling within Clause 5.7 which have caused its notice to be given.
|
5.9
|
Suspension of drawdown.
If the Agent's notice under Clause 5.8 is served before a Tranche is made:
|
(a)
|
in a case falling within Clauses 5.7(a) or (b), the Lenders' obligations to make that Tranche; and
|
(b)
|
in a case falling within Clause 5.7(c), the Affected Lender's obligation to participate in such Tranche,
|
5.10
|
Negotiation of alternative rate of interest.
If the Agent's notice under Clause 5.8 is served after a Tranche is made, the Borrowers, the Agent, the Lenders or (as the case may be) the Affected Lender and the Swap Counterparties shall use reasonable endeavours to agree, within the 30 days after the date on which the Agent serves its notice under Clause 5.8 (the "
Negotiation Period
"), an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the case may be) the Affected Lender to fund or continue to fund their or its Contribution during the Interest Period concerned.
|
5.11
|
Application of agreed alternative rate of interest.
Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed.
|
5.12
|
Alternative rate of interest in absence of agreement.
If an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the cost of funding of the Lenders or (as the case may be) the Affected Lender in Dollars or in any available currency of their or its Contribution plus the applicable Margin and the Mandatory Costs (if any); and the procedure provided for by this Clause 5.12 shall be repeated if the relevant circumstances are continuing at the end of the interest period so set by the Agent.
|
5.13
|
Notice of prepayment.
If the Borrowers do not agree with an interest rate set by the Agent under Clause 5.12, the Borrowers may give the Agent not less than 15 Business Days' notice of their intention to prepay at the end of the interest period set by the Agent.
|
5.14
|
Prepayment; termination of Commitments.
A notice under Clause 5.13 shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrowers' notice of intended prepayment; and:
|
(a)
|
on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and
|
(b)
|
on the last Business Day of the interest period set by the Agent, the Borrowers shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender's Contribution, together with accrued interest thereon at the applicable rate plus the applicable Margin and the Mandatory Costs (if any).
|
5.15
|
Application of prepayment.
The provisions of Clause 8 shall apply in relation to the prepayment.
|
6
|
INTEREST PERIODS
|
6.1
|
Commencement of Interest Periods.
The first Interest Period applicable to a Tranche shall commence on the Drawdown Date relating to that Tranche and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
|
6.2
|
Duration of normal Interest Periods.
Subject to Clauses 6.3 and 6.4, each Interest Period shall be:
|
(a)
|
3 or 6 months as notified by the Borrowers to the Agent not later than 11.00 a.m. (London time) 5 Business Days before the commencement of the Interest Period; or
|
(b)
|
in the case of the first Interest Period applicable to each Tranche, a period ending on the first Repayment Date relating to that Tranche; or
|
(c)
|
3 months, if the Borrowers fail to notify the Agent by the time specified in paragraph (a); or
|
(d)
|
such other period as the Agent may, with the authorisation of all the Lenders, agree with the Borrowers.
|
6.3
|
Duration of Interest Periods for repayment instalments.
In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall end on that Repayment Date.
|
6.4
|
Non-availability of matching deposits for Interest Period selected.
If, after the Borrowers have selected and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time) on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of 3 months.
|
7
|
DEFAULT INTEREST
|
7.1
|
Payment of default interest on overdue amounts.
The Borrowers shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrowers under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is:
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or
|
(c)
|
if such amount has become immediately due and payable under Clause 19.4, the date on which it became immediately due and payable.
|
7.2
|
Default rate of interest.
Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 2 per cent. above:
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at Clauses 7.3(a) and (b); or
|
(b)
|
in the case of any other overdue amount, the rate set out at Clause 7.3(b).
|
7.3
|
Calculation of default rate of interest.
The rates referred to in Clause 7.2 are:
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period);
|
(b)
|
the applicable Margin plus the Mandatory Cost (if any) plus, in respect of successive periods of any duration (including at call) up to 3 months which the Agent may, with the consent of the Majority Lenders, select from time to time:
|
(i)
|
LIBOR; or
|
(ii)
|
if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for any such period are not being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the actual cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.
|
7.4
|
Notification of interest periods and default rates.
The Agent shall promptly notify the Lenders and the Borrowers of each interest rate determined by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that the Borrowers are liable to pay such interest only with effect from the date of the Agent's notification.
|
7.5
|
Payment of accrued default interest.
Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
|
7.6
|
Compounding of default interest.
Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded.
|
7.7
|
Application to Master Agreements.
For the avoidance of doubt, this Clause 7 does not apply to any amount payable under a Master Agreement in respect of any continuing Designated Transaction as to which section 2(e) (Default Interest; Other Amounts) of that Master Agreement shall apply.
|
8
|
REPAYMENT AND PREPAYMENT
|
8.1
|
Amount of repayment instalments.
|
(a)
|
The Borrowers shall repay each Tranche by twenty consecutive quarterly repayment instalments:
|
(i)
|
the first eight of which shall be in an amount of $550,000 each; and
|
(ii)
|
the last twelve of which shall be in an amount of $435,000 each,
|
(b)
|
In case the amount drawn under a Tranche is less than the maximum amount available under this Agreement, each quarterly repayment instalment and the balloon instalment for the relevant Tranche referred to in (a) above shall be reduced pro rata.
|
8.2
|
Repayment Dates.
The first instalments in respect of each Tranche shall be repaid on the date falling 3 months after the Drawdown Date relating to that Tranche and the last repayment instalment on the quarterly repayment date falling on or immediately prior to the Maturity Date with the balloon instalment payable on the Maturity Date.
|
8.3
|
Final Repayment Date.
On the final Repayment Date, the Borrowers shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
|
8.4
|
Voluntary and automatic cancellation.
|
(a)
|
The Borrowers may, if they give the Agent not less than 5 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 $1,000,000 of the Loan. Any cancellation under this Clause 8.4 shall reduce the Commitments of the Lenders rateably and the amount of the relevant Tranche(s).
|
(b)
|
The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which that Tranche is made.
|
(c)
|
A voluntary cancellation under Clause 8.4(a) shall be made together with a prepayment fee of 1.00 per cent. of the cancelled amount in respect of any cancellation made during the Qualifying Period and such fee shall be payable by the Borrowers on the date of such voluntary cancellation, to the Agent for distribution to the Lenders.
|
8.5
|
Voluntary prepayment.
Subject to the conditions set forth in Clause 8.6, the Borrowers may prepay the whole or any part of the Loan on the last day of an Interest Period without premium other than pursuant to Clause 8.11.
|
8.6
|
Conditions for voluntary prepayment.
The conditions referred to in Clause
8.5
are that:
|
(a)
|
a partial prepayment shall be $1,000,000 or a higher integral multiple of $1,000,000 or such lower amount as the Agent may approve;
|
(b)
|
the Agent has received from the Borrowers at least 5 Business Days' prior written notice specifying the amount to be prepaid and the date on which the prepayment is to be made; and
|
(c)
|
that the Borrowers have complied with Clause
8.14
on or prior to the date of prepayment.
|
8.7
|
Effect of notice of prepayment.
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrowers on the date for prepayment specified in the prepayment notice.
|
8.8
|
Notification of notice of prepayment.
The Agent shall notify the Lenders promptly upon receiving a prepayment notice.
|
8.9
|
Mandatory prepayment on sale or Total Loss.
If a Ship is sold or becomes a Total Loss, the Borrowers shall prepay the Tranche related to that Ship and comply with Clause
8.14
:
|
(a)
|
in the case of a sale, on or before the date on which the sale is completed by delivery of the Ship to the relevant buyer; or
|
(b)
|
in the case of a Total Loss, on the earlier of the date falling 180 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.
|
8.10
|
Mandatory repayment and cancellation of FATCA Protected Lenders.
|
(a)
|
If on the date falling six months before the earliest FATCA Application Date for any payment by any party to this Agreement to a FATCA Protected Lender (or to the Agent for the account of that Lender), that Lender is not a FATCA Exempt Party and, in the opinion of that Lender (acting reasonably), that party will, as a consequence, be required to make a FATCA Deduction from a payment to that Lender (or to the Agent for the account of that Lender) on or after that FATCA Application Date (a "
FATCA Event
"):
|
(i)
|
that Lender shall, reasonably promptly after that date, notify the Agent of that FATCA Event and the relevant FATCA Application Date; and
|
(ii)
|
if, on the date falling one month before such FATCA Application Date, that FATCA Event is continuing:
|
(A)
|
that Lender may, at any time between one month and two weeks before such FATCA Application Date, notify the Agent;
|
(B)
|
upon the Agent notifying the Borrowers, the Commitment of that Lender will be immediately cancelled; and
|
(C)
|
the Borrowers shall repay that Lender's Contribution on the last day of the Interest Period applicable to the relevant Tranche or Tranches to be repaid occurring after the Agent has notified the Borrowers or, if earlier, the last Business Day before the relevant FATCA Application Date.
|
8.11
|
Amounts payable on prepayment.
A voluntary prepayment under Clause
8.5
and a mandatory prepayment under Clauses 8.9 and 8.10 shall be made together with:
|
(a)
|
accrued interest (and any other amount payable under Clause 21 or otherwise) in respect of the amount prepaid;
|
(b)
|
if the prepayment is not made on the last day of an Interest Period, any sums payable under Clause
21.1(b)
; and
|
(c)
|
if the prepayment is made within the Qualifying Period and:
|
(i)
|
relates to the entire Loan;
|
(ii)
|
relates to of 50 per cent. of the Loan or more;
|
(iii)
|
results from the sale of a Ship; or
|
(iv)
|
relates to a refinancing of the whole or part of the Loan where a Lender is not participating in such refinancing,
|
8.12
|
Application of partial prepayment.
Each partial prepayment and each voluntary cancellation of part of the Loan shall be applied pro rata against each Tranche and, as regards each Tranche, pro rata against the scheduled repayment instalments including the balloon instalment specified in Clause 8.1.
|
8.13
|
No reborrowing.
No amount prepaid may be reborrowed.
|
8.14
|
Unwinding of Designated Transactions.
On or prior to any repayment or prepayment of the Loan under this Clause 8 or any other provision of this Agreement, the Borrowers shall unless otherwise agreed by all the Lenders wholly or partially reverse, offset, unwind or otherwise terminate one or more of the continuing Designated Transactions so that the notional principal amount of the continuing Designated Transactions thereafter remaining does not and will not in the future (taking into account the scheduled amortisation) exceed the amount of the Loan as reducing from time to time thereafter pursuant to Clause 8.1.
|
9
|
CONDITIONS PRECEDENT
|
9.1
|
Documents, fees and no default.
Each Lender's obligation to contribute to the Loan is subject to the following conditions precedent:
|
(a)
|
that, on or before the service of the first Drawdown Notice, the Agent receives the documents described in Part A of Schedule 4 in form and substance satisfactory to the Agent and its lawyers;
|
(b)
|
that, on each Drawdown Date but prior to the advance of a Tranche, the Agent receives or is satisfied that it will receive on the making of such Tranche the documents described in Part B of
Schedule 4
in form and substance satisfactory to it and its lawyers;
|
(c)
|
that, on or before the service of each Drawdown Notice, the Agent receives all accrued commitment fee payable pursuant to Clause
20.1(b)
and the first instalment of the annual agency fee (if applicable) referred to in Clause
20.1
(c) and has received payment of the expenses referred to in Clause
20.2
; and
|
(d)
|
that both at the date of each Drawdown Notice and at each Drawdown Date:
|
(i)
|
no Event of Default or Latent Event of Default has occurred or would result from the borrowing of the relevant Tranche;
|
(ii)
|
the representations and warranties in Clause
10.1
and those of the Guarantor, either Borrower or any Security Party which are set out in the other Finance Documents would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing;
|
(iii)
|
there has not been a change in the financial position, state of affairs or prospects of the Guarantor, either Borrower or any other Security Party which has a Material Adverse Effect;
|
(iv)
|
there has been no material change in the consolidated financial condition, operations or business prospects of the Guarantor or either Borrower since the date on which the Guarantor provided the Compliance Certificate and Accounting Information accompanying such Compliance Certificate or in respect of any of the information concerning those topics appended to the Compliance Certificate; and
|
(v)
|
none of the circumstances contemplated by Clause 5.7 has occurred and is continuing; and
|
(e)
|
that, if the ratio set out in Clause 15.1 were applied immediately following the making of the Tranche, the Borrowers would not be obliged to provide additional security or prepay part of the Loan under that Clause; and
|
(f)
|
that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrowers prior to the relevant Drawdown Date.
|
9.2
|
Waiver of conditions precedent.
If the Majority Lenders, at their discretion, permit a Tranche to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrowers shall ensure that those conditions are satisfied within 5 Business Days after the Drawdown Date relating to that Tranche (or such longer period as the Agent may, with the authorisation of the Majority Lenders, specify).
|
10
|
REPRESENTATIONS AND WARRANTIES
|
10.1
|
General.
Each Borrower represents and warrants to each Creditor Party as follows.
|
10.2
|
Status.
Each Borrower is duly incorporated and validly existing and in good standing under the laws of the Republic of the Marshall Islands.
|
10.3
|
Ownership of the Borrowers.
The Guarantor is the direct legal and beneficial owner of all the issued share capital and voting rights in respect of each Borrower free of Security Interests save for the Security Interests created pursuant to the Finance Documents and the Existing Facility which, in the case of the Security Interests created pursuant to the Existing Facility shall be fully discharged in the case of Borrower A no later than the first Drawdown Date and, in the case of Borrower B, no later than the second Drawdown Date.
|
10.4
|
Corporate power.
Each Borrower has the corporate capacity, and has taken all corporate action and obtained all Authorisations necessary for it:
|
(a)
|
to own and register its Ship in its name under the Approved Flag;
|
(b)
|
to execute the Finance Documents to which that Borrower is a party and the Master Agreements; and
|
(c)
|
to borrow under this Agreement, to enter into Designated Transactions under each Master Agreement and to make all the payments contemplated by, and to comply with, the Finance Documents to which that Borrower is a party and each Master Agreement.
|
10.5
|
Authorisations in force
. All the Authorisations referred to in Clause 10.4 remain in force and nothing has occurred which makes any of them liable to revocation.
|
10.6
|
Legal validity; effective Security Interests.
The Finance Documents to which that Borrower is a party and each Master Agreement, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):
|
(a)
|
constitute that Borrowers’ legal, valid and binding obligations enforceable against that Borrower in accordance with their respective terms; and
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
|
10.7
|
No third party Security Interests.
Without limiting the generality of Clause 10.5, at the time of the execution and delivery of each Finance Document:
|
(a)
|
each Borrower which is a party to that Finance Document will have the right to create all the Security Interests which that Finance Document purports to create; and
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
10.8
|
No conflicts.
The execution by each Borrower of each Finance Document to which it is a party and each Master Agreement, and the borrowing by that Borrower of the Loan, and its compliance
|
(a)
|
any law or regulation; or
|
(b)
|
the constitutional documents of that Borrower; or
|
(c)
|
any contractual or other obligation or restriction which is binding on that Borrower or any of its assets.
|
10.9
|
No withholding taxes.
All payments which each Borrower is liable to make under the Finance Documents to which it is a party may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
|
10.10
|
No default.
No Event of Default or Latent Event of Default has occurred.
|
10.11
|
Information.
All information which has been provided in writing by or on behalf of the Borrowers or any Security Party to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause
11.5
; all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.7; and there has been no material adverse change in the financial position or state of affairs of either Borrower from that disclosed in the latest of those accounts.
|
10.12
|
No litigation.
No legal or administrative action involving either Borrower or any Security Party (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or taken or, to either Borrowers’ knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect or which would prevent it from meeting its obligations under this Agreement.
|
10.13
|
Compliance with certain undertakings.
At the date of this Agreement, each Borrower is in compliance with Clauses 11.2, 11.4, 11.8 and 11.13.
|
10.14
|
Taxes paid.
Each Borrower has paid all taxes applicable to, or imposed on or in relation to that Borrower, its business or the Ship owned by it.
|
10.15
|
ISM Code, ISPS Code and Environmental Laws compliance.
All requirements of the ISM Code, the ISPS Code and all Environmental Laws as they relate to the Guarantor, the Borrowers, any Approved Ship Manager, any Approved Sub-Manager and the Ships have been complied with at all times.
|
10.16
|
No money laundering.
Without prejudice to the generality of Clause
2.3
, in relation to the borrowing by the Borrowers of the Loan, the performance and discharge of their respective obligations and liabilities under the Finance Documents or any Master Agreement, and the transactions and other arrangements affected or contemplated by the Finance Documents or any Master Agreement to which a Borrower is a party, each Borrower confirms (i) that it is acting for its own account; (ii) that it will use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified in this Agreement; and (iii) that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council).
|
10.17
|
No immunity.
Neither Borrower is and no assets of either Borrower are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceedings (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
10.18
|
Sanctions
.
|
(a)
|
Neither Borrower:
|
(i)
|
is a Prohibited Person; and/or
|
(ii)
|
owns or controls a Prohibited Person; and
|
(b)
|
no proceeds of either Tranche or the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person in breach of Sanctions nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
10.19
|
Pari passu
. The obligations of each Borrower under the Finance Documents and any Master Agreement to which it is a party rank at least
pari passu
with all other unsecured indebtedness of that Borrower other than indebtedness mandatorily preferred by law.
|
10.20
|
Validity and admissibility in evidence
. All Authorisations required or desirable:
|
(a)
|
to enable each Borrower lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
|
(b)
|
to make the Finance Documents to which each Borrower is a party admissible in evidence in its Pertinent Jurisdictions,
|
10.21
|
Insolvency
. No corporate action, legal proceeding, creditors' process or other procedure or step described in paragraphs (g) and (h) of Clause 19.1 has been taken or, to its knowledge, threatened in relation to a Borrower or any Security Party.
|
10.22
|
No breach of laws
. Neither Borrower has (and, to the best of its knowledge, no Security Party has) breached any law or regulation which breach has or, in the case of any breach by the Borrowers, is reasonably likely to, have a Material Adverse Effect.
|
10.23
|
Good title to assets
. Each Borrower has good, title to its assets.
|
10.24
|
Anti-terrorism compliance.
Each Borrower is in compliance with any and all anti-terrorism law applicable to it.
|
10.25
|
US Tax Obligor.
Neither Borrower is a US Tax Obligor and each Borrower is in full compliance with FATCA to the extent applicable to it.
|
11
|
GENERAL UNDERTAKINGS
|
11.1
|
General.
Each Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 11 at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
11.2
|
Title; negative pledge.
Each Borrower will:
|
(a)
|
hold the legal title to, and own the entire beneficial interest in the Ship owned by it, the Insurances and Earnings relating to that Ship and the Earnings Account in its name, free from all Security Interests and other interests and rights of every kind, except for (i) those created by the Finance Documents and the effect of assignments contained in the Finance Documents, (ii) Permitted
|
(b)
|
not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future; and
|
(c)
|
procure that its liabilities under the Finance Documents to which it is a party do and will rank at least
pari passu
with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law.
|
11.3
|
No disposal of assets.
No Borrower will transfer, lease or otherwise dispose of:
|
(a)
|
all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or
|
(b)
|
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation except for demurrage claims and otherwise in the ordinary course of conducting its business as a ship owner; or
|
(c)
|
make any substantial change to the nature of its business from that existing at the date of this Agreement,
|
11.4
|
No other liabilities or obligations to be incurred.
No Borrower will incur any liability or obligation (including, without limitation, any contingent liability) except liabilities and obligations:
|
(a)
|
under the Finance Documents to which it is a party;
|
(b)
|
an Intercompany Loan complying with the requirements of Clause 11.20(b); or
|
(c)
|
reasonably incurred in the ordinary course of operating, upgrading, maintaining and chartering its Ship,
|
11.5
|
Information provided to be accurate.
All financial and other information which is provided in writing by or on behalf of a Borrower or any Security Party under or in connection with any Finance Document will be true, complete and not misleading and will not omit any material fact or consideration.
|
11.6
|
Provision of financial statements.
Each Borrower will procure that the following are sent to the Agent:
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of the Guarantor, the audited consolidated accounts of the Guarantor and its subsidiaries;
|
(b)
|
as soon as possible, but in no event later than 60 days after the end of the first three Accounting Periods, unaudited consolidated accounts of the Guarantor and its subsidiaries which are certified as to their correctness by the chief financial officer of the Guarantor;
|
(c)
|
as soon as possible, but in no event later than 60 days of the commencement of each financial year of the Guarantor, an annual budget (including consolidated profit & loss, balance sheet and cash flow forecast) for the Guarantor and its subsidiaries for that financial year;
|
(d)
|
a Compliance Certificate together with the quarterly reports that the Guarantor delivers in (b) above each certified by the chief financial officer of the Guarantor; and
|
(e)
|
such other information and financial statements (including, without limitation, details of the operating performance, employment, positions and engagements of the Ships, annual budgets and projections) as may be requested by the Agent from time to time.
|
11.7
|
Form of financial statements.
All accounts (audited and unaudited) delivered under Clause 11.6 will:
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
(b)
|
fairly represent the financial condition of the Guarantor and its subsidiaries at the date of those accounts and of their profit for the period to which those accounts relate; and
|
(c)
|
fully disclose or provide for all significant liabilities of the Guarantor and its subsidiaries.
|
11.8
|
Authorisations.
Each Borrower will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Agent of, all Authorisations required:
|
(a)
|
for it to perform its obligations under any Finance Document to which it is a party or any Master Agreement;
|
(b)
|
for the validity or enforceability of any Finance Document to which it is a party or any Master Agreement; and
|
(c)
|
to continue to own and operate the Ship owned by it
|
11.9
|
Maintenance of Security Interests.
Each Borrower will:
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document and each Master Agreement validly creates the obligations and the Security Interests which it purports to create; and
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record or enrol any Finance Document and any Master Agreement (if applicable) with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.10
|
Notification of litigation.
The Borrowers will provide the Agent with details of any legal action involving either Borrower, any Security Party or either Ship, its Earnings or its Insurances as soon as such action is instituted unless it is clear that the legal action cannot be considered material in the context of any Finance Document.
|
11.11
|
No amendment to Master Agreements.
Neither Borrower will agree to any amendment or supplement to, or waive or fail to enforce, any Master Agreement or any of its provisions.
|
11.12
|
Chief Executive Office.
Each Borrower shall procure that the Guarantor will maintain its chief executive office in the Principality of Monaco.
|
11.13
|
Confirmation of no default.
The Borrowers will, within 2 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors of each Borrower and which:
|
(a)
|
states that no Event of Default or Latent Event of Default has occurred; or
|
(b)
|
states that no Event of Default or Latent Event of Default has occurred, except for a specified event or matter, of which all material details are given.
|
11.14
|
Notification of default.
Each Borrower will notify the Agent as soon as that Borrower becomes aware of:
|
(a)
|
the occurrence of an Event of Default or a Latent Event of Default; or
|
(b)
|
any matter which indicates that an Event of Default or a Latent Event of Default may have occurred,
|
11.15
|
Provision of further information.
The Borrowers will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating to:
|
(a)
|
the financial condition, business and operations of either Borrower;
|
(b)
|
any Security Party, either Ship, its Earnings or its Insurances; or
|
(c)
|
any other matter relevant to, or to any provision of, a Finance Document and any Master Agreement,
|
11.16
|
Provision of copies and translation of documents.
The Borrowers will supply the Agent with a sufficient number of copies of the documents referred to above to provide 1 copy for each Creditor Party; and if the Agent so requires in respect of any of those documents, the Borrowers will provide a certified English translation prepared by a translator approved by the Agent.
|
11.17
|
"Know your customer" checks.
Each Borrower shall notify the Agent immediately if it becomes aware of any actual or intended change in its status or the status of any Security Party after the date of this Agreement. 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 either Borrower or any Security Party 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,
|
11.18
|
Compliance with laws
. Each Borrower shall comply and shall procure that the Guarantor shall comply in all material respects with all applicable laws, including, without limitation, all Environmental Laws, all Sanctions and regulations relating thereto.
|
11.19
|
Taxes
. Each Borrower shall prepare and timely file all tax returns required to be filed by it and pay and discharge all taxes imposed upon it and its property and assets before the same shall become in default, as well as all lawful claims (including, without limitation, claims for labour, materials and supplies) which, if unpaid, might become a lien or any part thereof, except in each case, for any such taxes (a) as are being contested in good faith by appropriate proceedings and for which adequate reserves have been established, (b) as to which such failure to have paid does not create any risk of sale, forfeiture, loss, confiscation or seizure of a Ship or criminal liability, or (c) the failure of which to pay or discharge would not be likely to have a Material Adverse Effect or to affect the legality, validity, binding effect or enforceability of the Finance Documents or any Master Agreement.
|
11.20
|
Use of proceeds and Intercompany Loans
. The Borrowers shall:
|
(a)
|
use the proceeds of a Tranche solely to partially re-finance the cost of its acquisition of the Ship; and
|
(b)
|
not incur any liability or obligation under any Intercompany Loan the Guarantor provides unless such Intercompany Loan:
|
(i)
|
is fully subordinated to any and all obligations of the Borrowers and the rights of the Creditor Parties under the Finance Documents;
|
(ii)
|
does not require the payment of interest prior to expiry of the Maturity Date
|
(iii)
|
matures at least 1 year after the Maturity Date; and
|
(iv)
|
is not secured by any asset which is already, or is to be, the subject of a Security Interest created by either Borrower or any Security Party pursuant to any Finance Document,
|
(c)
|
furnish promptly to the Agent a true and complete copy of any instrument evidencing any Intercompany Loan, all other documents related thereto and a true and complete copy of each material amendment or other modification thereof; and
|
(d)
|
in respect of any such Intercompany Loan, execute and deliver to the Agent an Intercompany Loan Assignment and deliver to the Agent such other documents equivalent to those referred to in paragraphs 4, 5 and 6 of Part A of
Schedule 4
as the Agent may require.
|
11.21
|
Other swaps.
Each Borrower may enter into other master agreements and/or derivative instruments with any third party swap provider for the purposes of hedging its exposure under this Agreement to interest rate fluctuations provided that:
|
(a)
|
the Swap Bank shall have a right of first refusal in respect of providing such swap/derivative lines to the Borrowers; and
|
(b)
|
in the event the Swap Bank is not the chosen provider of such swap/derivative lines to the Borrower,
|
11.22
|
Anti-corruption law
|
(a)
|
The Borrowers shall not directly or indirectly use the proceeds of the Loan for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.
|
(b)
|
Each Borrower shall:
|
(i)
|
conduct its business in compliance with applicable anti-corruption laws; and
|
(ii)
|
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
12
|
CORPORATE AND FINANCIAL UNDERTAKINGS
|
12.1
|
General.
Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
12.2
|
Maintenance of status.
Each Borrower will maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Marshall Islands.
|
12.3
|
Negative undertakings.
Neither Borrower will:
|
(a)
|
carry on any business other than the ownership, chartering and operation of the Ship owned by it; or
|
(b)
|
provide any form of credit or financial assistance to:
|
(i)
|
a person who is directly or indirectly interested in the Guarantor’ or either Borrower's share or loan capital; or
|
(ii)
|
any company in or with which such a person is directly or indirectly interested or connected,
|
(c)
|
change its Fiscal Year;
|
(d)
|
issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital;
|
(e)
|
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative other than Designated Transactions; or
|
(f)
|
enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation.
|
13
|
INSURANCE
|
13.1
|
General.
Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 13 at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
13.2
|
Maintenance of obligatory insurances.
Each Borrower shall keep the Ship owned by it insured at the expense of that Borrower against:
|
(a)
|
fire and usual marine risks (including hull and machinery plus hull interest and any other usual marine risks such as excess risks as applicable);
|
(b)
|
war risks (including the London Blocking and Trapping addendum or similar arrangement);
|
(c)
|
full protection and indemnity risks (including liability for oil pollution and excess war risk P&I cover) on standard club rules, covered by a protection and indemnity association which is a member of the International Group of Protection and Indemnity Associations (or, if the International Group of Protection and Indemnity Associations ceases to exist, any other leading protection and indemnity association or other leading provider of protection and indemnity insurance) (including, without limitation, the proportion (if any) of any collision liability not covered under the terms of the hull cover), or other with written consent from the Agent;
|
(d)
|
freight, demurrage & defence risks;
|
(e)
|
any other risks against which the Security Trustee considers, having regard to practices and other circumstances prevailing at the relevant time, it would in the opinion of the Security Trustee be reasonable for that Borrower to insure and which are specified by the Security Trustee by notice to that Borrower.
|
13.3
|
Terms of obligatory insurances.
Each Borrower shall effect such insurances in respect of the Ship owned by it:
|
(a)
|
in Dollars;
|
(b)
|
in the case of the insurances described in
13.2(a)
, (b) and, in the event such other risk is based on vessel value, (e) in an amount on an agreed value basis at least the greater of:
|
(i)
|
when aggregated with the insured values of the other Ship then financed under this Agreement, 120 per cent. of the aggregate amount of the Loan and the Swap Exposure (if any); and
|
(ii)
|
the Fair Market Value of the Ship owned by it;
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(d)
|
in relation to protection and indemnity risks in respect of the full tonnage of the Ship owned by it;
|
(e)
|
on approved terms; and
|
(f)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations that are members of the International Group of Protection and Indemnity Clubs.
|
13.4
|
Further protections for the Creditor Parties.
In addition to the terms set out in Clause 13.3 each Borrower shall procure that the obligatory insurances effected by it shall:
|
(a)
|
subject always to paragraph (b), name that Borrower as the sole named assured unless the interest of every other named assured is limited:
|
(i)
|
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A)
|
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B)
|
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii)
|
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b)
|
whenever the Security Trustee requires, name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with
|
(c)
|
name the Security Trustee as loss payee with such directions for payment as the Security Trustee may specify;
|
(d)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
(e)
|
provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other Creditor Party;
|
(f)
|
provide that the Security Trustee may make proof of loss if that Borrower fails to do so; and
|
(g)
|
provide that the deductible of the hull and machinery insurance is not higher than the amount agreed upon and stated in the loss payable clause.
|
13.5
|
Renewal of obligatory insurances.
Each Borrower shall:
|
(a)
|
at least 14 days before the expiry of any obligatory insurance effected by it:
|
(i)
|
notify the Security Trustee of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom that Borrower proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii)
|
obtain the Security Trustee's approval to the matters referred to in paragraph (i);
|
(b)
|
at least 10 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance in accordance with the Security Trustee's approval pursuant to paragraph (a); and
|
(c)
|
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal.
|
13.6
|
Copies of policies; letters of undertaking.
Each Borrower shall ensure that all approved insurance brokers provide the Security Trustee with pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew and of a letter or letters or undertaking in a form required by the Security Trustee and including undertakings by the approved brokers that:
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4;
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;
|
(d)
|
they will notify the Security Trustee, not less than 10 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from that
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non‑payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of that Ship forthwith upon being so requested by the Security Trustee.
|
13.7
|
Copies of certificates of entry.
Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provides the Security Trustee with:
|
(a)
|
a certified copy of the certificate of entry for that Ship;
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Security Trustee; and
|
(c)
|
satisfactory evidence that each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material has been issued by the relevant certifying authority in relation to that Ship.
|
13.8
|
Deposit of original policies.
Each Borrower shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or renewed.
|
13.9
|
Payment of premiums.
Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by that Borrower and produce all relevant receipts when so required by the Security Trustee.
|
13.10
|
Guarantees.
Each Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
|
13.11
|
Compliance with terms of insurances.
No Borrower shall do or omit to do (or permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in particular:
|
(a)
|
each Borrower shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause
13.6(c)
) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;
|
(b)
|
neither Borrower shall make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances;
|
(c)
|
each Borrower shall make (and promptly supply copies to the Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(d)
|
neither Borrower shall employ the Ship owned by it, or allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
13.12
|
Alteration to terms of insurances.
Neither Borrower shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
|
13.13
|
Settlement of claims.
Neither Borrower shall settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
13.14
|
Provision of copies of communications.
Each Borrower shall provide the Security Trustee, at the time of each such communication, copies of all material written communications between the relevant Borrower and:
|
(a)
|
the approved insurance brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
|
(i)
|
that Borrowers’ obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii)
|
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
13.15
|
Provision of information.
In addition, each Borrower shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated person) requests for the purpose of:
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected by it; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause
13.16
or dealing with or considering any matters relating to any such insurances;
|
13.16
|
Mortgagee's interest, additional perils.
The Security Trustee shall be entitled from time to time to effect, maintain and renew (i) mortgagee's interest additional perils insurance and (ii) mortgagee's interest marine insurance in such amounts, (and on the date of this Agreement, it is expected that such amount will be 120 per cent. of the Loan), on such terms, through such insurers and generally in such manner as the Security Trustee may from time to time consider appropriate and the Borrowers shall upon demand fully indemnify the Security Trustee in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.
|
14
|
SHIP COVENANTS
|
14.1
|
General.
Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 14 at all times during the Security Period except as the Agent, with the authorisation of the Majority Lenders (such authorisation not to be unreasonably withheld in the case of Clause
14.13(a)
(v), may otherwise permit.
|
14.2
|
Ship's name and registration.
Each Borrower shall keep the Ship owned by it registered in its name under an Approved Flag; shall not do, omit to do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry of either Ship without the prior written approval of the Agent, such approval not to be unreasonably withheld.
|
14.3
|
Repair and classification.
Each Borrower shall keep the Ship owned by it in a good and safe condition and state of repair:
|
(a)
|
consistent with first‑class ship ownership and management practice;
|
(b)
|
so as to maintain the highest class for that Ship with the Approved Classification Society free of overdue recommendations and conditions affecting that Ship's class; and
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered under the law of the Approved Flag on which that Ship is registered or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
|
14.4
|
Classification Society undertaking.
Each Borrower shall instruct the Approved Classification Society:
|
(a)
|
to send to the Security Trustee, following receipt of a written request from the Security Trustee, certified true copies of all original class records held by the Approved Classification Society in relation to the Ship owned by it;
|
(b)
|
to allow the Security Trustee (or its agents), at any time and from time to time, to inspect the original class and related records of that Borrower and the Ship owned by it at the offices of the Approved Classification Society and to take copies of them;
|
(c)
|
to notify the Security Trustee immediately in writing if the Approved Classification Society:
|
(i)
|
receives notification from that Borrower or any other person that its Ship's Approved Classification Society is to be changed; or
|
(ii)
|
becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of its Ship's class under the rules or terms and conditions of that Borrowers’ or its Ship's membership of the Approved Classification Society;
|
(d)
|
following receipt of a written request from the Security Trustee:
|
(i)
|
to confirm that such Borrower is not in default of any of its contractual obligations or liabilities to the Approved Classification Society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the Approved Classification Society; or
|
(ii)
|
if such Borrower is in default of any of its contractual obligations or liabilities to the Approved Classification Society, to specify to the Security Trustee in reasonable detail the facts and circumstances of such default, the consequences of such default, and any remedy period agreed or allowed by the Approved Classification Society.
|
14.5
|
Modification.
Neither Borrower shall make any modification or repairs to, or replacement of, the Ship owned by it or equipment installed on that Ship which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value.
|
14.6
|
Removal of parts.
Neither Borrower shall remove any material part of the Ship owned by it, or any item of equipment installed on, that Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on that Ship the property of that Borrower and subject to the security constituted by the Mortgage
Provided that
a Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by it.
|
14.7
|
Surveys.
Each Borrower shall, at its expense submits the Ship owned by it regularly to all periodical or other surveys which may be required for classification purposes with copies of all technical survey reports in respect of surveys carried out by an Approved Ship Manager or other qualified expert duly appointed for such purpose.
|
14.8
|
Inspection.
Each Borrower shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship owned by it at all reasonable times always without interfering with the normal trading, running, management and operation of the Ship at that Borrowers’ expense to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections provided that unless an Event of Default has occurred or that Ship's Approved Classification Society has issued a recommendation or condition affecting that Ship's class, (i) there shall be not more than one such inspection per Ship in each calendar year and (ii) the Borrowers shall not have to pay for more than 1 inspection per Ship in such calendar year. The Security Trustee shall use reasonable efforts not to interfere with the operation of that Ship when exercising its rights under this Clause
14.8
.
|
14.9
|
Prevention of and release from arrest.
Each Borrower shall promptly discharge:
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, its Earnings or its Insurances;
|
(b)
|
all taxes, dues and other amounts charged in respect of the Ship owned by it, its Earnings or its Insurances; and
|
(c)
|
all other outgoings whatsoever in respect of the Ship owned by it, its Earnings or its Insurances,
|
14.10
|
Compliance with laws etc.
Each Borrower shall:
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of that Borrower;
|
(b)
|
not employ the Ship owned by it nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and Sanctions; and
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ship owned by it to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless the prior written consent of the Security Trustee has been given and that Borrower has or has procured that there is (at its expense) effected any special, additional or modified insurance cover which the Security Trustee may require.
|
14.11
|
Provision of information.
Each Borrower shall promptly provide the Security Trustee with any information which it requests regarding:
|
(a)
|
the Ship owned by it, its employment, position and engagements (including, without limitation, details of the operating performance, employment, positions and engagements of the Ships, annual budgets and projections);
|
(b)
|
the Earnings and payments and amounts due to the master and crew of the Ship owned by it;
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship owned by it and any payments made in respect of that Ship;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Approved Ship Manager's, the Approved Sub-Manager's and the compliance by the Ship owned by it with the ISM Code, the ISPS Code, all Environmental Laws and Sanctions,
|
14.12
|
Notification of certain events.
Each Borrower shall immediately notify the Security Trustee by fax or email, confirmed forthwith, by letter of:
|
(a)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c)
|
any requirement or condition made by any insurer or the Approved Classification Society or by any competent authority which is not complied with within the specified time;
|
(d)
|
any arrest or detention of the Ship owned by it, any exercise or purported exercise of any lien on that Ship or its Earnings or any requisition of that Ship for hire;
|
(e)
|
any intended dry docking of the Ship owned by it;
|
(f)
|
any Environmental Claim made against any Security Party or either Borrower or in connection with either Ship, or any Environmental Incident;
|
(g)
|
any claim for breach of the ISM Code, the ISPS Code, any Environmental Laws or Sanctions being made against that Borrower, the Approved Ship Manager, any Approved Sub-Manager or otherwise in connection with the Ship owned by it; or
|
(h)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code, the ISPS Code, any Environmental Laws or Sanctions not being complied with;
|
14.13
|
Restrictions on chartering, appointment of managers etc.
|
(a)
|
Neither Borrower shall, in relation to the Ship owned by it:
|
(i)
|
let that Ship on demise charter for any period;
|
(ii)
|
enter into any time or consecutive voyage charter in respect of that Ship for a term which exceeds, or which by virtue of any optional extensions may exceed, 12 months other than Charters where the charterer is a member of and/or an Affiliate of the STI Group or entered into pursuant to an Approved Pooling Arrangement. The term of any Charter where the charterer is a member of and/or an Affiliate of the STI Group (except for any Charters entered into in connection with an Approved Pooling Arrangement) shall not extend (including, without limitation, by virtue of any optional extensions) beyond the Maturity Date without the Agent’s consent (acting on the instructions of the Majority Lenders, acting reasonably);
|
(iii)
|
enter into any charter in relation to that Ship under which more than 2 months' hire (or the equivalent) is payable in advance;
|
(iv)
|
charter that Ship otherwise than on bona fide arm's length terms at the time when such Ship is fixed;
|
(v)
|
appoint a manager of that Ship other than an Approved Ship Manager or agree to any material alteration to the terms of the Approved Ship Manager's appointment;
|
(vi)
|
appoint a classification society for that Ship other than an Approved Classification Society;
|
(vii)
|
de‑activate or layup that Ship; or
|
(viii)
|
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $500,000 (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on such Ship or its Earnings for the cost of such work or for any other reason.
|
(b)
|
Each Borrower shall procure that, in relation to the Ship owned by it, an Approved Technical Ship Manager shall only appoint a sub-manager in relation to the technical management of that Ship provided that in the case of any such sub-management, the Approved Technical Ship Manager shall continue to remain primarily liable vis-à-vis the relevant Borrower to perform the technical management responsibilities in relation to that Ship and, if so appointed as technical manager of that Ship, such sub-manager shall be appointed on substantially the same terms as the Approved Technical Ship Manager and once appointed as an Approved Sub-Manager, the relevant Borrower shall not and shall procure that the relevant Approved Technical Ship Manager
|
14.14
|
Notice of Mortgage.
Each Borrower shall keep the Mortgage registered against the Ship owned by it as a valid first preferred or, as the case may be, priority mortgage, carry on board the Ship owned by it a certified copy of the relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the Master's cabin of that Ship a framed printed notice stating that such Ship is mortgaged by that Borrower to the Security Trustee.
|
14.15
|
Sharing of Earnings.
Neither Borrower shall enter into any agreement or arrangement for the sharing of any Earnings of the Ship owned by it provided always that each Ship may be entered into any Approved Pooling Arrangement.
|
14.16
|
ISPS Code.
Each Borrower shall comply with the ISPS Code and in particular, without limitation, shall:
|
(a)
|
procure that its Ship and the company responsible for such Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain for its Ship an ISSC; and
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
14.17
|
Copies of Charter; Charterparty Assignment
. Provided that the relevant Borrower has obtained the prior permission of the Agent necessary under Clause
14.13(a)
(ii), that Borrower shall:
|
(a)
|
furnish promptly to the Agent a true and complete copy of any Charter for the Ship owned by it, all other documents related thereto including, without limitation, any guarantee of such Charter and a true and complete copy of each material amendment or other modification thereof; and
|
(b)
|
in respect of any such Charter (other than a Charter where the charterer is a member and/or Affiliate of the STI Group or entered into pursuant to an Approved Pooling Arrangement), execute and deliver to the Agent a Charterparty Assignment and deliver to the Agent a consent and acknowledgement executed by the charterer and any related charter guarantor and such other documents equivalent to those referred to in paragraphs 4, 5 and 6 of Part A of Schedule 4 as the Agent may require.
|
14.18
|
Change of Approved Ship Manager
. If, in accordance with the terms of this Agreement, there is a change of Approved Ship Manager, Approved Sub-Manager or the appointment of an Approved Sub-Manager, the Borrower owning the relevant Ship shall:
|
(a)
|
promptly provide the Agent with a copy of the management agreement pursuant to which such Approved Ship Manager or Approved Sub-Manager is to be appointed; and
|
(b)
|
the new Approved Ship Manager or Approved Sub-Manager, as the case may be, shall provide to the Agent on or prior to the commencement of its appointment, an Approved Ship Manager's Undertaking.
|
14.19
|
Green Passport
. Each Borrower shall procure that the Ship owned by it has obtained a Green Passport, or equivalent document acceptable to the Agent, in respect of that Ship which shall be maintained throughout the Security Period.
|
14.20
|
Green scrapping
. The Borrowers shall and shall procure that the Guarantor shall maintain a policy that provides that any ship owned by any member of the STI Group and which are to be scrapped shall be scrapped in compliance with (i) the International Maritime Organization's convention for the Safe and Environmentally Sound Recycling of ships to the extent that are issued and in force at the time of such scrapping and (ii) the guidelines to be issued by the International Maritime Organization in connection with such convention.
|
15
|
SECURITY COVER
|
15.1
|
Minimum required security cover.
Clause
15.2
applies if the Agent notifies the Borrowers that:
|
(a)
|
the aggregate of the Fair Market Value of the Ships; plus
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15,
|
(i)
|
for the period commencing on the first Drawdown Date and ending on the second anniversary of the first Drawdown Date, 130 per cent.;
|
(ii)
|
for the period on and from the day following the second anniversary of the first Drawdown Date and expiring on the fourth anniversary of the first Drawdown Date, 135 per cent.; and
|
(iii)
|
at all times thereafter for the remainder of the Security Period, 140 per cent.
|
15.2
|
Provision of additional security; prepayment
. If the Agent serves a notice on the Borrowers under Clause 15.1, the Borrowers shall prepay such part (at least) of the Loan as will eliminate the shortfall on or before the date falling 7 days after the date on which the Agent's notice is served under Clause 15.1 (the "
Prepayment
Date
") unless at least 1 Business Day before the Prepayment Date they have provided, or ensured that a third party has provided, additional security which, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and which has been documented in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require.
|
15.3
|
Valuation of Ship.
The market value of a Ship at any date is that shown by:
|
(a)
|
the arithmetic average of 2 valuations each prepared by an Approved Broker selected by the Agent acting upon the instructions of all the Lenders;
|
(b)
|
as at a date not more than 30 days prior to the date such valuation is delivered to the Agent by such Approved Broker;
|
(c)
|
with or without physical inspection of that Ship (as the Agent may require);
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
|
15.4
|
Value of additional vessel security.
The net realisable value of any additional security which is provided under Clause
15.2
and which consists of a Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 15.3.
|
15.5
|
Valuations binding.
Any valuation under Clause
15.2
, 15.3 or 15.4 shall be binding and conclusive as regards the Borrowers, as shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security Interest.
|
15.6
|
Provision of information.
The Borrowers shall promptly provide the Agent and any Approved Broker acting under Clause 15.3 or 15.4 with any information which the Agent or the Approved Broker may request for the purposes of the valuation; and, if the Borrowers fails to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved Broker or the Majority Lenders (or the expert appointed by them) consider prudent.
|
15.7
|
Payment of valuation expenses.
Without prejudice to the generality of the Borrowers' obligations under Clauses
20.2
, 20.3 and 21.3, the Borrowers shall, subject to Clause 15.8, on demand, pay the Agent the amount of the fees and expenses of any Approved Broker instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause.
|
15.8
|
Frequency of valuations.
|
(a)
|
The Borrowers shall provide the valuations of each Ship required pursuant to paragraph 4 of Part B of
Schedule 4
at the Borrowers' expense;
|
(b)
|
the Agent shall be entitled to obtain 2 valuations per Ship during each half of each Fiscal Year of the Guarantor commencing on 31 December 2016 (such valuations to be attached to the Compliance Certificates for the relevant fiscal quarter to be provided by the Guarantor) setting forth the Fair Market Value of each Ship in each case at the cost of the Borrowers save that the Borrowers shall not be required to pay for more than 2 valuations per Ship in each calendar year unless an Event of Default has occurred or any valuation obtained would entitle the Agent to serve a notice pursuant to Clause 15.1 in which case such valuations required by the Agent shall be for the cost of the Borrowers; and
|
(c)
|
the Agent shall be entitled, at its own expense, to obtain valuations of each Ship other than those referred to in paragraphs (a) and (b) above as often as it may request.
|
15.9
|
Application of prepayment.
Clause 8 shall apply in relation to any prepayment pursuant to Clause
15.2
.
|
15.10
|
Release of Additional Security
. It is agreed that where a Borrower or a third party has provided additional security pursuant to Clause
15.2
, the Borrowers are entitled to request the release of such additional security at their expense at any time following a testing of compliance by the Borrowers of the minimum required security cover under Clause 15.1 where the Borrowers are shown to have been in compliance with such minimum required security cover for at least 90 consecutive days (without including the additional security within the calculation) and where the Borrowers are in compliance with the minimum required security cover under Clause 15.1, such additional security shall be released at the Borrowers' cost.
|
16
|
PAYMENTS AND CALCULATIONS
|
16.1
|
Currency and method of payments.
All payments to be made by the Lenders or by either Borrower and any Security Party under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
|
(a)
|
by not later than 11.00 a.m. (New York City time) on the due date;
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by either Borrower or another Security Party to the Agent or any Lender, to the account of the Agent at The Bank of New York, New York at 1290 Avenue of Americas, Floor 5, New York NY10104 (Account: NIBC Bank NV, Account No 890 064 7140, BIC: IRVTUS3N, Sort code: ABA 021000018 for further credit to 89006471400052/STI Ville Shipping Company Ltd/STI Fontvielle Shipping Company Ltd), or to such other account with such other bank as the Agent may from time to time notify to the Borrowers and the other Creditor Parties; and
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrowers and the other Creditor Parties.
|
16.2
|
Payment on non-Business Day.
If any payment by either Borrower under a Finance Document would otherwise fall due on a day which is not a Business Day:
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day;
|
16.3
|
Basis for calculation of periodic payments.
All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
16.4
|
Distribution of payments to Creditor Parties.
Subject to Clauses
16.5
, 16.6 and 16.7:
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, a Swap Counterparty or the Security Trustee shall be made available by the Agent to that Lender, that Swap Counterparty or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender and the Swap Counterparty or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders and/or the Swap Counterparties generally shall be distributed by the Agent to each Lender and each Swap Counterparty pro rata to the amount in that category which is due to it.
|
16.5
|
Permitted deductions by Agent.
Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender or a Swap Counterparty, deduct and withhold from that amount any sum which is then due and
|
16.6
|
Agent only obliged to pay when monies received.
Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to either Borrower or any Lender or any Swap Counterparty any sum which the Agent is expecting to receive for remittance or distribution to that Borrower or that Lender or that Swap Counterparty until the Agent has satisfied itself that it has received that sum.
|
16.7
|
Refund to Agent of monies not received.
If and to the extent that the Agent makes available a sum to either Borrower or a Lender or a Swap Counterparty, without first having received that sum, that Borrower or (as the case may be) the Lender or the Swap Counterparty concerned shall, on demand:
|
(a)
|
refund the sum in full to the Agent; and
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
|
16.8
|
Agent may assume receipt.
Clause 16.7 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.
|
16.9
|
Creditor Party accounts.
Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.
|
16.10
|
Agent's memorandum account.
The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.
|
16.11
|
Accounts prima facie evidence.
If any accounts maintained under Clauses
16.9
and
16.10
show an amount to be owing by either Borrower or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party.
|
17
|
APPLICATION OF RECEIPTS
|
17.1
|
Normal order of application.
Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:
|
(a)
|
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents and the Master Agreements in the following order and proportions:
|
(i)
|
first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents and the Swap Counterparties under any Master Agreement other than those amounts referred to at paragraphs (ii) and (iii) (including, but without limitation, all amounts payable by the Borrowers under Clauses 20, 21 and 22 of this Agreement or by either Borrower or any Security Party under any corresponding or similar provision in any other Finance Document or in any Master Agreement);
|
(ii)
|
secondly, in or towards satisfaction pro rata of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents and the Master Agreements (and, for this purpose, the expression "
interest
" shall include any net amount which either Borrower shall have become liable to pay or deliver under section 2(e) (Obligations) of any Master Agreement but shall have failed to pay or deliver to the relevant Swap Counterparty at the time of application or distribution under this Clause 17); and
|
(iii)
|
thirdly, in or towards satisfaction pro rata of the Loan and the Swap Exposure of each Swap Counterparty (in the case of the latter, calculated as at the actual Early Termination Date applying to each particular Designated Transaction, or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the date of application or distribution hereunder);
|
(b)
|
SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document or any Master Agreement but which the Agent, by notice to the Borrowers, the Security Parties and the other Creditor Parties, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a); and
|
(c)
|
THIRDLY: any surplus shall be paid to the Borrowers or to any other person appearing to be entitled to it.
|
17.2
|
Variation of order of application.
The Agent may, with the authorisation of the Majority Lenders and the Swap Counterparties, by notice to the Borrowers, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 either as regards a specified sum or sums or as regards sums in a specified category or categories.
|
17.3
|
Notice of variation of order of application.
The Agent may give notices under Clause
17.2
from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.
|
17.4
|
Appropriation rights overridden.
This Clause 17 and any notice which the Agent gives under Clause
17.2
shall override any right of appropriation possessed, and any appropriation made, by the Borrowers or any Security Party.
|
18
|
APPLICATION OF EARNINGS
|
18.1
|
Payment of Earnings.
Each Borrower undertakes with each Creditor Party to ensure that, throughout the Security Period (subject only to the provisions of the General Assignment), all the Earnings of each Ship are paid to the Earnings Account for that Ship.
|
18.2
|
Application of Earnings.
Each
Borrower undertakes with the Lenders to procure that money from time to time credited to, or for the time being standing to the credit of, an Earnings Account shall, unless and until an Event of Default shall have occurred and for so long as the same is continuing (whereupon the provisions of Clause 17.1 shall be and become applicable), be freely available to the Borrower.
|
18.3
|
Location of accounts.
The Borrowers shall promptly:
|
(a)
|
comply with any requirement of the Agent as to the location or re‑location of the Earnings Accounts (or either of them); and
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts (or either of them).
|
18.4
|
Debits for expenses etc.
The Agent shall be entitled (but not obliged) from time to time to debit either Earnings Account without prior notice in order to discharge any amount due and payable under Clause 20 or 21 to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 20 or 21.
|
18.5
|
Borrowers' obligations unaffected.
The provisions of this Clause 18 do not affect:
|
(a)
|
the liability of the Borrowers to make payments of principal and interest on the due dates; or
|
(b)
|
any other liability or obligation of the Borrowers or any Security Party under any Finance Document.
|
19
|
EVENTS OF DEFAULT
|
19.1
|
Events of Default.
An Event of Default occurs if:
|
(a)
|
either Borrower or any Security Party fails to pay when due any sum payable under a Finance Document or under any document relating to a Finance Document unless its failure to pay is caused by a Disruption Event and payment is made within 3 Business Days of its due date; or
|
(b)
|
any breach occurs of Clause
9.2
, 11.2, 11.3, 12 or 15.2; or
|
(c)
|
any breach occurs of clause 12 (
Financial Covenants
) of the Guarantee, and such default continues unremedied 15 days after written notice from the Agent to the Borrowers and the Guarantor requesting action to remedy the same; or
|
(d)
|
any breach by either Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues remedied 10 days after written notice from the Agent requesting action to remedy the same; or
|
(e)
|
(subject to any applicable grace period specified in the Finance Document) any breach by either Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach falling within paragraphs (a), (b) or (c)); or
|
(f)
|
any representation, warranty or statement made or repeated by, or by an officer of, either Borrower or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading when it is made or repeated; or
|
(g)
|
any of the following occurs in relation to any Financial Indebtedness of the Guarantor exceeding $10,000,000 in aggregate or, in the case of each Borrower, $1,000,000 (or in either case, the equivalent in any other currency):
|
(i)
|
any Financial Indebtedness of that Relevant Person is not paid when due; or
|
(ii)
|
any Financial Indebtedness of that Relevant Person becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of that Relevant Person is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of that Relevant Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
(v)
|
any Security Interest securing any Financial Indebtedness of that Relevant Person becomes enforceable; or
|
(h)
|
any of the following occurs in relation to a Relevant Person:
|
(i)
|
a Relevant Person becomes unable to pay its debts as they fall due; or
|
(ii)
|
any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $10,000,000 in the case of the Guarantor and $1,000,000 in the case of each Borrower and any other Security Party or more or the equivalent in another currency; or
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person; or
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings, by a lawyer acting for a Relevant Person; or
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by (a) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (did) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Guarantor or a Borrower which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later than 3 months after the commencement of the winding up; or
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way at all; or
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise or fail to materialise; or
|
(xi)
|
in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or commenced or any step is taken which, in the opinion of the Majority Lenders acting reasonably is similar to any of the foregoing.
|
(i)
|
either Borrower or the Guarantor ceases or suspends carrying on its business or a part of its business which is material in the context of this Agreement; or
|
(j)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
(i)
|
for either Borrower or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which the Majority Lenders consider material under a Finance Document;
|
(ii)
|
for the Agent, the Security Trustee, the Lenders or the Swap Banks to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or
|
(k)
|
any consent necessary to enable either Borrower to own, operate or charter the Ship owned by it or to enable such Borrower or any other Security Party to comply with any provision which the Majority Lenders consider material of a Finance Document or the Shipbuilding Contract to which it is a party is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
|
(l)
|
any provision which the Majority Lenders consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest and which in each case such default continues unremedied 15 days after written notice from the Agent requesting action to remedy the same; or
|
(m)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
(n)
|
an Event of Default (as defined in section 14 of a Master Agreement) occurs; or
|
(o)
|
a Master Agreement is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason except with the consent of the Agent, acting with the authorisation of the Majority Lenders; or
|
(p)
|
either of the Ships ceases to be employed by the relevant Approved Ship Manager or Approved Sub-Manager on terms acceptable to the Agent or any of the circumstances described in Clause 19.1(h) or (i) occurs (
mutatis mutandis
) in relation to an Approved Ship Manager or Approved Sub-Manager or an Approved Ship Manager or an Approved Sub-Manager breaches any provision of its Approved Ship Manager's Undertaking which the Agent considers material and the relevant Borrower fails within a period of 15 days of it becoming aware of the occurrence of such circumstance or breach or of the receipt of a written notification from the Agent requesting the relevant Borrower to remedy such circumstances or breach either to remedy such circumstances or breach or to substitute the relevant Approved Ship Manager or Approved Sub-Manager with another Approved Ship Manager or an Approved Sub-Manager which executes and delivers to the Security Trustee a replacement Approved Ship Manager's Undertaking; or
|
(q)
|
an event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect; or
|
(r)
|
it appears to the Majority Lenders that, without their prior consent, a Change of Control has occurred; or
|
(s)
|
any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced in relation to any of the Finance Documents or the transactions contemplated in any of the Finance Documents or against either Borrower or the Guarantor or its assets which has or is reasonably likely to have a Material Adverse Effect; or
|
(t)
|
the Guarantor is delisted from the New York Stock Exchange.
|
19.2
|
Actions following an Event of Default.
On, or at any time after, the occurrence of an Event of Default which is continuing:
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
(i)
|
serve on the Borrowers a notice stating that all or part of the Commitments and of the other obligations of each Lender to the Borrowers under this Agreement are cancelled; and/or
|
(ii)
|
serve on the Borrowers a notice stating that all or part of the Loan together with accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders and/or the Swap Counterparties are entitled to take under any Finance Document or any applicable law.
|
19.3
|
Termination of Commitments.
On the service of a notice under Clause
19.2(a)(i)
, the Commitments and all other obligations of each Lender to the Borrowers under this Agreement shall be cancelled.
|
19.4
|
Acceleration of Loan.
On the service of a notice under Clause
19.2(a)(i)
, all or, as the case may be, the part of the Loan specified in the notice together with accrued interest and all other amounts accrued or owing from the Borrowers or any Security Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
|
19.5
|
Multiple notices; action without notice.
The Agent may serve notices under Clauses
19.2(a)(i)
and (ii) simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in Clause 19.2 if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
19.6
|
Notification of Creditor Parties and Security Parties.
The Agent shall send to each Lender, each Swap Counterparty, the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrowers under Clause 19.2; but the notice shall become effective when it is served on the Borrowers, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide either Borrower or any Security Party with any form of claim or defence.
|
19.7
|
Creditor Party rights unimpaired.
Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders or Swap Counterparties under a Finance Document, a Master Agreement or the general law; and, in particular, this Clause is without prejudice to Clause
3.1
.
|
19.8
|
Exclusion of Creditor Party liability.
No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to either Borrower or a Security Party:
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,
|
19.9
|
Relevant Persons.
In this Clause 19, a "
Relevant Person
" means the Borrowers and any Security Party.
|
19.10
|
Interpretation.
In Clause 19.1(g) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(h) "
petition
" includes an application.
|
19.11
|
Position of Swap Counterparties.
Neither the Agent nor the Security Trustee shall be obliged, in connection with any action taken or proposed to be taken under or pursuant to the foregoing provisions of this Clause 19, to have any regard to the requirements of a Swap Counterparty except to the extent that such Swap Counterparty is also a Lender.
|
20
|
FEES AND EXPENSES
|
20.1
|
Arrangement, commitment, agency fees.
The Borrowers shall pay to the Agent:
|
(a)
|
on or prior to the date of this Agreement, an arrangement fee in an amount referred to in the Fee Letter;
|
(b)
|
quarterly in arrears during the period from (and including) the date of this Agreement to the earlier of (i) the second Drawdown Date and (ii) the end of the Availability Period and on the last day of that period, for the account of the Lenders, a commitment fee at the rate of 35 per cent. of the applicable Margin per annum on the Total Commitments less the amount of the Loan, for distribution among the Lenders pro rata to their Commitments; and
|
(c)
|
on the date of any initial syndication of the Loan to any Transferee Lender (as defined in Clause 26.2) which is not an Affiliate of NIBC Bank N.V., and on each anniversary thereof during the Security Period, an annual agency fee of $20,000, such agency fee to be payable to the Agent in advance for its own account.
|
20.2
|
Costs of negotiation, preparation etc.
The Borrowers shall pay to the Agent on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document.
|
20.3
|
Costs of variations, amendments, enforcement etc.
The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Creditor Party concerned, the amount of all expenses incurred by a Creditor Party in connection with:
|
(a)
|
any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;
|
(b)
|
any consent or waiver by the Lenders, the Swap Banks, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance Document, or any request for such a consent or waiver;
|
(c)
|
the valuation of any security provided or offered under Clause 15 or any other matter relating to such security; or
|
(d)
|
any step taken by the Lender or the Swap Bank concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.
|
20.4
|
Documentary taxes.
The Borrowers shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrowers to pay such a tax.
|
20.5
|
Financial Services Authority fees.
The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Lender concerned the amounts which the Agent from time to time notifies the Borrowers that a Lender has notified the Agent to be necessary to compensate it for the cost attributable to its Contribution resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 and/or by the Bank of England and/or by the Financial Services Authority (or other United Kingdom governmental authorities or agencies) of a requirement to pay fees to the Financial Services Authority calculated by reference to liabilities used to fund its Contribution.
|
20.6
|
Certification of amounts.
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
21
|
INDEMNITIES
|
21.1
|
Indemnities regarding borrowing and repayment of Loan.
The Borrowers shall fully indemnify the Agent and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:
|
(a)
|
a Tranche not being borrowed on the date specified in the Drawdown Notice relating to such Tranche for any reason other than a default by the Lender claiming the indemnity;
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;
|
(c)
|
any failure (for whatever reason) by the Borrowers to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrowers on the amount concerned under Clause 7);
|
(d)
|
the occurrence of an Event of Default or a Latent Event of Default and/or the acceleration of repayment of the Loan under Clause 19;
|
21.2
|
Breakage costs.
Without limiting its generality, Clause 21.1 covers any claim, expense, liability or loss, including a loss of a prospective profit, incurred by a Lender:
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount); and
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one.
|
21.3
|
Miscellaneous indemnities.
The Borrowers shall fully indemnify each Creditor Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may be made or brought against or incurred by a Creditor Party, in any country, as a result of or in connection with:
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document; or
|
(b)
|
any other Pertinent Matter,
|
21.4
|
Currency indemnity.
If any sum due from either Borrower or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "
Contractual Currency
") into another currency (the "
Payment Currency
") for the purpose of:
|
(a)
|
making or lodging any claim or proof against either Borrower or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
(c)
|
enforcing any such order or judgment,
|
21.5
|
Application to Master Agreements.
For the avoidance of doubt, Clause 21.4 does not apply in respect of sums due from either Borrower to a Swap Counterparty under or in connection with a Master Agreement as to which sums the provisions of section 8 (Contractual Currency) of that Master Agreement shall apply.
|
21.6
|
Certification of amounts.
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
21.7
|
Sums deemed due to a Lender.
For the purposes of this Clause 21, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
|
22
|
NO SET-OFF OR TAX DEDUCTION
|
22.1
|
No deductions.
All amounts due from the Borrowers or any Security Party under a Finance Document or any the Master Agreement shall be paid:
|
(a)
|
without any form of set‑off, cross-claim or condition; and
|
(b)
|
free and clear of any tax deduction except a tax deduction which either Borrower or such Security Party is required by law to make.
|
22.2
|
Grossing-up for taxes.
If either Borrower or any Security Party is required by law to make a tax deduction from any payment under a Finance Document or the Master Agreement (other than a FATCA Deduction):
|
(a)
|
either Borrower or such Security Party (as the case may be) shall notify the Agent as soon as it becomes aware of the requirement;
|
(b)
|
either Borrower or such Security Party (as the case may be) shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and
|
(c)
|
the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received.
|
22.3
|
Evidence of payment of taxes.
Within 1 month after making any tax deduction, the Borrowers shall deliver to the Agent documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.
|
22.4
|
Exclusion of tax on overall net income.
In this Clause 22 "
tax deduction
" means any deduction or withholding for or on account of any present or future tax except tax on a Creditor Party's overall net income.
|
22.5
|
FATCA Deduction.
Each party to this Agreement may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and
|
22.6
|
Stamp taxes.
The Borrowers shall pay and, within 3 Business Days of demand, indemnify each Creditor Party against any cost, loss or liability which that Creditor Party incurs in relation to all stamp duty, registration and other similar taxes payable in respect of any Finance Document or any Master Agreement.
|
22.7
|
Application to Master Agreements.
For the avoidance of doubt, Clause 22 does not apply in respect of sums due from either Borrower to a Swap Counterparty under or in connection with a Master Agreement as to which sums the provisions of section 2(d) (Deduction or Withholding for Tax) of that Master Agreement shall apply.
|
22.8
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party; and
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable "passthru payment percentage" or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Creditor Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:
|
(i)
|
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
|
(ii)
|
if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage" is 100%,
|
23
|
ILLEGALITY, ETC
|
23.1
|
Illegality.
This Clause 23 applies if a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a specified date, become:
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
(b)
|
contrary to, or inconsistent with, any regulation,
|
23.2
|
Notification of illegality.
The Agent shall promptly notify the Borrowers, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23.1 which the Agent receives from the Notifying Lender.
|
23.3
|
Prepayment; termination of Commitment.
On the Agent notifying the Borrowers under Clause
23.2
, the Notifying Lender's Commitment shall terminate; and thereupon or, if later, on the date specified in the Notifying Lender's notice under Clause 23.1 as the date on which the notified event would become effective the Borrowers shall prepay the Notifying Lender's Contribution in accordance with Clause 8.
|
23.4
|
Mitigation
. If circumstances arise which would result in a notification under Clause 23.1 then, without in any way limiting the rights of the Notifying Lender under Clause
23.3
, the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
24
|
INCREASED COSTS
|
24.1
|
Increased costs.
This Clause 24 applies if a Lender (the "
Notifying Lender
") notifies the Agent that the Notifying Lender considers that as a result of:
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Notifying Lender's overall net income); or
|
(b)
|
the effect of complying with any law or regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement; or
|
(c)
|
the implementation or application of or compliance with "the 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 ("
Basel III Accord
") or any other law or regulation implementing the Basel III Accord or any of the approaches provided for and allowed to be used by banks under or in connection with the Basel III Accord as from time to time implemented by the Notifying Lender (whether such implementation, application or compliance is by a government, regulator, supervisory authority, the Notifying Lender or its holding company),
|
24.2
|
Meaning of "increased costs".
In this Clause 24, "
increased costs
" means, in relation to a Notifying Lender:
|
(a)
|
an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or having taken an assignment of rights under this Agreement, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums;
|
(b)
|
a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;
|
(c)
|
an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or
|
(d)
|
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender after providing evidence of its method of calculation to quantify such increased costs under this Agreement,
|
24.3
|
Notification to Borrowers of claim for increased costs.
The Agent shall promptly notify the Borrowers and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1.
|
24.4
|
Payment of increased costs.
The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrowers that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
|
24.5
|
Notice of prepayment.
If either Borrower is not willing to continue to compensate the Notifying Lender for the increased cost under Clause
24.4
, that Borrower may give the Agent not less than
|
24.6
|
Prepayment; termination of Commitment.
A notice under Clause
24.5
shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrowers’ notice of intended prepayment; and:
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
|
24.7
|
Application of prepayment.
Clause 8 shall apply in relation to the prepayment.
|
25
|
SET‑OFF
|
25.1
|
Application of credit balances.
Each Creditor Party may without prior notice:
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of either Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from either Borrower to that Creditor Party under any of the Finance Documents; and
|
(b)
|
for that purpose:
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of that Borrower;
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
|
25.2
|
Existing rights unaffected.
No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
|
25.3
|
Sums deemed due to a Lender.
For the purposes of this Clause 25, a sum payable by either Borrower to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.
|
25.4
|
No Security Interest.
This Clause 25 gives the Creditor Parties a contractual right of set-off only, and does not create any equitable charge or other Security Interest over any credit balance of either Borrower.
|
26
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
26.1
|
Transfer by Borrower.
Neither Borrower may, without the prior written consent of the Agent, given on the instructions of all the Lenders transfer any of its rights, liabilities or obligations under any Finance Document.
|
26.2
|
Transfer by a Lender.
Subject to Clause
26.5
a Lender (the "
Transferor Lender
") may at any time, with:
|
(a)
|
the consent of the Borrowers (such consent not to be unreasonably withheld or delayed and such consent deemed to be given if the Borrowers do not expressly refuse their consent within 5 Business Days of a request by a Lender); and
|
(b)
|
the prior approval of the Agent,
|
(i)
|
its rights in respect of all or part of its Contribution; or
|
(ii)
|
its obligations in respect of all or part of its Commitment; or
|
(iii)
|
a combination of (i) and (ii),
|
(i)
|
the Transferee Lender is an existing Lender, an Affiliate of an existing Lender or 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, which is advised by, or the assets of which are managed by the NIBC Bank N.V. or a bank or financial institution which has, at any time previously, been a lender under this Agreement; or
|
(ii)
|
an Event of Default has occurred and is continuing; or
|
(iii)
|
the transfer is related to a securitisation or similar transaction in respect of the relevant Transferor Lender's Contribution or Commitment (in which case, no prior notice to either Borrower or any Security Party is required).
|
26.3
|
Transfer Certificate, delivery and notification.
As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrowers, the Security Parties, the Security Trustee, each of the other Lenders and each of the Swap Banks;
|
(b)
|
on behalf of the Transferee Lender, send to each Borrower and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b),
|
26.4
|
Effective Date of Transfer Certificate.
A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date
Provided that
it is signed by the Agent under Clause 26.3 on or before that date.
|
26.5
|
No transfer without Transfer Certificate.
Except as provided in Clause 26.17, no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, each Borrower, any Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
26.6
|
Lender re-organisation; waiver of Transfer Certificate.
However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in a successor, the Agent may, if it sees fit, by notice to the successor and the Borrowers and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.
|
26.7
|
Effect of Transfer Certificate.
A Transfer Certificate takes effect in accordance with English law as follows:
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which either Borrower or any Security Party had against the Transferor Lender;
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
(c)
|
the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro‑rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of either Borrower or any Security Party against the Transferor Lender had not existed;
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.7 and Clause 20, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.
|
26.8
|
Maintenance of register of Lenders.
During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause
26.4
) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and either Borrower during normal banking hours, subject to receiving at least 3 Business Days' prior notice.
|
26.9
|
Reliance on register of Lenders.
The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.
|
26.10
|
Authorisation of Agent to sign Transfer Certificates.
Each Borrower, the Security Trustee, each Lender and each Swap Bank irrevocably authorises the Agent to sign Transfer Certificates on its behalf.
|
26.11
|
Registration fee.
In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $5,000 from the Transferor Lender or (at the Agent's option) the Transferee Lender.
|
26.12
|
Sub-participation; subrogation assignment.
A Lender may sub‑participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice to, either Borrower, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.
|
26.13
|
Disclosure of Confidential Information.
Any Creditor Party may disclose:
|
(a)
|
with the prior written consent of the Borrowers, to any of their respective Affiliates and any of their respective officers, directors, employees, professional advisers, auditors, partners and representatives such Confidential Information as that Creditor Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, representatives and professional advisers;
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or either Borrower and/or one or more of the Security Parties and to any of that person's Affiliates, representatives and professional advisers;
|
(iii)
|
appointed by any Creditor Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above including any Rating Agency and or its or their professional advisers;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 26.17 and to any rating agency in relation to any such securitisation;
|
(viii)
|
who is a party; or
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document,
|
(A)
|
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C)
|
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive
|
(c)
|
with the prior written consent of the Borrowers, to any person appointed by that Creditor Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of 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 paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement substantially in the form of the Loan Market Association Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Creditor Party.
|
26.14
|
Change of lending office.
A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:
|
(a)
|
the date on which the Agent receives the notice; and
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
26.15
|
Notification.
On receiving such a notice, the Agent shall notify the Borrowers and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
|
26.16
|
Replacement of Reference Bank.
If any Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 then, unless the Borrowers, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrowers, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect, the first‑mentioned Reference Bank's appointment shall cease to be effective.
|
26.17
|
Security over Lenders' rights.
In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from each Borrower or any Security Party, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
|
(a)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(b)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities;
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by each Borrower or any Security Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
27
|
VARIATIONS AND WAIVERS
|
27.1
|
Variations, waivers etc. by Majority Lenders.
Subject to Clause 27.2, a document shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by fax, by the Borrowers, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security Party is party, by that Security Party.
|
27.2
|
Variations, waivers etc. requiring agreement of all Lenders.
However, as regards the following, Clause
27.1
applies as if the words "by the Agent on behalf of the Majority Lenders" were replaced by the words "by or on behalf of every Lender and every Swap Bank":
|
(a)
|
a change to any Security Party, other than in accordance with the terms of the Finance Documents;
|
(b)
|
a reduction in the Margin;
|
(c)
|
a postponement to the date for, or a reduction in the amount of, any payment of principal, interest, fees or other sum payable under this Agreement;
|
(d)
|
an increase in any Lender's Commitment;
|
(e)
|
a change to the definition of "
Sanctions
" or "
Majority Lenders
";
|
(f)
|
a change to Clause 3 or this Clause 27;
|
(g)
|
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document;
|
(h)
|
an extension of the Availability Period; and
|
(i)
|
any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required.
|
27.3
|
Exclusion of other or implied variations.
Except for a document which satisfies the requirements of Clauses
27.1
and 27.2, no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
(b)
|
an Event of Default; or
|
(c)
|
a breach by either Borrower or a Security Party of an obligation under a Finance Document or the general law; or
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law,
|
27.4
|
Exceptions.
|
(a)
|
If the Agent or a Lender reasonably believes that an amendment or waiver may constitute a "material modification" for the purposes of FATCA that may result (directly or indirectly) in a Party being required to make a FATCA Deduction and the Agent or that Lender (as the case may be) notifies the Borrowers and the Agent accordingly, that amendment or waiver may not be effected without the consent of the Agent or that Lender (as the case may be).
|
(b)
|
The consent of a Lender shall not be required pursuant to paragraph (a) above if that Lender is a FATCA Protected Lender.
|
28
|
NOTICES
|
28.1
|
General.
Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter, electronic mail ("
Email
") or fax and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
|
28.2
|
Addresses for communications.
A notice by letter or fax shall be sent:
|
(a)
|
to the Borrowers: c/o Scorpio Tankers Inc
Le Millenium, 9 Boulevard Charles III, 98000 Monaco |
(b)
|
to a Lender: At the address below its name in Schedule 1 or (as the case may require) in the relevant Transfer Certificate.
|
(c)
|
to a Swap Bank At the address below its name in Schedule 2.
|
(d)
|
to the Agent: in respect of administrative matters:
|
(e)
|
to the Security Trustee: in respect of administrative matters:
|
28.3
|
Effective date of notices.
Subject to Clauses 28.4 and 28.5:
|
(a)
|
a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered;
|
(b)
|
a notice which is sent by Email shall be deemed to be served, and shall take effect, at the time when it is actually received in readable form; and
|
(c)
|
a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.
|
28.4
|
Service outside business hours.
However, if under Clause 28.3 a notice would be deemed to be served:
|
(a)
|
on a day which is not a business day in the place of receipt; or
|
(b)
|
on such a business day, but after 5 p.m. local time,
|
28.5
|
Illegible notices.
Clauses 28.3 and 28.4 do not apply if the recipient of a notice notifies the sender within 1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.
|
28.6
|
Valid notices.
A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:
|
(a)
|
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or
|
(b)
|
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.
|
28.7
|
Electronic communication between the Agent and a Lender or a Swap Bank.
Any communication to be made between the Agent and a Lender or a Swap Bank under or in connection with the Finance Documents may be made by Email or other electronic means, if the Agent and the relevant Lender or Swap Bank:
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(b)
|
notify each other in writing of their Email address and/or any other information required to enable the sending and receipt of information by that means; and
|
(c)
|
notify each other of any change to their respective Email addresses or any other such information supplied to them.
|
28.8
|
English language.
Any notice under or in connection with a Finance Document shall be in English.
|
28.9
|
Meaning of "notice".
In this Clause 28, "
notice
" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
|
29
|
JOINT AND SEVERAL LIABILITY AND HEDGE GUARANTEE
|
29.1
|
General
. Other than for the limited period referred to in Clause 29.6, all liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be several and, if and to the extent consistent with Clause 29.2, joint.
|
29.2
|
No impairment of Borrower’s obligations
. The liabilities and obligations of a Borrower shall not be impaired by:
|
(a)
|
this Agreement being or later becoming void, unenforceable or illegal as regards the other Borrower;
|
(b)
|
any Lender or the Security Trustee entering into any rescheduling, refinancing or other arrangement of any kind with the other Borrower;
|
(c)
|
any Lender or the Security Trustee releasing the other Borrower or any Security Interest created by a Finance Document; or
|
(d)
|
any combination of the foregoing.
|
29.3
|
Principal debtors.
Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the Finance Documents and neither Borrower shall in any circumstances be construed to be a surety for the obligations of the other Borrower under this Agreement.
|
29.4
|
Subordination.
Subject to Clause 29.5 during the Security Period, neither Borrower shall:
|
(a)
|
claim any amount which may be due to it from the other Borrower whether in respect of a payment made, or matter arising out of, this Agreement or any Finance Document, or the matter unconnected with this Agreement or any Finance Document; or
|
(b)
|
take or enforce any form of security from the other Borrower for such an amount, or in any other way seek to have recourse in respect of such an amount against any asset of the other Borrower; or
|
(c)
|
set off such an amount against any sum due from it to the other Borrower; or
|
(d)
|
prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Borrower or any Security Party; or
|
(e)
|
exercise or assert any combination of the foregoing.
|
29.5
|
Borrower’s required action
. If during the Security Period, the Agent, by notice to a Borrower, requires it to take any action referred to in paragraphs (a) to (d) of Clause 29.4, in relation to the other Borrower, that Borrower shall take that action as soon as practicable after receiving the Agent’s notice.
|
29.6
|
Deferred liability
. The liabilities and obligations of Borrower B shall only commence on and from the Drawdown Date of Tranche B.
|
29.7
|
Hedge Guarantee
. Each Borrower irrevocably and unconditionally and jointly and severally:
|
(a)
|
guarantees to the Swap Bank punctual performance by the other Borrower (the "
Other Borrower
") of all that Other Borrower's obligations under the Master Agreement to which it is a party;
|
(b)
|
undertakes with the Swap Bank that whenever the Other Borrower does not pay any amount when due under or in connection with any Master Agreement to which it is a party, that Borrower shall immediately on demand pay that amount as if it were the principal obligor; and
|
(c)
|
agrees with the Swap Bank that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the Swap Bank immediately on demand against any cost, loss or liability it incurs as a result of the Other Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Master Agreement on the date when it would have been due. The amount payable by a Borrower under this indemnity will not exceed the amount it would have
|
30
|
SUPPLEMENTAL
|
30.1
|
Rights cumulative, non-exclusive.
The rights and remedies which the Finance Documents give to each Creditor Party are:
|
(a)
|
cumulative;
|
(b)
|
may be exercised as often as appears expedient; and
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
|
30.2
|
Severability of provisions.
If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.
|
30.3
|
Counterparts.
A Finance Document may be executed in any number of counterparts.
|
30.4
|
Third party rights.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
30.5
|
Contractual recognition of bail-in
. Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties to this Agreement, each party to this Agreement acknowledges and accepts that any liability of any party to this Agreement to any other party to this Agreement under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
|
(a)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii)
|
a cancellation of any such liability; and
|
(b)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
31
|
LAW AND JURISDICTION
|
31.1
|
English law.
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
|
31.2
|
Exclusive English jurisdiction.
Subject to Clause 31.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.
|
31.3
|
Choice of forum for the exclusive benefit of Creditor Parties.
Clause
31.2
is for the exclusive benefit of the Creditor Parties, each of which reserves the rights:
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
31.4
|
Process agent.
Each Borrower irrevocably appoints Scorpio UK Limited at its business address for the time being, presently at 10 Lower Grosvenor Place, London, SW1W 0EN (such communication to be marked preferably and if possible on the paper envelope (not any courier exterior) with “STNG Transaction” for the urgent attention of General Counsel), to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.
|
31.5
|
Creditor Party rights unaffected.
Nothing in this Clause 31 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
31.6
|
Meaning of "proceedings".
In this Clause 31, "
proceedings
" means proceedings of any kind, including an application for a provisional or protective measure and a "
Dispute
" means 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.
|
Lender
|
Lending Office
|
Commitment (US Dollars)
|
NIBC Bank N.V.
|
NIBC Bank N.V.
4 Carnegieplein 2517 KJ, The Hague The Netherlands |
$44,000,000
|
Swap Bank
|
Booking Office
|
NIBC Bank N.V.
|
NIBC Bank N.V.
4 Carnegieplein 2517 KJ, The Hague The Netherlands |
To:
|
NIBC Bank N.V.
4 Carnegieplein 2517 KJ, The Hague The Netherlands |
1
|
We refer to the loan agreement (the "
Loan
Agreement
") dated [
l
] 2016 and made between ourselves as joint and several Borrowers, the Lenders referred to therein, the Swap Banks referred to therein and yourselves as Mandated Lead Arranger, Agent and as Security Trustee in connection with a facility of up to US$44,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
2
|
We request to borrow Tranche [A][B] as follows:‑
|
(a)
|
Amount: US$[
l
];
|
(b)
|
Drawdown Date: [
l
] 2016;
|
(c)
|
[Duration of the first Interest Period shall be [
l
] months;] and
|
(d)
|
Payment instructions: [
l
].
|
3
|
We represent and warrant that:
|
(a)
|
the representations and warranties in Clause 10 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances now existing; and
|
(b)
|
no Event of Default or Latent Event of Default has occurred or will result from the borrowing of the Loan.
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
1
|
A duly executed original of each Finance Document (and of each document required to be delivered by each Finance Document) other than those referred to in 14 of this
Schedule 4
.
|
2
|
Copies of the certificate of incorporation and constitutional documents of each Borrower and each Security Party.
|
3
|
Copies of resolutions of the directors of each Borrower and each Security Party and in the case of the Borrowers copies of resolutions of their shareholders authorising the execution of the Master Agreement and each of the Finance Documents to which that Borrower or that Security Party is a party and, in the case of each Borrower, authorising named officers to give Drawdown Notices and other notices under this Agreement.
|
4
|
The original of any power of attorney under which the Master Agreement and any Finance Document is executed on behalf of each Borrower or a Security Party.
|
5
|
An incumbency certificate in respect of the officers and directors (or equivalent) of each Borrower and the Security Parties and signature samples of any signatories to any Finance Document.
|
6
|
Copies of all consents which each Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document and any Master Agreement.
|
7
|
Documentary evidence that the Earnings Accounts have been opened with the relevant Account Bank.
|
8
|
Documentary evidence that the agent for service of process named in Clause 31 has accepted its appointment.
|
9
|
Such documentation and other evidence in form and substance acceptable to the Agent or a Lender in order for each to carry out and be satisfied with the results of all necessary "know your customer" or other checks which it is required to carry out in relation to the transactions contemplated by this Agreement, and other Finance Documents and any Master Agreement, including without limitation obtaining, verifying and recording certain information and documentation that will allow the Agent and each of the Lenders to identify each Borrower and each Security Party.
|
10
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the structure of the financing which is the subject of this Agreement and the laws of the Marshall Islands and such other relevant jurisdictions as the Agent may require.
|
11
|
A Compliance Certificate together with all supporting Accounting Information and other evidence as required pursuant to the terms of this Agreement.
|
12
|
The Fee Letter duly signed by the parties to it.
|
13
|
Evidence that the Borrowers have paid any and all fees and expenses then due and payable under the Finance Documents.
|
14
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
1
|
A duly executed original of the Mortgage, the General Assignment, any Charterparty Assignment, the Account Security Deed and any Intercompany Loan Assignment (if applicable) (and of each document to be delivered by each of them) relating to the relevant Ship.
|
2
|
Documentary evidence that:
|
(a)
|
the relevant Ship is permanently registered in the name of the relevant Borrower under the applicable Approved Flag;
|
(b)
|
the relevant Ship is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
|
(c)
|
the relevant Ship maintains the highest available class with the Approved Classification Society free of all overdue recommendations and conditions of such Approved Classification Society;
|
(d)
|
the relevant Mortgage has been duly registered against the relevant Ship as a valid first priority or, as the case may be, preferred ship mortgage in accordance with the laws of the jurisdiction of its Approved Flag;
|
(e)
|
the relevant Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with together with copies of the insurance policies and certificates of entry for the relevant Ship; and
|
(f)
|
any and all Security Interests relating to the relevant Borrower's obligations under the Existing Facility including, without limitation, in respect of such Borrower, the relevant Ship, its Earnings, Insurances and any other assets, rights or interests of the relevant Borrower created pursuant to the Existing Facility has or have been released and discharged to the satisfaction of the Agent.
|
3
|
Documents establishing that the relevant Ship is managed by the Approved Ship Manager and/or the Approved Sub-Manager on terms acceptable to the Agent (such documents the "
Approved Management Agreement
"), together with:
|
(a)
|
an Approved Ship Manager's Undertaking executed by the relevant Approved Ship Manager and/or the Approved Sub-Manager which is party to an Approved Management Agreement with the relevant Borrower and/or relevant Approved Ship Manager, in favour of the Agent; and
|
(b)
|
copies of the Approved Technical Ship Manager's (or, if applicable, the Approved Sub-Manager’s) Document of Compliance and the relevant Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and ISSC.
|
4
|
Valuations of the Fair Market Value of the relevant Ship, addressed to the Agent and the Lenders stated to be for the purposes of this Agreement and dated not more than 14 days before the Drawdown Date in respect of the relevant Tranche which evidence an average Fair Market Value for such Ship of not less than 130 per cent. of the Tranche in respect of such Ship and, in the
|
5
|
Evidence that the Green Passport required pursuant to Clause 14.19 is in place.
|
6
|
An update on the current SIRE status of the relevant Ship satisfactory to the Agent.
|
7
|
A copy of the International Air Pollution Prevention Certificate for the relevant Ship.
|
8
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of the Marshall Islands, and such other relevant jurisdictions as the Agent may require.
|
9
|
A favourable opinion from an independent insurance consultant appointed by the Agent on such matters relating to the insurances for the relevant Ship as the Lenders may require
|
10
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
To:
|
[Name of Agent] for itself and for and on behalf of the Borrowers, each Security Party, the Security Trustee, each Lender and each Swap Bank, as defined in the Loan Agreement referred to below.
|
1
|
This Certificate relates to a Loan Agreement (the "
Agreement
") dated [
l
] 2016 and made between (1) STI Fontvieille Shipping Company Limited
and STI Fontvieille Shipping Company Limited as joint and several borrowers (the "
Borrowers
"), (2) the banks and financial institutions named therein as Lenders, (3) the banks and financial institutions named therein as Swap Banks, (4) NIBC Bank N.V. as Mandated Lead Arranger, (5) NIBC Bank N.V. as Agent and (5)NIBC Bank N.V. as Security Trustee for a loan facility of up to $44,000,000.
|
2
|
In this Certificate, terms defined in the Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate and:
|
3
|
The effective date of this Certificate is [
l
]
Provided that
this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4
|
[The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Agreement and every other Finance Document in relation to [
l
] per cent. of its Contribution, which percentage represents $[
l
].]
|
5
|
[By virtue of this Certificate and Clause 26 of the Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[
l
]] [from [
l
] per cent. of its Commitment, which percentage represents $[
l
]] and the Transferee acquires a Commitment of $[
l
].]
|
6
|
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Agreement provides will become binding on it upon this Certificate taking effect.
|
7
|
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Agreement.
|
8
|
The Transferor:
|
(a)
|
warrants to the Transferee and each Relevant Party that:
|
(i)
|
the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are required in connection with this transaction; and
|
(ii)
|
this Certificate is valid and binding as regards the Transferor;
|
(b)
|
warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4; and
|
(c)
|
undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose.
|
9
|
The Transferee:
|
(a)
|
confirms that it has received a copy of the Agreement and each of the other Finance Documents;
|
(b)
|
agrees that it will have no rights of recourse on any ground against either the Transferor, the Agent, the Security Trustee, any Lender or any Swap Bank in the event that:
|
(i)
|
any of the Finance Documents prove to be invalid or ineffective;
|
(ii)
|
each Borrower or any Security Party fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents;
|
(iii)
|
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of each Borrower or any Security Party under any of the Finance Documents;
|
(c)
|
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Lender or any Swap Bank in the event that this Certificate proves to be invalid or ineffective;
|
(d)
|
warrants to the Transferor and each Relevant Party that:
|
(i)
|
it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and
|
(ii)
|
that this Certificate is valid and binding as regards the Transferee;
|
(e)
|
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10
|
The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
11
|
The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 9 as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded by it.
|
Note
:
|
This Transfer Certificate alone may not be sufficient to transfer a proportionate share of the Transferor's interest in the security constituted by the Finance Documents in the Transferor's or Transferee's jurisdiction. It is the responsibility of each Lender to ascertain whether any other documents are required for this purpose.
|
1
|
the Loan Agreement;
|
2
|
the Master Agreement dated [
l
] made between ourselves and [
l
]; and
|
3
|
a Confirmation delivered pursuant to the said Master Agreement dated [
l
] and addressed by [
l
] to us.
|
1
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
2
|
On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the "
Additional Cost Rate
") for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the Loan) and will be expressed as a percentage rate per annum.
|
3
|
The Additional Cost Rate for any Lender lending from a lending office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Loans made from that lending office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that lending office.
|
4
|
The Additional Cost Rate for any Lender lending from a lending office in the United Kingdom will be calculated by the Agent as follows:
|
(a)
|
in relation to a sterling Loan:
|
AB + C (B - D) + E * 0.01
|
100 - (A + C)
|
E * 0.01
|
300
|
A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
|
B
|
is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified in paragraph (a) of Clause 7.2) payable for the relevant Interest Period on the Loan.
|
C
|
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England.
|
D
|
is the percentage rate per annum payable by the Bank of England to the Agent on interest bearing Special Deposits.
|
E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
|
5
|
For the purposes of this Schedule:
|
(a)
|
"
Eligible Liabilities
" and "
Special Deposits
" have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
|
(b)
|
"
Fees Rules
" means the rules on periodic fees contained in the FSA Supervision Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
|
(c)
|
"
Fee Tariffs
" means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); and
|
(d)
|
"
Tariff Base
" has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
|
(e)
|
"
Unpaid Sum
" means any sum due and payable but unpaid by each Borrower or a Security Party under the Finance Documents.
|
6
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
|
7
|
If requested by the Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
|
8
|
Each Lender shall supply any information required by the Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
|
(a)
|
the jurisdiction of its lending office; and
|
(b)
|
any other information that the Agent may reasonably require for such purpose.
|
9
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Agent to the contrary, each Lender's obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a lending office in the same jurisdiction as its lending office.
|
10
|
The Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
|
11
|
The Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
|
12
|
Any determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all parties to the Loan Agreement.
|
13
|
The Agent may from time to time, after consultation with the Borrowers and the Lenders, determine and notify to all parties to the Loan Agreement any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Loan Agreement.
|
BORROWERS
|
|
|
|
SIGNED
by Micha Withoft
|
/s/ Micha Withoft
|
for and on behalf of
|
|
STI FONTVIEILLE SHIPPING
|
|
COMPANY LIMITED
|
|
in the presence of:
|
|
Francesca Gianfranchi
|
|
/s/ Francesca Gianfranchi
|
|
|
|
SIGNED
by Micha Withoft
|
/s/ Micha Withoft
|
for and on behalf of
|
|
STI VILLE SHIPPING
|
|
COMPANY LIMITED
|
|
in the presence of:
|
|
Francesca Gianfranchi
|
|
/s/ Francesca Gianfranchi
|
|
|
|
THE LENDERS
|
|
|
|
SIGNED
by
|
/s/ Cameron Johnstone-Browne
|
for and on behalf of
|
Name: Cameron Johnstone-Browne
|
NIBC BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/Rohan Inamdar
|
|
Name: Rohan Inamdar
|
|
Title: Trainee Solicitor
|
|
London EC2A 2HB
|
|
|
THE SWAP BANKS
|
|
|
|
SIGNED
by
|
/s/ Cameron Johnstone-Browne
|
for and on behalf of
|
Name: Cameron Johnstone-Browne
|
NIBC BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/Rohan Inamdar
|
|
Name: Rohan Inamdar
|
|
Title: Trainee Solicitor
|
|
London EC2A 2HB
|
|
|
THE MANDATED LEAD ARRANGER
|
|
|
|
SIGNED
by
|
/s/ Cameron Johnstone-Browne
|
for and on behalf of
|
Name: Cameron Johnstone-Browne
|
NIBC BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/Rohan Inamdar
|
|
Name: Rohan Inamdar
|
|
Title: Trainee Solicitor
|
|
London EC2A 2HB
|
|
|
THE AGENT
|
|
|
|
SIGNED
by
|
/s/ Cameron Johnstone-Browne
|
for and on behalf of
|
Name: Cameron Johnstone-Browne
|
NIBC BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/Rohan Inamdar
|
|
Name: Rohan Inamdar
|
|
Title: Trainee Solicitor
|
|
London EC2A 2HB
|
|
|
THE SECURITY TRUSTEE
|
|
|
|
SIGNED
by
|
/s/ Cameron Johnstone-Browne
|
for and on behalf of
|
Name: Cameron Johnstone-Browne
|
NIBC BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/Rohan Inamdar
|
|
Name: Rohan Inamdar
|
|
Title: Trainee Solicitor
|
|
London EC2A 2HB
|
|
|
|
|
1
|
Interpretation
|
2
|
Facility
|
3
|
Position of the Lenders and Swap Banks
|
4
|
Drawdown
|
5
|
Interest
|
6
|
Interest Periods
|
7
|
Default Interest
|
8
|
Repayment, Prepayment and Reborrowing
|
9
|
Conditions Precedent
|
10
|
Representations and Warranties
|
11
|
General Undertakings
|
12
|
Corporate and Financial Undertakings
|
13
|
Insurance
|
14
|
Ship Covenants
|
15
|
Security Cover
|
16
|
Payments and Calculations
|
17
|
Application of Receipts
|
18
|
Application of Earnings
|
19
|
Events of Default
|
20
|
Fees and Expenses
|
21
|
Indemnities
|
22
|
No Set-Off or Tax Deduction
|
23
|
Illegality, etc.
|
24
|
Increased Costs
|
25
|
Set-Off
|
26
|
Transfers and Changes in Lending Offices
|
27
|
Variations and Waivers
|
28
|
Bail in
|
29
|
Notices
|
30
|
Supplemental
|
31
|
Law and Jurisdiction
|
Schedule 1 Lenders and Commitments
|
Schedule 2 Swap Banks
|
Schedule 3 Drawdown Notice
|
Schedule 4 Condition Precedent Documents
|
Part A
|
Part B
|
Part C
|
Schedule 5 Transfer Certificate
|
Schedule 6 Designation Notice
|
Schedule 7 List of Approved Brokers
|
Schedule 8 Form of Compliance Certificate
|
Schedule 9 Advance A Ships
|
Schedule 10 Advance B Ships
|
Schedule 11 Additional Ships
|
Execution Pages
|
(1)
|
SCORPIO TANKERS INC.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "
Borrower
");
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, as
Lenders
;
|
(3)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in
Schedule 2
, as
Swap Banks
;
|
(4)
|
ABN AMRO BANK N.V.
and
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
as
Bookrunners
;
|
(5)
|
ABN AMRO BANK N.V., NORDEA BANK FINLAND PLC, NEW YORK BRANCH
and
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
as
Mandated Lead Arrangers
;
|
(6)
|
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
as
Agent
; and
|
(7)
|
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
, as
Security Trustee
.
|
(A)
|
The Lenders have agreed to make available to the Borrower, subject to the terms of this Agreement, facilities in an amount (in aggregate) of up to $372,000,000 comprising:
|
(i)
|
a term loan facility of up to $200,000,000 and a revolving credit facility of up to $100,000,000 for the purposes of refinancing the Existing Indebtedness and/or for general corporate purposes; and
|
(ii)
|
an incremental credit facility in the initial amount of $0, with an option for the Borrower to increase up to $72,000,000 for the purpose of refinancing existing indebtedness in relation to the Additional Ships and/or for general corporate purposes and with each advance to be secured by an Additional Ship.
|
(B)
|
The Swap Banks and the Borrower may agree to enter into interest rate swap transactions from time to time to hedge the Borrower's exposure under this Agreement to interest rate fluctuations.
|
(C)
|
The Lenders and the Swap Banks have agreed to share in the security to be granted to the Security Trustee pursuant to this Agreement on the terms set out herein.
|
1
|
INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
is a direct or indirect wholly owned subsidiary of the Borrower; and
|
(b)
|
is the registered owner of an Additional Ship at the time a mortgage is executed over that Additional Ship in favour of the Security Trustee pursuant to this Agreement.
|
(a)
|
the Term Loan, the period commencing on the date of this Agreement and ending on the earlier of (i) 60 days after the date of this Agreement and (ii) 30 November 2016;
|
(b)
|
the Revolving Credit Facility, the period commencing on the date of this Agreement and ending on the date falling 30 days prior to the Maturity Date; and
|
(c)
|
the Incremental Credit Facility, the period commencing on the date of this Agreement and ending on 30 November 2017.
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b)
|
in relation to any other state, 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.
|
(a)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" 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; and
|
(b)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(a)
|
freely withdrawable on demand;
|
(b)
|
not subject to any Security Interest (other than pursuant to the Finance Documents);
|
(c)
|
denominated and payable in freely transferable and freely convertible currency; and
|
(d)
|
capable of being remitted to the Borrower or such subsidiary of the Borrower.
|
(a)
|
unencumbered securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognised standing organised under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and
|
(c)
|
such other securities or instruments as the Agent shall, with the authorisation of all the Lenders, agree in writing,
|
(a)
|
100 per cent. of the Equity Interests of any Guarantor ceasing to be ultimately owned and/or controlled by the Borrower (an "
Guarantor Disposal
");
|
(b)
|
a "person" or "group" (within the meaning of Sections 13(d) and 14(d) of the Exchange Act) other than any holders of the Borrower's Equity Interests as at the date of this Agreement, becoming the ultimate beneficial owner of the Borrower including, without limitation, any change from the date of this Agreement in the ultimate "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of more than 35 per cent. of the total voting power of the Voting Stock of the Borrower (calculated on a fully diluted basis); or
|
(c)
|
individuals who constitute the board of directors of the Borrower at the beginning of any period of two consecutive calendar years and yet ceasing for any reason to constitute at least 50 per cent. of the total members of the Borrower's board of directors at any time during such two year period;
|
(a)
|
the Borrower or any Security Party or any of their advisers; or
|
(b)
|
another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly from the Borrower or any Security Party or any of their advisers,
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Creditor Party of Clause 26.13; or
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by the Borrower or any Security Party or any of their advisers; or
|
(iii)
|
is known by that Creditor Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Creditor Party after that date, from a source which is, as far as that Creditor Party is aware, unconnected with the Borrower or any Security Party and which, in either case, as far as that Creditor Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a)
|
plus
, to the extent deducted in computing the net income of the Borrower for that Accounting Period, the sum, without duplication, of:
|
(i)
|
all federal, state, local and foreign income taxes and tax distributions;
|
(ii)
|
Consolidated Net Interest Expense;
|
(iii)
|
depreciation, depletion, amortisation of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortisation of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey (including any underwater survey done in lieu thereof) of a Fleet Vessel during such period; and
|
(v)
|
any drydocking expenses;
|
(b)
|
minus
, to the extent added in computing the consolidated net income of the Borrower for that Accounting Period:
|
(i)
|
any non-cash income or non-cash gains; and
|
(ii)
|
any extraordinary gains on asset sales not received in the ordinary course of business.
|
(a)
|
all Financial Indebtedness; and
|
(b)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance with IFRS would be shown on the liability side of a balance sheet),
|
(a)
|
commitment fees;
|
(b)
|
interest income received; and
|
(c)
|
amortisation of deferred charges and arrangement fees, determined on a consolidated basis in accordance with IFRS and as shown in the consolidated statements of income for the Borrower.
|
(a)
|
it is entered into by the Borrower pursuant to a Master Agreement with a Swap Bank;
|
(b)
|
its purpose is the hedging of the Borrower's exposure under this Agreement to fluctuations in LIBOR arising from the funding of the Loan (or any part thereof) for a period expiring no later than the Maturity Date; and
|
(c)
|
it is designated by the Borrower, by delivery by the Borrower to the Agent of a notice of designation in the form set out in
Schedule 6
, as a Designated Transaction for the purposes of the Finance Documents;
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, 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 prevent that, or any other party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other parties in accordance with the terms of the Finance Documents,
|
(a)
|
except to the extent that they fall within paragraph (b):
|
(i)
|
all freight, hire and passage moneys;
|
(ii)
|
compensation payable to the relevant Guarantor or the Security Trustee in the event of requisition of that Ship for hire;
|
(iii)
|
remuneration for salvage and towage services;
|
(iv)
|
demurrage and detention moneys;
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and
|
(vi)
|
all moneys which are at any time payable under Insurances in respect of loss of hire; and
|
(b)
|
if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship;
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
(a)
|
any release of Environmentally Sensitive Material from a Ship; or
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which such Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or such Ship and/or the Guarantor of such Ship and/or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which such Ship is actually or potentially liable to be arrested and/or where the Guarantor of such Ship and/or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
this Agreement;
|
(b)
|
the Agency and Trust Deed;
|
(c)
|
the Guarantees;
|
(d)
|
the Mortgages;
|
(e)
|
the General Assignments;
|
(f)
|
the Account Security Deeds;
|
(g)
|
any Charterparty Assignment;
|
(h)
|
any Intercompany Loan Assignment;
|
(i)
|
the Shares Pledges;
|
(j)
|
any Master Agreement Assignment;
|
(k)
|
any Fee Letter; and
|
(l)
|
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower, any Security Party or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders and/or the Swap Banks under this Agreement or any of the other documents referred to in this definition (other than any Approved Ship Manager’s Undertakings).
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereto or the completion of such services, except trade payables;
|
(e)
|
all capitalised lease obligations of the Debtor as lessee;
|
(f)
|
all Financial Indebtedness of persons other than the Debtor secured by a Security Interest on any asset of that person, whether or not such Financial Indebtedness is assumed by the Debtor, provided that the amount of such Financial Indebtedness shall be the lesser of:
|
(i)
|
the fair market value of such asset at such date of determination; and
|
(ii)
|
the amount of such Financial Indebtedness; and
|
(g)
|
all Financial Indebtedness incurred under any guarantee, indemnity or similar obligation to the extent such Financial Indebtedness is guaranteed, secured, expressed to be indemnified by, or otherwise assured by the Debtor.
|
(i)
|
the amount outstanding at any time of any Financial Indebtedness issued with an original issue discount shall be deemed to be the face amount of such Financial Indebtedness less the remaining unamortised portion of such original issue discount of such Financial Indebtedness at such time; and
|
(ii)
|
the calculation of Financial Indebtedness shall not take into account any liability of the Debtor for taxes.
|
(a)
|
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to that Ship; and
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan,
|
(a)
|
the applicable Screen Rate as of 11 a.m. (London time) on the Quotation Date for that period for the offering of deposits in the relevant currency and for a period comparable to that period; or
|
(b)
|
as otherwise determined pursuant to Clause 5.5,
|
(a)
|
the business, operations, property or condition (financial or otherwise) of the Borrower and/or any Guarantor; or
|
(b)
|
the ability of the Borrower and/or any Guarantor to perform its obligations under any Finance Document and any Master Agreement; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or intended to be granted pursuant to any of, the Finance Documents; or
|
(d)
|
the rights or remedies of any Creditor Party under any of the Finance Documents and any Master Agreement.
|
(a)
|
Security Interests created by the Finance Documents;
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(c)
|
liens for salvage;
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in relation to a Ship not prohibited by this Agreement or any other Finance Document;
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Guarantor that owns such Ship in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause
14.13(h)
;
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Guarantor that owns such Ship or the Borrower, as the case may be, is actively prosecuting or defending such proceedings or arbitration in good faith;
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made; and
|
(h)
|
any Security Interest and right of set-off arising under or pursuant to any applicable general banking conditions
|
(a)
|
any Finance Document;
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document;
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c).
|
(a)
|
England and Wales, the Principality of Monaco, New York State of the United States of America, The Netherlands and the Republic of the Marshall Islands;
|
(b)
|
if not within any of the jurisdictions referred to in (a) above, the country under the laws of which the company is incorporated or formed;
|
(c)
|
if not within any of the jurisdictions referred to in (a) above, a country in which the company has the centre of its main interests or in which the company's central management and control is or has recently been exercised.
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a),
|
(a)
|
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in dollars for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
|
(b)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator.
|
(a)
|
listed on, or owned or controlled by a person listed on any Sanctions List;
|
(b)
|
located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or
|
(c)
|
otherwise a target of Sanctions.
|
(a)
|
the United States Government;
|
(b)
|
the United Nations;
|
(c)
|
the European Union or any of its Member States;
|
(d)
|
any country to which the Borrower or any Guarantor is bound;
|
(e)
|
the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury ("
OFAC
"), the United States Department of State, and Her Majesty's Treasury ("
HMT
") (together the "
Sanctions Authorities
").
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
|
(b)
|
the security rights of a plaintiff under an action
in rem
; and
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.
|
(a)
|
all amounts which have become due for payment by the Borrower or any Security Party under the Finance Documents and the Master Agreements have been paid;
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document or any Master Agreement;
|
(c)
|
neither the Borrower nor any Security Party has any future or contingent liability under Clause20, 21 or 22 or any other provision of this Agreement or another Finance Document or a Master Agreement; and
|
(d)
|
the Agent, the Security Trustee and all the Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document or a Master Agreement would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or a Master Agreement or any asset covered (or previously covered) by a Security Interest created by a Finance Document.
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
(b)
|
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension), unless it is within 45 days redelivered to the full control of the Guarantor owning that Ship;
|
(c)
|
any arrest, capture, seizure or detention of that Ship (including any theft) unless it is within 45 days redelivered to the full control of the Guarantor owning that Ship; and
|
(d)
|
any hijacking of that ship unless it is within 45 days redelivered to the full control of the Guarantor owning that Ship.
|
(a)
|
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earliest of:
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf with that Ship's insurers in which the insurers agree to treat such Ship as a total loss; and
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
(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 paragraph (a) above, or imposed elsewhere.
|
(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 ; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.2
|
Construction of certain terms.
In this Agreement:
|
1.3
|
Meaning of "month".
A period of one or more "
months
" ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (the "
numerically corresponding day
"), but:
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
1.4
|
Meaning of "subsidiary".
In this Agreement "
subsidiary
" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
|
1.5
|
General Interpretation.
In this Agreement:
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;
|
(c)
|
references to, Nordea Bank Finland Plc, New York Branch (either directly or indirectly in its capacity as Lender, Swap Bank, Bookrunner, Mandated Lead Arranger, Facility Agent and/or Security Trustee or any other capacity) in the Finance Documents shall be automatically construed as a reference to Nordea Bank AB in the event of any corporate reconstruction, merger, amalgamation, consolidation between Nordea Bank Finland Plc, New York Branch and Nordea Bank AB where Nordea Bank AB is the surviving entity and acquires all the rights of and assumes all the obligations of Nordea Bank Finland Plc, New York Branch, and nothing in the Finance Documents shall be construed so as to restrict, limit or impose any notification or other requirement or condition on either Nordea Bank Finland Plc, New York Branch or Nordea Bank AB in respect of the acquisition of rights to or assumption of obligations by Nordea Bank AB hereunder or under any other Finance Documents pursuant to such corporate reconstruction, merger, amalgamation or consolidation;
|
(d)
|
words denoting the singular number shall include the plural and vice versa; and
|
(e)
|
Clauses
1.1
to 1.5 apply unless the contrary intention appears.
|
1.6
|
Headings.
In interpreting a Finance Document or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall be entirely disregarded.
|
2
|
FACILITY
|
2.1
|
Amount of facility
|
(a)
|
a Term Loan in up to two Advances in an aggregate amount of up to $200,000,000 comprising:
|
(i)
|
a Term Advance A for the purposes of refinancing the Existing Indebtedness relating to the Advance A Ships and for general corporate purposes; and
|
(ii)
|
a Term Advance B for the purposes of refinancing the Existing Indebtedness relating to the Advance B Ships and for general corporate purposes;
|
(b)
|
a Revolving Credit Facility in a multiple number of Advances in an amount of up to $100,000,000 for the purposes of refinancing the Existing Indebtedness relating to any of the Advance A Ships, any of the Advance B Ships and for general corporate purposes. Any reborrowing of the Revolving Credit Facility shall be available for general corporate purposes only;
|
(c)
|
an Incremental Credit Facility in up to four Advances in an aggregate amount of up to $72,000,000;
|
(d)
|
the amount of Term Advance A shall not exceed the lower of (i) $200,000,000 less, if Term Advance B has been drawn prior to or will be drawn simultaneously with Term Advance A, Term Advance B; and (ii) 40 per cent. of the aggregate of the Fair Market Value of the Advance A Ships which will be subject to a Mortgage at the time of the making of the relevant Advance;
|
(e)
|
the amount of Term Advance B shall not exceed the lower of (i) $200,000,000 less, if Term Advance A has been drawn prior to or will be drawn simultaneously with Term Advance B, Term Advance A; and (ii) 40 per cent. of the aggregate of the Fair Market Value of the Advance B Ships which will be subject to a Mortgage at the time of the making of the relevant Advance;
|
(f)
|
the aggregate of Term Loan and the Revolving Advances shall not exceed the lower of (i) $300,000,000 and (ii) 60 per cent. of the aggregate of the Fair Market Value of the Collateral Ships which will be subject to a Mortgage at the time of the making of the relevant Advance;
|
(g)
|
for the purposes of paragraphs (d) to (f), the Fair Market Value of the applicable Collateral Ships shall be determined on the basis of valuations carried out:
|
(i)
|
in the case of each Term Advance, no earlier than the date falling fourteen days before the Drawdown Date for the relevant Term Advance; and
|
(ii)
|
in the case of the first Revolving Advance, no earlier than the date falling fourteen days before the Drawdown Date for that Revolving Advance, thereafter for each subsequent Revolving Advance the most recent valuations provided pursuant to this Agreement.
|
(h)
|
each Incremental Credit Facility Advance shall not exceed the lower of (i) the amount set out in Schedule 10 in relation to such Additional Ship and (ii) 60 per cent. of the Fair Market Value of that Additional Ship or, if less, the ratio of the Loan to the aggregate Fair Market Value of the Ships mortgaged in favour of the Security Trustee at the time of such Incremental Credit Facility Advance.
|
2.2
|
Incremental Credit Facility
. Subject to Clause 2.3, at any time up until 30 September 2017, the Borrower may by notice to the Agent, increase the Incremental Credit Facility up to four times to an aggregate principal amount of up to $72,000,000 by either:
|
(a)
|
causing one or more banks or financial institutions (such financial institutions to be acceptable to the Borrower and the Agent) to become a Lender hereunder (with all the rights and obligations of a Lender thereto), in which case such bank or financial institution shall execute and deliver to the Agent an accession agreement (in a form acceptable to the Agent) to cause such bank or financial institution to accede to the rights and obligations of a Lender hereunder; or
|
(b)
|
agreeing with one or more Lenders, at such Lender’s sole discretion, to increase such Lender’s Incremental Credit Facility Commitment, in which case such Lender shall notify the Agent to cause such Lender’s Incremental Credit Facility Commitment to be increased.
|
2.3
|
Conditions precedent to exercise of the Incremental Credit Facility
. Each increase in the Incremental Credit Facility shall be for the purpose of financing or refinancing the Additional Ships and shall be subject to the following conditions:
|
(a)
|
execution of additional security and collateral documentation in favour of the Security Trustee, including without limitation a Mortgage over the relevant Additional Ship to be financed pursuant to that Incremental Credit Facility Advance and other Finance Documents to provide the same security over that Additional Ship as that provided over the Collateral Ships and to include a Guarantee to be executed by the Additional Owner;
|
(b)
|
compliance with the requirements of Clause 15 immediately prior to and following such increase in the Incremental Credit Facility Commitments;
|
(c)
|
the existing Lenders shall have a right of first refusal to provide any increase to the Incremental Credit Facility;
|
(d)
|
no Lender’s Commitment shall be increased without the consent of such Lender;
|
(e)
|
no Event of Default has occurred and is continuing;
|
(f)
|
such further documentary requirements as may be agreed between the Borrower, the Agent and the Lenders.
|
2.4
|
Lenders' participations in an Advance
|
2.5
|
Purpose of each Advance
|
3
|
POSITION OF THE LENDERS AND SWAP BANKS
|
3.1
|
Interests several.
The rights of the Lenders and of the Swap Banks under this Agreement and under the Master Agreements are several.
|
3.2
|
Individual right of action.
Each Lender and each Swap Bank shall be entitled to sue for any amount which has become due and payable by the Borrower to it under this Agreement or under a Master Agreement without joining the Agent, the Security Trustee, any other Lender or any other Swap Bank as additional parties in the proceedings.
|
3.3
|
Proceedings requiring Majority Lender consent.
Except as provided in Clause
3.2
, no Lender and no Swap Bank may commence proceedings against the Borrower, any Security Party, any Approved Ship Manager or Approved Sub-Manager in connection with a Finance Document without the prior consent of the Majority Lenders.
|
3.4
|
Obligations several.
The obligations of the Lenders under this Agreement and of the Swap Banks under the Master Agreement to which each is a party are several; and a failure of a Lender to perform its obligations under this Agreement or a failure of a Swap Bank to perform its obligations under the Master Agreement to which it is a party shall not result in:
|
(a)
|
the obligations of the other Lenders or Swap Banks being increased; nor
|
(b)
|
the Borrower, any Security Party, any Approved Ship Manager or Approved Sub-Manager or any other Lender or any other Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document or under any Master Agreement,
|
4
|
DRAWDOWN
|
4.1
|
Request for Advance.
Subject to the following conditions, the Borrower may request that an Advance be made by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date.
|
4.2
|
Availability
. The conditions referred to in Clause 4.1 are that:
|
(a)
|
in the case of a Term Advance:
|
(i)
|
the Drawdown Date has to be a Business Day during the Availability Period for the Term Facility;
|
(ii)
|
the aggregate amount of the Term Advances shall not exceed the Total Term Commitments;
|
(iii)
|
there shall be no more than two Term Advances; and
|
(iv)
|
the Drawdown Date of the second Term Advance shall be no later than 10 Business Days from the Drawdown Date for the first Term Advance.
|
(b)
|
in the case of a Revolving Advance:
|
(i)
|
the Drawdown Date has to be a Business Day during the Availability Period for the Revolving Credit Facility;
|
(ii)
|
the Borrower shall be obliged to draw the first Revolving Advance on the Drawdown Date in relation to Term Advance A in an amount equal to 50 per cent. of the amount of Term Advance A;
|
(iii)
|
the Borrower shall be obliged to a Revolving Advance in an amount equal to 50 per cent. of the amount of Term B Advance on the Drawdown Date in relation to Term Advance B;
|
(iv)
|
the aggregate amount of the Revolving Advances shall not exceed the Total Revolving Credit Facility Commitments; and
|
(v)
|
there shall be no more than five Revolving Advances outstanding at any one time;
|
(c)
|
in the case of an Incremental Credit Facility Advance:
|
(i)
|
the Drawdown Date has to be a Business Day during the Availability Period for the Incremental Credit Facility;
|
(ii)
|
there shall be no more than four Incremental Credit Facility Advances, one in respect of each Additional Ship;
|
(iii)
|
each Incremental Facility Advance shall be the lower of (i) the amount set out in Schedule 11 in relation to such Additional Ship and (ii) 60 per cent. of the Fair Market Value of that Additional Ship, or, if less, the ratio of the Loan to the aggregate Fair Market Value of the Ships mortgaged in favour of the Security Trustee at the time of such Incremental Credit Facility Advance; and
|
(iv)
|
the aggregate amount of the Incremental Credit Facility Advances should not exceed the Total Incremental Credit Facility Commitments.
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice.
The Agent shall promptly notify the Lenders that it has received a Drawdown Notice and shall inform each Lender of:
|
(a)
|
the amount of the Advance requested and the Drawdown Date and if applicable, the Ship to which that Advance relates;
|
(b)
|
the amount of that Lender's participation in that Advance; and
|
(c)
|
the duration of the first Interest Period applicable to that Advance.
|
4.4
|
Drawdown Notice irrevocable.
A Drawdown Notice must be signed by an officer or a duly authorised attorney-in-fact of the Borrower; and once served, a Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Majority Lenders.
|
4.5
|
Lenders to make available Contributions.
Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent the amount due from that Lender under Clause 2.2.
|
4.6
|
Disbursement of an Advance.
Subject to the provisions of this Agreement, the Agent shall on each Drawdown Date pay to the Borrower the amounts which the Agent receives from the Lenders under Clause 4.5; and that payment to the Borrower shall be made:
|
(a)
|
to the account which the Borrower specifies in the Drawdown Notice; and
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
4.7
|
Disbursement of an Advance to third party.
The payment of an Advance by the Agent under Clause 4.6 to the Borrower or such other person notified by the Borrower to the Agent shall constitute the making of that Advance and the Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution.
|
4.8
|
Cancellation of Commitments.
The Commitments in respect of any Advance which are unutilised at the end of the Availability Period for such Advance shall then be cancelled.
|
5
|
INTEREST
|
5.1
|
Payment of normal interest.
Subject to the provisions of this Agreement, interest on each Advance in respect of each Interest Period shall be paid by the Borrower on the last day of that Interest Period.
|
5.2
|
Normal rate of interest.
Subject to the provisions of this Agreement, the rate of interest on each Advance in respect of an Interest Period shall be the aggregate of (i) the Margin and (ii) LIBOR for that Interest Period.
|
5.3
|
Payment of accrued interest.
In the case of an Interest Period longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest Period.
|
5.4
|
Notification of Interest Periods and rates of normal interest.
The Agent shall notify the Borrower and each Lender of:
|
(a)
|
each rate of interest; and
|
(b)
|
the duration of each Interest Period,
|
5.5
|
Unavailability of Screen Rate
|
(a)
|
If no Screen Rate is available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(b)
|
If no Screen Rate is available for LIBOR for:
|
(i)
|
dollars; or
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(c)
|
If paragraph (b) above applies but no Reference Bank Rate is available for dollars or the relevant Interest Period, there shall be no LIBOR for the Loan or that part of the Loan and Clause 5.8 (
Cost of funds
) shall apply to the Loan or that part of the Loan for that Interest Period.
|
5.6
|
Calculation of Reference Bank Rate
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Quotation Date, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
|
(b)
|
If at or about 12.00 p.m. (London time) on the Quotation Date none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
5.7
|
Market disruption
|
(a)
|
If before close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan exceed 50 per cent. of the Loan or the relevant part of the Loan) (the "
Relevant Lender
") that the cost to it of funding its participation in the Loan or that part of the Loan would be in excess of LIBOR then Clause 5.8 (
Cost of funds
) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
|
(b)
|
If, at least 1 Business Day before a Drawdown Date, the Agent receives notification from a Lender (the "
Affected Lender
") that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its participation in the relevant Advance, the Affected Lender's obligation to participate in that Advance shall be suspended while that situation continues.
|
5.8
|
Cost of funds
|
(a)
|
If this Clause 5.8 (
Cost of funds
) applies, the rate of interest on each Lender's share of the Loan or the relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select.
|
(b)
|
If this Clause 5.8 (
Cost of funds
) applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(c)
|
Any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties.
|
6
|
INTEREST PERIODS
|
6.1
|
Commencement, duration and consolidation of revolving Interest Periods.
There shall be a single Interest Period for each Revolving Advance which shall be notified by the Borrower to the Agent in the Drawdown Notice for that Revolving Advance, shall commence on the
|
(a)
|
1, 3 or 6 months as notified by the Borrower to the Agent in the Drawdown Notice for that Revolving Advance; or
|
(b)
|
in the case of the Interest Period applicable to the second and any subsequent Revolving Advance and if the Borrower notifies the Agent in the Drawdown Notice for such Revolving Advance, a period ending on the last day of the Interest Period applicable to the Revolving Advance then current, whereupon that Revolving Advance and the Revolving Advance then current shall be consolidated and treated as a single Revolving Advance and if more than one Revolving Advance has been made at the time the Borrower notifies the Agent that it wishes to consolidate the Interest Periods of the Revolving Advances, the relevant Interest Periods shall be consolidated with the Interest Period applicable to the first Revolving Advance so that the Interest Period for that Revolving Advance expires on the same date as the Interest Period for the Revolving Advance then current; or
|
(c)
|
3 months, if the Borrower fails to notify the Agent in the Drawdown Notice for that Revolving Advance; or
|
(d)
|
such other period as the Agent may, with the authorisation of all the Lenders, agree with the Borrower,
|
6.2
|
Commencement of term Interest Periods
|
6.3
|
Duration of normal term Interest Periods
|
(a)
|
1, 3 or 6 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time) 3 Business Days before the commencement of the Interest Period; or
|
(b)
|
in the case of the Interest Period applicable to the second Term Advance and if the Borrower notifies the Agent in the relevant Drawdown Notice, a period ending on the last day of the Interest Period applicable to the other Term Advance then current, whereupon the Term Advances shall be consolidated and treated as a single Term Advance; or
|
(c)
|
3 months, if the Borrower fails to notify the Agent by the time specified in paragraph (a); or
|
(d)
|
such other period as the Agent may, with the authorisation of all the Lenders, agree with the Borrower,
|
6.4
|
Commencement of incremental Interest Periods
|
6.5
|
Duration of normal incremental Interest Periods
|
(a)
|
1, 3 or 6 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time) 3 Business Days before the commencement of the Interest Period; or
|
(b)
|
3 months, if the Borrower fails to notify the Agent by the time specified in paragraph (a); or
|
(c)
|
such other period as the Agent may, with the authorisation of all the Lenders, agree with the Borrower,
|
6.6
|
Duration of Interest Periods for repayment instalments.
In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall end on that Repayment Date.
|
6.7
|
No Interest Period to extend beyond Maturity Date
. No Interest Period shall end after the Maturity Date and any Interest Period which would otherwise extend beyond the Maturity Date shall instead end on the Maturity Date.
|
6.8
|
Non-availability of matching deposits for Interest Period selected.
If, after the Borrower has selected and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time) on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of 3 months.
|
7
|
DEFAULT INTEREST
|
7.1
|
Payment of default interest on overdue amounts.
The Borrower shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrower under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is:
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or
|
(c)
|
if such amount has become immediately due and payable under Clause
19.4
, the date on which it became immediately due and payable.
|
7.2
|
Default rate of interest.
Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 2 per cent. above:
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at Clauses
7.3(a)
and (b); or
|
(b)
|
in the case of any other overdue amount, the rate set out at Clause 7.3(b).
|
7.3
|
Calculation of default rate of interest.
The rates referred to in Clause 7.2 are:
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period);
|
(b)
|
the Margin plus, in respect of successive periods select by the Agent for so long as such amounts remain unpaid:
|
(i)
|
LIBOR; or
|
(ii)
|
if LIBOR is unavailable, a rate from time to time determined by the Agent by reference to the actual cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.
|
7.4
|
Notification of interest periods and default rates.
The Agent shall promptly notify the Lenders and the Borrower of each interest rate determined by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that the Borrower is liable to pay such interest only with effect from the date of the Agent's notification.
|
7.5
|
Payment of accrued default interest.
Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
|
7.6
|
Compounding of default interest.
Any such default interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded by the default rate on a daily basis.
|
7.7
|
Application to Master Agreements.
For the avoidance of doubt, this Clause 7 does not apply to any amount payable under a Master Agreement in respect of any continuing Designated Transaction as to which section 2(e) (Default Interest; Other Amounts) of that Master Agreement shall apply.
|
8
|
REPAYMENT, PREPAYMENT AND REBORROWING
|
8.1
|
Repayment of Term Loan.
|
(a)
|
The Borrower shall repay the Term Loan by 20 consecutive quarterly instalments (each a “
Term Repayment Instalment
”), the first of which shall be repaid on the date falling three Months after the first Drawdown Date relating to the Term Loan. The first eight Term Repayment Instalments shall be $7,100,000 thereafter the next twelve Term Repayment Instalments shall be $6,200,000 and an additional balloon instalment equal to the then outstanding balance of the Term Loan shall be paid together with the last Term Repayment Instalment.
|
(b)
|
If the amount advanced under the Term Loan is less than $200,000,000:
|
(i)
|
the repayment instalments referred to in this Clause 8.1 (
Repayment of Term Loan.
) (including the balloon) shall be reduced pro rata and the Agent shall provide the Borrower and the other Creditor Parties with a repayment schedule for the Term Loan with the amended repayment instalments (and balloon); and
|
(ii)
|
the unutilised Term Loan Commitments (if any) of each Lender shall be automatically cancelled at close of business on the Drawdown Date in relation to the second Term Advance.
|
8.2
|
Repayment of Revolving Advances
|
(a)
|
Subject to paragraphs (b) and (c) below, the Borrower shall repay each Revolving Advance on the last day of its Interest Period and shall repay the full amount of any outstanding Revolving Advances on the Maturity Date.
|
(b)
|
Notwithstanding paragraph (a) of this Clause, unless the Borrower notifies the Agent to the contrary not later than 11.00 a.m. (London time) 3 Business Days prior to the Repayment Date (other than the Maturity Date) applicable to a Revolving Advance, then:
|
(c)
|
Unless the Borrower notifies the Agent to the contrary not later than 11.00 a.m. (London time) 3 Business Days prior to the Repayment Date applicable to a Revolving Advance, then, notwithstanding paragraph (a) of this Clause, where that Repayment Date is also a Drawdown Date in respect of another Revolving Advance (whether specifically requested by the Borrower or made pursuant to paragraph (b) above), the Agent shall, on behalf of the Borrower, apply the Revolving Advance which would otherwise have been paid to the Borrower on that Drawdown Date in or towards the discharge of the amount payable by the Borrower on that Repayment Date pursuant to paragraph (a) of this Clause (but without prejudice to the obligation of the Borrower to pay any balance due after application of such amount).Subject to the Borrower's compliance with paragraph (c) of Clause 9.1 on the relevant repayment date for the respective Revolving Advance, each Revolving Advance shall renew on the last day of its Interest Period unless the Borrower notifies the Agent that it will repay each or part of each Revolving Advance on the last day of its Interest Period. The Borrower shall repay the full amount of any outstanding Revolving Advances on the Maturity Date.
|
8.3
|
Repayment of Incremental Credit Facility.
The Borrower shall repay each Incremental Credit Facility Advance by equal consecutive quarterly instalments, using an age-adjusted repayment profile corresponding to a repayment of such Incremental Credit Facility Advance by the fifteenth anniversary of the Drawdown Date to which such Incremental Credit Facility Advance relates up to the Maturity Date whereupon the remainder of the Incremental Credit Facility Advance then outstanding shall be repaid as a balloon instalment,
provided that
any repayments made in respect of such Incremental Credit Facility Advance prior to the second anniversary of the
|
8.4
|
Final Repayment Date.
On the final Repayment Date, the Borrower shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
|
8.5
|
Voluntary prepayment.
|
(a)
|
prepay or cancel the whole or any part of the Loan without premium other than pursuant to Clause 8.12; and
|
(b)
|
prepay the whole or part of a Revolving Advance.
|
8.6
|
Conditions for voluntary prepayment.
The conditions referred to in Clause 8.5 are that:
|
(a)
|
a partial prepayment of the Loan shall be $1,000,000 or a higher integral multiple of $100,000 or such lower amount as the Agent may approve;
|
(b)
|
a partial cancellation of the Revolving Credit Facility shall be made simultaneously with any partial prepayment of the Term Loan other than a partial prepayment pursuant to Clause 8.5(b). The amount of such partial cancellation shall be the fraction of the Total Revolving Credit Facility Commitments equal to the equivalent fraction of the Term Advances prepaid;
|
(c)
|
the Agent has received from the Borrower at least 3 Business Days' prior written notice specifying the amounts to be prepaid and cancelled and the date on which the prepayment and cancellation is to be made; and
|
(d)
|
that the Borrower has complied with Clause 8.15 on or prior to the date of prepayment.
|
8.7
|
Effect of notice of prepayment.
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of all the Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
|
8.8
|
Notification of notice of prepayment.
The Agent shall notify the Lenders promptly upon receiving a prepayment notice.
|
8.9
|
Mandatory prepayment or cancellation on sale or Total Loss.
If a Ship is sold or there is a Guarantor Disposal to facilitate the sale or disposal of a Ship or a Ship becomes a Total Loss, the Borrower shall prepay the Loan and cancel an amount of the Total Revolving Credit Facility Commitments (if applicable) by, in aggregate, the relevant amount (as defined below) and the Borrower shall be obliged, if applicable, to prepay any amount of the Revolving Advances which exceed the reduced Total Revolving Credit Facility Commitments:
|
(a)
|
in the case of a sale, on the earlier of (i) the date on which the sale is completed by delivery of the Ship to the relevant buyer and (ii) the date of receipt by the Security Trustee of the proceeds of the sale; or
|
(b)
|
in the case of a Guarantor Disposal, on the date on which the Guarantor Disposal occurs; or
|
(c)
|
in the case of a Total Loss, on the earlier of (i) the date falling 180 days after the Total Loss Date and (ii) the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.
|
8.10
|
Mandatory prepayment or cancellation on Change of Control.
If there is a Change of Control, the Borrower shall prepay the Loan and the Revolving Credit Facility shall be cancelled (if applicable) on or before the date falling 60 days following such Change of Control unless agreed otherwise by all the Lenders or the Change of Control consists of a Guarantor Disposal, where such Guarantor Disposal is made solely to facilitate the sale or disposal of a Ship and a corresponding prepayment is made in accordance with Clause 8.9.
|
8.11
|
Mandatory prepayment or cancellation on Illegality.
If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in an Advance or all or any part of the Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so or if funding or maintaining its participation in an Advance or all or any part of the Loan would cause that Lender to breach any Sanctions applicable to it:
|
(a)
|
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and
|
(c)
|
the Borrower shall prepay that Lender's participation in each part of the Loan on the last day of the Interest Period for that part of the Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participation prepaid.
|
8.12
|
Amounts payable on prepayment.
A voluntary prepayment under Clause 8.5, a mandatory prepayment under Clauses 8.9, 8.10 and 8.11 and any cancellation of any Lender's Commitment under this Agreement shall be made together with:
|
(a)
|
accrued interest (and any other amount payable under Clause 21 or otherwise) in respect of the amount prepaid;
|
(b)
|
if the prepayment or any part of it is not made on the last day of the Interest Period applicable to the part of the Loan against which it is to be applied, any sums payable under Clause
21.1(b)
; and
|
(c)
|
in respect of a voluntary prepayment or reduction pursuant to Clause 8.5 only, a prepayment fee of 1.00 per cent. of the amount of the prepayment or reduction of the Loan as at the prepayment or reduction date in respect of any voluntary prepayment or reduction made prior to the first anniversary of the earlier of (i) 30 September 2016 and (ii) the date of this Agreement.
|
8.13
|
Application of partial prepayment
.
|
(a)
|
Each partial prepayment and cancellation shall be applied pro rata against:
|
(b)
|
in an amount, in aggregate, equal to the amount of such prepayment and cancellation and, as regards the Term Loan, pro rata against the repayment instalments for the Term Loan as specified in Clause 8.1 including the balloon instalment, and, as regards the Incremental Credit Facility, pro rata against the repayment instalments for the Incremental Credit Facility as specified in Clause 8.3 including the balloon instalment.
|
(c)
|
Each prepayment of a Revolving Advance pursuant to paragraph (b) of Clause 8.5 shall be applied against the Revolving Advance selected by the Borrower. For the avoidance of doubt the Term Loan and Incremental Credit Facility will not be affected by such prepayment.
|
(d)
|
Any partial cancellation of the Total Revolving Credit Facility Commitments shall be applied against the Revolving Credit Facility Commitments of each Lender pro rata.
|
8.14
|
Reborrowing
|
(a)
|
No amount of the Term Loan or the Incremental Credit Facility repaid or prepaid may be reborrowed.
|
(b)
|
Subject to the terms of this Agreement, any amount of the Revolving Credit Facility repaid or prepaid may be reborrowed and, for the avoidance of doubt, any amount of the Revolving Credit Facility which is repaid or prepaid shall not in itself result in a cancellation of the Revolving Credit Facility Commitments.
|
8.15
|
Unwinding of Designated Transactions.
On or prior to any repayment or prepayment of the Loan under this Clause 8 or any other provision of this Agreement, the Borrower shall unless otherwise agreed by all the Lenders wholly or partially reverse, offset, unwind or otherwise terminate one or more of the continuing Designated Transactions so that the notional principal amount of the continuing Designated Transactions thereafter remaining does not and will not in the future (taking into account the scheduled amortisation) exceed the amount of the Loan as reducing from time to time thereafter pursuant to Clauses 8.1, 8.2 and 8.3.
|
9
|
CONDITIONS PRECEDENT
|
9.1
|
Documents, fees and no default.
Each Lender's obligation to contribute to the Loan is subject to the following conditions precedent:
|
(a)
|
that, on or before the service of the first Drawdown Notice, the Agent receives the documents described in Part A of
Schedule 4
in form and substance satisfactory to the Agent and its lawyers;
|
(b)
|
that, on or before the Drawdown Date in relation to any Term Advance, the Agent receives or is satisfied that it will receive on the making of such Term Advance, the documents described in Part B of
Schedule 4
in form and substance satisfactory to it and its lawyers;
|
(c)
|
that, on or before the Drawdown Date in relation to any Incremental Credit Facility Advance in respect of an Additional Ship, the Agent receives or is satisfied that it will receive on the making of such Incremental Credit Facility Advance, the documents described in Part C of Schedule 4 in form and substance satisfactory to it and its lawyers;
|
(d)
|
that, on or before the service of each Drawdown Notice, the Agent receives all accrued commitment fees payable pursuant to Clause 20.1(b) and any fees contemplated by Clause 20.1(a) and has received payment of the expenses referred to in Clause
20.2
;
|
(e)
|
that both at the date of each Drawdown Notice and at each Drawdown Date:
|
(i)
|
no Event of Default or Latent Event of Default has occurred or would result from the borrowing of the relevant Advance;
|
(ii)
|
the representations and warranties in Clause
10.1
and those of the Borrower or any Security Party which are set out in the other Finance Documents would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing;
|
(iii)
|
no event or circumstance has occurred which has or is reasonably likely to have a Material Adverse Effect;
|
(iv)
|
there has been no material change in the consolidated financial condition, operations or business prospects of the Borrower since the date on which the Borrower provided the Compliance Certificate and Accounting Information accompanying such Compliance Certificate or in respect of any of the information concerning those topics appended to the Compliance Certificate; and
|
(v)
|
none of the circumstances contemplated by Clause 5.6 has occurred and is continuing; and
|
(f)
|
that, the Agent is satisfied that the Borrower will be in compliance with the requirements of Clause 15 immediately following the making of the Advance; and
|
(g)
|
that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrower prior to the relevant Drawdown Date.
|
9.2
|
Waiver of conditions precedent.
If the Majority Lenders, at their discretion, permit an Advance to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrower shall ensure that those conditions are satisfied within 5 Business Days after the Drawdown Date relating to that Advance (or such longer period as the Agent may, with the authorisation of all Lenders, specify).
|
10
|
REPRESENTATIONS AND WARRANTIES
|
10.1
|
General.
The Borrower represents and warrants to each Creditor Party as follows.
|
10.2
|
Status.
The Borrower is duly incorporated and validly existing and in good standing under the laws of the Republic of the Marshall Islands.
|
10.3
|
Ownership of the Guarantors.
The Borrower is the ultimate beneficial owner of all the issued share capital and voting rights in respect of each Guarantor free of Security Interests save for
|
10.4
|
Corporate power.
The Borrower (or in the case of paragraph (a) each Guarantor) has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
|
(a)
|
to register the Collateral Ships in their ownership on the Approval Flag;
|
(b)
|
to execute the Finance Documents to which the Borrower is a party and the Master Agreements; and
|
(c)
|
to borrow under this Agreement, to enter into Designated Transactions under each Master Agreement and to make all the payments contemplated by, and to comply with, the Finance Documents to which the Borrower is a party and each Master Agreement.
|
10.5
|
Consents in force.
All the consents referred to in Clause 10.4 remain in force and nothing has occurred which makes any of them liable to revocation.
|
10.6
|
Legal validity; effective Security Interests.
The Finance Documents to which the Borrower is a party and each Master Agreement, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):
|
(a)
|
constitute the Borrower's legal, valid and binding obligations enforceable against the Borrower in accordance with their respective terms; and
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
|
10.7
|
No third party Security Interests.
Without limiting the generality of Clause 10.6, at the time of the execution and delivery of each Finance Document:
|
(a)
|
the Borrower will have the right to create all the Security Interests which that Finance Document purports to create; and
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
10.8
|
No conflicts.
The execution by the Borrower of each Finance Document and each Master Agreement, and the borrowing by the Borrower of the Loan, and its compliance with each Finance Document and each Master Agreement will not involve or lead to a contravention of:
|
(a)
|
any law or regulation; or
|
(b)
|
the constitutional documents of the Borrower; or
|
(c)
|
any contractual or other obligation or restriction which is binding on the Borrower or any of its assets.
|
10.9
|
No withholding taxes.
All payments which the Borrower is liable to make under the Finance Documents may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
|
10.10
|
No default.
No Event of Default or Latent Event of Default has occurred.
|
10.11
|
Information.
All information which has been provided in writing by or on behalf of the Borrower or any Security Party to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause
11.5
; all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.7; and there has been no material adverse change in the financial position or state of affairs of the Borrower from that disclosed in the latest of those accounts.
|
10.12
|
No litigation.
No legal or administrative action involving the Borrower or any Security Party (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or taken or, to the Borrower's knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect.
|
10.13
|
No rebates etc.
There is no agreement or understanding to allow or pay any rebate, premium, commission, discount or other benefit or payment (howsoever described) to the Borrower or any Security Party, from the Borrower or any Security Party in connection with the Ships.
|
10.14
|
Compliance with certain undertakings.
At the date of this Agreement, the Borrower is in compliance with Clauses 11.2, 11.4, 11.8 and 11.13.
|
10.15
|
Taxes paid.
The Borrower has paid and has procured that each Guarantor has paid all taxes applicable to, or imposed on or in relation to it, its business or the Ship owned or to be owned by it.
|
10.16
|
ISM Code, ISPS Code and Environmental Laws compliance.
All requirements of the ISM Code, the ISPS Code and all Environmental Laws as they relate to the Borrower, the Guarantors, any Approved Ship Manager and the Ships have been complied with.
|
10.17
|
No money laundering.
Without prejudice to the generality of Clause
2.5
, in relation to the borrowing by the Borrower of the Loan, the performance and discharge of its obligations and liabilities under the Finance Documents or any Master Agreement, and the transactions and other arrangements affected or contemplated by the Finance Documents or any Master Agreement to which the Borrower is a party, the Borrower confirms (i) that it is acting for its own account; (ii) that it will use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified in this Agreement; and (iii) that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council).
|
10.18
|
No immunity.
The Borrower is not and no assets of the Borrower are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceedings (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
10.19
|
Pari passu.
The obligations of the Borrower under the Finance Documents and any Master Agreement to which it is a party rank at least pari passu with all other unsecured indebtedness of the Borrower other than indebtedness mandatorily preferred by law.
|
10.20
|
Sanctions
|
(a)
|
The Borrower shall, and shall procure that each Guarantor’s respective directors, officers, employees, agents or representatives has been and is in compliance with Applicable Sanctions.
|
(b)
|
No Security Party and their respective directors, officers, employees, agents or representatives:
|
(i)
|
is a Restricted Person, or is involved in any transaction through which it is likely to become a Restricted Person; or
|
(ii)
|
is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions or acts directly or indirectly on behalf of a Restricted Person in breach of Sanctions.
|
11
|
GENERAL UNDERTAKINGS
|
11.1
|
General.
The Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 11 at all times during the Security Period except as the Agent may, with the authorisation of all the Lenders, otherwise permit.
|
11.2
|
Title; negative pledge.
The Borrower will:
|
(a)
|
own (directly or indirectly) and maintain ownership of the entire legal and beneficial interest in the entire issued share capital of each Guarantor free from all Security Interests and other interests and rights of every kind except for those created by the Finance Documents and, prior to date of the Shares Pledge executed by the Borrower in respect of a Guarantor, Security Interests created in connection with the relevant Existing Facility Agreement over the share capital of that Guarantor;
|
(b)
|
procure that each Guarantor will:
|
(i)
|
hold the legal title to, and own the entire beneficial interest in the Ship to be owned by it, the Insurances and Earnings relating to that Ship and the Earnings Account in its name, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the Finance Documents and except for Permitted Security Interests; and
|
(ii)
|
not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future; and
|
(c)
|
procure that its liabilities under the Finance Documents to which it is a party do and will rank at least
pari passu
with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law;
|
11.3
|
No disposal of assets.
The Borrower will procure that no Guarantor will transfer, lease or otherwise dispose of:
|
(a)
|
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation except for demurrage claims and otherwise in the ordinary course of conducting its business as a ship owner ; or
|
(b)
|
make any substantial change to the nature of its business from that existing at the date of this Agreement.
|
11.4
|
No other liabilities or obligations to be incurred.
The Borrower will procure that no Guarantor, from the date of the Guarantee executed by the relevant Guarantor in favour of the Security
|
(a)
|
under the Finance Documents to which it is a party;
|
(b)
|
reasonably incurred in the ordinary course of operating, upgrading, maintaining and chartering its Ship; and
|
(c)
|
in respect of Intercompany Loans made to the relevant Guarantor provided these comply with the requirements of Clause 11.20.
|
11.5
|
Information provided to be accurate.
All financial and other information which is provided in writing by or on behalf of the Borrower or any Security Party under or in connection with any Finance Document will be true, complete and not misleading and will not omit any material fact or consideration.
|
11.6
|
Provision of financial statements.
The Borrower will send to the Agent:
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of the Borrower, the audited consolidated accounts of the Borrower and its subsidiaries;
|
(b)
|
as soon as possible, but in no event later than 90 days after the end of each of the first three Accounting Periods in a calendar year, unaudited consolidated accounts of the Borrower and its subsidiaries which are certified as to their correctness by the chief financial officer of the Borrower;
|
(c)
|
a Compliance Certificate together with the annual reports that the Borrower delivers pursuant to paragraph (a) above and quarterly reports that the Borrower delivers in (b) above each certified by the chief financial officer of the Borrower; and
|
(d)
|
such other information and financial statements (including, without limitation, details of the operating performance, employment, positions and engagements of the Ships, annual budgets and projections) as may be requested by the Agent from time to time.
|
11.7
|
Form of financial statements.
All accounts (audited and unaudited) delivered under Clause 11.6 will:
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
(b)
|
fairly represent the financial condition of the Borrower and its subsidiaries at the date of those accounts and of their profit for the period to which those accounts relate; and
|
(c)
|
fully disclose or provide for all significant liabilities of the Borrower and its subsidiaries.
|
11.8
|
Consents.
The Borrower will, and will procure that each Guarantor will, maintain in force and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
|
(a)
|
for it to perform its obligations under any Finance Document to which it is a party or any Master Agreement;
|
(b)
|
for the validity or enforceability of any Finance Document to which it is a party or any Master Agreement; and
|
(c)
|
in the case of each Guarantor, to continue to own and operate the Ship owned by it
|
11.9
|
Maintenance of Security Interests.
The Borrower will:
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document and each Master Agreement validly creates the obligations and the Security Interests which it purports to create; and
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record or enrol any Finance Document and any Master Agreement (if applicable) with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion of the Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.10
|
Notification of litigation.
The Borrower will provide the Agent with details of any legal action involving the Borrower, any Security Party or any Ship, its Earnings or its Insurances as soon as such action is instituted unless it is clear that the legal action cannot be considered material in the context of any Finance Document.
|
11.11
|
No amendment to Master Agreements.
The Borrower will not agree to any amendment or supplement to, or waive or fail to enforce, any Master Agreement or any of its provisions.
|
11.12
|
Chief Executive Office.
The Borrower will maintain its chief executive office in the Principality of Monaco.
|
11.13
|
Confirmation of no default.
The Borrower will, within 2 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors of the Borrower and which:
|
(a)
|
states that no Event of Default or Latent Event of Default has occurred; or
|
(b)
|
states that no Event of Default or Latent Event of Default has occurred, except for a specified event or matter, of which all material details are given.
|
11.14
|
Notification of default.
The Borrower will notify the Agent as soon as the Borrower becomes aware of:
|
(a)
|
the occurrence of an Event of Default or a Latent Event of Default; or
|
(b)
|
any matter which indicates that an Event of Default or a Latent Event of Default may have occurred,
|
11.15
|
Provision of further information.
The Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating to:
|
(a)
|
the financial condition, business and operations of the Borrower;
|
(b)
|
the Borrower, any Security Party, any Ship, its Earnings or its Insurances; or
|
(c)
|
any other matter relevant to, or to any provision of, a Finance Document and any Master Agreement,
|
11.16
|
Provision of copies and translation of documents.
The Borrower will supply the Agent with a sufficient number of copies of the documents referred to above to provide 1 copy for each Creditor Party; and if the Agent so requires in respect of any of those documents, the Borrower will provide a certified English translation prepared by a translator approved by the Agent.
|
11.17
|
"Know your customer" checks.
The Borrower shall notify the Agent immediately if it becomes aware of any actual or intended change in its status or the status of any Security Party after the date of this Agreement. 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 the Borrower or any Security Party 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,
|
11.18
|
Compliance with laws.
The Borrower shall comply and shall procure that each Guarantor shall comply in all material respects with all applicable laws, including, without limitation, all Environmental Laws, all Applicable Sanctions and regulations relating thereto.
|
11.19
|
Taxes.
The Borrower shall prepare and timely file all tax returns required to be filed by it and any member of the Group and pay and discharge all taxes imposed upon it and any member of the Group or in respect of any of its or any member of the Group's property and assets before the same shall become in default, as well as all lawful claims (including, without limitation, claims for labour, materials and supplies) which, if unpaid, might become a lien or any part
|
11.20
|
Use of proceeds and Intercompany Loans.
The Borrower shall:
|
(a)
|
use the proceeds of each Advance to partially re-finance the Existing Facility Agreements and for general corporate purposes and shall on-lend the proceeds (or part of them where such proceeds have also been used to refinance the Existing Facility Agreements) of each Advance directly or indirectly to the Guarantor which owns the relevant Ship and shall procure that such Guarantor shall use the proceeds of such Advance solely as permitted pursuant to the terms of this Agreement; and
|
(b)
|
procure that any Intercompany Loan it provides whether directly or indirectly to an Guarantor pursuant to paragraph (a) above shall:
|
(i)
|
be fully subordinated to any and all obligations of the Guarantors and the rights of the Creditor Parties under the Finance Documents;
|
(ii)
|
not require the payment of interest prior to expiry of the Maturity Date;
|
(iii)
|
mature at least 1 year after the Maturity Date; and
|
(iv)
|
not be secured by any asset which is already, or is to be, the subject of a Security Interest created by the Borrower or any Security Party pursuant to any Finance Document;
|
(c)
|
furnish promptly to the Agent a true and complete copy of any instrument evidencing any Intercompany Loan, all other documents related thereto and a true and complete copy of each material amendment or other modification thereof; and
|
(d)
|
in respect of any such Intercompany Loan, execute and deliver to the Agent an Intercompany Loan Assignment and deliver to the Agent such other documents equivalent to those referred to in paragraphs 3, 4, and 6 of Part A of
Schedule 4
as the Agent may require.
|
11.21
|
Sanctions
|
(a)
|
The Borrower undertakes for itself and on behalf of each Guarantor that:
|
(i)
|
they and each of their directors, officers, agents, employees or persons action on their behalf is not a Restricted Person and does not act directly or indirectly on behalf of a Restricted Person or in breach of Applicable Sanctions;
|
(ii)
|
without limiting paragraph (a) above, not employ any Ship nor allow its employment, operation or management in any manner contrary to any Applicable Sanctions, Environmental Laws, ISM Code and the ISPS Code.
|
(b)
|
Without prejudice to Clause 14.10, the Borrower shall not, and will procure that no Guarantor shall, engage in any activity or dealing with a Restricted Person except such activity or dealing with a Restricted Person that is not in breach of Applicable Sanctions.
|
(c)
|
The Borrower shall procure, and will ensure that each Guarantor procures, that no proceeds from any activity or dealing with a Restricted Person are credited to any bank account held with any Creditor Party in its name.
|
(d)
|
The Borrower shall, and will procure that the Guarantor shall, to the extent permitted by law, promptly upon becoming aware of them supply to the Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
11.22
|
Use of proceeds
|
12
|
CORPORATE AND FINANCIAL UNDERTAKINGS
|
12.1
|
General.
The Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent may, with the authorisation of all the Lenders, otherwise permit.
|
12.2
|
Maintenance of status
. The Borrower will:
|
(a)
|
maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Marshall Islands;
|
(b)
|
remain listed on the New York Stock Exchange; and
|
(c)
|
procure that each Guarantor shall maintain its separate corporate existence and remain in goodstanding under the laws of the Republic of the Marshall Islands.
|
12.3
|
Negative undertakings.
|
(a)
|
The Borrower will not and will procure that no Guarantor shall:
|
(i)
|
change its name, its type of organisation or the nature of its business; or
|
(ii)
|
change its Fiscal Year; or
|
(iii)
|
permit any act, event or circumstance to occur or arise which would or could result in a Change of Control of the Borrower or any Guarantor other than a Guarantor Disposal for the purposes of selling or disposing of a Ship where the relevant prepayment is made in accordance with Clause 8.9 or give rise whether directly or indirectly to a Material Adverse Effect; or
|
(iv)
|
enter into any form of amalgamation, merge or de-merger or any form of reconstruction or reorganisation.
|
(b)
|
The Borrower will procure that no Guarantor shall:
|
(i)
|
provide any form of credit or financial assistance to:
|
(A)
|
a person who is directly or indirectly interested in the Borrower's or the relevant Guarantor's share or loan capital; or
|
(B)
|
any company in or with which such a person is directly or indirectly interested or connected,
|
(ii)
|
issue (except in accordance with the terms of the relevant Share Pledge), allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital; or
|
(iii)
|
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative other than Designated Transactions.
|
12.4
|
Dividends.
|
(a)
|
The Borrower may only pay a dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital provided that no Event of Default has occurred and is continuing at the time of the payment of such dividends or making of such distributions, redemptions, purchase or return or will result from the payment of such dividend or making of such distributions, redemptions, purchase or return; and
|
(b)
|
The Borrower will procure that no Guarantor shall pay a dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
|
(i)
|
any Event of Default has occurred and is continuing at the time of the payment of such dividend or making of such other form of distribution or effecting of such redemption, purchase or return of share capital or will result from such payment or making of such other form of distribution or effecting of such redemption, purchase or return of share capital; or
|
(ii)
|
such dividend or other form of distribution or redemption, purchase or return of share capital shall result in a breach of the financial covenants set out in Clauses 12.5, 12.6, 12.7 and
12.8
.
|
12.5
|
Minimum liquidity.
The Borrower shall, at all times, maintain Cash and Cash Equivalents on a consolidated basis, including all amounts on deposit with any bank, of not less than the greater of (a) $25,000,000 or (b) $250,000 per ship which is time chartered by the Borrower, plus $500,000 per Fleet Vessel (the "
Minimum Liquidity
"), provided that:
|
(a)
|
for the purpose of this Clause 12.5, "
Cash Equivalents
" shall include unutilised and freely available amounts under the Facility (where no default or termination event has occurred and is continuing and there is no restriction on borrowing under such Facility) with a maturity date in excess of 12 months after the date of the financial statements delivered pursuant to Clause 11.6; and
|
(b)
|
100 per cent. of the Minimum Liquidity shall at all times consist of Cash.
|
12.6
|
Minimum Consolidated Tangible Net Worth.
The Borrower shall maintain a Consolidated Tangible Net Worth of not less than $1,000,000,000 plus:
|
(a)
|
25 per cent. of the Borrower 's cumulative, positive consolidated net income for each Accounting Period commencing on or after 1 January 2016; and
|
(b)
|
50 per cent. of the Equity Proceeds realised from any issuance of Equity Interests in the Borrower occurring on or after 1 January 2016.
|
12.7
|
Maximum leverage.
The Borrower shall maintain a ratio of Net Debt to Consolidated Total Capitalisation of not more than 0.60 to 1.00, to be tested on the last day of each Accounting Period.
|
12.8
|
Minimum interest coverage.
The Borrower shall maintain a ratio of Consolidated EBITDA to Consolidated Net Interest Expense greater than 2.50 to 1.00. Such ratio shall be calculated on the last day of each Accounting Period on a trailing four quarter basis.
|
12.9
|
Material Changes in IFRS requirements.
If, at any time after the date of this Agreement, the IFRS requirements materially change so as to impact the financial covenants set out in this Clause 12 the Borrower shall notify the Agent and, if agreed between the Borrower and the Agent, this Agreement shall be amended and/or supplemented to reflect these changes.
|
13
|
INSURANCE
|
13.1
|
General.
The Borrower also undertakes with each Creditor Party to procure that each Guarantor, at all times whilst the Ship owned by the relevant Guarantor is subject to a Mortgage, will comply with the following provisions of this Clause 13 at all times during the Security Period except as the Agent may, with the authorisation of all the Lenders, otherwise permit.
|
13.2
|
Maintenance of obligatory insurances.
The Borrower shall procure that each Guarantor shall keep the Ship owned by it insured at the expense of that Guarantor against:
|
(a)
|
fire and usual marine risks (including hull and machinery plus hull interest and any other usual marine risks such as excess risks as applicable);
|
(b)
|
war risks (including the London Blocking and Trapping addendum or equivalent coverage including war, terrorism, piracy and confiscation risks excluded from the protection and indemnity risks);
|
(c)
|
full protection and indemnity risks (including liability for oil pollution and excess war risk P&I cover) on standard club rules, covered by a protection and indemnity association which is a member of the International Group of Protection and Indemnity Associations (or, if the International Group of Protection and Indemnity Associations ceases to exist, any other leading protection and indemnity association or other leading provider of protection and indemnity insurance) (including, without limitation, the proportion (if any) of any collision liability not covered under the terms of the hull cover), or other with written consent from the Agent;
|
(d)
|
freight, demurrage & defence risks;
|
(e)
|
any other risks against which the Security Trustee considers, having regard to standard practices and other circumstances prevailing at the relevant time, it would in the opinion of the Security Trustee be reasonable for that Guarantor to insure and which are specified by the Security Trustee by written notice to that Guarantor.
|
13.3
|
Terms of obligatory insurances.
The Borrower shall procure that each Guarantor shall affect such insurances in respect of the Ship owned by it:
|
(a)
|
in Dollars;
|
(b)
|
in the case of the insurances described in
13.2(a)
, (b) and, in the event such other risk is based on vessel value, (e) in an amount on an agreed value basis at least the greater of:
|
(i)
|
when aggregated with the insured values of the other Ships then financed under this Agreement, 120 per cent. of the aggregate amount of the Loan; and
|
(ii)
|
the Fair Market Value of the Ship owned by it;
|
(c)
|
in the case of hull and machinery insured values of each Ship, in an amount not less than 80 per cent. of the Fair Market Value of that Ship and the aggregate amount of the hull and machinery insured values of the Ships shall be equal to or greater than the amount of the Loan; and
|
(d)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(d)
|
in relation to protection and indemnity risks in respect of the full tonnage of the Ship owned by it;
|
(e)
|
on approved terms; and
|
(f)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations that are members of the International Group of Protection and Indemnity Clubs.
|
13.4
|
Further protections for the Creditor Parties.
In addition to the terms set out in Clause 13.3 the Borrower shall procure that the obligatory insurances shall:
|
(a)
|
subject always to paragraph (b), name the relevant Guarantor as the sole named assured unless the interest of every other named assured is limited:
|
(i)
|
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A)
|
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B)
|
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii)
|
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b)
|
whenever the Security Trustee requires, name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Lender, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
name the Security Trustee as loss payee with such directions for payment as the Security Trustee may specify;
|
(d)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
(e)
|
provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other Creditor Party;
|
(f)
|
provide that the Security Trustee may make proof of loss if the Guarantor concerned fails to do so; and
|
(g)
|
provide that the deductible of the hull and machinery insurance is not higher than the amount agreed upon and stated in the loss payable clause.
|
13.5
|
Renewal of obligatory insurances.
The Borrower shall procure that each Guarantor shall;
|
(a)
|
at least 7 days before the expiry of any obligatory insurance:
|
(i)
|
notify the Security Trustee of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom that Guarantor proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii)
|
obtain the Security Trustee's approval to the matters referred to in paragraph (i);
|
(b)
|
at least 5 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Security Trustee's approval pursuant to paragraph (a); and
|
(c)
|
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal.
|
13.6
|
Copies of policies; letters of undertaking.
The Borrower shall procure that each Guarantor shall ensure that all approved insurance brokers provide the Security Trustee with pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew and of a letter or letters or undertaking in a form required by the Security Trustee and including undertakings by the approved brokers that:
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4;
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;
|
(d)
|
they will notify the Security Trustee, not less than 5 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from that Guarantor or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions; and
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Guarantor under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non‑payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of that Ship forthwith upon being so requested by the Security Trustee.
|
13.7
|
Copies of certificates of entry.
The Borrower shall procure that each Guarantor shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provides the Security Trustee with:
|
(a)
|
a certified copy of the certificate of entry for that Ship;
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Security Trustee; and
|
(c)
|
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.
|
13.8
|
Deposit of original policies.
The Borrower shall procure that each Guarantor shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or renewed.
|
13.9
|
Payment of premiums.
The Borrower procure that each Guarantor shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by that Guarantor and produce all relevant receipts when so required by the Security Trustee.
|
13.10
|
Guarantees.
The Borrower shall procure that each Guarantor shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
|
13.11
|
Compliance with terms of insurances.
The Borrower shall not and shall procure that no Guarantor shall do or omit to do (or permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in particular:
|
(a)
|
each Guarantor shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause
13.6(c)
) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;
|
(b)
|
no Guarantor shall make any changes relating to the classification or classification society or manager or operator of the Ship owned by it unless approved by the underwriters of the obligatory insurances;
|
(c)
|
each Guarantor shall make all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain
|
(d)
|
no Guarantor shall employ the Ship owned by it, or allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
13.12
|
Alteration to terms of insurances.
The Borrower shall not and shall procure that no Guarantor shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
|
13.13
|
Settlement of claims.
The Borrower shall not and shall procure that no Guarantor shall settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
13.14
|
Provision of copies of communications.
The Borrower shall procure that each Guarantor shall provide the Security Trustee, at the time of each such communication, copies of all material written communications between the relevant Guarantor and:
|
(a)
|
the approved insurance brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
|
(i)
|
that Guarantor's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii)
|
any credit arrangements made between that Guarantor and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
13.15
|
Provision of information.
In addition, the Borrower shall procure that each Guarantor shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated person) requests for the purpose of:
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected by it; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause
13.16
or dealing with or considering any matters relating to any such insurances;
|
13.16
|
Mortgagee's interest, additional perils.
The Security Trustee shall be entitled from time to time to effect, maintain and renew (i) mortgagee's interest additional perils insurance and (ii) mortgagee's interest marine insurance in such amounts and on such terms, through such insurers and generally in such manner as the Security Trustee may from time to time consider appropriate and the Borrower shall upon demand fully indemnify the Security Trustee in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.
|
14
|
SHIP COVENANTS
|
14.1
|
General.
The Borrower also undertakes with each Creditor Party that it shall and that it shall procure that each Guarantor will, at all times whilst the Ship owned by the relevant Guarantor is subject to a Mortgage, comply with the following provisions of this Clause 14 at all times during the Security Period except as the Agent, with the authorisation of all the Lenders, may otherwise permit.
|
14.2
|
Ship's name and registration.
The Borrower shall procure that each Guarantor shall keep the Ship owned by it registered in its name under an Approved Flag; shall not do, omit to do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry of any Ship without the prior written approval of the Agent, such approval not to be unreasonably withheld or delayed.
|
14.3
|
Repair and classification.
The Borrower shall procure that each Guarantor shall keep the Ship owned by it in a good and safe condition and state of repair:
|
(a)
|
consistent with first‑class ship ownership and management practice;
|
(b)
|
so as to maintain the highest class for that Ship with the Approved Classification Society free of overdue recommendations and conditions affecting that Ship's class; and
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered under the law of the Approved Flag on which that Ship is registered or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
|
14.4
|
Classification Society undertaking.
The Borrower shall procure that each Guarantor shall instruct the Approved Classification Society (and in the case of dual classification, only the primary classification society):
|
(a)
|
to send to the Security Trustee, following receipt of a written request from the Security Trustee, certified true copies of all original class records held by the Approved Classification Society in relation to the Ship owned by it;
|
(b)
|
to allow the Security Trustee (or its agents), at any time and from time to time, to inspect the original class and related records of that Guarantor and the Ship owned by it at the offices of the Approved Classification Society and to take copies of them;
|
(c)
|
following receipt of a written request from the Security Trustee:
|
(i)
|
to confirm that such Guarantor is not in default of any of its contractual obligations or liabilities to the Approved Classification Society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the Approved Classification Society; or
|
(ii)
|
if such Guarantor is in default of any of its contractual obligations or liabilities to the Approved Classification Society, to specify to the Security Trustee in reasonable detail the facts and circumstances of such default, the consequences of such default, and any remedy period agreed or allowed by the Approved Classification Society.
|
14.5
|
Modification.
The Borrower shall procure that no Guarantor shall make any modification or repairs to, or replacement of, the Ship owned by it or equipment installed on that Ship which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value.
|
14.6
|
Removal of parts.
The Borrower shall procure that no Guarantor shall remove any material part of the Ship owned by it, or any item of equipment installed on, that Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on that Ship the property of that Guarantor and subject to the security constituted by the Mortgage Provided that an Guarantor may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by it.
|
14.7
|
Surveys.
The Borrower shall procure that each Guarantor, at the Borrower's expense submits the Ship owned by it regularly to all periodical or other surveys which may be required for classification purposes with copies of all technical survey reports in respect of surveys carried out by an Approved Ship Manager or other qualified expert duly appointed for such purpose.
|
14.8
|
Inspection.
The Borrower shall procure that each Guarantor shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship owned by it at all reasonable times, with reasonable notice to the relevant Guarantor, always without interfering with the trading of the Ship at the Borrower's expense to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections provided that unless an Event of Default has occurred or that Ship's Approved Classification Society has issued a recommendation or condition affecting that Ship's class, the Borrower shall not have to pay for more than 1 inspection per Ship in each calendar year. The Security Trustee shall use reasonable efforts not to interfere with the operation of that Ship when exercising its rights under this Clause
14.8
.
|
14.9
|
Prevention of and release from arrest.
The Borrower shall procure that each Guarantor shall promptly discharge:
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, its Earnings or its Insurances;
|
(b)
|
all taxes, dues and other amounts charged in respect of the Ship owned by it, its Earnings or its Insurances; and
|
(c)
|
all other outgoings whatsoever in respect of the Ship owned by it, its Earnings or its Insurances,
|
14.10
|
Compliance with laws etc.
The Borrower shall procure that each Guarantor shall:
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws, all Applicable Sanctions and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of that Guarantor;
|
(b)
|
not employ the Ship owned by it nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and Applicable Sanctions; and
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ship owned by it to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless the prior written consent of the Security Trustee has been given and the Borrower has or has procured that there is (at its expense) effected any special, additional or modified insurance cover which the Security Trustee may require.
|
14.11
|
Provision of information.
The Borrower shall procure that each Guarantor shall promptly provide the Security Trustee with any information which it requests regarding:
|
(a)
|
the Ship owned by it, its employment, position and engagements (including, without limitation, details of the operating performance, employment, positions and engagements of the Ships, annual budgets and projections);
|
(b)
|
the Earnings and payments and amounts due to the master and crew of the Ship owned by it;
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship owned by it and any payments made in respect of that Ship;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Approved Ship Manager's or the compliance by the Ship owned by it with the ISM Code, the ISPS Code, all Environmental Laws and Applicable Sanctions,
|
14.12
|
Notification of certain events.
The Borrower shall procure that each Guarantor shall promptly notify the Security Trustee by email, confirmed forthwith, by letter of:
|
(a)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c)
|
any requirement or condition made by any insurer or the Approved Classification Society or by any competent authority which is not complied with within the specified time;
|
(d)
|
any arrest or detention of the Ship owned by it, any exercise or purported exercise of any lien on that Ship or its Earnings or any requisition of that Ship for hire;
|
(e)
|
any intended dry docking of the Ship owned by it;
|
(f)
|
any Environmental Claim made against any Security Party or the Borrower or in connection with any Ship, or any Environmental Incident;
|
(g)
|
any claim for breach of the ISM Code, the ISPS Code, any Environmental Laws or Applicable Sanctions being made against that Guarantor, the Approved Ship Manager (following the Guarantor becoming aware of the same) or otherwise in connection with the Ship owned by it; or
|
(h)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code, the ISPS Code, any Environmental Laws or Sanctions not being complied with;
|
14.13
|
Restrictions on chartering, appointment of managers etc.
The Borrower shall procure that no Guarantor shall, in relation to the Ship owned by it:
|
(a)
|
let that Ship on demise charter for any period;
|
(b)
|
enter into any time or consecutive voyage charter in respect of that Ship for a term which exceeds, or which by virtue of any optional extensions may exceed, 24 months other than Charters where the charterer is a member of the Group or the Charter is pursuant to an Approved Pooling Arrangement;
|
(c)
|
enter into any charter in relation to that Ship under which more than 2 months' hire (or the equivalent) is payable in advance;
|
(d)
|
charter that Ship otherwise than on bona fide arm's length terms at the time when such Ship is fixed;
|
(e)
|
appoint a manager of that Ship other than an Approved Ship Manager or agree to any material alteration to the terms of the Approved Ship Manager's appointment;
|
(f)
|
appoint a classification society for that Ship other than an Approved Classification Society;
|
(g)
|
de‑activate or layup that Ship; or
|
(h)
|
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $500,000 (or the equivalent in any other currency) or in the case of any scheduled special surveys in respect of such Ship, in an amount exceeding or likely to exceed $1,000,000, unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on such Ship or its Earnings for the cost of such work or for any other reason.
|
14.14
|
Notice of Mortgage.
The Borrower shall procure that each Guarantor shall keep the Mortgage registered against the Ship owned by it as a valid first preferred or, as the case may be, priority mortgage, carry on board the Ship owned by it a certified copy of the relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the Master's cabin of that Ship a framed printed notice stating that such Ship is mortgaged by that Guarantor to the Security Trustee.
|
14.15
|
Sharing of Earnings.
The Borrower shall procure that no Guarantor shall enter into any agreement or arrangement for the sharing of any Earnings of the Ship owned by it provided always that any Ship may be entered into any Approved Pooling Arrangement.
|
14.16
|
ISPS Code.
The Borrower shall procure that each Guarantor shall comply with the ISPS Code and in particular, without limitation, shall:
|
(a)
|
procure that its Ship and the company responsible for such Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain for its Ship an ISSC; and
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
14.17
|
Copies of Charter; Charterparty Assignment.
Provided that the Borrower has obtained the prior permission of the Agent necessary under Clause
14.13(b)
, the Borrower shall procure that each Guarantor shall:
|
(a)
|
furnish promptly to the Agent a true and complete copy of any Charter for the Ship owned by it, all other documents related thereto including, without limitation, any guarantee of such Charter and a true and complete copy of each material amendment or other modification thereof; and
|
(b)
|
in respect of any such Charter, execute and deliver to the Agent a Charterparty Assignment and deliver to the Agent a consent and acknowledgement executed by the charterer and any related charter guarantor and such other documents equivalent to those referred to in paragraphs 4, 5 and 6 of Part A of
Schedule 4
as the Agent may require.
|
14.18
|
Change of Approved Ship Manager.
If, in accordance with the terms of this Agreement, there is a change of Approved Ship Manager, the Borrower shall or shall procure that:
|
(a)
|
the relevant Guarantor shall promptly provide the Agent with a copy of the management agreement pursuant to which such Approved Ship Manager is to be appointed; and
|
(b)
|
the new Approved Ship Manager shall provide to the Agent on or prior to the commencement of its appointment, an Approved Ship Manager's Undertaking.
|
14.19
|
Green Passport.
The Borrower shall procure that each Guarantor has obtained a Green Passport, or equivalent document acceptable to the Agent, within 30 days from the Drawdown Date of the relevant Advance in respect of the Ship owned by it which remains valid throughout the Security Period.
|
15
|
SECURITY COVER
|
15.1
|
Minimum required security cover.
Clause
15.2
applies if the Agent notifies the Borrower that:
|
(a)
|
the Fair Market Value of the Ships then subject to a Mortgage; plus
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15,
|
15.2
|
Provision of additional security; prepayment.
If the Agent serves a notice on the Borrower under Clause 15.1, the Borrower shall within 30 days after the date on which the Agent’s notice is served, either:
|
(a)
|
prepay such part (at least) of the Loan as will eliminate the shortfall; or
|
(b)
|
provide, or ensure that a third party provides, additional security which, in the opinion of all of the Lenders acting in their absolute discretion, has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent may, with the authorisation of all of the Lenders, approve or require and, for this purpose, it is agreed that acceptable additional security shall include cash collateral in Dollars valued at par.
|
15.3
|
Valuation of Ship.
The market value of a Ship at any date is that shown by:
|
(a)
|
the arithmetic average of 2 valuations each prepared by an Approved Broker selected by the Agent;
|
(b)
|
as at a date not more than 30 days prior to the date such valuation is delivered to the Agent by such Approved Broker;
|
(c)
|
with or without physical inspection of that Ship (as the Agent may require);
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
|
15.4
|
Value of additional vessel security.
The net realisable value of any additional security which is provided under Clause
15.2
and which consists of a Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 15.2.
|
15.5
|
Valuations binding.
Any valuation under Clause
15.2
, 15.3 or 15.4 shall be binding and conclusive as regards the Borrower, as shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security Interest.
|
15.6
|
Provision of information.
The Borrower shall promptly provide the Agent and any Approved Broker acting under Clause 15.3 or 15.4 with any information which the Agent or the Approved Broker may request for the purposes of the valuation; and, if the Borrower fails to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved Broker or the Lenders (or the expert appointed by them) consider prudent.
|
15.7
|
Payment of valuation expenses.
Without prejudice to the generality of the Borrower's obligations under Clauses
20.2
, 20.3 and 20.4, the Borrower shall, subject to Clause 15.8, on demand, pay the Agent the amount of the fees and expenses of any Approved Broker instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause 15.
|
15.8
|
Frequency of valuations
|
(a)
|
The Borrower shall provide the valuations of each Ship required pursuant to paragraph 12 of
Part B
of
Schedule 4
and paragraph 13 of Part C of Schedule 4 at the Borrower's expense;
|
(b)
|
the Borrower shall provide to the Agent 2 valuations during each half of each Fiscal Year of the Borrower commencing on 1 January 2017 (such valuations to be attached to the Compliance
|
(c)
|
the Agent shall be entitled, at its own expense, to obtain valuations of each Ship other than those referred to in paragraphs (a) and (b) above as often as it may request.
|
15.9
|
Application of prepayment.
Clause 8 shall apply in relation to any prepayment pursuant to Clause
15.2
.
|
15.10
|
Release of Additional Security.
It is agreed that where the Borrower or a third party has provided additional security pursuant to Clause
15.2
the Borrower is entitled to request the release of such additional security at its expense at any time following a testing of compliance by the Borrower of the minimum required security cover under Clause 15.1. Where the Borrower is shown to be in compliance with such minimum required security cover without including the additional security within the calculation and where the Borrower is in compliance with the minimum required security cover under Clause 15.1, such additional security shall be released at the Borrower's cost.
|
16
|
PAYMENTS AND CALCULATIONS
|
16.1
|
Currency and method of payments.
All payments to be made by the Lenders or by the Borrower and any Security Party under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
|
(a)
|
by not later than 11.00 a.m. (London time) on the due date;
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by the Borrower or another Security Party to the Agent or any Lender, to an account of the Agent as the Agent may from time to time notify to the Borrower and the other Creditor Parties, or to such other account with such other bank as the Agent may from time to time notify to the Borrower and the other Creditor Parties; and
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrower and the other Creditor Parties.
|
16.2
|
Payment on non-Business Day.
If any payment by the Borrower under a Finance Document would otherwise fall due on a day which is not a Business Day:
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day;
|
16.3
|
Basis for calculation of periodic payments.
All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
16.4
|
Distribution of payments to Creditor Parties.
Subject to Clauses
16.5
, 16.6 and 16.7:
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, a Swap Counterparty or the Security Trustee shall be made available by the Agent to that Lender, that Swap Counterparty or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender and the Swap Counterparty or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders and/or the Swap Counterparties generally shall be distributed by the Agent to each Lender and each Swap Counterparty pro rata to the amount in that category which is due to it.
|
16.5
|
Permitted deductions by Agent.
Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender or a Swap Counterparty, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender or that Swap Counterparty under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender or that Swap Counterparty to pay on demand.
|
16.6
|
Agent only obliged to pay when monies received.
Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrower or any Lender or any Swap Counterparty any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender or that Swap Counterparty until the Agent has satisfied itself that it has received that sum.
|
16.7
|
Refund to Agent of monies not received.
If and to the extent that the Agent makes available a sum to the Borrower or a Lender or a Swap Counterparty, without first having received that sum, the Borrower or (as the case may be) the Lender or the Swap Counterparty concerned shall, on demand:
|
(a)
|
refund the sum in full to the Agent; and
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
|
16.8
|
Agent may assume receipt.
Clause 16.7 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.
|
16.9
|
Creditor Party accounts.
Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any Security Party.
|
16.10
|
Agent's memorandum account.
The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any Security Party.
|
16.11
|
Accounts prima facie evidence.
If any accounts maintained under Clauses
16.9
and
16.10
show an amount to be owing by the Borrower or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party.
|
17
|
APPLICATION OF RECEIPTS
|
17.1
|
Normal order of application.
Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:
|
(a)
|
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents and the Master Agreements in the following order and proportions:
|
(i)
|
first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents and the Swap Counterparties under any Master Agreements other than those amounts referred to at paragraphs (ii) and (iii) below (including, but without limitation, all amounts payable by the Borrower under Clauses 20, 21 and 22 of this Agreement or by the Borrower or any Security Party under any corresponding or similar provision in any other Finance Document or in any Master Agreement);
|
(ii)
|
secondly, in or towards satisfaction of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents and the Master Agreements (and, for this purpose, the expression "
interest
" shall include any net amount which the Borrower shall have become liable to pay or deliver under section 2(e) (Obligations) of any Master Agreement but shall have failed to pay or deliver to the relevant Swap Counterparty at the time of application or distribution under this Clause 17); and
|
(iii)
|
thirdly, in or towards satisfaction pro rata of the Loan and the Swap Exposure of each Swap Counterparty (in the case of the latter, calculated as at the actual Early Termination Date applying to each particular Designated Transaction, or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the date of application or distribution hereunder);
|
(b)
|
SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document or any Master Agreement but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor Parties, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a);
|
(c)
|
THIRDLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
17.2
|
Variation of order of application.
The Agent may, with the authorisation of the Lenders, by notice to the Borrower, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 either as regards a specified sum or sums or as regards sums in a specified category or categories.
|
17.3
|
Notice of variation of order of application.
The Agent may give notices under Clause
17.2
from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.
|
17.4
|
Appropriation rights overridden.
This Clause 17 and any notice which the Agent gives under Clause
17.2
shall override any right of appropriation possessed, and any appropriation made, by the Borrower or any Security Party.
|
18
|
APPLICATION OF EARNINGS
|
18.1
|
Payment of Earnings.
The Borrower undertakes with each Creditor Party to ensure that, throughout the Security Period (subject only to the provisions of the General Assignment), all the Earnings of each Ship are paid to the Earnings Account for that Ship, at all times whilst such Ship is subject to a Mortgage.
|
18.2
|
Application of Earnings.
The Borrower undertakes with the Lenders to procure that money from time to time credited to, or for the time being standing to the credit of, an Earnings Account shall, unless and until an Event of Default shall have occurred and is continuing (whereupon the provisions of Clause 17.1 shall be and become applicable), be freely available to the Borrower.
|
18.3
|
Location of accounts.
The Borrower shall promptly:
|
(a)
|
comply with any requirement of the Agent as to the location or re‑location of the Earnings Accounts (or any of them); and
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts (or any of them).
|
18.4
|
Debits for expenses etc.
The Agent shall be entitled (but not obliged) from time to time to debit any Earnings Account without prior notice in order to discharge any amount due and payable under Clause 20 or 21 to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 20 or 21.
|
18.5
|
Borrower's obligations unaffected.
The provisions of this Clause 18 do not affect:
|
(a)
|
the liability of the Borrower to make payments of principal and interest on the due dates; or
|
(b)
|
any other liability or obligation of the Borrower or any Security Party under any Finance Document.
|
19
|
EVENTS OF DEFAULT
|
19.1
|
Events of Default.
An Event of Default occurs if:
|
(a)
|
the Borrower or any Security Party fails to pay when due any sum payable under a Finance Document or under any document relating to a Finance Document unless its failure to pay is caused by a Disruption Event and payment is made within 3 Business Days of its due date; or
|
(b)
|
any breach occurs of Clause
9.2
, 11.2, 11.3, 11.21(a), 11.22, 12.5, 12.6, 12.7, 12.8 and 15.2; or
|
(c)
|
any breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied 20 days after written notice from the Agent requesting action to remedy the same; or
|
(d)
|
(subject to any applicable grace period specified in the Finance Document) any breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach falling within paragraphs (a), (b) or (c)); or
|
(e)
|
any representation, warranty or statement made or repeated by, or by an officer of, the Borrower or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading when it is made or repeated; or
|
(f)
|
any of the following occurs in relation to any Financial Indebtedness of the Borrower on a consolidated basis exceeding $10,000,000 in aggregate or, in the case of any Security Party, $2,500,000 (or in either case, the equivalent in any other currency):
|
(i)
|
any Financial Indebtedness of that Relevant Person is not paid when due; or
|
(ii)
|
any Financial Indebtedness of that Relevant Person becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of that Relevant Person is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of that Relevant Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
(v)
|
any Security Interest securing any Financial Indebtedness of that Relevant Person becomes enforceable; or
|
(g)
|
any of the following occurs in relation to a Relevant Person:
|
(i)
|
a Relevant Person becomes unable to pay its debts as they fall due; or
|
(ii)
|
any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $10,000,000 in the case of the Borrower or $2,500,000 in the case of any Security Party or more or the equivalent in another currency; or
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person; or
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings, by a lawyer acting for a Relevant Person; or
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by (a) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (did) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Borrower or the Guarantors which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by all the Lenders and effected not later than 3 months after the commencement of the winding up; or
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not with a view to some other insolvency law procedure being implemented instead and either (a) the application or petition is dismissed or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed, or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both cases (a) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of any actual, interim or pending insolvency law procedure; or
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way at all; or
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise or fail to materialise; or
|
(xi)
|
in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or commenced or any step is taken which, in the opinion of the Lenders acting reasonably is similar to any of the foregoing.
|
(h)
|
any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened against a Relevant Person or its assets which has, will have or may have a Material Adverse Effect;
|
(i)
|
a Finance Document is amended, terminated, cancelled or suspended for any reason except with the prior written consent of the Agent, acting with the authorisation of all the Lenders;
|
(j)
|
the Borrower ceases or suspends carrying on its business or a part of its business which is material in the context of this Agreement; or
|
(k)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
(i)
|
for the Borrower or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which all the Lenders consider material under a Finance Document;
|
(ii)
|
for the Agent, the Security Trustee, the Lenders or the Swap Banks to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or
|
(l)
|
any consent necessary to enable any Guarantor to own, operate or charter the Ship owned by it or on the Approved Flag or to enable the Borrower, such Guarantor or any other Security Party to comply with any provision which all the Lenders consider material of a Finance Document, to which it is a party is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
|
(m)
|
any failure to change the flag state of a Ship after written notice from the Agent requesting a flag change as a result of governmental and/or political unrest which may in the Agent’s opinion have a Material Adverse Effect; or
|
(n)
|
any arrest, capture, seizure or detention of a Ship unless it is within 30 Business Days redelivered to the full control of the Guarantor owning that Ship; or
|
(o)
|
any provision which all the Lenders consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest and which in each case such default continues unremedied 15 days after written notice from the Agent requesting action to remedy the same; or
|
(p)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
(q)
|
an Event of Default (as defined in section 14 of a Master Agreement) occurs; or
|
(r)
|
a Master Agreement is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason except with the consent of the Agent, acting with the authorisation of all the Lenders; or
|
(s)
|
any of the Ships ceases to be employed by the relevant Approved Ship Manager on terms acceptable to the Agent or any of the circumstances described in Clause 19.1(g) or (j) occurs (
mutatis mutandis
) in relation to an Approved Ship Manager or an Approved Ship Manager or
|
(t)
|
an event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.
|
19.2
|
Actions following an Event of Default.
On, or at any time after, the occurrence of an Event of Default which is continuing:
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
(i)
|
serve on the Borrower a notice stating that all or part of the Commitments and of the other obligations of each Lender to the Borrower under this Agreement are cancelled; and/or
|
(ii)
|
serve on the Borrower a notice stating that all or part of the Loan together with accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of all the Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders and/or the Swap Counterparties are entitled to take under any Finance Document or any applicable law.
|
19.3
|
Termination of Commitments.
On the service of a notice under Clause
19.2(a)(i)
, the Commitments and all other obligations of each Lender to the Borrower under this Agreement shall be cancelled.
|
19.4
|
Acceleration of Loan.
On the service of a notice under Clause
19.2(a)(i)
, all or, as the case may be, the part of the Loan specified in the notice together with accrued interest and all other amounts accrued or owing from the Borrower or any Security Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
|
19.5
|
Multiple notices; action without notice.
The Agent may serve notices under Clauses
19.2(a)(i)
and (ii) simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in Clause 19.2 if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
19.6
|
Notification of Creditor Parties and Security Parties.
The Agent shall send to each Lender, each Swap Counterparty, the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrower under Clause 19.2; but the notice shall become effective when it is served on the Borrower, and no failure or delay by the Agent to send a copy
|
19.7
|
Creditor Party rights unimpaired.
Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders or Swap Counterparties under a Finance Document, a Master Agreement or the general law; and, in particular, this Clause is without prejudice to Clause
3.1
.
|
19.8
|
Exclusion of Creditor Party liability.
No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to the Borrower or a Security Party:
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,
|
19.9
|
Relevant Persons.
In this Clause 19, a "
Relevant
Person
" means the Borrower and any Security Party.
|
19.10
|
Interpretation.
In Clause 19.1(f) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(g) "petition" includes an application.
|
19.11
|
Position of Swap Counterparties.
Neither the Agent nor the Security Trustee shall be obliged, in connection with any action taken or proposed to be taken under or pursuant to the foregoing provisions of this Clause 19, to have any regard to the requirements of a Swap Counterparty except to the extent that such Swap Counterparty is also a Lender.
|
20
|
FEES AND EXPENSES
|
20.1
|
Commitment, agency fees.
The Borrower shall pay to the Agent:
|
(a)
|
on the date of this Agreement or as otherwise agreed, the fees in the amounts previously agreed in writing between the Agent and the Borrower; and
|
(b)
|
quarterly in arrears on each 31 March, 30 June, 30 September and 31 December during the period from the date of this Agreement until the Maturity Date (or if earlier, the date on which this Agreement is terminated), for the account of the Lenders pro rata to their Commitments, a commitment fee at a rate equal to 40 per cent. of the Margin per annum on the amount of the unutilized Commitment of each Lender.
|
20.2
|
Costs of negotiation, preparation etc.
The Borrower shall pay to the Agent on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation, execution, syndication or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document including, without limitation, any legal fees (including VAT and disbursements)
|
20.3
|
Costs of variations, amendments, enforcement etc.
The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Creditor Party concerned, the amount of all expenses incurred by a Creditor Party in connection with:
|
(a)
|
any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;
|
(b)
|
any consent or waiver by the Lenders, the Swap Banks, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance Document, or any request for such a consent or waiver;
|
(c)
|
the valuation of any security provided or offered under Clause 15 or any other matter relating to such security; or
|
(d)
|
any step taken by the Lender or the Swap Bank concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.
|
20.4
|
Documentary taxes.
The Borrower shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrower to pay such a tax.
|
20.5
|
Financial Services Authority fees.
The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Lender concerned the amounts which the Agent from time to time notifies the Borrower that a Lender has notified the Agent to be necessary to compensate it for the cost attributable to its Contribution resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 and/or by the Bank of England and/or by the Financial Services Authority (or other United Kingdom governmental authorities or agencies) of a requirement to pay fees to the Financial Services Authority calculated by reference to liabilities used to fund its Contribution.
|
20.6
|
Certification of amounts.
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
21
|
INDEMNITIES
|
21.1
|
Indemnities regarding borrowing and repayment of Loan.
The Borrower shall fully indemnify the Agent and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:
|
(a)
|
an Advance not being borrowed on the date specified in the Drawdown Notice relating to such Advance for any reason other than a default by the Lender claiming the indemnity;
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;
|
(c)
|
any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrower on the amount concerned under Clause 7);
|
(d)
|
the occurrence of an Event of Default or a Latent Event of Default and/or the acceleration of repayment of the Loan under Clause 19;
|
21.2
|
Breakage costs.
Without limiting its generality, Clause 21.1 covers any claim, expense, liability or loss, including a loss of a prospective profit, incurred by a Lender:
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount); and
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one.
|
21.3
|
Miscellaneous indemnities.
The Borrower shall fully indemnify each Creditor Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may be made or brought against or incurred by a Creditor Party, in any country, as a result of or in connection with:
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document or any Master Agreement by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document or any Master Agreement; or
|
(b)
|
any other Pertinent Matter,
|
21.4
|
Currency indemnity.
If any sum due from the Borrower or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "
Contractual Currency
") into another currency (the "
Payment
Currency
") for the purpose of:
|
(a)
|
making or lodging any claim or proof against the Borrower or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
(c)
|
enforcing any such order or judgment,
|
21.5
|
Mandatory Cost
|
(a)
|
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b)
|
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions).
|
21.6
|
Application to Master Agreements.
For the avoidance of doubt, Clause 21.4 does not apply in respect of sums due from the Borrower to a Swap Counterparty under or in connection with a Master Agreement as to which sums the provisions of section 8 (Contractual Currency) of that Master Agreement shall apply.
|
21.7
|
Certification of amounts.
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
21.8
|
Sums deemed due to a Lender.
For the purposes of this Clause 21, a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
|
22
|
NO SET-OFF OR TAX DEDUCTION
|
22.1
|
No deductions.
All amounts due from the Borrower or any Security Party under a Finance Document or any the Master Agreement shall be paid:
|
(a)
|
without any form of set‑off, cross-claim or condition; and
|
(b)
|
free and clear of any tax deduction except a tax deduction which the Borrower or such Security Party is required by law to make.
|
22.2
|
Grossing-up for taxes.
If the Borrower or any Security Party is required by law to make a tax deduction from any payment under a Finance Document or a Master Agreement (other than a FATCA Deduction):
|
(a)
|
the Borrower or such Security Party (as the case may be) shall notify the Agent as soon as it becomes aware of the requirement;
|
(b)
|
the Borrower or such Security Party (as the case may be) shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and
|
(c)
|
the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received.
|
22.3
|
Evidence of payment of taxes.
Within 1 month after making any tax deduction, the Borrower shall deliver to the Agent documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.
|
22.4
|
Tax deduction.
In this Clause 22 "
tax deduction
" means any deduction or withholding for or on account of any present or future tax except tax other than a FATCA Deduction.
|
22.5
|
FATCA Deduction.
Each party to this Agreement 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 to this Agreement 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. Each party to this Agreement 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 this Agreement to whom it is making the payment and, in addition, shall notify the Borrower, the Agent and the other Creditor Parties.
|
22.6
|
Stamp taxes.
The Borrower shall pay and, within 3 Business Days of demand, indemnify each Creditor Party against any cost, loss or liability which that Creditor Party incurs in relation to all stamp duty, registration and other similar taxes payable in respect of any Finance Document or any Master Agreement.
|
22.7
|
Application to Master Agreements.
For the avoidance of doubt, Clause 22 does not apply in respect of sums due from the Borrower to a Swap Counterparty under or in connection with a Master Agreement as to which sums the provisions of section 2(d) (
Deduction or Withholding for Tax
) of that Master Agreement shall apply.
|
22.8
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party;
|
(ii)
|
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
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Creditor Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
22.9
|
VAT
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party to a Creditor 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 paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Creditor Party to any Party under a Finance Document and such Creditor Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Creditor 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 Creditor Party must promptly provide an appropriate VAT invoice to that Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Creditor Party (the "
Supplier
") to any other Creditor Party (the "
Recipient
") under a Finance Document, and any Party other than
|
(i)
|
(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 sub-paragraph (i) 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
|
(ii)
|
(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.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Creditor Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Creditor Party for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Creditor Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 22.9 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).
|
(e)
|
In relation to any supply made by a Creditor Party to any Party under a Finance Document, if reasonably requested by such Creditor Party, that Party must promptly provide such Creditor Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Creditor Party's VAT reporting requirements in relation to such supply.
|
23
|
ILLEGALITY, ETC.
|
23.1
|
Illegality.
This Clause 23 applies if a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a specified date, become:
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
(b)
|
contrary to, or inconsistent with, any regulation,
|
23.2
|
Notification of illegality.
The Agent shall promptly notify the Borrower, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23.1 which the Agent receives from the Notifying Lender.
|
23.3
|
Prepayment; termination of Commitment.
On the Agent notifying the Borrower under Clause
23.2
, the Notifying Lender's Commitment shall terminate; and thereupon or, if later, on the date
|
23.4
|
Mitigation.
If circumstances arise which would result in a notification under Clause 23.1 then, without in any way limiting the rights of the Notifying Lender under Clause
23.3
, the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
24
|
INCREASED COSTS
|
24.1
|
Increased costs.
This Clause 24 applies if a Lender (the "
Notifying Lender
") notifies the Agent that the Notifying Lender considers that as a result of:
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Notifying Lender's overall net income); or
|
(b)
|
the effect of complying with any law or regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement; or
|
(c)
|
the implementation or application of or compliance with any Basel III Regulation, CRD IV and CRR,
|
24.2
|
Meaning of "increased costs".
In this Clause 24, "increased costs" means, in relation to a Notifying Lender:
|
(a)
|
an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or having taken an assignment of rights under this Agreement, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums;
|
(b)
|
a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;
|
(c)
|
an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or
|
(d)
|
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender after providing evidence of its method of calculation to quantify such increased costs under this Agreement,
|
24.3
|
Notification to Borrower of claim for increased costs.
The Agent shall promptly notify the Borrower and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1.
|
24.4
|
Payment of increased costs.
The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
|
24.5
|
Notice of prepayment.
If the Borrower is not willing to continue to compensate the Notifying Lender for the increased cost under Clause
24.4
, the Borrower may give the Agent not less than 14 days' notice of its intention to prepay the Notifying Lender's Contribution at the end of an Interest Period.
|
24.6
|
Prepayment; termination of Commitment.
A notice under Clause
24.5
shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower's notice of intended prepayment; and:
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrower shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
|
24.7
|
Application of prepayment.
Clause 8 shall apply in relation to the prepayment.
|
25
|
SET‑OFF
|
25.1
|
Application of credit balances.
Each Creditor Party may without prior notice:
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Borrower to that Creditor Party under any of the Finance Documents; and
|
(b)
|
for that purpose:
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of the Borrower;
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
|
25.2
|
Existing rights unaffected.
No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
|
25.3
|
Sums deemed due to a Lender.
For the purposes of this Clause 25, a sum payable by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.
|
25.4
|
No Security Interest.
This Clause 25 gives the Creditor Parties a contractual right of set-off only, and does not create any equitable charge or other Security Interest over any credit balance of the Borrower.
|
26
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
26.1
|
Transfer by Borrower.
The Borrower may not, without the prior written consent of the Agent, given on the instructions of all the Lenders transfer any of its rights, liabilities or obligations under any Finance Document.
|
26.2
|
Transfer by a Lender.
Subject to Clause
26.5
a Lender (the "
Transferor Lender
") may at any time, without the consent of the Borrower or any Security Party but with the prior approval of the Agent, cause:
|
(a)
|
its rights in respect of all or part of its Contribution but in the case of part, in an amount no less than $5,000,000; or
|
(b)
|
its obligations in respect of all or part of its Commitment but in the case of part, in an amount no less than $5,000,000; or
|
(c)
|
a combination of (a) and (b),
|
26.3
|
Transfer Certificate, delivery and notification.
As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrower, the Security Parties, the Security Trustee, each of the other Lenders and each of the Swap Banks;
|
(b)
|
on behalf of the Transferee Lender, send to the Borrower and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b),
|
26.4
|
Effective Date of Transfer Certificate.
A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date Provided that it is signed by the Agent under Clause 26.3 on or before that date.
|
26.5
|
No transfer without Transfer Certificate.
Except as provided in Clause 26.17, no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
26.6
|
Lender re-organisation; waiver of Transfer Certificate.
However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in a successor, the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.
|
26.7
|
Effect of Transfer Certificate.
A Transfer Certificate takes effect in accordance with English law as follows:
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrower or any Security Party had against the Transferor Lender;
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
(c)
|
the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro‑rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of the Borrower or any Security Party against the Transferor Lender had not existed;
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.6 and Clause 20, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.
|
26.8
|
Maintenance of register of Lenders.
During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause
26.4
) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least 3 Business Days' prior notice.
|
26.9
|
Reliance on register of Lenders.
The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.
|
26.10
|
Authorisation of Agent to sign Transfer Certificates.
The Borrower, the Security Trustee, each Lender and each Swap Bank irrevocably authorises the Agent to sign Transfer Certificates on its behalf.
|
26.11
|
Registration fee.
In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $5,000 from the Transferor Lender or (at the Agent's option) the Transferee Lender.
|
26.12
|
Sub-participation; subrogation assignment.
A Lender may sub‑participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice to, the Borrower, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.
|
26.13
|
Disclosure of Confidential Information.
Any Creditor Party may disclose:
|
(a)
|
with the prior written consent of the Borrower, to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives such Confidential Information as that Creditor Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, representatives and professional advisers;
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or the Borrower and/or one or more of the Security Parties and to any of that person's Affiliates, representatives and professional advisers;
|
(iii)
|
appointed by any Creditor Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 26.17 and to any rating agency in relation to any such securitisation;
|
(viii)
|
who is a party; or
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document,
|
(A)
|
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C)
|
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Creditor Party, it is not practicable so to do in the circumstances; and
|
(c)
|
with the prior written consent of the Borrower, to any person appointed by that Creditor Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of 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 paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement substantially in the form of the Loan Market Association Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Creditor Party.
|
26.14
|
Change of lending office.
A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:
|
(a)
|
the date on which the Agent receives the notice; and
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
26.15
|
Notification.
On receiving such a notice, the Agent shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
|
26.16
|
Replacement of Reference Bank.
If any Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 then, unless the Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect, the first‑mentioned Reference Bank's appointment shall cease to be effective.
|
26.17
|
Security over Lenders' rights.
In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from the Borrower or any Security Party, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
|
(a)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(i)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities;
|
(ii)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
(iii)
|
require any payments to be made by the Borrower or any Security Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
27
|
VARIATIONS AND WAIVERS
|
27.1
|
Variations, waivers etc. by Majority Lenders
. Subject to Clause 27.2, a document shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by fax, by the Borrower, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security Party is party, by that Security Party.
|
27.2
|
Variations, waivers etc. requiring agreement of all Lenders.
However, as regards the following, Clause
27.1
applies as if the words "by the Agent on behalf of the Majority Lenders" were replaced by the words "by or on behalf of every Lender and every Swap Bank":
|
(a)
|
a change to any Security Party, other than in accordance with the terms of the Finance Documents;
|
(b)
|
a reduction in the Margin;
|
(c)
|
a postponement to the date for, or a reduction in the amount of, any payment of principal, interest, fees or other sum payable under this Agreement;
|
(d)
|
an increase in any Lender's Commitment;
|
(e)
|
a change to the definition of "
Majority Lenders
";
|
(f)
|
a change to the definition of "
Sanctions
", "
Sanctions List
" or "
Restricted Person
";
|
(g)
|
a change to Clause 3 or this Clause 27;
|
(h)
|
a change to clause 10.20;
|
(i)
|
a change to Clauses 12.5, 12.6, 12.7 and
12.8
;
|
(j)
|
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document;
|
(k)
|
an extension of the Availability Period; and
|
(l)
|
any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required.
|
27.3
|
Exclusion of other or implied variations.
Except for a document which satisfies the requirements of Clauses
27.1
and 27.2, no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
(b)
|
an Event of Default; or
|
(c)
|
a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general law; or
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law,
|
28
|
BAIL IN
|
28.1
|
Contractual recognition of bail-in
|
(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.
|
29
|
NOTICES
|
29.1
|
General.
Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter, electronic mail ("Email") or fax and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
|
29.2
|
Addresses for communications.
A notice by letter or fax shall be sent:
|
(a)
|
to the Borrower: Scorpio Tankers Inc.
|
(b)
|
to a Lender: At the address below its name in Schedule 1 or a Swap Bank
Schedule 2
or (as the case may require) in the relevant Transfer Certificate.
|
(c)
|
to a Swap Bank At the address below its name in
Schedule 2
.
|
(d)
|
to the Agent:
|
(e)
|
to the Security Trustee: in respect of administrative matters:
|
29.3
|
Effective date of notices.
Subject to Clauses 29.4 and
29.5
:
|
(a)
|
a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered;
|
(b)
|
a notice which is sent by Email shall be deemed to be served, and shall take effect, at the time when it is actually received in readable form; and
|
(c)
|
a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.
|
29.4
|
Service outside business hours.
However, if under Clause 29.3 a notice would be deemed to be served:
|
(a)
|
on a day which is not a business day in the place of receipt; or
|
(b)
|
on such a business day, but after 5 p.m. local time,
|
29.5
|
Illegible notices.
Clauses 29.3 and 29.4 do not apply if the recipient of a notice notifies the sender within 1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.
|
29.6
|
Valid notices.
A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:
|
(a)
|
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or
|
(b)
|
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.
|
29.7
|
Electronic communication between the Agent and a Lender or a Swap Bank.
Any communication to be made between the Agent and a Lender or a Swap Bank under or in connection with the Finance Documents may be made by Email or other electronic means, if the Agent and the relevant Lender or Swap Bank:
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(b)
|
notify each other in writing of their Email address and/or any other information required to enable the sending and receipt of information by that means; and
|
(c)
|
notify each other of any change to their respective Email addresses or any other such information supplied to them.
|
29.8
|
English language.
Any notice under or in connection with a Finance Document shall be in English.
|
29.9
|
Meaning of "notice".
In this Clause 29, "
notice
" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
|
30
|
SUPPLEMENTAL
|
30.1
|
Rights cumulative, non-exclusive.
The rights and remedies which the Finance Documents give to each Creditor Party are:
|
(a)
|
cumulative;
|
(b)
|
may be exercised as often as appears expedient; and
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
|
30.2
|
Severability of provisions.
If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.
|
30.3
|
Counterparts.
A Finance Document may be executed in any number of counterparts.
|
30.4
|
Third party rights.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
31
|
LAW AND JURISDICTION
|
31.1
|
English law.
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
|
31.2
|
Exclusive English jurisdiction.
Subject to Clause 31.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.
|
31.3
|
Choice of forum for the exclusive benefit of Creditor Parties.
Clause
31.2
is for the exclusive benefit of the Creditor Parties, each of which reserves the rights:
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
31.4
|
Process agent.
The Borrower irrevocably appoints Scorpio UK Limited at its office for the time being, presently at 10 Lower Grosvenor Place, London, SW1W 0EN (such communication to be marked preferably and if possible on the paper envelope and not on the courier packaging marked "
STNG Transaction
" for the urgent attention of General Counsel), to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.-
|
31.5
|
Creditor Party rights unaffected.
Nothing in this Clause 31 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
31.6
|
Meaning of "proceedings".
In this Clause 31, "
proceedings
" means proceedings of any kind, including an application for a provisional or protective measure and a "
Dispute
" means 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.
|
Lender
|
Lending Office
|
Term Loan Commitment
|
Revolving Credit Facility Commitment
|
Incremental Credit Facility Commitments
|
ABN AMRO Bank N.V.
|
Gustav Mahlerlaan 10
1082 PP Amsterdam The Netherlands |
$66,666,666.67
|
$33,333,333.33
|
$0
|
|
|
|
|
|
Nordea Bank Finland Plc, New York Branch
|
1211 Avenue of the Americas 23
rd
Floor,
New York,
NY 10036
|
$66,666,666.66
|
$33,333,333.34
|
$0
|
|
|
|
|
|
Skandinaviska Enskilda Banken AB (publ)
|
Kungsträdgårdsgatan 8
106 40 Stockholm,
Sweden
|
$66,666,666.67
|
$33,333,333.33
|
$0
|
|
|
$200,000,000
|
$100,000,000
|
$0
|
Swap Bank
|
Booking Office
|
ABN AMRO Bank N.V.
|
Gustav Mahlerlaan 10
1082 PP Amsterdam The Netherlands |
|
|
Nordea Bank Finland Plc, New York Branch
|
1211 Avenue of the Americas, 23
rd
Floor,
New York,
NY 10036
|
Skandinaviska Enskilda Banken AB (publ)
|
Kungsträdgårdsgatan 8
106 40 Stockholm,
Sweden
|
1
|
We refer to the loan agreement (the "
Loan
Agreement
") dated [
l
] 2016 and made between ourselves as Borrower, the Lenders referred to therein, the Swap Banks referred to therein, the Mandated Lead Arrangers referred to therein, the Bookrunners referred to therein, yourselves as Agent and as Security Trustee in connection with a facility of up to US$372,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
2
|
We request to borrow an Advance pursuant to the [Term Loan]/[Revolving Credit Facility]/[Incremental Credit Facility] as follows:‑
|
(a)
|
Amount: US$[
l
];
|
(b)
|
Drawdown Date: [
l
] 2016;
|
(c)
|
[Duration of the first Interest Period shall be [
l
] months;] and
|
(d)
|
Payment instructions: [
l
].
|
3
|
We represent and warrant that:
|
(a)
|
the representations and warranties in Clause 10 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice and on the Drawdown Date with reference to the circumstances now existing; and
|
(b)
|
no Event of Default or Latent Event of Default has occurred or will result from the borrowing of the Loan.
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
1
|
A duly executed original of this Agreement and the Agency and Trust Deed.
|
2
|
Copies of the certificate of incorporation and constitutional documents of the Borrower and each Security Party.
|
3
|
Copies of resolutions of the directors of the Borrower and each Security Party and in the case of the Guarantors copies of resolutions of their shareholders authorising the execution of the Master Agreement and each of the Finance Documents to which the Borrower or that Security Party is a party and, in the case of the Borrower, authorising named officers to give Drawdown Notices and other notices under this Agreement.
|
1
|
The original of any power of attorney under which the Master Agreement (if applicable) and any Finance Document is executed on behalf of the Borrower (where a separate power of attorney is issued by the Borrower) or a Security Party.
|
2
|
An incumbency certificate in respect of the officers and directors (or equivalent) of each of the Borrower and the Security Parties and signature samples of any signatories to any Finance Document.
|
3
|
Evidence satisfactory to the Agent that all consents and approvals which the Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document and any Master Agreement have been obtained and any required filings have been made.
|
4
|
Documentary evidence that the agent for service of process named in Clause 31 has accepted its appointment.
|
5
|
Such documentation and other evidence in form and substance acceptable to the Agent or a Lender in order for each to carry out and be satisfied with the results of all necessary "know your customer" or other checks which it is required to carry out in relation to the transactions contemplated by this Agreement, and other Finance Documents and any Master Agreement, including without limitation obtaining, verifying and recording certain information and documentation that will allow the Agent and each of the Lenders to identify the Borrower and each Security Party.
|
6
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of England and the Marshall Islands and such other relevant jurisdictions as the Agent may require.
|
7
|
A Compliance Certificate together with all supporting Accounting Information and other evidence as required pursuant to the terms of this Agreement.
|
8
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 20 have been paid or will be paid by the first Drawdown Date.
|
9
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
10
|
The financial statements of the Borrower for its financial year ended 31 December 2015.
|
1
|
A certificate of an authorised signatory of the relevant Guarantors and, if signing any Finance Document listed in paragraph 2 below, the Borrower and any other Security Party, certifying that each corporate and copy document provided by it under Part A of Schedule 4 remains correct, complete, has not been amended and is in full force and effect as at the relevant Drawdown Date and that there is no Event of Default.
|
2
|
Copies of resolutions of the directors of the Borrower and each Security Party and in the case of the relevant Guarantors copies of resolutions of their shareholders authorising the execution of the Master Agreement and each of the Finance Documents to which the Borrower or that Security Party is a party.
|
3
|
A duly executed original of the Mortgage, the Guarantee or Guarantees, the Shares Pledge, the General Assignment, the Charterparty Assignment, the Accounts Security Deed and any Intercompany Loan Assignment (if applicable) in relation to the relevant Guarantors and Collateral Ships and, if any Master Agreement has been or will be entered into on or prior to the Drawdown Date, the original of a Master Agreement Assignment in relation to such Master Agreement (and of each document required to be delivered by their respective terms).
|
4
|
Evidence that any Existing Security over the Collateral Ships (including any mortgages) has been released and evidence satisfactory to the Agent that the amount of the Existing Indebtedness in relation to the Collateral Ships has been prepaid.
|
5
|
The original of any power of attorney under which any Finance Document or any Master Agreement is to be executed on behalf of the relevant Guarantors or the Borrower if applicable (and only where a separate power of attorney is issued by the Borrower).
|
6
|
Copies of all consents which the Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document or any Master Agreement entered into on or prior to the Drawdown Date not already provided under Part A of this Schedule.
|
7
|
The Agent and Lenders have been provided with all information and documentation they have requested in order to carry out and be reasonably satisfied with all further necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated by this Agreement and to satisfy all internal compliance policies of the Agent and the Lenders in relation to "know you customer" requirements.
|
8
|
Confirmation that any Intercompany Loans made or to be made available to the relevant Guarantor have been or will be when made available fully subordinated to the rights of the Creditor Parties under the Finance Documents and any Master Agreements.
|
9
|
Documentary evidence that the Earnings Accounts in respect of the Collateral Ships have been opened with the Account Bank.
|
10
|
Documentary evidence that:
|
(a)
|
each Collateral Ship is definitively and permanently registered in the name of the relevant Guarantor under the relevant Approved Flag;
|
(b)
|
each Collateral Ship is in the absolute and unencumbered ownership of the relevant Guarantor save as contemplated by the Finance Documents;
|
(c)
|
each Collateral Ship maintains class acceptable to the Agent free of all overdue recommendations and conditions of an Approved Classification Society;
|
(d)
|
the Mortgage in relation to each Collateral Ship has been duly registered against such Ship as a valid first preferred ship mortgage in accordance with the laws of the relevant Approved Flag; and
|
(e)
|
each Collateral Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with.
|
11
|
Documents establishing that each Collateral Ship is managed by the Approved Manager on terms acceptable to the Lenders, together with:
|
(a)
|
the Manager's Undertaking in respect of the Collateral Ship; and
|
(b)
|
copies of the relevant Approved Manager's Document of Compliance and of each Collateral Ships' Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and of each Collateral Ships’ ISSC.
|
12
|
Valuations of each Collateral
Ship to determine its Fair Market Value, addressed to the Agent and the Lenders, stated to be for the purposes of this Agreement and dated not earlier than the date falling 14 days prior to the Drawdown Date and obtained in accordance with Clause 15 and showing that upon the drawdown of Advances relating to the Collateral
Ships, the Borrower will be in compliance with Clause 15.
|
13
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of England, Marshall Islands, the Netherlands and such other relevant jurisdictions as the Agent may require.
|
14
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for the Collateral Ships as the Agent may require.
|
15
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 20 have been paid or will be paid by the first Drawdown Date.
|
16
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
1
|
A certificate of an authorised signatory of the relevant Guarantor and, if signing any Finance Document listed in paragraph 2 below, the Borrower and any other Security Party, certifying that each corporate and copy document provided by it under Part A of Schedule 4 remains correct, complete, has not been amended and is in full force and effect as at the relevant Drawdown Date and that there is no Event of Default.
|
2
|
Copies of resolutions of the directors of the Borrower and each Security Party and in the case of the Guarantors copies of resolutions of their shareholders authorising the execution of the Master Agreement and each of the Finance Documents to which the Borrower or that Security Party is a party and, in the case of the Borrower, authorising named officers to give Drawdown Notices and other notices under this Agreement.
|
3
|
A duly executed original of the Mortgage, the Guarantee in respect of the relevant Guarantor, the Shares Pledge, the General Assignment, the Charterparty Assignment, the Account Security Deed and any Intercompany Loan Assignment (if applicable) in relation to the relevant Guarantor and Additional Ship and, if any Master Agreement has been or will be entered into on or prior to the Drawdown Date, the original of a Master Agreement Assignment in relation to such Master Agreement (and of each document required to be delivered by their respective terms).
|
4
|
The original of any power of attorney under which any Finance Document or Master Agreement is to be executed on behalf of the relevant Guarantors or the Borrower if applicable (and only where a separate power of attorney is issued by the Borrower).
|
5
|
Evidence that any existing security over the Additional Ship (including any mortgages) has been released.
|
6
|
Copies of all consents which the Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document, any Master Agreement entered into on or prior to the Drawdown Date already provided under Part A or Part B of this Schedule.
|
7
|
The Agent and Lenders have been provided with all information and documentation they have requested in order to carry out and be reasonably satisfied with all further necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated by this Agreement and to satisfy all internal compliance policies of the Agent and the Lenders in relation to "know you customer" requirements.
|
8
|
Documentary evidence that the Earnings Accounts in respect of the Additional Ships have been opened with the Account Bank.
|
9
|
Documentary evidence that:
|
(a)
|
the Additional Ship is definitively and permanently registered in the name of the Borrower under the relevant Approved Flag;
|
(b)
|
the Additional Ship is in the absolute and unencumbered ownership of the Borrower save as contemplated by the Finance Documents;
|
(c)
|
the Additional Ship maintains class acceptable to the Agent free of all overdue recommendations and conditions of an Approved Classification Society;
|
(d)
|
that any and all Security Interests in favour of any other creditors in respect of the Borrower, such Additional Ship and the relevant Guarantor have been unconditionally and irrevocably released in full together with evidence satisfactory to the Agent of the due execution of any such release by the parties to it;
|
(e)
|
the Mortgage in relation to it has been duly registered against the Additional Ship as valid first priority or preferred (as the case may be) ship mortgage in accordance with the laws of the relevant Approved Flag; and
|
(f)
|
the Additional Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with.
|
10
|
Documents establishing that the Additional Ship will, as from the relevant Drawdown Date, be managed by the Approved Manager on terms acceptable to the Lenders, together with:
|
(a)
|
the Manager's Undertaking in respect of the Additional Ship; and
|
(b)
|
copies of the relevant Approved Manager's Document of Compliance and of the Additional Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and the Additional Ship’s ISSC.
|
11
|
Confirmation that any Intercompany Loans made or to be made available to the relevant Guarantor have been or will be when made available fully subordinated to the rights of the Creditor Parties under the Finance Documents and any Master Agreements.
|
12
|
Documentary evidence that the Earnings Accounts in respect of the Additional Ships have been opened with the relevant Account Bank.
|
13
|
A valuation of the Additional
Ship to determine its Fair Market Value, addressed to the Agent and the Lenders, stated to be for the purposes of this Agreement and dated not earlier than the date falling 14 days prior to the Drawdown Date for the Advance and obtained in accordance with Clause 15 and showing that upon the drawdown of the Advance, the Borrower will be in compliance with Clause 15.
|
14
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of England, Marshall Islands, The Netherlands and such other relevant jurisdictions as the Agent may require.
|
15
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for the relevant Additional Ship as the Agent may require.
|
16
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 20 have been paid or will be paid by the first Drawdown Date.
|
17
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
To:
|
[Name of Agent] for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, each Lender, each Swap Bank, each Bookrunner and each Mandated Lead Arranger as defined in the Loan Agreement referred to below.
|
1
|
This Certificate relates to a loan agreement ("the "
Agreement
") dated [
l
] 2016 and made between (1) Scorpio Tankers Inc. (the "
Borrower
"), (2) the banks and financial institutions named therein as Lenders, (3) the banks and financial institutions named therein as Swap Banks, (4) the banks and financial institutions named therein as Mandated Lead Arrangers, (5) the banks and financial institutions named therein as Bookrunners, (6) Nordea Bank Finland Plc, New York Branch as Agent and as Security Trustee for a loan facility of up to $372,000,000.
|
2
|
In this Certificate, terms defined in the Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate and:
|
3
|
The effective date of this Certificate is [
l
]
Provided that
this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4
|
[The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Agreement and every other Finance Document in relation to [
l
] per cent. of its Contribution, which percentage represents $[
l
].]
|
5
|
[By virtue of this Certificate and Clause 26 of the Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[
l
]] [from [
l
] per cent. of its Commitment, which percentage represents $[
l
]] and the Transferee acquires a Commitment of $[
l
].]
|
6
|
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Agreement provides will become binding on it upon this Certificate taking effect.
|
7
|
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Agreement.
|
8
|
The Transferor:
|
(a)
|
warrants to the Transferee and each Relevant Party that:
|
(i)
|
the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are required in connection with this transaction; and
|
(ii)
|
this Certificate is valid and binding as regards the Transferor;
|
(b)
|
warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4; and
|
(c)
|
undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose.
|
9
|
The Transferee:
|
(a)
|
confirms that it has received a copy of the Agreement and each of the other Finance Documents;
|
(b)
|
agrees that it will have no rights of recourse on any ground against either the Transferor, the Agent, the Security Trustee, any Lender, any Swap Bank, any Bookrunner or any Mandated Lead Arranger in the event that:
|
(i)
|
any of the Finance Documents prove to be invalid or ineffective;
|
(ii)
|
the Borrower or any Security Party fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents;
|
(iii)
|
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under any of the Finance Documents;
|
(c)
|
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Lender, any Swap Bank, any Bookrunner, or any Mandated Lead Arranger in the event that this Certificate proves to be invalid or ineffective;
|
(d)
|
warrants to the Transferor and each Relevant Party that:
|
(i)
|
it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and
|
(ii)
|
that this Certificate is valid and binding as regards the Transferee;
|
(e)
|
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10
|
The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
11
|
The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 9 as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded by it.
|
1
|
the Loan Agreement;
|
2
|
the Master Agreement dated [
l
] made between ourselves and [
l
]; and
|
3
|
a Confirmation delivered pursuant to the said Master Agreement dated [
l
] and addressed by [
l
] to us.
|
(a)
|
the Minimum Liquidity is $[
l
], $[
l
] of which consists of Cash and Cash Equivalents;
|
(b)
|
the Consolidated Tangible Net Worth is $[
l
];
|
(c)
|
the ratio of Net Debt to Consolidated Total Capitalisation is [
l
] to [
l
];
|
(d)
|
the ratio of Consolidated EBITDA to Consolidated Net Interest Expense is [
l
] to [
l
]; and
|
(e)
|
the Fair Market Value of the Ships plus the net realisation value of any additional security previously provided under Clause 15 [as at [date of most recent half/full year certificate] is not less than 140 per cent of the Loan.
[Note: Wording in square brackets is only relevant for quarterly compliance certificates]
|
|
Vessel
|
DWT
|
Built
|
Owner/Guarantor
|
1.
|
STI Opera
|
50,000
|
Jan-14
|
STI Opera Shipping Company Limited
|
2.
|
STI Texas City
|
50,000
|
Mar-14
|
STI Texas City Shipping Company Limited
|
3.
|
STI Meraux
|
50,000
|
Apr-14
|
STI Meraux Shipping Company Limited
|
4.
|
STI San Antonio
|
50,000
|
May-14
|
STI San Antonio Shipping Company Limited
|
5.
|
STI Virtus
|
50,000
|
Jun-14
|
STI Virtus Shipping Company Limited
|
6.
|
STI Venere
|
50,000
|
Jun-14
|
STI Venere Shipping Company Limited
|
7.
|
STI Aqua
|
50,000
|
Jul-14
|
STI Aqua Shipping Company Limited
|
8.
|
STI Dama
|
50,000
|
Jul-14
|
STI Dama Shipping Company Limited
|
9.
|
STI Benicia
|
50,000
|
Sep-14
|
STI Benicia Shipping Company Limited
|
10.
|
STI Regina
|
50,000
|
Sep-14
|
STI Regina Shipping Company Limited
|
11.
|
STI St. Charles
|
50,000
|
Sep-14
|
STI St. Charles Shipping Company Limited
|
12.
|
STI Yorkville
|
50,000
|
Oct-14
|
STI Yorkville Shipping Company Limited
|
|
Vessel
|
DWT
|
Built
|
Owner/Guarantor
|
1.
|
STI Amber
|
49,990
|
July-12
|
STI Amber Shipping Company Limited
|
2.
|
STI Topaz
|
49,990
|
Aug-12
|
STI Topaz Shipping Company Limited
|
3.
|
STI Ruby
|
49,990
|
Sep-12
|
STI Ruby Shipping Company Limited
|
4.
|
STI Garnet
|
49,990
|
Sep-12
|
STI Garnet Shipping Company Limited
|
|
Vessel
|
DWT
|
Built
|
Ship Amount
|
1.
|
STI Onyx
|
52,000
|
Sep-12
|
$16,500,000
|
2.
|
STI Duchessa
|
52,000
|
Jan-14
|
$19,500,000
|
3.
|
STI Emerald
|
52,000
|
Mar-13
|
$18,000,000
|
4.
|
STI Beryl
|
52,000
|
Apr-13
|
$18,000,000
|
THE BORROWER
|
|
|
|
SIGNED
by Micha Withoft
|
/s/ Micha Withoft
|
for and on behalf of
|
Title: Attorney in fact
|
SCORPIO TANKERS INC.
|
|
in the presence of:
|
|
/s/ Andrew Cottrell
|
|
Legal Intern
|
|
|
|
THE LENDERS
|
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
ABN AMRO BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/ Jennifer Greengrass
|
|
Name: Jennifer Greengrass
|
|
Title: Solicitor
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
NORDEA BANK FINLAND PLC, NEW YORK
|
Title: Attorney-in-Fact
|
BRANCH
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
SKANDINAVISKA ENSKILDA BANKEN AB
|
Title: Attorney-in-Fact
|
(publ)
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE SWAP BANKS
|
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
ABN AMRO BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
NORDEA BANK FINLAND PLC, NEW YORK
|
Title: Attorney-in-Fact
|
BRANCH
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
SKANDINAVISKA ENSKILDA BANKEN AB
|
Title: Attorney-in-Fact
|
(publ)
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE MANDATED LEAD ARRANGER
|
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
ABN AMRO BANK N.V.
|
Title: Attorney-in-Fact
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
NORDEA BANK FINLAND PLC, NEW YORK
|
Title: Attorney-in-Fact
|
BRANCH
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
SKANDINAVISKA ENSKILDA BANKEN AB
|
Title: Attorney-in-Fact
|
(publ)
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE BOOKRUNNERS
|
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
NORDEA BANK FINLAND PLC, NEW YORK
|
Title: Attorney-in-Fact
|
BRANCH
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE SECURITY TRUSTEE
|
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
NORDEA BANK FINLAND PLC, NEW YORK
|
Title: Attorney-in-Fact
|
BRANCH
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
THE AGENT
|
|
|
|
SIGNED
by
|
/s/ Joanna Goode
|
for and on behalf of
|
Name: Joanna Goode
|
NORDEA BANK FINLAND PLC, NEW YORK
|
Title: Attorney-in-Fact
|
BRANCH
|
|
in the presence of:
|
/s/ Amarjit Syan
|
|
Name: Amarjit Syan
|
|
Title: Paralegal
|
|
15 Appold Street
|
|
London EC2A 2HB
|
Section 1
|
Interpretation
|
1
|
Definitions and Interpretation
|
Section 2
|
The Facility
|
2
|
The Facility
|
3
|
Purpose
|
4
|
Conditions of Drawdown
|
Section 3
|
Drawdown
|
5
|
Drawdown
|
Section 4
|
Repayment, Prepayment and Cancellation
|
6
|
Repayment
|
7
|
Prepayment and Cancellation
|
Section 5
|
Costs of Drawdown
|
8
|
Interest
|
9
|
Interest Periods
|
10
|
Changes to the Calculation of Interest
|
11
|
Fees
|
Section 6
|
Additional Payment Obligations
|
12
|
Tax Gross Up and Indemnities
|
13
|
Increased Costs
|
14
|
Other Indemnities
|
15
|
Mitigation by the Finance Parties
|
16
|
Costs and Expenses
|
Section 7
|
Guarantee
|
17
|
Guarantee and Indemnity
|
Section 8
|
Representations, Undertakings and Events of Default
|
18
|
Representations
|
19
|
Information Undertakings
|
20
|
Financial Covenants
|
21
|
General Undertakings
|
22
|
Insurance Undertakings
|
23
|
Vessel Undertakings
|
24
|
Security Cover
|
25
|
Accounts and application of Earnings
|
26
|
Events of Default
|
Section 9
|
Changes to Parties
|
27
|
Changes to the Lenders
|
28
|
Changes to the Transaction Obligors
|
Section 10
|
The Finance Parties
|
29
|
The Facility Agent and the Arranger
|
30
|
The Security Agent
|
31
|
Conduct of Business by the Finance Parties
|
32
|
Sharing among the Finance Parties
|
Section 11
|
Administration
|
33
|
Payment Mechanics
|
34
|
Set-Off
|
35
|
Bail-In
|
36
|
Notices
|
37
|
Calculations and Certificates
|
38
|
Partial Invalidity
|
39
|
Remedies and Waivers
|
40
|
Settlement or Discharge Conditional
|
41
|
Irrevocable Payment
|
42
|
Amendments and Waivers
|
43
|
Confidentiality
|
44
|
Counterparts
|
Section 12
|
Governing Law and Enforcement
|
45
|
Governing Law
|
46
|
Enforcement
|
47
|
Waiver of Jury Trial
|
48
|
PATRIOT Act Notice
|
Execution Pages
|
Schedule 1 The Parties
|
Part A The Obligors
|
Part B The Original Lenders
|
Part C The Servicing Parties
|
Schedule 2 Conditions Precedent
|
Part A Initial Conditions Precedent
|
Part B Conditions Precedent to each Advance
|
Schedule 3 Requests
|
Part A Drawdown Request
|
Part B Selection Notice
|
Schedule 4 Form of Transfer Certificate
|
Schedule 5 Form of Assignment Agreement
|
Schedule 6 Form of Compliance Certificate
|
Schedule 7 Timetables
|
Schedule 8 Classification Society Undertaking
|
Part A Letter to Approved Classification Society
|
Part B Undertaking from Approved Classification Society
|
(1)
|
SCORPIO TANKERS INC.
, a corporation incorporated and existing under the laws of the Republic of The Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as borrower (the “
Borrower
”)
|
(2)
|
STI WEMBLEY SHIPPING COMPANY LIMITED
, a corporation incorporated and existing under the laws of the Republic of The Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as guarantor (“
Guarantor A
”)
|
(3)
|
STI MILWAUKEE SHIPPING COMPANY LIMITED
, a corporation incorporated and existing under the laws of the Republic of The Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as guarantor (“
Guarantor B
”)
|
(4)
|
STI SENECA SHIPPING COMPANY LIMITED
, a corporation incorporated and existing under the laws of the Republic of The Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as guarantor ( “
Guarantor C
”)
|
(5)
|
STI ALEXIS SHIPPING COMPANY LIMITED
, a corporation incorporated and existing under the laws of the Republic of The Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as guarantor (“
Guarantor D
” and, together with Guarantor A, Guarantor B and Guarantor C, collectively, the “
Guarantors
”, and each separately a “
Guarantor
”)
|
(6)
|
DVB BANK SE
, as arranger (the “
Arranger
”)
|
(7)
|
DVB BANK SE
,
as underwriter (the “
Underwriter
”)
|
(8)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as lenders (the “
Original Lenders
”)
|
(9)
|
DVB BANK AMERICA N.V.
,
as agent of the other Finance Parties (the “
Facility Agent
”)
|
(10)
|
DVB BANK AMERICA N.V.
,
as security agent for the Creditor Parties (the “
Security Agent
”)
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
the Earnings Accounts; and
|
(b)
|
any other accounts opened by an Obligor with the Account Bank, the Facility Agent or the Security Agent for the purposes of the Finance Documents.
|
(c)
|
approved in writing by the Facility Agent (acting on the instructions of the Majority Lenders) prior to that Vessel’s entry into such pooling arrangement.
|
(a)
|
the amount of its participation in the outstanding Loan; and
|
(b)
|
in relation to any proposed Drawdown, the amount of its participation in any Advance that is due to be made under the relevant Tranche on or before the proposed Drawdown Date.
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b)
|
in relation to any other state, 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.
|
(a)
|
the agreements on capital requirements, 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;
|
(b)
|
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Commitment and/or any overdue amount (or aggregate amount which includes its Commitment or any overdue amount); and
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one.
|
(a)
|
securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognized standing organized under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and
|
(c)
|
such other securities or instruments as the Majority Lenders shall agree in writing;
|
(a)
|
in respect of the Borrower,
|
(i)
|
a “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act), other than any holders of the Borrower’s Equity Interests as at the date of this Agreement, becoming the ultimate “beneficial owner” (as so defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of more than 35% of the total voting power of the Voting Stock of the Borrower (calculated on a fully diluted basis); or
|
(ii)
|
individuals who at the beginning of any period of two consecutive calendar years constituted the Board of Directors or equivalent governing body of the Borrower (together with any new directors (or equivalent) whose election by such Board of Directors or equivalent governing body or whose nomination for election was approved by a vote of at least two-thirds of the members of such Board of Directors or equivalent governing body then still in office who either were members of such Board of Directors or equivalent governing body at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute at least 50% of the members of such Board of Directors or equivalent governing body then in office;
|
(b)
|
in respect of any Guarantor, the occurrence of any act, event or circumstance that without prior written consent of the Majority Lenders results in the Borrower owning directly or indirectly less than 100% of the issued and outstanding Equity Interests in a Guarantor.
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Part B of Schedule 1 (
The Parties
) and the amount of any other Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a)
|
any member of the Group or any of its advisers; or
|
(b)
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 43 (
Confidentiality
); or
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(iii)
|
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a)
|
plus, to the extent deducted in computing the net income of the Borrower for that accounting period, the sum, without duplication, of:
|
(i)
|
all federal, state, local and foreign income taxes and tax distributions;
|
(ii)
|
Consolidated Net Interest Expense;
|
(iii)
|
depreciation, depletion, amortization of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortization of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey of a Fleet Vessel during such period; and
|
(v)
|
any drydocking expenses;
|
(b)
|
minus, to the extent added in computing the consolidated net income of the Borrower for that accounting period, (i) any non-cash income or non-cash gains and (ii) any extraordinary gains on asset sales not incurred in the ordinary course of business.
|
(a)
|
all Financial Indebtedness; and
|
(b)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties or, if applicable, any Obligor; 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 or, if applicable, any Obligor preventing that, or any other, Party or, if applicable, any Obligor:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other Parties or, if applicable, any Obligor in accordance with the terms of the Finance Documents,
|
(a)
|
the following, save to the extent that any of them is, pooled or shared with any other person, pursuant to an Approved Pooling Arrangement:
|
(i)
|
all freight, hire and passage moneys;
|
(ii)
|
compensation payable to the relevant Guarantor or the Security Agent in the event of requisition of that Vessel for hire;
|
(iii)
|
remuneration for salvage and towage services;
|
(iv)
|
demurrage and detention moneys;
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Vessel;
|
(vi)
|
all moneys which are at any time payable under any Insurances in relation to loss of hire;
|
(vii)
|
all monies which are at any time payable to the relevant Guarantor in relation to general average contribution; and
|
(b)
|
if and whenever that Vessel is employed on terms whereby any moneys falling within sub-paragraphs (i) to (vi) of paragraph (a) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Vessel.
|
(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 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/or a Vessel and/or any Transaction Obligor and/or any operator or manager of a Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c)
|
any other incident in which Environmentally Sensitive Material is released, 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 and/or where any Transaction Obligor and/or any operator or manager of a Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.
|
(a)
|
any failure by any Plan to satisfy the minimum funding standards (for purposes of Section 412 or 430 of the Code or Section 302 of ERISA), whether or not waived;
|
(b)
|
the filing pursuant to Section 412 of the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan;
|
(c)
|
the failure by the Borrower, any Guarantor or any ERISA Affiliate to make any required contribution to a Multiemployer Plan;
|
(d)
|
a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430(i) of the Code);
|
(e)
|
the incurrence by the Borrower, any Guarantor or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
|
(f)
|
a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Section 4245 of ERISA, in reorganization within the meaning of Section 4241 of ERISA or in endangered status within the meaning of Section 432 of the Code or Section 305 of ERISA;
|
(g)
|
any Reportable Event; or
|
(h)
|
the existence with respect to any Plan of a non-exempt “prohibited transaction” for purposes of Section 406 of ERISA or Section 4975 of the Code.
|
(a)
|
the imposition of any lien in favor of the PBGC on any Plan or Multiemployer Plan, or on any asset of the Borrower, any Guarantor or any ERISA Affiliate in connection with any Plan or Multiemployer Plan;
|
(b)
|
the receipt by the Borrower, any Guarantor or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan or Multiemployer Plan under Section 4042 of ERISA;
|
(c)
|
the receipt by the Borrower, any Guarantor or ERISA Affiliate of any notice that a Multiemployer Plan is in critical status within the meaning of Section 432 of the Code or Section 305 of ERISA;
|
(d)
|
the filing of a notice of intent to terminate a Plan under Section 4041 of ERISA; or
|
(e)
|
the occurrence of any other event or condition which under Section 4042 of ERISA, could reasonably be expected to lead to the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan.
|
(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 U.S. and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the IRS, the U.S. government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
this Agreement;
|
(b)
|
any Fee Letter;
|
(c)
|
the Note;
|
(d)
|
each Drawdown Request;
|
(e)
|
any Security Document;
|
(f)
|
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
(g)
|
any other document designated as such by the Facility Agent and the Borrower.
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereto or the completion of such services, except trade payables;
|
(e)
|
all capitalised lease obligations of the Debtor as lessee;
|
(f)
|
all Financial Indebtedness of persons other than the Debtor secured by a Security on any asset of that person, whether or not such Financial Indebtedness is assumed by the Debtor, provided that the amount of such Financial Indebtedness shall be the lesser of:
|
(i)
|
the fair market value of such asset at such date of determination; and
|
(ii)
|
the amount of such Financial Indebtedness; and
|
(g)
|
all Financial Indebtedness incurred under any guarantee, indemnity or similar obligation to the extent such Financial Indebtedness is guaranteed, secured, expressed to be indemnified by, or otherwise assured by the Debtor.
|
(a)
|
the amount outstanding at any time of any Financial Indebtedness issued with an original issue discount shall be deemed to be the face amount of such Financial Indebtedness less
|
(b)
|
the calculation of Financial Indebtedness shall not take into account any liability of the Debtor for taxes.
|
(a)
|
such person shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or
|
(b)
|
a proceeding shall have been instituted by or against such person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, and solely in case of an involuntary proceeding:
|
(i)
|
such proceeding shall remain undismissed or unstayed for a period of 45 days; or
|
(ii)
|
any of the actions sought in such involuntary proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur.
|
(a)
|
all policies and contracts of insurance, including entries of that Vessel in any protection and indemnity or war risks association, effected in respect of that Vessel, the Earnings or otherwise in respect of that Vessel whether before, on or after the date of this Agreement; and
|
(b)
|
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium and any rights in relation to any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of such Advance, the Loan or that Unpaid Sum; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of such Advance, the Loan or that Unpaid Sum,
|
(a)
|
any Original Lender; and
|
(b)
|
any reputable financial institution governed by banking regulations in the United States, the United Kingdom and/or the European Union which has become a Party in accordance with Clause 27 (
Changes to the Lenders
),
|
(a)
|
the applicable Screen Rate;
|
(b)
|
(if no Screen Rate is available for the Interest Period of the Advance, the Loan or that Unpaid Sum), the applicable Interpolated Screen Rate; or
|
(c)
|
if:
|
(i)
|
no Screen Rate is available for the currency of the Advance, the Loan or that Unpaid Sum); or
|
(ii)
|
no Screen Rate is available for the Interest Period of the Advance, the Loan or that Unpaid Sum and it is not possible to calculate an Interpolated Screen Rate for the Advance, the Loan or that Unpaid Sum,
|
(a)
|
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66⅔ percent of the Total Commitments; or
|
(b)
|
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ percent of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ percent of the Loan immediately before such repayment.
|
(a)
|
unless otherwise specified, as at a date not more than 14 days previously;
|
(b)
|
by an Approved Appraiser or Approved Appraisers;
|
(c)
|
without physical inspection (i.e., on a “desk-top” basis) of that Vessel or vessel; and
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm’s length commercial terms as between a willing seller and a willing buyer, free of any Charter.
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of any Obligor or the Group as a whole; or
|
(b)
|
the ability of any Transaction Obligor to perform its obligations under any Finance Document; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended 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.
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(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.
|
(a)
|
any tax on the net income of a Finance Party (but not a tax on gross income or individual items of income), whether collected by deduction or withholding or otherwise, which is levied by a taxing jurisdiction which:
|
(i)
|
is located in the country under whose laws such entity is incorporated or formed (or in the case of a natural person is a country of which such person is a citizen); or
|
(ii)
|
with respect to any Lender, is located in the country of its Facility Office; or
|
(iii)
|
with respect to any Finance Party other than a Lender, is located in the country from which such party has originated its participation in this transaction; or
|
(b)
|
any FATCA Deduction made on account of a payment to a Party.
|
(a)
|
either (i) is not subordinated in right of payment to any other Financial Indebtedness of such person or (ii) is subordinate in right of payment to the same Financial Indebtedness of such person as is the other and is so subordinate to the same extent; and
|
(b)
|
is not subordinate in right of payment to the other or to any Financial Indebtedness of such person as to which the other is not so subordinate.
|
(a)
|
a Charter:
|
(i)
|
which is a time, voyage or consecutive voyage charter;
|
(ii)
|
the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 13 months plus a redelivery allowance of not more than 30 days;
|
(iii)
|
which is entered into on
bona fide
arm’s length terms at the time at which that Vessel is fixed; and
|
(iv)
|
in relation to which not more than two months’ hire is payable in advance; or
|
(b)
|
a Charter which is entered into pursuant to an Approved Pooling Arrangement; or
|
(c)
|
any Charter (other than one covered by paragraph (a) or (b) above) which is approved in writing by the Facility Agent acting with the authorization of the Majority Lenders.
|
(a)
|
any Financial Indebtedness incurred under the Finance Documents;
|
(b)
|
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents on terms satisfactory to the Facility Agent (acting on instructions of the Majority Lenders).
|
(a)
|
Security created by the Finance Documents;
|
(b)
|
any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
|
(c)
|
liens for unpaid master’s and crew’s wages in accordance with usual maritime practice;
|
(d)
|
liens for salvage;
|
(e)
|
liens for master’s disbursements incurred in the ordinary course of trading; and
|
(f)
|
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Vessel and not as a result of any default or omission by any
|
(a)
|
S&P and Moody’s; or
|
(b)
|
if S&P or Moody’s or both of them are not making ratings of securities publicly available, a nationally recognized U.S. rating agency or agencies, as the case may be, selected by the Facility Agent with the consent of the Majority Lenders, which will be substituted for S&P or Moody’s or both, as the case may be.
|
(a)
|
with respect to S&P, any of the following categories (any of which may include a “+” or “-”): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories);
|
(b)
|
with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and
|
(c)
|
the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.
|
(a)
|
its jurisdiction of incorporation or formation;
|
(b)
|
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;
|
(c)
|
any jurisdiction where it conducts its business; and
|
(d)
|
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a)
|
any expropriation, confiscation, requisition or acquisition of that Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 60 days redelivered to the full control of the relevant Guarantor; and
|
(b)
|
any arrest, capture, seizure or detention of that Vessel (including any hijacking or theft) unless it is within 60 days redelivered to the full control of the relevant Guarantor.
|
(a)
|
imposed by law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council or the United States of America; or
|
(b)
|
otherwise imposed by any law or regulation or Executive Order by which any Obligor or any Finance Party is bound or, as regards a regulation, compliance with which is reasonable in the ordinary course of business of any Obligor or Finance Party including, without limitation, laws or regulations or Executive Orders restricting loans to investments in, or the exports of assets to, foreign countries or entities doing business there,
|
(a)
|
any Shares Security;
|
(b)
|
any Mortgage;
|
(c)
|
any Earnings Assignment;
|
(d)
|
any Insurance Assignment;
|
(e)
|
any Charter Assignment;
|
(f)
|
any Account Security;
|
(g)
|
any Manager’s Undertaking;
|
(h)
|
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or
|
(i)
|
any other document designated as such by the Facility Agent and the Borrower.
|
(a)
|
the Transaction Security expressed to be granted in favor of the Security Agent as trustee for the Creditor Parties and all proceeds of that Transaction Security;
|
(b)
|
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Creditor Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favor of the Security Agent as trustee for the Creditor Parties;
|
(c)
|
the Security Agent’s interest in any turnover trust created under the Finance Documents; and
|
(d)
|
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Creditor Parties,
|
(i)
|
rights intended for the sole benefit of the Security Agent; and
|
(ii)
|
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a)
|
an Obligor; or
|
(b)
|
any other person who is owed Subordinated Liabilities.
|
(a)
|
any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors (or equivalent governing body) thereof are, as of such date, directly, indirectly or beneficially owned, controlled or held by the parent and/or one or more subsidiaries of the parent;
|
(b)
|
any partnership (i) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (ii) the only general partners of which are the parent and/or one or more subsidiaries of the parent;
|
(c)
|
any other person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with IFRS as of such date;
|
(d)
|
any other person of which at least a majority of the income, capital, beneficial or ownership interests (however designated) are at the time directly, indirectly or beneficially owned or controlled by the parent and/or one or more subsidiaries of the parent; or
|
(e)
|
any other person that is otherwise controlled by the parent and/or one or more subsidiaries of the parent.
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Vessel; or
|
(b)
|
any Requisition.
|
(a)
|
in the case of an actual loss of that Vessel, the date on which it occurred or, if that is unknown, the date when that Vessel was last heard of;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Vessel, the earlier of:
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Guarantor with that Vessel’s insurers in which the insurers agree to treat that Vessel as a total loss; and
|
(c)
|
in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a)
|
a Finance Document;
|
(b)
|
a Subordinated Finance Document;
|
(c)
|
any Charter
|
(d)
|
any Approved Pooling Arrangement; or
|
(e)
|
any other document designated as such by the Facility Agent and the Borrower.
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b)
|
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a)
|
any 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 paragraph (a) above, or imposed elsewhere.
|
(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; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, a reference in this Agreement to:
|
(i)
|
the “
Account
Bank
”, the “
Arranger
”, the “
Underwriter
”, the “
Facility
Agent
”, any “
Finance
Party
”, any “
Lender
”, any “
Obligor
”, any “
Party
”, any “
Creditor Party
”, the “
Security
Agent
”, any “
Transaction
Obligor
” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;
|
(ii)
|
“
assets
” includes present and future properties, revenues and rights of every description;
|
(iii)
|
a liability which is “
contingent
” means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv)
|
“
document
” includes a deed and also a letter, Email, fax or telex;
|
(v)
|
“
expense
” means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi)
|
a “
Finance Document
”, a “
Security Document
” or “
Transaction Document
” or any other agreement or instrument is a reference to that Finance Document, Security Document or Transaction Document or other agreement or instrument as amended or novated;
|
(vii)
|
“
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;
|
(viii)
|
“
law
” includes any order or decree, any form of delegated legislation, any treaty or international convention and any statute, regulation or resolution or Executive Order of the United States of America, any state thereof, the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix)
|
“
proceedings
” means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x)
|
a “
person
” includes any individual or natural person, firm, corporation, limited liability company, partnership, government, state or agency of a state or any association, trust, joint venture, consortium unincorporated association, joint stock company and trust (whether or not having separate legal personality);
|
(xi)
|
a “
regulation
” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organization;
|
(xii)
|
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii)
|
a time of day is a reference to New York City time (unless otherwise indicated);
|
(xiv)
|
any New York legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than the State of New York or a U.S. federal court, be deemed to include that which most nearly approximates in that jurisdiction to the New York legal term;
|
(xv)
|
words denoting the singular number shall include the plural and vice versa; and
|
(xvi)
|
“
including
” and “
in particular
” (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b)
|
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(c)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d)
|
A Potential Event of Default is “
continuing
” if it has not been remedied or waived and an Event of Default is “
continuing
” if it has not been remedied or waived.
|
1.3
|
Construction of insurance terms
|
1.4
|
Agreed forms of Finance Documents
|
(a)
|
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b)
|
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorization of the Majority Lenders or, where Clause 42.2 (
All Lender matters
) applies, all the Lenders.
|
1.5
|
Third party rights
|
(a)
|
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c)
|
Any Receiver, Delegate or any other person described in paragraph (d) of Clause 14.2 (
Other indemnities
), paragraph (b) of Clause 29.11 (
Exclusion of liability
) or paragraph (b) of Clause 30.11 (
Exclusion of liability
) may, subject to this Clause 1.5 (
Third party rights
), rely on any Clause of this Agreement which expressly confers rights on it.
|
2
|
THE FACILITY
|
2.1
|
The Facility
|
2.2
|
Finance Parties’ rights and obligations
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from a Transaction Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. 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 a Transaction Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Transaction Obligor.
|
(c)
|
A Finance Party may, except as otherwise stated as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
3
|
PURPOSE
|
3.1
|
Purpose
|
(a)
|
The Borrower shall apply all amounts borrowed by it under the Facility only for the purpose of partially refinancing the Existing Indebtedness and for other general corporate purposes, which borrowings shall be made available in the following four Tranches:
|
(i)
|
Tranche A, in a principal amount not exceeding the lesser of (i) 65 percent of the Market Value of Vessel A, and (ii) $18,500,000;
|
(ii)
|
Tranche B, in a principal amount not exceeding the lesser of (i) 65 percent of the Market Value of Vessel B, and (ii) $19,500,000;
|
(iii)
|
Tranche C, in a principal amount not exceeding the lesser of (i) 65 percent of the Market Value of Vessel C, and (ii) $20,500,000; and
|
(iv)
|
Tranche D, in a principal amount not exceeding the lower of (i) 65 percent of the Market Value of Vessel D, and (ii) $31,500,000.
|
3.2
|
Monitoring
|
4
|
CONDITIONS OF DRAWDOWN
|
4.1
|
Conditions precedent to delivery of a Drawdown Request
|
4.2
|
Conditions precedent to each Advance
|
(a)
|
on the date of the Drawdown Request and on the proposed Drawdown Date and before the Advance under a Tranche is made available:
|
(i)
|
no Default is continuing or would result from the proposed Advance;
|
(ii)
|
the Repeating Representations to be made by each Obligor are true;
|
(iii)
|
a Change of Control has not occurred; and
|
(iv)
|
the provisions of paragraph (c) of Clause 10.3 (
Alternative basis of interest or funding, suspension)
do not apply;
|
(b)
|
the Facility Agent has received on or before the relevant Drawdown Date, or is satisfied that it will receive when such Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (
Conditions Precedent
) in form and substance satisfactory to the Facility Agent.
|
4.3
|
Notification of satisfaction of conditions precedent
|
(a)
|
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent and subsequent referred to in Clause 4.1 (
Conditions precedent to delivery of a Drawdown Request
) and Clause 4.2 (
Conditions precedent to each Advance
).
|
(b)
|
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorize (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.4
|
Waiver of conditions precedent
|
5
|
DRAWDOWN
|
5.1
|
Delivery of a Drawdown Request
|
(a)
|
The Borrower may utilize the Facility by delivery to the Facility Agent of a duly completed Drawdown Request not later than the Specified Time.
|
(b)
|
Only one Advance may be made under each Tranche.
|
5.2
|
Completion of a Drawdown Request
|
(a)
|
Each Drawdown Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
the proposed Drawdown Date is a Business Day within the Availability Period; and
|
(ii)
|
the currency and amount of the Drawdown comply with Clause 5.3 (
Currency and amount
).
|
5.3
|
Currency and amount
|
(a)
|
The currency specified in a Drawdown Request must be dollars.
|
(b)
|
The amount of the proposed Advance must be an amount which is not more than the relevant Tranche; and
|
(c)
|
The amount of the proposed Advance must be an amount which would not oblige the Borrower to provide additional security or prepay part of the Advance if the ratio set out in Clause 24 (
Security Cover
) were applied and notice was given by the Facility Agent under Clause 24.1 (
Minimum required security cover
) immediately after that Advance was made.
|
5.4
|
Lenders’ participation
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the relevant Drawdown Date through its Facility Office.
|
(b)
|
The amount of each Lender’s participation in each Advance will be equal to the proportion borne by its Commitment to the Total Commitments immediately before making that Advance.
|
(c)
|
The Facility Agent shall notify each Lender of the amount of each Advance and the amount of its participation in that Advance by the Specified Time.
|
5.5
|
Cancellation of Commitments
|
5.6
|
Disbursement of Advance to third party
|
5.7
|
Promissory note
|
(a)
|
The obligation of the Borrower to pay the principal of, and interest on, the Loan shall be evidenced by the Note.
|
(b)
|
Each Advance made by the Lenders to the Borrower may be evidenced by a notation of the same made by the Facility Agent on the grid attached to the Note, which notation, absent manifest error, shall be prima facie evidence of the amount of such Advance.
|
(c)
|
Each Lender shall record on its internal records the amount of its participation in each Advance and each payment in respect thereof, and the unpaid balance of such participation in such Advance shall, absent manifest error and to the extent not inconsistent with the notations made by the Facility Agent on the grid attached to the Note, be as so recorded.
|
(d)
|
The failure of the Facility Agent or any Lender to make any such notation shall not affect the obligation of the Borrower in respect of such Advance or the Loan nor affect the validity of any transfer by the Facility Agent of the Note.
|
(e)
|
On receipt of satisfactory evidence that the Note has been lost, mutilated or destroyed and on surrender of the remnants thereof, if any, the Borrower will promptly replace the Note, without charge to the Finance Parties, with a similar Note. If such replacement Note replaces a lost Note it shall bear an endorsement to that effect. Any lost Note subsequently found shall be surrendered to the Borrower and cancelled. The Facility Agent shall indemnify the Borrower for any losses, claims or damages resulting from the loss of such Note.
|
6
|
REPAYMENT
|
6.1
|
Repayment of Loan
|
(a)
|
Tranche A by three equal consecutive quarterly instalments, each in an amount of $330,000 (each a “
Tranche A Repayment Instalment
”), the first of which shall be repaid on the date falling three months after the Drawdown Date in respect of Tranche A, followed by a balloon payment in an amount of $17,510,000 on the Maturity Date (the “
Tranche A Balloon Payment
”);
|
(b)
|
Tranche B by three equal consecutive quarterly instalments, each in an amount of $350,000 (each a “
Tranche B Repayment Instalment
”), the first of which shall be repaid on the date falling three months after the Drawdown Date in respect of Tranche B, followed by a balloon payment in an amount of $18,450,000 on the Maturity Date (the “
Tranche B Balloon Payment
”);
|
(c)
|
Tranche C by three equal consecutive quarterly instalments, each in an amount of $370,000 (each a “
Tranche C Repayment Instalment
”), the first of which shall be repaid on the date falling three months after the Drawdown Date in respect of Tranche C, followed by a balloon payment in an amount of $19,390,000 on the Maturity Date (the “
Tranche C Balloon Payment
”); and
|
(d)
|
Tranche D by three equal consecutive quarterly instalments, each in an amount of $575,000 (each a “
Tranche D Repayment Instalment
” and, together with a Tranche A Repayment Instalment, a Tranche B Repayment Instalment, and a Tranche C Repayment Instalment, each a “
Repayment Instalment
”), the first of which shall be repaid on the date falling three months after the Drawdown Date in respect of Tranche D, followed by a balloon payment in an amount of $29,775,000 on the Maturity Date (the “
Tranche D Balloon Payment
” and, together with the Tranche A Balloon Payment, the Tranche B Balloon Payment and the Tranche C Balloon Payment, each a “
Balloon Payment
”).
|
6.2
|
Reduction of Repayment Instalments
|
6.3
|
Maturity Date
|
6.4
|
Re-borrowing
|
7
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
(a)
|
If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in an Advance or the Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:
|
(i)
|
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(ii)
|
upon the Facility Agent notifying the Borrower, the Available Commitment in respect of any Tranche of that Lender will be immediately cancelled; and
|
(iii)
|
the Borrower shall prepay that Lender’s participation in the Loan on the last day of the Interest Period for the Loan occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment shall be cancelled in the amount of the participation prepaid.
|
(b)
|
Any partial prepayment under this Clause 7.1 (
Illegality
) shall reduce
pro rata
the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
|
7.2
|
Automatic cancellation
|
(a)
|
The unutilized Commitment (if any) of each Lender for each Tranche shall be automatically cancelled at close of business on the date on which the Advance relating to such Tranche is made available.
|
7.3
|
Voluntary prepayment of Loan
|
(a)
|
The Borrower may, if it gives the Facility Agent not less than five Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Tranche (but, if in part, being an amount that reduces the amount of the relevant Tranche by a minimum amount of $500,000 or a multiple of that amount) on the last day of an Interest Period.
|
(b)
|
Any partial prepayment of a Tranche under this Clause 7.3 (
Voluntary prepayment of Loan
) shall reduce in inverse chronological order the amount of each Repayment Instalment (including the Balloon Payment) of such Tranche falling after that prepayment by the amount prepaid.
|
7.4
|
Mandatory prepayment on sale or Total Loss
|
(a)
|
in the case of a sale of a Vessel, on or before the date on which the sale is completed by delivery of such Vessel to the buyer;
|
(b)
|
in the case of any arrest of a Vessel where a Vessel is not within 45 days redelivered to the full control of the relevant Guarantor, on or before the date falling 52 days after the date of the arrest of such Vessel; or
|
(c)
|
in the case of any other Total Loss, on the earlier of (i) the date falling 180 days after the Total Loss Date and (ii) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.5
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 (
Prepayment and Cancellation
) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
(c)
|
The Borrower may not re-borrow any part of the Facility which is prepaid.
|
(d)
|
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e)
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Facility Agent receives a notice under this Clause 7 (
Prepayment and Cancellation
) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
|
8
|
INTEREST
|
8.1
|
Calculation of interest
|
(a)
|
the Margin; and
|
(b)
|
LIBOR.
|
8.2
|
Payment of interest
|
(a)
|
The Borrower shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period (each an “
Interest Payment Date
”).
|
(b)
|
If an Interest Period is longer than three Months, the Borrower shall also pay interest then accrued on the Loan or the relevant part of the Loan on the dates falling at three monthly intervals after the first day of the Interest Period.
|
8.3
|
Default interest
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 2 percent per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of a Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent. Any interest accruing under this Clause 8.3 (
Default interest
) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b)
|
If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan:
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan; and
|
(ii)
|
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2 percent per annum higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c)
|
Default interest (if unpaid) accruing on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4
|
Notification of rates of interest
|
9
|
INTEREST PERIODS
|
9.1
|
Selection of Interest Periods
|
(a)
|
The first Interest Period for the Loan as specified in the first Drawdown Request shall be three Months from the Drawdown Date, unless otherwise agreed between the Borrower and the Facility Agent (acting on instructions of all Lenders).
|
(b)
|
Subject to paragraph (g) below, the Borrower may select each subsequent Interest Period in respect of the Loan in a Selection Notice.
|
(c)
|
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrower not later than the Specified Time.
|
(d)
|
If the Borrower fails to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (b) and (c) above, the relevant Interest Period will, subject to Clause 9.2 (
Changes to Interest Periods
) and paragraph (g) below, be three Months.
|
(e)
|
Subject to this Clause 9 (
Interest Periods
), the Borrower may select an Interest Period of three Months or any other period (up to a maximum of 12 Months) agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders).
|
(f)
|
An Interest Period in respect of the Loan shall not extend beyond the Maturity Date.
|
(g)
|
In respect of a Repayment Instalment, an Interest Period for a part of the Loan equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(h)
|
Subject to paragraph (i) below, the first Interest Period for the Loan shall start on the Drawdown Date and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
(i)
|
Except for the purposes of paragraph (g) above, each Tranche shall have one Interest Period only at any time.
|
9.2
|
Changes to Interest Periods
|
(a)
|
If after the Borrower has selected and the Lenders have agreed an Interest Period longer than three Months, any Lender notifies the Facility Agent within two Business Days after the Specified Time relating to the relevant Drawdown Request or Selection Notice that it is not satisfied that deposits in dollars for a period equal to the Interest Period will be available to it in the Relevant Interbank Market when the Interest Period commences, the Facility Agent shall change the Interest Period to three Months.
|
(b)
|
If the Facility Agent makes any change to an Interest Period referred to in this Clause 9.2 (
Changes to Interest Periods
), it shall promptly notify the Borrower and the Lenders.
|
9.3
|
Non-Business Days
|
10
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Absence of quotations
|
10.2
|
Market disruption
|
(a)
|
If a Market Disruption Event occurs in relation to an Advance or the Loan for any Interest Period, then the rate of interest on each Lender’s share of such Advance or the Loan for the Interest Period shall be the rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the Advance or the Loan from whatever source it may reasonably select.
|
(b)
|
In this Agreement “
Market Disruption Event
” means:
|
(i)
|
at or about noon on the Quotation Day for the relevant Interest Period, LIBOR is to be determined by reference to the Reference Banks and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest Period; or
|
(ii)
|
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Loan exceed 50 percent of the Loan) that the cost to it or them of obtaining matching deposits in the Relevant Interbank Market would be in excess of LIBOR; or
|
(iii)
|
at least one Business Day before the start of an Interest Period, the Facility Agent receives notification from a Lender (the “
Affected Lender
”) that for any reason it is unable to obtain dollars in the Relevant Interbank Market in order to fund its participation in the Advance or the Loan.
|
10.3
|
Alternative basis of interest or funding, suspension
|
(a)
|
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(b)
|
Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties to the Finance Documents.
|
(c)
|
If a Market Disruption Event occurs before the Advance is made:
|
(i)
|
in circumstances falling within sub-paragraph (i) of paragraph (b) of Clause 10.2 (
Market disruption
) or sub-paragraph (ii) of paragraph (b) of Clause 10.2 (
Market disruption
), the Lenders’ obligation to make the Advance; or
|
(ii)
|
in circumstances falling within sub-paragraph (iii) of paragraph (b) of Clause 10.2 (
Market disruption
), the Affected Lender’s obligation to participate in the Advance,
|
10.4
|
Break Costs
|
(a)
|
The Borrower 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 Borrower on a day other than the last day of an Interest Period for the Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Facility 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
|
(a)
|
The Borrower shall pay to the Facility Agent (for the account of each Lender) a fee computed beginning on the date that is 45 days after the Commitment Date at the rate of 1.00 percent per annum on that Lender’s Available Commitment from time to time for the Availability Period.
|
(b)
|
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 and, if cancelled, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
|
11.2
|
Upfront fee
|
12
|
TAX GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
(a)
|
In this Agreement:
|
(b)
|
Unless a contrary indication appears, in this Clause 12 (
Tax Gross Up and Indemnities
) reference to “
determines
” or “
determined
” means a determination made in the absolute discretion of the person making the determination.
|
12.2
|
Tax gross-up
|
(a)
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c)
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required, provided, however, that this Clause 12.2(c) shall not apply to any Tax Deduction arising with respect to any Non-Indemnified Tax imposed on a Finance Party.
|
(d)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction or payment shall deliver to the Facility Agent for the Finance Party entitled to the payment 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.
|
12.3
|
Tax indemnity
|
(a)
|
The Borrower shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b)
|
Paragraph (a) above shall not apply:
|
(i)
|
with respect to any Non-indemnified Tax assessed on a Finance Party; or
|
(ii)
|
to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
).
|
(c)
|
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (
Tax indemnity
), notify the Facility Agent.
|
12.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable to (i) an increased payment of which that Tax Payment forms part, (ii) to that Tax Payment or (iii) to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b)
|
that Finance Party has obtained, utilized and retained that Tax Credit,
|
12.5
|
Stamp taxes
|
12.6
|
VAT
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party 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 paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party 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 that Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the “
Supplier
”) to any other Finance Party (the “
Recipient
”) under a Finance Document, and any Party other than the Recipient (the “
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):
|
(i)
|
(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 sub-paragraph (i) 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
|
(ii)
|
(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.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 12.6 (
VAT
) 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.
|
(e)
|
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.
|
12.7
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party confirms to each other Party that it is a FATCA Exempt Party on the date of this Agreement (or in the case of a New Lender, on the date of its applicable Transfer Certificate, and except as otherwise indicated therein) and thereafter each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party; and
|
(ii)
|
supply to that other Party such forms (including IRS Form W-8 or Form W-9 or any successor or substitute form, as applicable), 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.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a) above that it is a FATCA Exempt Party or provides an IRS Form W-8 or W-9 showing 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, or that the IRS Form has ceased to be accurate or valid, that Party shall notify that other Party or provide a revised IRS Form, as applicable, reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality;
|
(d)
|
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents 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
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction as it reasonably determines is required to be made 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.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Facility Agent, and the Facility Agent shall notify the other Finance Parties.
|
(c)
|
If a FATCA Deduction is made as a result of any Finance Party failing to be a FATCA Exempt Party, such Party shall indemnify each other Finance Party against any loss, cost or expense to it resulting from such FATCA Deduction.
|
13
|
INCREASED COSTS
|
13.1
|
Increased costs
|
(a)
|
Subject to Clause 13.3 (
Exceptions
), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates 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,
|
(b)
|
In this Agreement, “
Increased Costs
” means:
|
(i)
|
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
13.2
|
Increased cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (
Increased costs
) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3
|
Exceptions
|
(a)
|
attributable to a change in the rate of tax on the overall net income of a Finance Party;
|
(b)
|
compensated for by Clause 12.2 (
Tax gross-up
) or 12.3 (
Tax indemnity
) (or would have been compensated for under Clause 12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (
Tax indemnity
) applied);
|
(c)
|
compensated for by any payment made pursuant to Clause 14.3 (
Mandatory Cost
); or
|
(d)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(e)
|
relates to a Non-Indemnified Tax.
|
14
|
OTHER INDEMNITIES
|
14.1
|
Currency indemnity
|
(a)
|
If any sum due from an Obligor under the Finance Documents (a “
Sum
”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “
First Currency
”) in which that Sum is payable into another currency (the “
Second Currency
”) for the purpose of:
|
(i)
|
making or filing a claim or proof against that Obligor; or
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
14.2
|
Other indemnities
|
(a)
|
Each Obligor shall, on demand, indemnify each Creditor Party against any cost, loss or liability incurred by it as a result of:
|
(i)
|
the occurrence of any Event of Default;
|
(ii)
|
a failure by a Transaction 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 32 (
Sharing among the Finance Parties
);
|
(iii)
|
funding, or making arrangements to fund, its participation in the Advance or the Loan requested by the Borrower in a Drawdown 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 Creditor Party alone); or
|
(iv)
|
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
(b)
|
Each Obligor shall, on demand, 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 (
Other indemnities
) 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 inquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, the Vessel unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c)
|
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i)
|
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii)
|
in connection with any Environmental Claim.
|
(d)
|
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (
Other indemnities
) subject to Clause 1.5 (
Third party rights
).
|
14.3
|
Mandatory Cost
|
(a)
|
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b)
|
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the U.K. Financial Conduct Authority and/or the U.K. Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions),
|
14.4
|
Indemnity to the Facility Agent
|
(a)
|
any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:
|
(i)
|
investigating any event which it reasonably believes is a Default; or
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorized; or
|
(iii)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; and
|
(b)
|
any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent’s gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 33.11 (
Disruption to Payment Systems etc.
) notwithstanding the Facility Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
|
14.5
|
Indemnity to the Security Agent
|
(a)
|
Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them:
|
(i)
|
in relation to or as a result of:
|
(A)
|
any failure by the Borrower to comply with its obligations under Clause 16 (
Costs and Expenses
);
|
(B)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorized;
|
(C)
|
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(D)
|
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;
|
(E)
|
any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
(F)
|
any action by any Transaction Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
|
(G)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
|
(ii)
|
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).
|
(b)
|
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Creditor Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (
Indemnity to the Security Agent
) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15
|
MITIGATION BY THE FINANCE PARTIES
|
15.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (
Illegality
), Clause 12 (
Tax Gross Up and Indemnities
), Clause 13 (
Increased Costs
) or paragraph (a) of Clause 14.3 (
Mandatory Cost
).
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the Finance Documents.
|
15.2
|
Limitation of liability
|
(a)
|
Each Obligor shall, on demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (
Mitigation
).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 15 (
Mitigation by the Finance Parties
) if either:
|
(i)
|
An Event of Default has occurred and is continuing; or
|
(ii)
|
in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
(a)
|
this Agreement and any other documents referred to in this Agreement;
|
(b)
|
the Transaction Security; and
|
(c)
|
any other Finance Documents executed after the date of this Agreement.
|
16.2
|
Amendment costs
|
(a)
|
a Transaction Obligor requests an amendment, waiver or consent; or
|
(b)
|
an amendment is required pursuant to Clause 33.9 (
Change of currency
); or
|
(c)
|
a Transaction Obligor requests, and the Security Agent agrees to, the release of all or any part of the Security Assets from the Transaction Security,
|
16.3
|
Enforcement and preservation costs
|
17
|
GUARANTEE AND INDEMNITY
|
17.1
|
Guarantee and indemnity
|
(a)
|
guarantees to each Finance Party, as a primary obligor and not merely as a surety, punctual payment and performance by the Borrower of all the Borrower’s obligations under the Finance Documents;
|
(b)
|
undertakes with each Finance Party that whenever the Borrower does not pay any amount (whether for principal, interest, fees, expenses or otherwise) when due (whether at stated maturity, by acceleration or otherwise) under or in connection with any Finance Document, such Guarantor shall immediately on demand pay that amount as if it were the primary obligor; and
|
(c)
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by such Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (
Guarantee and Indemnity
) if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2
|
Continuing guarantee
|
17.3
|
Reinstatement
|
17.4
|
Waiver of defenses
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any Security Asset;
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the corporate or company structure, shareholders, members or status of an Obligor or any other person (including without limitation any change in the holding of such Obligor’s or other person’s Equity Interests);
|
(e)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;
|
(g)
|
any bankruptcy, insolvency or similar proceedings;
|
(h)
|
any election of remedies by a Creditor Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any Obligor, any other guarantor or any other person or entity or any Security Asset;
|
(i)
|
any right of set-off or counterclaim against or in respect of the obligations of such Guarantor hereunder; or
|
(j)
|
any other circumstance whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any Obligor.
|
17.5
|
Other waivers
|
(a)
|
promptness, diligence, notice of acceptance, presentment, demand for performance, notice of non-performance, default, acceleration, protest or dishonor and any other notice and this guarantee and any requirement that a Creditor Party protect, secure, perfect or insure any Security or any property subject thereto or exhaust any right or take any action against an Obligor, any other guarantor or any other person or entity or any Security Asset;
|
(b)
|
any right to revoke this guarantee; and
|
(c)
|
any duty on the part of an Obligor to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of that Obligor or any of their respective Subsidiaries now or hereafter known by any Creditor Party.
|
17.6
|
Acknowledgment of benefits
|
17.7
|
Immediate recourse
|
17.8
|
Appropriations
|
(a)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Creditor Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of a Guarantor’s liability under this Clause 17 (
Guarantee and Indemnity
).
|
17.9
|
Deferral of Guarantors’ rights
|
(a)
|
to be indemnified by any Transaction Obligor;
|
(b)
|
to claim any contribution from any third party providing security for, or any other guarantor of, any Transaction Obligor’s obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Creditor Party;
|
(d)
|
to bring legal or other proceedings for an order requiring any Transaction Obligor to make any payment, or perform any obligation, in respect of which a Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (
Guarantee and indemnity
);
|
(e)
|
to exercise any right of set-off against any Transaction Obligor; and/or
|
(f)
|
to claim or prove as a creditor of any Transaction Obligor in competition with any Creditor Party.
|
17.10
|
Additional security
|
17.11
|
Independent obligations
|
17.12
|
Limitation of liability
|
17.13
|
Applicability of provisions of Guarantee to other Security
|
18
|
REPRESENTATIONS
|
18.1
|
General
|
18.2
|
Status
|
(a)
|
It is a corporation duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation, formation or organization.
|
(b)
|
It and each Transaction Obligor has the power to own its assets and carry on its business as it is being conducted.
|
(c)
|
It is duly qualified and in good standing as a foreign company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where, in each case, the failure to so qualify or be licensed and be in good standing could not reasonably be expected to have a Material Adverse Effect.
|
18.3
|
Equity Interests and ownership
|
(a)
|
All of the Equity Interests of the Borrower that are issued and outstanding have been validly issued, are fully paid and non-assessable.
|
(b)
|
All of the Equity Interests of each Guarantor have been validly issued, are fully paid and non-assessable and are owned beneficially and of record by the Borrower, free and clear of any Security (except for Permitted Security).
|
(c)
|
None of the Equity Interests of any Guarantor are subject to any existing option, warrant, call, right (including pre-emption rights or similar rights), commitment or other agreement of any character to which such Guarantor is a party requiring, and there are no Equity Interests of any Guarantor outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional Equity Interests of such Guarantor or other Equity Interests convertible into, exchangeable for or evidencing the right to subscribe for or purchase Equity Interests of any Guarantor.
|
18.4
|
Binding obligations
|
18.5
|
Validity, effectiveness and ranking of Security
|
(a)
|
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration as provided for in that Finance Document create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created, be valid and effective.
|
(b)
|
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c)
|
The Transaction Security granted by it to the Security Agent or any other Creditor Party has or will when created or intended to be created have first ranking priority or such other priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or
pari passu
ranking security.
|
(d)
|
No concurrence, consent or authorization of any person is required for the creation of or otherwise in connection with any Transaction Security.
|
18.6
|
Non-conflict with other obligations
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its constitutional documents; or
|
(c)
|
any agreement or instrument binding upon it or any member of the Group or any member of the Group’s assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.7
|
Power and authority
|
(a)
|
It has the power to enter into, perform and deliver, and has taken all necessary action to authorize:
|
(i)
|
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents; and
|
(ii)
|
in the case of each Guarantor, the registration of the Vessel owned by it under the relevant Approved Flag.
|
(b)
|
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party.
|
18.8
|
Validity and admissibility in evidence
|
(a)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(b)
|
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
18.9
|
Governing law and enforcement
|
(a)
|
The choice of governing law of each Transaction Document to which it is a party will be recognized and enforced in its Relevant Jurisdictions.
|
(b)
|
Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognized and enforced in its Relevant Jurisdictions.
|
18.10
|
Solvency; Insolvency Event; Creditor’s process
|
(a)
|
It is solvent because:
|
(i)
|
the sum of its assets, at a fair valuation, does and will exceed its liabilities, including, to the extent they are reportable as such in accordance with IFRS, contingent liabilities;
|
(ii)
|
the present fair market saleable value of its assets is not and shall not be less than the amount that will be required to pay its probable liability on its then existing debts, including, to the extent they are reportable as such in accordance with IFRS, contingent liabilities, as they mature;
|
(iii)
|
it does not and will not have unreasonably small working capital with which to continue its business; and
|
(iv)
|
it has not incurred, does not intend to incur and does not believe it will incur, debts beyond its ability to pay such debts as they mature.
|
(b)
|
No Insolvency Event or any expropriation, attachment, sequestration, distress or execution process (or any analogous creditor's process in any jurisdiction) that affects any of its assets has been taken or, to its knowledge, is threatened in relation to a member of the Group.
|
18.11
|
No filing or registration or stamp taxes
|
18.12
|
Deduction of Tax
|
18.13
|
No default
|
(a)
|
No Event of Default and, on the date of this Agreement and on each Drawdown Date, no Default is continuing or might reasonably be expected to result from the making of any Drawdown or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b)
|
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject.
|
18.14
|
No misleading information
|
(a)
|
Any factual information provided by any member of the Group for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b)
|
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect.
|
18.15
|
Financial Statements
|
(a)
|
The Borrower’s Original Financial Statements were prepared in accordance with IFRS consistently applied unless expressly disclosed to the Facility Agent in writing to the contrary before the date of this Agreement.
|
(b)
|
The Borrower’s Original Financial Statements give a fair presentation of its financial position, results of operations and cash flows as at the end of the relevant Fiscal Year unless expressly disclosed to the Facility Agent in writing to the contrary before the date of this Agreement.
|
(c)
|
There has been no material adverse change in its or any Obligor’s assets, business or financial condition (or the assets, business or consolidated financial condition of the Group, in the case of the Borrower) since December 31, 2015.
|
(d)
|
The Borrower’s most recent financial statements delivered pursuant to Clause 19.2 (
Financial statements
):
|
(i)
|
have been prepared in accordance with Clause 19.4 (
Requirements as to financial statements
); and
|
(ii)
|
give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition as at the end of the relevant Fiscal Year and operations during the relevant Fiscal Year.
|
(e)
|
Since the date of the most recent financial statements delivered pursuant to Clause 19.2 (
Financial statements
) there has been no material adverse change in its or any Transaction Obligor’s business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the Borrower).
|
18.16
|
Pari passu
ranking
|
18.17
|
No proceedings pending or threatened
|
18.18
|
Validity and completeness of the Transaction Documents
|
(a)
|
Each of the Transaction Documents to which a Transaction Obligor is a party constitutes legal, valid, binding and enforceable obligations of each Transaction Obligor.
|
(b)
|
The copies of the Transaction Documents delivered to the Facility Agent before the date of this Agreement are true and complete copies.
|
(c)
|
No amendments or additions to the Transaction Documents have been agreed nor has any Transaction Obligor waived any of its respective rights under the Transaction Documents.
|
18.19
|
Valuations
|
(a)
|
All information supplied by it or on its behalf to an Approved Appraiser for the purposes of a valuation delivered to the Facility Agent in accordance with this Agreement was true and accurate as at the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b)
|
It has not omitted to supply any information to an Approved Appraiser which, if disclosed, would adversely affect any valuation prepared by such Approved Appraiser.
|
(c)
|
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect.
|
18.20
|
No breach of laws
|
18.21
|
No Charter
|
18.22
|
Compliance with Environmental Laws
|
18.23
|
No Environmental Claim
|
18.24
|
No Environmental Incident
|
18.25
|
ISM and ISPS Code compliance
|
18.26
|
Taxes paid
|
(a)
|
It has timely filed or has caused to be filed all tax returns and other reports that it is required by law or regulation to file in the U.S. or any Relevant Jurisdiction, and has paid or caused to be paid all taxes, assessments and other similar charges that are due and payable in the U.S. or any Relevant Jurisdiction, other than any Taxes:
|
(i)
|
which (A) are not yet due and payable or (B) are being contested in good faith by appropriate proceedings and for which adequate reserves have been established and as to which such failure to have paid such Tax does not create any risk of sale, forfeiture, loss, confiscation or seizure of any of its assets or of criminal liability; or
|
(ii)
|
the non-payment of which could not reasonably be expected to have a Material Adverse Effect.
|
(b)
|
No material claim for any Tax has been asserted against it by any Relevant Jurisdiction or other taxing authority other than claims that are included in the liabilities for taxes in its most recent balance sheet or disclosed in the notes thereto, if any.
|
(c)
|
The execution, delivery, filing and registration or recording (if applicable) of the Finance Documents and the consummation of the transactions contemplated thereby will not cause any of the Creditor Parties to be required to make any registration with, give any notice to, obtain any license, permit or other authorization from, or file any declaration, return, report or other document with any governmental authority in any Relevant Jurisdiction.
|
(d)
|
No Taxes are required by any governmental authority in any Relevant Jurisdiction to be paid with respect to or in connection with the execution, delivery, filing, recording, performance or enforcement of any Finance Document.
|
(e)
|
The execution, delivery, filing, registration, recording, performance and enforcement of the Finance Documents by any of the Creditor Parties will not cause such Creditor Party to be subject to taxation under any law or regulation of any governmental authority in any Relevant Jurisdiction of any Obligor.
|
(f)
|
It is not necessary for the legality, validity, enforceability or admissibility into evidence of this Agreement or any other Finance Document that any stamp, registration or similar taxes be paid on or in relation to this Agreement or any of the other Finance Documents.
|
18.27
|
Financial Indebtedness
|
18.28
|
Intellectual property
|
18.29
|
Good title to assets
|
(a)
|
It has good, valid and marketable title to, or valid leases or licenses of, and all appropriate Authorizations to use, the assets necessary to carry on its business as presently conducted.
|
(b)
|
It has not created and is not contractually bound to create any Security on or with respect to any of its assets, properties, rights or revenues, except for Permitted Security, and except as provided in this Agreement, it is not restricted by contract, applicable law or regulation or otherwise from creating Security on any of its assets, properties, rights or revenues.
|
18.30
|
Ownership
|
(a)
|
Each Guarantor is the sole legal and beneficial owner of the Vessel owned by it, its Earnings and its Insurances.
|
(b)
|
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction Security created or intended to be created by such Transaction Obligor.
|
(c)
|
The constitutional documents of each Obligor do not and could not restrict or inhibit any transfer of the shares of the Guarantors on creation or enforcement of the security conferred by the Security Documents.
|
18.31
|
Margin stock
|
18.32
|
Place of business
|
18.33
|
Pension plans
|
(a)
|
None of the Obligors or any ERISA Affiliate is a party to a Plan or a Multiemployer Plan and none of the Obligors is a party to a Foreign Pension Plan.
|
(b)
|
No Obligor is deemed to be an entity any of whose underlying assets constitute “plan assets” within the meaning of Section 3(42) of ERISA.
|
(c)
|
The execution and delivery of this Agreement by the Obligors and the consummation of the transactions hereunder will not involve any non-exempt “prohibited transaction” for purposes of Section 406 of ERISA or Section 4975 of the Code that could result in any liability to the Lenders under Section 502 of ERISA or Section 4975 of the Code, assuming, for this purpose, that the funds loaned to the Borrower by the Lenders under this Agreement are not themselves “plan assets” subject to ERISA or Section 4975 of the Code.
|
(d)
|
No ERISA Termination Event has occurred in the five years prior to the date of this Agreement.
|
(e)
|
No ERISA Funding Event exists or has occurred in the five years prior to the date of this Agreement.
|
18.34
|
Sanctions
|
(a)
|
No Obligor:
|
(i)
|
and no director or officer of a Transaction Obligor, is a Prohibited Person;
|
(ii)
|
is owned or controlled by or acting directly or, to the knowledge of the Borrower, indirectly on behalf of or for the benefit of, a Prohibited Person; or
|
(iii)
|
owns or controls a Prohibited Person.
|
(b)
|
No proceeds of the Loan shall be made available, directly or, to the knowledge of the Borrower, indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or, to the knowledge of the Borrower, indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
18.35
|
Investment company, public utility, etc.
|
(a)
|
an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended; or
|
(b)
|
a “public utility” within the meaning of the U.S. Federal Power Act of 1920, as amended.
|
18.36
|
Immunity; enforcement; submission to jurisdiction; choice of law
|
(a)
|
It is subject to civil and commercial law with respect to its obligations under the Finance Documents, and the execution, delivery and performance by it of the Finance Documents to which it is a party constitute private and commercial acts rather than public or governmental acts.
|
(b)
|
Neither it nor any of its properties has any immunity from suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment, set-off, execution of a judgment or from any other legal process in relation to any Finance Document.
|
(c)
|
It is not necessary under the laws of its jurisdiction of incorporation or formation, in order to enable any Creditor Party to enforce its rights under any Finance Document or by reason of the execution of any Finance Document or the performance by it of its obligations under any Finance Document, that such Creditor Party should be licensed, qualified or otherwise entitled to carry on business in such Obligor's jurisdiction of incorporation or formation.
|
(d)
|
Other than the recording of the Mortgages in accordance with the laws of the Republic of The Marshall Islands and such filings as may be required in a Relevant Jurisdiction in respect of certain of the Finance Documents, and the payment of fees consequent thereto, it is not necessary for the legality, validity, enforceability or admissibility into evidence of this Agreement or any other Finance Document that any of them or any document relating thereto be registered, filed recorded or enrolled with any court or authority in any Relevant Jurisdiction.
|
(e)
|
The execution, delivery, filing, registration, recording, performance and enforcement of the Finance Documents by any of the Creditor Parties will not cause such Creditor Party to be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction of any Obligor or subject to taxation under any law or regulation of any governmental authority in any Relevant Jurisdiction of any Obligor.
|
(f)
|
Under the law of its jurisdiction of incorporation or formation, the choice of the law of New York to govern this Agreement and the other Finance Documents to which New York law is applicable is valid and binding.
|
(g)
|
The submission by it to the jurisdiction of the New York State courts and the U.S. Federal court sitting in New York County pursuant to Clause 46.1 (
Jurisdiction
) is valid and binding and not subject to revocation, and service of process effected in the manner set forth in Clause 48.2 (Service of process) will be effective to confer personal jurisdiction over it in such courts.
|
18.37
|
Repetition
|
19
|
INFORMATION UNDERTAKINGS
|
19.1
|
General
|
19.2
|
Financial statements
|
(a)
|
Subject to paragraph (b) below, the Borrower shall supply to the Facility Agent electronic copies:
|
(i)
|
as soon as it becomes available, but in any event within 180 days after the end of each of its Fiscal Years an annual report on Form 20-F (or any successor form) containing the audited financial and other information required to be contained therein for such Fiscal Year of the Borrower;
|
(ii)
|
as soon as the same become available, but in any event within 90 days after the end of the first, second and third quarter of each of its Fiscal Years:
|
(A)
|
the unaudited consolidated financial statement of the Borrower for that quarter of that Fiscal Year on Form 6-K (or any successor form); and
|
(B)
|
as soon as possible, but in no event later than 90 days after the end of each of its Fiscal Years an annual budget for the Borrower.
|
(b)
|
To the extent that the financial statements and other information required to be provided by the Borrower to the Facility Agent under paragraph (a) above are published on the internet by, or on behalf of the Borrower, notice of such publication must be made within 5 Business Days of such publication.
|
19.3
|
Compliance Certificate
|
(a)
|
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to sub-paragraphs (i) and (ii) of paragraph (a) of Clause 19.2 (
Financial statements
), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (
Financial Covenants
) as at the date as at which those financial statements were drawn up.
|
(b)
|
Each Compliance Certificate shall be signed by the chief financial officer (or equivalent) of the Borrower as appropriate and, if required to be delivered with the financial statements delivered pursuant to sub-paragraphs (i) and (ii) of paragraph (a) of Clause 19.2 (
Financial statements
), shall be reported on by the Borrower’s auditors in the form agreed by the Borrower and all the Lenders before the date of this Agreement.
|
19.4
|
Requirements as to financial statements
|
(a)
|
Each set of financial statements delivered by the Borrower pursuant to Clause 19.2 (
Financial statements
) shall be certified by the chief financial officer (or equivalent) of the relevant Obligor as being a fair presentation of the financial position, results of operations and cash flows of such Obligor as at the date as at which those financial statements were prepared.
|
(b)
|
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.2(a)(i) (
Financial statements
) was audited by an Acceptable Accounting Firm.
|
(c)
|
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.2 (
Financial statements
) is prepared using IFRS, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for the Borrower unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in IFRS, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Borrower) deliver to the Facility Agent:
|
(i)
|
a description of any change necessary for those financial statements to reflect the IFRS, accounting practices and reference periods upon which the Borrower’s Original Financial Statements were prepared; and
|
(ii)
|
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (
Financial Covenants
) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Borrower’s Original Financial Statements.
|
19.5
|
Information: miscellaneous
|
(a)
|
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect;
|
(c)
|
promptly, its constitutional documents where these have been amended or varied;
|
(d)
|
promptly, such further information and/or documents regarding:
|
(i)
|
each Vessel, goods transported on each Vessel, its Earnings or its Insurances;
|
(ii)
|
the Security Assets;
|
(iii)
|
compliance of the Transaction Obligors with the terms of the Finance Documents;
|
(iv)
|
the financial condition, business and operations of any Obligor,
|
(e)
|
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it or as may be required by any regulatory authority (including without limitation compliance with FATCA).
|
19.6
|
Notification of Default
|
(a)
|
Each Obligor shall, and shall procure that each other Transaction Obligor shall, notify the Facility Agent (i) of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor); and (ii) promptly upon becoming aware of the same, of any breach of any Sanctions applicable to a Vessel, any Transaction Obligor or any party to any agreement relating to a Vessel.
|
(b)
|
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by its chief financial officer (or another executive officer) 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).
|
19.7
|
Use of websites
|
(a)
|
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to the Lenders by posting this information onto an electronic website designated by the Borrower and the Facility Agent (the “
Designated Website
”) if:
|
(i)
|
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii)
|
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii)
|
the information is in a format previously agreed between the relevant Obligor and the Facility Agent.
|
(b)
|
The Facility Agent shall supply each Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them and the Facility Agent.
|
(c)
|
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
(i)
|
the Designated Website cannot be accessed due to technical failure;
|
(ii)
|
the password specifications for the Designated Website change;
|
(iii)
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv)
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v)
|
the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
19.8
|
“Know your customer” checks
|
(a)
|
If:
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii)
|
any change in the status of an Obligor (including, without limitation, a change of ownership of an Obligor) after the date of this Agreement; or
|
(iii)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b)
|
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order for that Servicing Party to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
19.9
|
Change of place of business
|
19.10
|
Information provided to be accurate
|
20
|
FINANCIAL COVENANTS
|
20.1
|
Financial covenants
|
20.2
|
Maximum leverage
|
20.3
|
Minimum Consolidated Tangible Net Worth
|
20.4
|
Minimum interest coverage
|
20.5
|
Free liquidity
|
21
|
GENERAL UNDERTAKINGS
|
21.1
|
General
|
21.2
|
Authorizations
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b)
|
supply certified copies to the Facility Agent of,
|
(i)
|
perform its obligations under the Transaction Documents to which it is a party;
|
(ii)
|
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Vessel or any Transaction Document to which it is a party; and
|
(iii)
|
own and operate the relevant Vessel (in the case of each Guarantor).
|
21.3
|
Compliance with laws
|
21.4
|
Environmental compliance
|
(a)
|
comply with all Environmental Laws;
|
(b)
|
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
|
(c)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
21.5
|
Environmental claims
|
(a)
|
any Environmental Claim against any Transaction Obligor which is current, pending or threatened; and
|
(b)
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Transaction Obligor,
|
21.6
|
Environmental Incidents
|
21.7
|
Taxation
|
(a)
|
Each Obligor shall 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:
|
(i)
|
such payment is being contested in good faith;
|
(ii)
|
adequate reserves are maintained for those Taxes and the costs required to contest them have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 19.2 (
Financial statements
); and
|
(iii)
|
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.
|
(b)
|
No Obligor shall change its residence for Tax purposes.
|
21.8
|
Performance of obligations
|
21.9
|
Pari passu
ranking
|
21.10
|
Title
|
(a)
|
Each Guarantor shall, in respect of the Vessel owned by it, hold the legal title to, and own the entire beneficial interest in:
|
(i)
|
such Vessel, its Earnings and its Insurances; and
|
(ii)
|
with effect on and from its creation or intended creation, any other assets the subject of any Transaction Security created or intended to be created by such Guarantor.
|
(b)
|
The Borrower shall hold the legal title to, and own the entire beneficial interest in with effect on and from its creation or intended creation, any assets the subject of any Transaction Security created or intended to be created by the Borrower.
|
21.11
|
Books of record and account; separate accounts
|
(a)
|
Each of the Obligors shall keep separate and proper books of record and account in which full and materially correct entries shall be made of all financial transactions and the assets and business of each of such Obligor in accordance with IFRS, and the Facility Agent shall have the right to examine the books and records of such Obligor wherever the same may be kept from time to time as it sees fit, in its sole reasonable discretion, or to cause an examination to be made by a firm of accountants selected by it,
provided that
any examination shall be done only once annually so long as no Event of Default has occurred and is continuing and without undue interference with the day to day business operations of such Obligor.
|
(b)
|
Each of the Obligors shall keep separate accounts and shall not co-mingle assets with each other or any other person nor become a member of a VAT Group.
|
21.12
|
Separate existence in good standing
|
21.13
|
Conduct of business
|
(a)
|
The Borrower shall conduct business only in connection with, or for the purpose of, owning, managing, chartering and operating the Vessels and other vessels and directly or indirectly owning the Equity Interests of each Guarantor and other vessel owning companies.
|
(b)
|
Each Guarantor shall conduct business only in connection with, or for the purpose of, owning, managing, chartering and operating the Vessel owned by it.
|
(c)
|
Each Obligor shall conduct business in its own name and observe all corporate and other formalities required by its constitutional documents.
|
21.14
|
Properties
|
(a)
|
Except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, each Obligor shall maintain and preserve all of its properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted.
|
(b)
|
Each Obligor shall obtain and maintain good and marketable title or the right to use or occupy all real and personal properties and assets (including intellectual property) reasonably required for the conduct of its business.
|
(c)
|
Each Obligor shall maintain and protect its intellectual property and conduct its business and affairs without infringement of or interference with any intellectual property of any other person in any material respect and shall comply in all material respects with the terms of its licenses.
|
21.15
|
Loan proceeds
|
21.16
|
Subordination of loans
|
21.17
|
Asset control
|
21.18
|
Sanctions
|
(a)
|
Each Obligor shall ensure that no part of the proceeds of the Loan or other transactions contemplated by this Agreement or any other Finance Document shall, directly or, to its knowledge, indirectly, be used or otherwise made available:
|
(i)
|
to fund any trade, business or other activity involving any Prohibited Person;
|
(ii)
|
for the direct or indirect benefit of any Prohibited Person; or
|
(iii)
|
in any other manner that would reasonably be expected to result in (1) the occurrence of an Event of Default under Clause 26.18 (Prohibited Person), or (2) any Affiliate of an Obligor or any other person being party to or benefitting from any Finance Document being in breach of any Sanctions (if and to the extent applicable to any of them) or becoming a Prohibited Person.
|
(b)
|
Each Obligor shall ensure that its assets (including, without limitation, each Vessel) shall not be used directly or, to its knowledge, indirectly:
|
(i)
|
by or for the direct or indirect benefit of any Prohibited Person; or
|
(ii)
|
in any trade which is prohibited under applicable Sanctions or which could reasonably be expected to expose any Obligor, any asset subject to Security under the Finance Documents, any Creditor Party, any other person being party to or benefitting from any Finance Document, any Approved Manager, any operator, crew or insurers to enforcement proceedings or any other consequences whatsoever arising from Sanctions.
|
21.19
|
Money laundering
|
21.20
|
Pension plans
|
21.21
|
Maintenance of status
|
(a)
|
The Borrower will:
|
(i)
|
maintain its separate corporate existence and remain in good standing under the laws of the Republic of The Marshall Islands;
|
(ii)
|
remain listed on the New York Stock Exchange; and
|
(iii)
|
procure that each Guarantor shall maintain its separate corporate existence and remain in goodstanding under the laws of the Republic of The Marshall Islands.
|
21.22
|
Securitization
|
21.23
|
Negative pledge
|
(a)
|
No Obligor shall create or permit to subsist any Security over any of its assets (including without limitation in the case of each Guarantor its Equity Interests) subject to the Security created or intended to be created by the Finance Documents.
|
(b)
|
No Obligor shall:
|
(i)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
|
(ii)
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii)
|
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
|
(iv)
|
enter into any other preferential arrangement having a similar effect,
|
(c)
|
Paragraphs (a) and (b) above do not apply to any Permitted Security.
|
21.24
|
Disposals
|
(a)
|
No Obligor shall 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 all or substantially all of its assets (including without limitation any Vessel, its Earnings or its Insurances) unless the applicable portion of the Loan is repaid in accordance with the provisions of Clause 7.4 (
Mandatory prepayment on sale or Total Loss
).
|
(b)
|
Paragraph (a) above does not apply to any Charter to which Clause 23.16 (
Restrictions on chartering, appointment of managers etc.
) applies or to any Approved Pooling Arrangement.
|
21.25
|
Merger
|
21.26
|
Change of business
|
(a)
|
The Borrower shall procure that no substantial change is made to the general nature of the business of the Borrower or the Group from that carried on at the date of this Agreement.
|
(b)
|
No Guarantor shall engage in any business other than the ownership, operation and employment of the Vessel owned by it.
|
21.27
|
Financial Indebtedness
|
21.28
|
Expenditure
|
21.29
|
Equity Interests
|
(a)
|
purchase, cancel, redeem or retire any of its Equity Interests;
|
(b)
|
increase or reduce its authorized Equity Interests;
|
(c)
|
issue any additional Equity Interests except to the Borrower and provided such new Equity Interests are made subject to the terms of the Shares Security applicable to that Guarantor immediately upon the issue thereof in a manner satisfactory to the Facility Agent and the terms of the Shares Security are complied with;
|
(d)
|
appoint any additional directors or officers (or equivalent) of that Guarantor (unless the provisions of the Shares Security applicable to that Guarantor are complied with).
|
21.30
|
Dividends
|
21.31
|
Accounts
|
21.32
|
Other transactions
|
(a)
|
be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted Financial Indebtedness;
|
(b)
|
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Guarantor assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents.
|
(c)
|
enter into any material agreement other than:
|
(i)
|
the Transaction Documents;
|
(ii)
|
any other agreement expressly allowed under any other term of this Agreement; and
|
(d)
|
enter into any transaction or series of transactions on terms which are, in any respect, less favorable to that Guarantor than those which it could obtain in a bargain made at arms’ length; or
|
(e)
|
acquire any shares or other securities other than U.S. or U.K. Treasury bills and certificates of deposit issued by major North American or European banks.
|
21.33
|
Unlawfulness, invalidity and ranking; Security imperiled
|
(a)
|
make it unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents;
|
(b)
|
cause any obligation of a Transaction Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable;
|
(c)
|
cause any Transaction Document to cease to be in full force and effect;
|
(d)
|
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e)
|
imperil or jeopardize the Transaction Security.
|
21.34
|
Changes to Fiscal Year
|
21.35
|
Jurisdiction of incorporation; Amendment of constitutional documents
|
21.36
|
Change of location
|
21.37
|
Further assurance
|
(a)
|
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarization or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may require in favor of the Security Agent or its nominee(s)):
|
(i)
|
to create, perfect, vest in favor of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent, any Receiver or the Creditor Parties provided by or pursuant to the Finance Documents or by law;
|
(ii)
|
to confer on the Security Agent or confer on the Creditor Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii)
|
to facilitate or expedite the realization and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv)
|
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b)
|
Each Obligor shall, and shall procure that each Transaction Obligor 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 Security conferred or intended to be conferred on the Security Agent or the Creditor Parties by or pursuant to the Finance Documents.
|
(c)
|
At the same time as an Obligor delivers to the Security Agent any document executed by itself or another Transaction Obligor pursuant to this Clause 21.37 (
Further assurance
), that Obligor shall deliver, or shall procure that such other Transaction Obligor will deliver, to the Security Agent a certificate signed by an officer (or equivalent) of that Obligor’s or Transaction Obligor’s which shall:
|
(i)
|
set out the text of a resolution of that Obligor’s directors (or equivalent governing body) specifically authorizing the execution of the document specified by the Security Agent; and
|
(ii)
|
state that either the resolution was duly passed at a meeting of the directors (or equivalent governing body) validly convened and held, throughout which a quorum of directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors (or equivalent governing body) and is valid under that Obligor’s or Transaction Obligor’s constitutional documents.
|
22
|
INSURANCE UNDERTAKINGS
|
22.1
|
General
|
22.2
|
Maintenance of obligatory insurances
|
(a)
|
hull and machinery plus freight interest and hull interest and/or increased value and any other usual marine risks (including excess risks);
|
(b)
|
war risks (including the London Blocking and Trapping addendum or its equivalent);
|
(c)
|
protection and indemnity risks (including liability for oil pollution for an amount of no less than $1,000,000,000 and excess war risk P&I cover) on standard Club Rules, covered by a Protection and Indemnity association which is a member of the International Group of Protection and Indemnity Associations (or, if the International Group ceases to exist, any other leading protection and indemnity association or other leading provider of protection and indemnity insurance) (including, without limitation, the proportion (if any) of any collision liability not covered under the terms of the hull cover);
|
(d)
|
freight, demurrage and defense; and
|
(e)
|
any other risks against which the Facility Agent acting on the instructions of the Majority Lenders considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable for that Guarantor to insure and which are specified by the Facility Agent by notice to such Guarantor.
|
22.3
|
Terms of obligatory insurances
|
(a)
|
in Dollars;
|
(b)
|
in the case of hull and machinery and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
|
(i)
|
an amount which, when aggregated with the insured value of the other Vessels then financed under this Agreement, equals to 120 percent of the Loan; and
|
(ii)
|
the Market Value of the Vessel owned by it;
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market, which amount is currently $1,000,000,000;
|
(d)
|
in the case of protection and indemnity risks, in respect of the full tonnage of such Vessel;
|
(e)
|
in the case of the hull and machinery insurance, on the basis that the deductible is not higher than the Major Casualty figure;
|
(f)
|
in the case where such Vessel is insured on a fleet policy, on the basis that each vessel insured on that fleet policy is deemed to be insured on an individual basis;
|
(g)
|
on approved terms, such terms to be disclosed to the Facility Agent at least 5 days prior to the Drawdown Date in respect of such Vessel; and
|
(h)
|
through Approved Insurance Brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
22.4
|
Further protections for the Finance Parties
|
(a)
|
subject always to paragraph (b), name that Guarantor as the named insured unless the interest of every other named insured is limited:
|
(i)
|
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A)
|
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B)
|
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii)
|
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b)
|
whenever the Facility Agent requires, name (or be amended to name) the Security Agent as additional named insured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(d)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(e)
|
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(f)
|
provide that the Security Agent may make proof of loss if that Guarantor fails to do so.
|
22.5
|
Renewal of obligatory insurances
|
(a)
|
at least 10 days before the expiry of any obligatory insurance:
|
(i)
|
notify the Facility Agent of the Approved Insurance Brokers (or other insurers) and any protection and indemnity or war risks association through or with which it proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii)
|
obtain the Facility Agents’ approval to the matters referred to in sub-paragraph (i) of paragraph (a) above;
|
(b)
|
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent’s approval pursuant to paragraph (a) above; and
|
(c)
|
procure that the Approved Insurance Brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
|
22.6
|
Copies of policies; letters of undertaking
|
(a)
|
pro forma
copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b)
|
a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Insurance Brokers that:
|
(i)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 22.4 (
Further protections for the Finance Parties
);
|
(ii)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii)
|
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv)
|
they will, if they have not received notice of renewal instructions from the relevant Guarantor or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
(v)
|
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi)
|
they will not set off against any sum recoverable in respect of a claim relating to the Vessel owned by that Guarantor under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Vessel or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and
|
(vii)
|
they will arrange for a separate policy to be issued in respect of the Vessel owned by that Guarantor forthwith upon being so requested by the Facility Agent.
|
22.7
|
Copies of certificates of entry
|
(a)
|
a certified copy of the certificate of entry for that Vessel;
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Facility Agent; and
|
(c)
|
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Vessel.
|
22.8
|
Deposit of original policies
|
22.9
|
Payment of premiums
|
22.10
|
Guarantees
|
22.11
|
Compliance with terms of insurances
|
(a)
|
No Guarantor shall do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part.
|
(b)
|
Without limiting paragraph (a) above, each Guarantor shall:
|
(i)
|
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 22.6 (
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior approval;
|
(ii)
|
not make any changes relating to the classification or classification society or manager or operator of the Vessel owned by it approved by the underwriters of the obligatory insurances;
|
(iii)
|
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Vessel owned by it is entered to maintain cover for trading to the U.S. and the Exclusive Economic Zone (as defined in the United States Oil Pollution Act of 1990, as amended, or any other applicable legislation); and
|
(iv)
|
not employ the Vessel owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
22.12
|
Alteration to terms of insurances
|
22.13
|
Settlement of claims
|
(a)
|
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty without the consent of the Facility Agent, such consent not to be unreasonably withheld; and
|
(b)
|
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
22.14
|
Provision of copies of communications
|
(a)
|
the Approved Insurance Brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters,
|
(i)
|
that Guarantor’s obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii)
|
any credit arrangements made between that Guarantor and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
22.15
|
Provision of information
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause 22.16 (
Mortgagee’s interest, additional perils and mortgagee’s rights insurances
) or dealing with or considering any matters relating to any such insurances,
|
22.16
|
Mortgagee’s interest, additional perils and mortgagee’s rights insurances
|
(a)
|
a mortgagee’s interest insurance in an amount equal to 120 percent of the Loan;
|
(b)
|
a mortgagee’s interest additional perils insurance in an amount equal to 120 percent of the Loan;
|
(c)
|
a mortgagee’s rights insurance in an amount equal to 120 percent of the Loan,
|
23
|
VESSEL UNDERTAKINGS
|
23.1
|
General
|
23.2
|
Vessels’ names and registration
|
(a)
|
keep that Vessel registered in its name under the Approved Flag from time to time at its port of registration;
|
(b)
|
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperiled; and
|
(c)
|
not change the name of that Vessel.
|
23.3
|
Repair and classification
|
(a)
|
consistent with first class ship ownership and management practice; and
|
(b)
|
so as to maintain the Approved Classification for that Vessel with the Approved Classification Society free of overdue recommendations and conditions affecting that Vessel’s class.
|
23.4
|
Classification society undertaking
|
(a)
|
to send to the Security Agent, following receipt of a written request from the Security Agent, certified true copies of all original class records held by the Approved Classification Society in relation to that Vessel;
|
(b)
|
to allow the Security Agent (or its agents), at any time and from time to time, to inspect the original class and related records of that Guarantor and that Vessel at the offices of the Approved Classification Society and to take copies of them;
|
(c)
|
to notify the Security Agent immediately in writing (at Jurek.Bochner@dvbbank.com and techcom@dvbbank.com) if the Approved Classification Society:
|
(i)
|
receives notification from that Guarantor any person that that Vessel’s Approved Classification Society is to be changed; or
|
(ii)
|
becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of that Vessel’s class under the rules or terms and conditions of that Guarantor or that Vessel’s membership of the Approved Classification Society;
|
(d)
|
following receipt of a written request from the Security Agent:
|
(i)
|
to confirm that such Guarantor is not in default of any of its contractual obligations or liabilities to the Approved Classification Society, including confirmation that it has paid in full all fees or other charges due and payable to the Approved Classification Society; or
|
(ii)
|
if such Guarantor is in default of any of its contractual obligations or liabilities to the Approved Classification Society, to specify to the Security Agent in reasonable detail the facts and circumstances of such default, the consequences of such default, and any remedy period agreed or allowed by the Approved Classification Society.
|
23.5
|
Modifications
|
23.6
|
Removal and installation of parts
|
(a)
|
Subject to paragraph (b) below, no Guarantor shall remove any material part of any Vessel, or any item of equipment installed on any Vessel unless:
|
(i)
|
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;
|
(ii)
|
the replacement part or item is free from any Security in favor of any person other than the Security Agent; and
|
(iii)
|
the replacement part or item becomes, on installation on that Vessel, the property of that Guarantor and subject to the security constituted by the Mortgage.
|
(b)
|
A Guarantor may install equipment owned by a third party if the equipment can be removed without the risk of material damage to the Vessel owned by that Guarantor.
|
23.7
|
Surveys
|
23.8
|
Inspection
|
(a)
|
Each Guarantor shall permit the Security Agent (acting through surveyors or other persons appointed by it for that purpose) to board the Vessel owned by it once annually to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections, provided, however, if an Event of Default has occurred and is continuing such persons shall be permitted to board at all reasonable times.
|
(b)
|
The cost of all inspections under this Clause 23.8 (
Inspection
) shall be for the account of the relevant Guarantor once annually, unless an Event of Default has occurred and is continuing at which time the cost shall be for the account of the relevant Guarantor.
|
23.9
|
Prevention of and release from arrest
|
(a)
|
Each Guarantor shall, in respect of the Vessel owned by it, promptly discharge:
|
(i)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Vessel, its Earnings or its Insurances;
|
(ii)
|
all Taxes, dues and other amounts charged in respect of the Vessel, the Earnings or the Insurances; and
|
(iii)
|
all other outgoings whatsoever in respect of that Vessel, its Earnings or its Insurances.
|
(b)
|
Each Guarantor shall immediately and, forthwith upon receiving notice of the arrest of the Vessel owned by it or of its detention in exercise or purported exercise of any lien or claim, procure its release by providing bail or otherwise as the circumstances may require.
|
23.10
|
Compliance with laws etc.
|
(a)
|
comply, or procure compliance with all laws or regulations:
|
(i)
|
relating to its business generally; and
|
(ii)
|
relating to the Vessel owned by it, its ownership, employment, operation, management and registration,
|
(b)
|
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals;
|
(c)
|
without limiting paragraph (a) above, not employ the Vessel owned by it nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions; and
|
(d)
|
not appoint any manager or agent to manage the Vessel owned by it unless such party undertakes to procure that any agreement entered into relating to the management, employment or operation of that Vessel contains a clause in which the counterparty undertakes to comply with all Sanctions.
|
23.11
|
ISPS Code
|
(a)
|
procure that the Vessel owned by it and the company responsible for that Vessel’s compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain an ISSC for the Vessel owned by it; and
|
(c)
|
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
23.12
|
Trading in war zones
|
23.13
|
Monitoring
|
(a)
|
Each Guarantor shall (or shall procure that any Charterer and the Approved Technical Manager shall) allow the Security Agent (or its agents), at any reasonable time and from time to time, to access all information pertaining to the Vessel owned by it (including the movement of that Vessel) using any and all available means.
|
(b)
|
All costs incurred by the Security Agent (and any of its agents) under paragraph (a) of this Clause 24.13 (
Monitoring
) shall be for the account of the Lenders.
|
23.14
|
Provision of information
|
(a)
|
that Vessel, its employment, position and engagements;
|
(b)
|
its Earnings and payments and amounts due to its master and crew;
|
(c)
|
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Vessel and any payments made by it in respect of that Vessel;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Approved Manager’s compliance and the compliance of that Vessel with the ISM Code and the ISPS Code,
|
23.15
|
Notification of certain events
|
(a)
|
any casualty to that Vessel which is or is, in the reasonable opinion of the Guarantor, likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which that Vessel has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c)
|
any requisition of that Vessel for hire;
|
(d)
|
any requirement or recommendation made in relation to that Vessel by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e)
|
any arrest or detention of that Vessel, any exercise or purported exercise of any lien on that Vessel or its Earnings or any requisition of that Vessel for hire;
|
(f)
|
any intended dry docking of that Vessel;
|
(g)
|
any Environmental Claim made against that Guarantor or in connection with that Vessel, or any Environmental Incident;
|
(h)
|
any claim for breach of the ISM Code or the ISPS Code being made against the that Guarantor, an Approved Manager or otherwise in connection with that Vessel; or
|
(i)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
23.16
|
Restrictions on chartering, appointment of managers etc.
|
(a)
|
let that Vessel on demise charter for any period;
|
(b)
|
enter into any time, voyage or consecutive voyage charter in respect of that Vessel other than a Permitted Charter;
|
(c)
|
cancel or terminate any Permitted Charter which has a duration of 12 months or more;
|
(d)
|
materially change, cancel or terminate a Management Agreement;
|
(e)
|
appoint a manager of that Vessel other than an Approved Manager or agree to any material alteration to the terms of an Approved Manager’s appointment;
|
(f)
|
de activate or lay up that Vessel; or
|
(g)
|
put that Vessel into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed U.S.$500,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on that Vessel or its Earnings for the cost of such work or for any other reason.
|
23.17
|
Notice of Mortgage
|
23.18
|
Sharing of Earnings
|
23.19
|
Notification of compliance
|
23.20
|
Nuclear materials
|
24
|
SECURITY COVER
|
24.1
|
Minimum required security cover
|
(a)
|
The aggregated Market Value of the Vessels; plus
|
(b)
|
the net realizable value of additional Security previously provided under this Clause 24.1 (
Minimum required security cover
),
|
24.2
|
Provision of additional security; prepayment
|
(a)
|
If the Facility Agent serves a notice on the Borrower under Clause 24.1 (
Minimum required security cover
), the Borrower shall, on or before the date falling 30 days after the date (the “
Prepayment Date
”) on which the Facility Agent’s notice is served, prepay such part of the Loan as shall eliminate the shortfall.
|
(b)
|
The Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders:
|
(i)
|
has a net realizable value at least equal to the shortfall; and
|
(ii)
|
is documented in such terms as the Facility Agent may approve or require,
|
24.3
|
Value of additional vessel security
|
24.4
|
Valuations binding
|
24.5
|
Provision of information
|
(a)
|
The Borrower shall promptly provide the Facility Agent and any Approved Appraiser acting under this Clause 24 (
Security Cover
) with any information which the Facility Agent or the Approved Appraiser may request for the purposes of the valuation.
|
(b)
|
If the Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved Appraiser or the Facility Agent considers prudent.
|
24.6
|
Prepayment mechanism
|
24.7
|
Provision of valuations
|
(a)
|
The Facility Agent shall be entitled to test the security requirements under Clause 24.1 (
Minimum required security cover
) by reference to valuations in respect of a Vessel from the required number of Approved Appraisers semi-annually delivered with the Compliance Certificates for the second and fourth quarter.
|
(b)
|
The Facility Agent shall at the request of the Lenders additionally be entitled to test the security cover requirement under Clause 24.1 (
Minimum required security cover
) by reference to a valuation in respect of a Vessel from the required number of Approved Appraisers at any time and each such valuation shall be at the expense of the Lenders except where the Borrower is by means of such valuation(s) shown to be in breach of Clause 24.1 (
Minimum required security cover
).
|
(c)
|
Subject to paragraph (d) below, the Market Value of a Vessel shall be determined by reference to one valuation of that Vessel as given by an Approved Appraiser selected by the Borrower and appointed by the Facility Agent.
|
(d)
|
If requested by the Borrower in relation to paragraph (c) above, a second Approved Appraiser shall be selected by the Borrower and appointed by the Facility Agent, and the Market Value of that Vessel shall be the arithmetic average of the two valuations.
|
(e)
|
If one such valuation in respect of that Vessel obtained pursuant to paragraphs (c) and (d) above differs by at least 10 percent from the other valuation, then a third valuation for that Vessel shall be obtained from an Approved Appraiser selected by the Borrower and appointed by the Facility Agent and the Market Value of that Vessel shall be the arithmetic average of all three such valuations.
|
(f)
|
The Facility Agent may at any time after a Default has occurred and is continuing obtain valuations of the Vessel and any other vessel over which additional security has been created in accordance with Clause 24.2 (
Provision of additional security
; prepayment) from Approved Appraisers to enable the Facility Agent to determine the Market Values of the Vessels and any other vessel.
|
(g)
|
The valuations referred to in paragraph (a), (b), (c), (d), (e) and (f) above shall be obtained at the cost and expense of the Borrower (except where specified in paragraph (b) above) and the Borrower shall within three Business Days of demand by the Facility Agent pay to the Facility Agent all costs and expenses incurred by it in obtaining any such valuation.
|
25
|
ACCOUNTS AND APPLICATION OF EARNINGS
|
25.1
|
Account bank
|
25.2
|
Accounts
|
(a)
|
Each Guarantor must operate the Account held by it in accordance with this Clause 26 (
Accounts and Application of Earnings
) and the provisions of the Account Security.
|
(b)
|
Account Security must be provided in respect of any Account opened after the date of this Agreement.
|
25.3
|
Payment of Earnings
|
25.4
|
Application of Earnings
|
(i)
|
on each Repayment Date, the amount of the Repayment Instalment then due on the Repayment Date; and
|
(ii)
|
on the last day of each Interest Period, the amount of interest then due on that date; and
|
(iii)
|
on any day on which an amount is otherwise due from the Borrower under a Finance Document, an amount necessary to meet that due amount,
|
(A)
|
the Account Bank to make those transfers in accordance with the instructions of the Facility Agent (copied to the Security Agent, who, as security taker under the Accounts Security, agrees for itself and on behalf of the other pledgees that such transfers may be made);
|
(B)
|
the Facility Agent to apply the transferred amounts in payment of the relevant Repayment Instalment, interest amount or other amount due.
|
25.5
|
Location of Accounts
|
(a)
|
comply with any requirement of the Facility Agent as to the location or relocation of the Accounts (or any of them); and
|
(b)
|
execute any documents which the Facility Agent specifies to create or maintain in favor of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) each Account.
|
25.6
|
Miscellaneous Accounts provisions
|
(a)
|
any non-payment of any liability of an Obligor which could be paid out of moneys standing to the credit of the Earnings Account; or
|
(b)
|
any withdrawal wrongly made, if made in good faith.
|
26
|
EVENTS OF DEFAULT
|
26.1
|
General
|
26.2
|
Non-payment
|
(a)
|
its failure to pay is caused by:
|
(i)
|
administrative or technical error; or
|
(ii)
|
a Disruption Event; and
|
(b)
|
payment is made within three Business Days of its due date.
|
26.3
|
Specific obligations
|
26.4
|
Other obligations
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 26.2 (
Non-payment
) and Clause 26.3 (
Specific obligations
)).
|
(b)
|
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten Business Days of the Facility Agent giving notice to the Borrower or (if earlier) any Obligor becoming aware of the failure to comply.
|
26.5
|
Misrepresentation
|
26.6
|
Cross default
|
(a)
|
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c)
|
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d)
|
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor 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 26.6 (
Cross default
) in respect of a person other than the Borrower if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than $2,500,000 individually or $10,000,000 in the aggregate in respect of the Obligors (or its equivalent in any other currency).
|
26.7
|
Insolvency Event
|
26.8
|
Judgments
|
26.9
|
Creditors’ process
|
26.10
|
Change of Control
|
26.11
|
Unlawfulness, invalidity and ranking
|
(a)
|
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
|
(b)
|
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c)
|
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d)
|
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
26.12
|
Security imperiled; flag instability
|
(a)
|
Any Security created or intended to be created by a Finance Document is in any way imperiled or in jeopardy.
|
(b)
|
The state of the Approved Flag of a Vessel is or becomes involved in hostilities or civil war or there is a seizure of power in such state by unconstitutional means, or any other event occurs in relation to that Vessel, the Mortgage or the Approved Flag and in the reasonable opinion of the Facility Agent such event is likely to have a Material Adverse Effect.
|
26.13
|
Cessation of business
|
26.14
|
Expropriation
|
26.15
|
Repudiation and rescission of agreements
|
26.16
|
Litigation
|
26.17
|
Material adverse change
|
26.18
|
Prohibited Person
|
26.19
|
Acceleration
|
(a)
|
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b)
|
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable; and/or
|
(c)
|
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,
|
26.20
|
Enforcement of security
|
26.21
|
No impairment of rights
|
27
|
CHANGES TO THE LENDERS
|
27.1
|
Assignments and transfers by the Lenders
|
(a)
|
assign any of its rights; or
|
(b)
|
transfer by novation any of its rights and obligations,
|
27.2
|
Conditions of assignment or transfer
|
(a)
|
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer by an Existing Lender to a New Lender. The consent of the Facility Agent is required for an assignment or transfer by an Existing Lender, such consent not to be unreasonably withheld.
|
(b)
|
An assignment will only be effective on:
|
(i)
|
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Creditor Parties as it would have been under if it were an Original Lender; and
|
(ii)
|
performance by the Facility Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(c)
|
A transfer will only be effective if the procedure set out in Clause 27.5 (
Procedure for transfer
) is complied with.
|
(d)
|
If:
|
(i)
|
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, a Transaction Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (
Tax Gross Up and Indemnities
) or under that clause as incorporated by reference or in full in any other Finance Document or Clause 13 (
Increased Costs
),
|
(e)
|
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the 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.
|
27.3
|
Assignment or transfer fee
|
27.4
|
Limitation of responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
(ii)
|
the financial condition of any Transaction Obligor;
|
(iii)
|
the performance and observance by any Transaction Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Creditor Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Transaction Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction Security; and
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(i)
|
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27 (
Changes to the Lenders
); or
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Finance Documents or otherwise.
|
27.5
|
Procedure for transfer
|
(a)
|
Subject to the conditions set out in 27.2 (
Conditions of assignment or transfer
), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b)
|
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
On the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Transaction Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the “
Discharged Rights and Obligations
”);
|
(ii)
|
each of the Transaction Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Transaction Obligor and the New Lender have assumed and/or acquired the same in place of that Transaction Obligor and the Existing Lender;
|
(iii)
|
the Facility Agent, the Security Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security 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 Facility Agent, the Security Agent, the Arranger and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv)
|
the New Lender shall become a Party as a “Lender”.
|
27.6
|
Procedure for assignment
|
(a)
|
Subject to the conditions set out in Clause 27.2 (
Conditions of assignment or transfer
) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(b)
|
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c)
|
On the Transfer Date:
|
(i)
|
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii)
|
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 the Transaction Security); and
|
(iii)
|
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilize procedures other than those set out in this Clause 27.6 (
Procedure for assignment
) to assign their rights under the Finance Documents (but not, without the consent of the relevant Transaction Obligor or unless in accordance with Clause 27.5 (
Procedure for transfer
), to obtain a release by that Transaction Obligor from the obligations owed to that Transaction 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 27.2 (
Conditions of assignment or transfer
).
|
27.7
|
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
27.8
|
Security over Lenders’ rights
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, pledge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by a Transaction 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.
|
27.9
|
Pro rata interest settlement
|
(a)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favor 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 six Monthly intervals 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 to the Existing Lender; and
|
(ii)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 27.9 (
Pro rata interest settlement
), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(c)
|
In this Clause 27.9 (
Pro rata interest settlement
) references to “Interest Period” shall be construed to include a reference to any other period for accrual of fees.
|
28
|
CHANGES TO THE TRANSACTION OBLIGORS
|
28.1
|
Assignment or transfer by Transaction Obligors
|
28.2
|
Release of security
|
(a)
|
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i)
|
the disposal is permitted by the terms of any Finance Document;
|
(ii)
|
the Majority Lenders agree to the disposal;
|
(iii)
|
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv)
|
the disposal is being effected by enforcement of a Security Document,
|
(b)
|
If the Security Agent is satisfied that a release is allowed under this Clause 28.2 (
Release of security
) (at the request and expense of the Borrower) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorizes the Security Agent to enter into any such document. Any release will not affect the obligations of any other Transaction Obligor under the Finance Documents.
|
29
|
THE FACILITY AGENT AND THE ARRANGER
|
29.1
|
Appointment of the Facility Agent
|
(a)
|
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each other Finance Party authorizes the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
29.2
|
Instructions
|
(a)
|
The Facility Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or fails to act) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b)
|
The Facility 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 Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
Paragraph (a) above shall not apply:
|
(i)
|
where a contrary indication appears in a Finance Document;
|
(ii)
|
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Facility Agent’s own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e)
|
If giving effect to instructions given by the Majority Lenders would in the Facility Agent’s opinion have an effect equivalent to an amendment or waiver referred to in Clause 42 (
Amendments and Waivers
), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g)
|
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties 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 (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h)
|
Without prejudice to the remainder of this Clause 29.2 (
Instructions
), in the absence of instructions, the Facility Agent shall not be obliged to take any action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
|
(i)
|
The Facility Agent is not authorized to act on behalf of a Finance Party (without first obtaining that Finance Party’s consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
29.3
|
Duties of the Facility Agent
|
(a)
|
The Facility Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c)
|
Without prejudice to Clause 27.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d)
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e)
|
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f)
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Arranger or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g)
|
The Facility Agent shall provide to the Borrower, within three (3) Business Days of a request by the Borrower (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 the date of that request, 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 sending and receipt 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 and the account details of each Lender for any payment to be distributed by the Facility Agent to that Lender under the Finance Documents.
|
(h)
|
The Facility 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).
|
29.4
|
Role of the Arranger
|
29.5
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Facility Agent or the Arranger a trustee or fiduciary of any other person.
|
(b)
|
Neither the Facility Agent nor the Arranger shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
29.6
|
Application of receipts
|
29.7
|
Business with the Group
|
29.8
|
Rights and discretions
|
(a)
|
The Facility Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorized;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.2 (
Non-payment
));
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii)
|
any notice or request made by the Borrower (other than a Drawdown Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Transaction Obligors.
|
(c)
|
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e)
|
The Facility 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 Facility 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.
|
(f)
|
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g)
|
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Arranger is obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i)
|
The Facility Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of sub-paragraph (ii) of paragraph (a) of Clause 10.2 (
Market disruption
).
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Facility 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.
|
29.9
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arranger, a Transaction Obligor or any other person in, or in connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; or
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party or Creditor 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.
|
29.10
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c)
|
whether any other event specified in any Transaction Document has occurred.
|
29.11
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 33.11 (
Disruption to Payment Systems etc.
) or any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii)
|
any shortfall which arises on the enforcement or realization of the Security Property; or
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (
Third party rights
).
|
(c)
|
The Facility 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 Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognized clearing or settlement system used by the Facility Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Facility Agent or the Arranger to carry out:
|
(i)
|
any “know your customer” or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent’s liability, any liability of the Facility Agent arising under or in connection with any Transaction Document or the Security Property 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 Facility 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 Facility Agent at any time which increase the amount of that loss. In no event shall the Facility 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 Facility Agent has been advised of the possibility of such loss or damages.
|
29.12
|
Lenders’ indemnity to the Facility Agent
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 33.11 (
Disruption to Payment Systems etc.
) notwithstanding the Facility Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
29.13
|
Resignation of the Facility Agent
|
(a)
|
The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
(b)
|
Alternatively, the Facility Agent may resign by giving 30 days’ notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d)
|
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent) agree with the proposed successor Facility Agent amendments to this Clause 29 (
The Facility Agent and the
Arranger) and any other term of this Agreement dealing with the rights or obligations of the Facility Agent consistent with then current market practice for the appointment and protection of administrative agents together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Facility Agent’s normal fee rates and those amendments will bind the Parties.
|
(e)
|
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
(f)
|
The Facility Agent’s resignation notice shall only take effect upon the appointment of a successor.
|
(g)
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (
Indemnity to the Facility Agent
) and this Clause 29 (
The Facility Agent and the Arranger
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility 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.
|
(h)
|
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above.
|
(i)
|
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
29.14
|
Confidentiality
|
(a)
|
In acting as Facility Agent for the Finance Parties, the Facility 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.
|
(b)
|
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
29.15
|
Relationship with the other Finance Parties
|
(a)
|
The Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b)
|
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent.
|
(c)
|
Any Lender may by notice to the Facility 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 36.5 (
Electronic communication
) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 36.2 (
Addresses
) and sub-paragraph (ii) of paragraph (a) of Clause 36.5 (
Electronic communication
) and the Facility 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.
|
29.16
|
Credit appraisal by the Finance Parties
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c)
|
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e)
|
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
29.17
|
Reference Banks
|
29.18
|
Facility Agent’s management time
|
(a)
|
Any amount payable to the Facility Agent under Clause 14.4 (
Indemnity to the Facility Agent
), Clause 16 (
Costs and Expenses
) and Clause 29.12 (
Lenders’ indemnity to the Facility Agent
) shall include the cost of utilizing the Facility Agent’s management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the Borrower and the other Finance Parties, and is in addition to any fee paid or payable to the Facility Agent under Clause 11 (
Fees
).
|
29.19
|
Deduction from amounts payable by the Facility Agent
|
29.20
|
Reliance and engagement letters
|
29.21
|
Full freedom to enter into transactions
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
(i)
|
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii)
|
any options or other derivatives in connection with such securities; and
|
(c)
|
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
30
|
THE SECURITY AGENT
|
30.1
|
Appointment and trust
|
(a)
|
Each other Finance Party appoints the Security Agent to act as its agent and (to the extent permitted or required under any applicable law) trustee in connection with the Security Property and confirms that the Security Agent shall have a lien on the Security Property and the proceeds of the enforcement of the Security Documents for all moneys payable to the beneficiaries of the Security Documents.
|
(b)
|
The Security Agent accepts its appointment under paragraph (a) above as trustee of the Security Property with effect from the date of this Agreement and declares that it holds the Security Property on trust for the Creditor Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 30 (
The Security Agent
) and the other provisions of the Finance Documents.
|
(c)
|
Each other Finance Party appoints the Security Agent, as trustee to (i) perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions, and (ii) execute each of the Security Documents and all other documents that may be approved by the Facility Agent and/or the Majority Lenders for execution by it.
|
30.2
|
Parallel Debt (Covenant to pay the Security Agent)
|
(a)
|
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b)
|
The Parallel Debt of an Obligor:
|
(i)
|
shall become due and payable at the same time as its Corresponding Debt;
|
(ii)
|
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c)
|
For purposes of this Clause 30.2 (
Parallel Debt (Covenant to pay the Security Agent)
, the Security Agent:
|
(i)
|
is the independent and separate creditor of each Parallel Debt;
|
(ii)
|
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii)
|
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d)
|
The Parallel Debt of an Obligor shall be:
|
(i)
|
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii)
|
increased to the extent that its Corresponding Debt has increased,
|
(A)
|
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B)
|
increased to the extent that its Parallel Debt has increased,
|
(e)
|
All amounts received or recovered by the Security Agent in connection with this Clause 30.2 (
Parallel Debt (Covenant to pay the Security Agent)
) to the extent permitted by applicable law, shall be applied in accordance with Clause 33.5 (
Application of receipts; partial payments
).
|
(f)
|
This Clause 30.2 (
Parallel Debt (Covenant to pay the Security Agent)
) shall apply, with any necessary modifications, to each Finance Document.
|
30.3
|
Enforcement through Security Agent only
|
30.4
|
Instructions
|
(a)
|
The Security Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent acting on the instructions of:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b)
|
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Facility Agent acting on the instructions of the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Facility Agent acting on the instructions of the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
Paragraph (a) above shall not apply:
|
(i)
|
where a contrary indication appears in a Finance Document;
|
(ii)
|
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Security Agent’s own position in its personal capacity as opposed to its role of Security Agent for the relevant Creditor Parties.
|
(iv)
|
in respect of the exercise of the Security Agent’s discretion to exercise a right, power or authority under any of:
|
(A)
|
Clause 30.26 (
Deductions from receipts
); and
|
(B)
|
Clause 30.27 (
Prospective liabilities
).
|
(e)
|
If giving effect to instructions given by the Facility Agent acting on the instructions of the Majority Lenders would in the Security Agent’s opinion have an effect equivalent to an amendment or waiver referred to in Clause 42 (
Amendments and Waivers
), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i)
|
it has not received any instructions as to the exercise of that discretion; or
|
(ii)
|
the exercise of that discretion is subject to sub-paragraph (iv) (iv)of paragraph (d) above,
|
(g)
|
The Security Agent may refrain from acting in accordance with any instructions of the Facility Agent acting on the instructions of any Finance Party or group of Finance Parties 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 (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h)
|
Without prejudice to the remainder of this Clause 30.4 (
Instructions
), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
(i)
|
The Security Agent is not authorized to act on behalf of a Finance Party (without first obtaining that Finance Party’s consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
30.5
|
Duties of the Security Agent
|
(a)
|
The Security Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c)
|
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d)
|
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e)
|
The Security 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).
|
30.6
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor.
|
(b)
|
The Security Agent shall not be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account.
|
30.7
|
Business with the Group
|
30.8
|
Rights and discretions
|
(a)
|
The Security Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorized;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Facility Agent acting on the instructions of the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Creditor Parties) that:
|
(i)
|
no Default has occurred;
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii)
|
any notice or request made by the Borrower (other than a Drawdown Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Transaction Obligors.
|
(c)
|
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(e)
|
The Security 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 Security 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.
|
(f)
|
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g)
|
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not 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.
|
(i)
|
Notwithstanding any provision of any Finance Document to the contrary, the Security 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.
|
30.9
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arranger, a Transaction Obligor or any other person in, or in connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Creditor 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.
|
30.10
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c)
|
whether any other event specified in any Transaction Document has occurred.
|
30.11
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii)
|
any shortfall which arises on the enforcement or realization of the Security Property; or
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (
Third party rights
).
|
(c)
|
The Security 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 Security Agent if the Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognized clearing or settlement system used by the Security Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i)
|
any “know your customer” or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Transaction Document or the Security Property 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 Security Agent, Receiver or Delegate 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 Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate 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 Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
30.12
|
Lenders’ indemnity to the Security Agent
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
30.13
|
Resignation of the Security Agent
|
(a)
|
The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
(b)
|
Alternatively, the Security Agent may resign by giving 30 days’ notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d)
|
The retiring Security Agent shall, at its own cost, make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents.
|
(e)
|
The Security Agent’s resignation notice shall only take effect upon:
|
(i)
|
the appointment of a successor; and
|
(ii)
|
the transfer of all the Security Property to that successor.
|
(f)
|
Upon the appointment of a successor, the retiring Security Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 30.24 (
Winding up of trust
) and paragraph (d) above) but shall remain entitled to the benefit of Clause 14.5 (
Indemnity to the Security Agent
) and this Clause 30 (
The Security Agent
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security 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.
|
(g)
|
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.
|
(h)
|
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
30.14
|
Confidentiality
|
(a)
|
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
30.15
|
Credit appraisal by the Finance Parties
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c)
|
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e)
|
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
30.16
|
Security Agent’s management time
|
(a)
|
Any amount payable to the Security Agent under Clause 14.5 (
Indemnity to the Security Agent
), Clause 16 (
Costs and Expenses
) and Clause 30.12 (
Lenders’ indemnity to the Security Agent
) shall include the cost of utilizing the Security Agent’s management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Security Agent may notify to the Borrower and the other Finance Parties, and is in addition to any fee paid or payable to the Security Agent under Clause 11 (
Fees
).
|
(b)
|
Without prejudice to paragraph (a) above, in the event of:
|
(i)
|
An Event of Default;
|
(ii)
|
the Security Agent being requested by a Transaction Obligor or the Facility Agent acting on the instructions of the Majority Lenders to undertake duties which the Security Agent and the Borrower agree to be of an exceptional nature or outside the scope of the normal duties of the Security Agent under the Finance Documents; or
|
(iii)
|
the Security Agent and the Borrower agreeing that it is otherwise appropriate in the circumstances,
|
(c)
|
If the Security Agent and the Borrower fail to agree upon the nature of the duties, or upon the additional remuneration referred to in paragraph (b) above or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Borrower (the costs of the nomination and of the investment bank being payable by the Borrower) and the determination of any investment bank shall be final and binding upon the Parties.
|
30.17
|
Reliance and engagement letters
|
30.18
|
No responsibility to perfect Transaction Security
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets;
|
(b)
|
obtain any license, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d)
|
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e)
|
require any further assurance in relation to any Security Document.
|
30.19
|
Insurance by Security Agent
|
(a)
|
The Security Agent shall not be obliged:
|
(i)
|
to insure any of the Security Assets;
|
(ii)
|
to require any other person to maintain any insurance; or
|
(iii)
|
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b)
|
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Facility Agent acting on the instructions of the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
30.20
|
Custodians and nominees
|
30.21
|
Delegation by the Security Agent
|
(a)
|
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b)
|
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Creditor Parties.
|
(c)
|
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
30.22
|
Additional Security Agents
|
(a)
|
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i)
|
if it considers that appointment to be in the interests of the Creditor Parties; or
|
(ii)
|
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii)
|
for obtaining or enforcing any judgment in any jurisdiction,
|
(b)
|
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c)
|
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
30.23
|
Acceptance of title
|
30.24
|
Winding up of trust
|
(a)
|
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(b)
|
no Creditor Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Transaction Obligor pursuant to the Finance Documents,
|
(i)
|
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and
|
(ii)
|
any Security Agent which has resigned pursuant to Clause 30.13 (
Resignation of the Security Agent
) shall release, without recourse or warranty, all of its rights under each Security Document.
|
30.25
|
Application of receipts
|
(a)
|
Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are attributable to, Security Property (for the purposes of this Clause 30 (
The Security Agent
), the “
Recoveries
”) shall be transferred to the Facility Agent for application in accordance with Clause 33.5 (
Application of receipts; partial payments
).
|
(b)
|
Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
|
(i)
|
under Clause 14.5 (
Indemnity to the Security Agent
) or any other indemnity in favor of the Security Agent under the Finance Documents to be indemnified out of the Security Assets; and
|
(ii)
|
under any Finance Document to credit any moneys received or recovered by it to any suspense account.
|
(c)
|
Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(d)
|
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause 30.25 (
Application of receipts
) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
30.26
|
Deductions from receipts
|
(a)
|
Before transferring any moneys to the Facility Agent under Clause 30.25 (
Application of receipts
), the Security Agent may, in its discretion:
|
(i)
|
deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
|
(ii)
|
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
|
(iii)
|
pay all Taxes which may be assessed against it in respect of any of the Security 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).
|
(b)
|
For the purposes of sub-paragraph (i) of paragraph (a) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be treated as due and payable, even if no demand has yet been served.
|
30.27
|
Prospective liabilities
|
(a)
|
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b)
|
any part of the Secured Liabilities,
|
30.28
|
Investment of proceeds
|
30.29
|
Currency conversion
|
(a)
|
For the purpose of, or pending the discharge of, any of the Secured Liabilities 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.
|
(b)
|
The obligations of any Transaction 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.
|
30.30
|
Good discharge
|
30.31
|
Full freedom to enter into transactions
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
(i)
|
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii)
|
any options or other derivatives in connection with such securities; and
|
(c)
|
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
32
|
SHARING AMONG THE FINANCE PARTIES
|
32.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b)
|
the Facility 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 Facility Agent and distributed in accordance with Clause 33 (
Payment Mechanics
), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the “
Sharing Payment
”) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 33.5 (
Application of receipts; partial payments
).
|
32.2
|
Redistribution of payments
|
32.3
|
Recovering Finance Party’s rights
|
32.4
|
Reversal of redistribution
|
(a)
|
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “
Redistributed Amount
”); and
|
(b)
|
as between the relevant Transaction 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 Transaction Obligor.
|
32.5
|
Exceptions
|
(a)
|
This Clause 32 (
Sharing among the Finance Parties
) 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 Transaction Obligor.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
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.
|
33
|
PAYMENT MECHANICS
|
33.1
|
Payments to the Facility Agent
|
(a)
|
On each date on which a Transaction Obligor or a Lender is required to make a payment under a Finance Document, that Transaction Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time specified by the Facility Agent as being customary for settlement of transactions in dollars in the place of payment.
|
(b)
|
Payment shall be made to such account as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
33.2
|
Distributions by the Facility Agent
|
33.3
|
Distribu
t
ions to a Transaction Obligor
|
33.4
|
Clawback and pre-funding
|
(a)
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility 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 Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c)
|
If the Facility Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
(i)
|
the Facility Agent shall notify the Borrower of the Lender’s identity and the Borrower shall on demand refund it to the Facility Agent; and
|
(ii)
|
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
33.5
|
Application of receipts; partial payments
|
(a)
|
Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the following order:
|
(i)
|
first
, in or towards payment of any amounts then due and payable under any of the Finance Documents;
|
(ii)
|
secondly
, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document but which the Facility Agent, by notice to the Borrower and the other Finance Parties, states in its opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them; and
|
(iii)
|
thirdly
, any surplus shall be paid to the Borrower or to any other person who appears to be entitled to it.
|
(b)
|
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by a Transaction Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Transaction Obligor under the Finance Documents in the following order:
|
(i)
|
first
, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the Security Agent, any Receiver and any Delegate under the Finance Documents;
|
(ii)
|
secondly
, in or towards payment pro rata of any accrued interest or commission due to any Finance Party but unpaid under this Agreement;
|
(iii)
|
thirdly
, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(iv)
|
fourthly
, in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents.
|
(c)
|
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (ii) to (iv) of paragraph (b) above.
|
(d)
|
Paragraphs (a), (b) and (c) above will override any appropriation made by a Transaction Obligor.
|
33.6
|
No set-off by Transaction Obligors
|
33.7
|
Business Days
|
(a)
|
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).
|
(b)
|
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
33.8
|
Currency of account
|
(a)
|
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document.
|
(b)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c)
|
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
33.9
|
Change of currency
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognized by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrower); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognized by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
33.10
|
Currency Conversion
|
(a)
|
For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b)
|
The obligations of any Transaction 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.
|
33.11
|
Disruption to Payment Systems etc.
|
(a)
|
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b)
|
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c)
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d)
|
any such changes agreed upon by the Facility Agent and the Borrower 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 42 (
Amendments and Waivers
);
|
(e)
|
the Facility 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 Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 33.11 (
Disruption to Payment Systems etc.
); and
|
(f)
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
34
|
SET-OFF
|
35
|
BAIL-IN
|
35.1
|
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
|
35.2
|
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.
|
36
|
NOTICES
|
36.1
|
Communications in writing
|
36.2
|
Addresses
|
(a)
|
in the case of the Borrower and the Guarantor, that specified in Schedule 1 (
The Parties
);
|
(b)
|
in the case of each Lender or any other Obligor, that specified in Schedule 1 (
The Parties
) or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c)
|
in the case of the Facility Agent, that specified in Schedule 1 (
The Parties
); and
|
(d)
|
in the case of the Security Agent, that specified in Schedule 1 (
The Parties
),
|
36.3
|
Delivery
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i)
|
if by way of fax, when received in legible form; or
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,
|
(b)
|
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention of the department or officer of that Servicing Party specified in Schedule 1 (
The Parties
) (or any substitute department or officer as that Servicing Party shall specify for this purpose).
|
(c)
|
All notices from or to a Transaction Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d)
|
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e)
|
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
36.4
|
Notification of address and fax number
|
36.5
|
Electronic communication
|
(a)
|
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, 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 and if those two Parties:
|
(i)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days’ notice.
|
(b)
|
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
(c)
|
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
36.6
|
English language
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
(i)
|
in English; or
|
(ii)
|
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
37
|
CALCULATIONS AND CERTIFICATES
|
37.1
|
Accounts
|
37.2
|
Certificates and determinations
|
37.3
|
Day count convention
|
38
|
PARTIAL INVALIDITY
|
39
|
REMEDIES AND WAIVERS
|
40
|
SETTLEMENT OR DISCHARGE CONDITIONAL
|
41
|
IRREVOCABLE PAYMENT
|
42
|
AMENDMENTS AND WAIVERS
|
42.1
|
Required consents
|
(a)
|
Subject to Clause 42.2 (
All Lender matters
) and Clause 42.3 (
Other exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and, in the case of an amendment, the Transaction Obligors party thereto and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 42 (
Amendments and Waivers
).
|
(c)
|
Without prejudice to the generality of Clause 29.8 (
Rights and discretions
), the Facility 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.
|
42.2
|
All Lender matters
|
(a)
|
the definition of “Majority Lenders” in Clause 1.1 (
Definitions
);
|
(b)
|
a postponement to or extension of the date of payment of any amount under the Finance Documents (other than in relation to Clause 7.3 (
Voluntary prepayment of Loan
) in respect of a prepayment made pursuant to Clause 24.2 (
Provision of additional security
; prepayment) or Clause 7.4 (
Mandatory prepayment on sale or Total Loss
);
|
(c)
|
a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(d)
|
a change in currency of payment of any amount under the Finance Documents;
|
(e)
|
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments rateably under the Facility;
|
(f)
|
any provision which expressly requires the consent of all the Lenders;
|
(g)
|
this Clause 42 (
Amendments and Waivers
);
|
(h)
|
any change to Clause 2 (
The Facility
), Clause 3 (
Purpose
), Clause 5 (
Drawdown
), Clause 8 (
Interest
), paragraph (a) of Clause 24.7 (
Provision of valuations
), Clause 25 (
Accounts and application
of Earnings), Clause 27 (
Changes to the Lenders
), Clause 45 (
Governing Law
);
|
(i)
|
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction Security as it relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
|
(j)
|
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
(i)
|
the guarantee and indemnity granted under Clause 17 (
Guarantee and Indemnity
);
|
(ii)
|
the Security Assets; or
|
(iii)
|
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(k)
|
the release of the guarantee and indemnity granted under Clause 17 (
Guarantee and Indemnity
) or of any Transaction Security 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 the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document,
|
42.3
|
Other exceptions
|
(a)
|
An amendment or waiver which relates to the rights or obligations of a Servicing Party or the Arranger (each in their capacity as such) may not be effected without the consent of that Servicing Party or, as the case may be, the Arranger.
|
(b)
|
The Borrower and the Facility Agent, the Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party.
|
43
|
CONFIDENTIALITY
|
43.1
|
Confidential Information
|
43.2
|
Disclosure of Confidential Information
|
(a)
|
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent or Security Agent and, in each case, to any of that person’s Affiliates, Representatives and professional advisers;
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction including a Securitization under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Transaction Obligors and to any of that person’s Affiliates, Representatives and professional advisers;
|
(iii)
|
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 29.15 (
Relationship with the other Finance Parties
);
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation including any applicable data protection laws;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 27.8 (
Security over Lenders’ rights
);
|
(viii)
|
who is a Party, a member of the Group or any related entity of a Transaction Obligor;
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or
|
(x)
|
with the consent of the Borrower;
|
(A)
|
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C)
|
in relation to sub-paragraphs (v) (vi) and (vii) of paragraph (b) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c)
|
to any person appointed by that Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of 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 paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement in such form as may be agreed between the Borrower and the relevant Finance Party; and
|
(d)
|
to any Rating Agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such Rating Agency to carry out its normal rating activities in relation to the Finance Documents and/or the Transaction Obligors if the Rating Agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
43.3
|
Disclosure to numbering service providers
|
(a)
|
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
|
(i)
|
names of Transaction Obligors;
|
(ii)
|
country of domicile of Transaction Obligors;
|
(iii)
|
place of incorporation of Transaction Obligors;
|
(iv)
|
date of this Agreement;
|
(v)
|
Clause 45 (
Governing Law
);
|
(vi)
|
the names of the Facility Agent and the Arranger;
|
(vii)
|
date of each amendment and restatement of this Agreement;
|
(viii)
|
amount of Total Commitments;
|
(ix)
|
currency of the Facility;
|
(x)
|
type of Facility;
|
(xi)
|
ranking of Facility;
|
(xii)
|
Maturity Date for Facility;
|
(xiii)
|
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above; and
|
(xiv)
|
such other information agreed between such Finance Party and the Borrower,
|
(b)
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Transaction Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c)
|
Each Obligor represents, on behalf of itself and the other Transaction Obligors, that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
(d)
|
The Facility Agent shall notify the Guarantor and the other Finance Parties of:
|
(i)
|
the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more Transaction Obligors; and
|
(ii)
|
the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Transaction Obligors by such numbering service provider.
|
43.4
|
Entire agreement
|
43.5
|
Inside information
|
43.6
|
Notification of disclosure
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 43.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 43 (
Confidentiality
).
|
43.7
|
Continuing obligations
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
44
|
COUNTERPARTS
|
45
|
GOVERNING LAW
|
46
|
ENFORCEMENT
|
46.1
|
Jurisdiction
|
(a)
|
Each of the Obligors hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York County, and any appellate court thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Finance Documents to which such Obligor is a party or for recognition or enforcement of any judgment, and each of the Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State Court or, to the extent permitted by law, in such Federal court. Each of the Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
|
(b)
|
This Clause 46.1 (
Jurisdiction
) is for the benefit of the Creditor Parties only. As a result, no Creditor Party shall be prevented from taking proceedings relating to any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) in any other courts with jurisdiction. To the extent allowed by law, the Creditor Parties may take concurrent proceedings in any number of jurisdictions.
|
46.2
|
Service of process
|
(a)
|
Each of the Obligors hereby agrees to appoint Seward & Kissel LLP, attention Michael Timpone, Esq., with offices currently located at One Battery Park Plaza, New York, New York 10004, as its designated agent for service of process for any action or proceeding arising out of or relating to this Agreement or any other Finance Document. Each of the Obligors also irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to its address specified in Clause 36.2 (
Addresses
). Each of the Obligors also agrees that service of process may be made on it by any other method of service provided for under the applicable laws in effect in the State of New York.
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
46.3
|
Venue; immunity
|
(a)
|
any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Finance Document to which it is a party in any New York State or Federal court and the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court; and
|
(b)
|
any immunity from suit, the jurisdiction of any court in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Finance Document or from any legal process with respect to itself or its property (including without limitation attachment prior to judgment, attachment in aid of execution of judgment, set-off, execution of a judgment or any other legal process), and to the extent that in any such jurisdiction there may be attributed to such person such an immunity (whether or not claimed), such person hereby irrevocably agrees not to claim such immunity.
|
47
|
WAIVER OF JURY TRIAL
|
47.1
|
Waiver
|
48
|
PATRIOT ACT NOTICE
|
48.1
|
PATRIOT Act Notice
|
SCORPIO TANKERS INC., as Borrower
By:
_/s/ Luca Forgione
____________________
Name: Luca Forgione
Title: General Counsel
|
DVB BANK SE, as Arranger
By:
__/s/ Theresa M. Adamski
_______________
Name: Theresa M. Adamski
Title: Attorney-in-Fact
|
STI WEMBLEY SHIPPING COMPANY LIMITED,
as Guarantor
By:
_/s/ Francesca Gianfranchi
_______________
Name: Francesca Gianfranchi
Title: Attorney-in-Fact
|
DVB BANK SE, as Underwriter
By:
__/s/ Theresa M. Adamski
_______________
Name: Theresa M. Adamski
Title: Attorney-in-Fact
|
STI MILWAUKEE SHIPPING COMPANY LIMITED,
as Guarantor
By:
_/s/ Francesca Gianfranchi
_______________
Name: Francesca Gianfranchi
Title: Attorney-in-Fact
|
DVB BANK SE, AMSTERDAM BRANCH, as Original Lender
By:
__/s/ Theresa M. Adamski
_______________
Name: Theresa M. Adamski
Title: Attorney-in-Fact
|
STI SENECA SHIPPING COMPANY LIMITED,
as Guarantor
By:
_/s/ Francesca Gianfranchi
_______________
Name: Francesca Gianfranchi
Title: Attorney-in-Fact
|
DVB BANK AMERICA N.V., as Facility Agent
By:
__/s/ Theresa M. Adamski
_______________
Name: Theresa M. Adamski
Title: Attorney-in-Fact
|
STI ALEXIS SHIPPING COMPANY LIMITED,
as Guarantor
By:
_/s/ Francesca Gianfranchi
_______________
Name: Francesca Gianfranchi
Title: Attorney-in-Fact
|
DVB BANK AMERICA N.V., as Security Agent
By:
__/s/ Theresa M. Adamski
_______________
Name: Theresa M. Adamski
Title: Attorney-in-Fact
|
|
|
Name of Borrower
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
Scorpio Tankers Inc.
|
The Republic of The Marshall Islands
|
36141
|
Scorpio Tankers Inc.
Le Millenium,
9 Boulevard Charles III
98000 Monaco
Attention: Mr. Luca Forgione – Legal Department
Facsimile: +3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
|
|
|
|
|
|
|
|
Name of Guarantor
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
STI Wembley Shipping Company Limited
|
The Republic of The Marshall Islands
|
60722
|
c/o Scorpio Tankers Inc.
Le Millenium,
9 Boulevard Charles III
98000 Monaco
Attention: Mr. Luca Forgione – Legal Department
Facsimile: +3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
STI Milwaukee Shipping Company Limited
|
The Republic of The Marshall Islands
|
65151
|
c/o Scorpio Tankers Inc.
Le Millenium,
9 Boulevard Charles III
98000 Monaco
Attention: Mr. Luca Forgione – Legal Department
Facsimile: +3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
STI Seneca Shipping Company Limited
|
The Republic of The Marshall Islands
|
65154
|
c/o Scorpio Tankers Inc.
Le Millenium,
9 Boulevard Charles III
98000 Monaco
Attention: Mr. Luca Forgione – Legal Department
Facsimile: +3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
STI Alexis Shipping Company Limited
|
The Republic of The Marshall Islands
|
71771
|
c/o Scorpio Tankers Inc.
Le Millenium,
9 Boulevard Charles III
98000 Monaco
Attention: Mr. Luca Forgione – Legal Department
Facsimile: +3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
DVB Bank SE, Amsterdam Branch
|
$90,000,000
|
Tower F, 6
th
Floor
Schiphol Boulevard 255
118 BH Schiphol, The Netherlands
Attention: Ingmar Loges
Facsimile: +31 88 399 8112
Email: Ingmar.Loges@dvbbank.com
With a copy to:
DVB Transport (US) LLC
Representative Office of DVB Bank SE
609 Fifth Avenue, 5
th
Floor
New York, New York 10017
Attention: Jurek Bochner
Facsimile: + (212) 588 0424
Email: Jurek.bochner@dvbbank.com
|
|
|
|
Name of Facility Agent
|
Address for Communication
|
DVB Bank America N.V.
|
DVB Bank America N.V.
Gaitoweg 35
Willemstad, Curacao
Attention: Managing Director
and Loan Administration Department
Facsimile: +599-9-465-2366
Email: TLS.Curacao@dvbbank.com
With a copy to:
DVB Transport (US) LLC
Representative Office of DVB Bank SE
609 Fifth Avenue, 5
th
Floor
New York, New York 10017
Attention: Jurek Bochner
Facsimile: +1 (212) 588 0424
Email: Jurek.bochner@dvbbank.com
Attention: TM New York
Facsimile: +1 (212) 588 0424
Email: TM.NewYork@dvbbank.com
|
Name of Security Agent
|
Address for Communication
|
DVB Bank America N.V.
|
DVB Bank America N.V.
Gaitoweg 35
Willemstad, Curacao
Attention: Managing Director
and Loan Administration Department
Facsimile: +599-9-465-2366
Email: TLS.Curacao@dvbbank.com
With a copy to:
DVB Transport (US) LLC
Representative Office of DVB Bank SE
609 Fifth Avenue, 5
th
Floor
New York, New York 10017
Attention: Jurek Bochner
Facsimile: +1 (212) 588 0424
Email: Jurek.bochner@dvbbank.com
Attention: TM New York
Facsimile: +1 (212) 588 0424
Email: TM.NewYork@dvbbank.com
|
Name of Arranger
|
Address for Communication
|
DVB Bank SE
|
DVB Bank SE
Legal Department
Platz der Republik 6
60325 Frankfurt am Main
Germany
With a copy to:
DVB Transport (US) LLC
Representative Office of DVB Bank SE
609 Fifth Avenue, 5
th
Floor
New York, New York 10017
Attention: Jurek Bochner
Facsimile: +1 (212) 588 0424
Email: Jurek.bochner@dvbbank.com
Attention: TM New York
Facsimile: +1 (212) 588 0424
Email: TM.NewYork@dvbbank.com
|
Name of Underwriter
|
Address for Communication
|
DVB Bank SE
|
DVB Bank SE
Legal Department
Platz der Republik 6
60325 Frankfurt am Main
Germany
With a copy to:
DVB Transport (US) LLC
Representative Office of DVB Bank SE
609 Fifth Avenue, 5
th
Floor
New York, New York 10017
Attention: Jurek Bochner
Facsimile: +1 (212) 588 0424
Email: Jurek.bochner@dvbbank.com
Attention: TM New York
Facsimile: +1 (212) 588 0424
Email: TM.NewYork@dvbbank.com
|
|
|
1
|
Obligors
|
1.1
|
A copy of the constitutional documents of each Obligor.
|
1.2
|
A copy of a resolution of the board of directors (or equivalent governing body) of each Obligor:
|
(a)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b)
|
authorizing a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c)
|
authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, a Drawdown Request and each Selection Notice) to be signed and/or dispatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.3
|
A copy of a resolution signed by the Borrower as the holder of all of the issued shares in each Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which each Guarantor is a party.
|
1.4
|
An original of the power of attorney of any Obligor authorizing a specified person or persons to execute the Finance Documents to which it is a party.
|
1.5
|
A specimen of the signature of each person signing any Finance Document.
|
1.6
|
A certificate of an authorized signatory of each Obligor confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.7
|
A certificate of an authorized signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part A of Schedule 2 (
Conditions Precedent
) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2
|
Finance Documents
|
2.1
|
If applicable, a duly executed original of the Subordination Agreement and copies of each Subordinated Finance Document in respect of any Subordinated Liabilities.
|
2.2
|
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (
Conditions Precedent
).
|
2.3
|
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to in this Schedule 2 (
Conditions Precedent
).
|
3
|
Other documents and evidence
|
3.1
|
A valuation of the relevant Vessel, addressed to the Facility Agent on behalf of the Finance Parties, dated not earlier than two weeks before the Drawdown Date unless otherwise agreed by the Facility Agent from an Approved Appraiser and showing the Market Value for that Vessel.
|
3.2
|
A copy of any other Authorization or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document.
|
3.3
|
The Original Financial Statements of the Borrower.
|
3.4
|
A copy of any mandates or other documents required in connection with the opening or operation of the Accounts.
|
3.5
|
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their “know your customer” or similar identification procedures in relation to the transactions contemplated by the Finance Documents.
|
1
|
Obligors
|
2
|
Borrower
|
3
|
Existing Indebtedness
|
3.1
|
Evidence that all sums then due to DVB Bank America N.V., as Lender in respect of the Existing Indebtedness will have been paid in full immediately upon the making of the Advance.
|
4
|
Finance Documents
|
4.1
|
A duly executed copy of each Security Document if not previously delivered pursuant to Part A of this Schedule 2 (
Conditions Precedent
).
|
4.2
|
A duly executed copy of any other document required to be delivered by each Finance Document if not previously provided pursuant to Part A of this Schedule 2 (
Conditions Precedent
).
|
5
|
Vessel and other security
|
5.1
|
Documentary evidence that the Mortgage in respect of the relevant Vessel has been duly recorded as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of its Approved Flag.
|
5.2
|
Documentary evidence that the relevant Vessel:
|
(a)
|
maintains the Approved Classification for that Vessel with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and
|
(b)
|
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
5.3
|
Copies of the relevant Vessel’s Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Vessel including without limitation an ISSC.
|
5.4
|
Copies of the relevant Vessel’s Commercial Management Agreement and Technical Management Agreement, both on terms acceptable to the Facility Agent acting with the authorization of all of the Lenders, together with:
|
(a)
|
a Manager’s Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and
|
(b)
|
copies of the Approved Technical Manager’s Document of Compliance.
|
5.5
|
A copy of the Approved Pooling Arrangement, if applicable.
|
5.6
|
Evidence that the Security Documents have been duly registered or recorded in such jurisdictions as the Facility Agent may require and that all notices of assignment required under or in connection with the relevant Security Documents have been served.
|
5.7
|
A duly executed copy of a Letter of Undertaking from the Approved Insurance Brokers in a form acceptable to the Facility Agent.
|
5.8
|
A duly executed copy of a Letter of Undertaking from any protection and indemnity club or war risks association through or with whom any obligatory insurances are placed or effected in a form acceptable to the Facility Agent.
|
5.9
|
A duly executed copy of a Letter of Undertaking from the Approved Classification Society in a form acceptable to the Facility Agent.
|
5.10
|
Confirmation from the Facility Agent’s insurance team that it is satisfied that the Vessel is insured in accordance with the provisions of this Agreement.
|
5.11
|
In respect of the Vessel, a class certificate together with maintenance certificate.
|
6
|
Legal opinions
|
(a)
|
Executed favorable legal opinions by lawyers appointed by each Transaction Obligor on such matters concerning the laws of such relevant jurisdictions as the Facility Agent may require in agreed form.
|
(b)
|
Executed favorable legal opinions of the legal advisers to the Arranger, the Facility Agent and the Security Agent in New York, in the jurisdiction of the Approved Flag of the relevant Vessel, and such other relevant jurisdictions as the Facility Agent may require.
|
7
|
Other documents and evidence
|
7.1
|
Evidence that any process agent referred to in Clause 46.2 (
Service of process
), if not an Obligor, has accepted its appointment.
|
7.2
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (
Fees
) and Clause 16 (
Costs and Expenses
), including legal fees, have been paid.
|
1
|
We refer to the Agreement. This is a Drawdown Request. Terms defined in the Agreement have the same meaning in this Drawdown Request unless given a different meaning in this Drawdown Request.
|
2
|
We wish to borrow the Advance under Tranche [A][B][C][D] on the following terms:
|
3
|
We confirm that each condition specified in Clause 4.1 (
Conditions precedent to delivery of a Drawdown Request
) and paragraph (a) of Clause 4.2 (
Conditions precedent to each Advance
) is satisfied on the date of this Drawdown Request.
|
4
|
The proceeds of this Advance should be credited to the following account[s]:
|
5
|
This Drawdown Request is irrevocable.
|
2
|
We request that, subject to paragraph (g) of Clause 9.1 (
Selection of Interest Periods
) of the Agreement, the next Interest Period for the Loan be [
l
].
|
3
|
This Selection Notice is irrevocable.
|
1
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2
|
We refer to Clause 27.5 (
Procedure for transfer
) of the Agreement:
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender’s rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender’s Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 27.5 (
Procedure for transfer
) of the Agreement.
|
(b)
|
The proposed Transfer Date is [
l
].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 36.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 27.4 (
Limitation of responsibility of Existing Lenders
) of the Agreement.
|
4
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by New York law.
|
6
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
7
|
The New Lender confirms that, immediately following the effective date of this Transfer Certificate, it will be a FATCA Exempt Party.
|
From:
|
[the Existing Lender] (the “
Existing Lender
”) and [the New Lender] (the “
New Lender
”)
|
1
|
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2
|
We refer to Clause 27.6 (
Procedure for assignment
):
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender’s Commitment and participations in the Loan under the Agreement as specified in the Schedule.
|
(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
3
|
The proposed Transfer Date is [
l
].
|
4
|
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5
|
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 36.2 (
Addresses
) are set out in the Schedule.
|
6
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 27.4 (
Limitation of responsibility of Existing Lenders
).
|
7
|
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 27.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), to the Borrower (on behalf of each Transaction Obligor) of the assignment referred to in this Assignment Agreement.
|
8
|
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
9
|
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by New York law.
|
10
|
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment 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
|
I am an authorized signatory of the Borrower and in such capacity I hereby certify to the Facility Agent that:
|
3
|
We confirm that: [Insert details of covenants to be certified] and that the computations of such financial covenants are attached to this Compliance Certificate.
|
4
|
The representations and warranties stated in Clause 18 (
Representations
) of the Agreement (updated
mutatis mutandis
) are true and correct as of the date hereof.
|
5
|
[We confirm that no Default is continuing.]*
|
Delivery of a duly completed Drawdown Request (Clause 5.1 (
Delivery of a Drawdown Request
)) or a Selection Notice (Clause 9.1 (
Selection of Interest Periods
))
|
Five Business Days before the intended Drawdown Date (Clause 5.1 (
Delivery of a Drawdown Request
)) or the expiry of the preceding Interest Period (Clause 9.1 (
Selection of Interest Periods
))
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (
Lenders’ participation
)
|
Three Business Days before the intended Drawdown Date.
|
LIBOR is fixed
|
Quotation Day as of 11:00 am New York time
|
|
|
1
|
Interpretation
|
2
|
Facility
|
3
|
Position of the Lenders
|
4
|
Drawdown
|
5
|
Interest
|
6
|
Interest Periods
|
7
|
Default Interest
|
8
|
Repayment, Prepayment and Reborrowing
|
9
|
Conditions Precedent
|
10
|
Representations and Warranties
|
11
|
General Undertakings
|
12
|
Corporate and Financial Undertakings
|
13
|
Insurance
|
14
|
Ship Covenants
|
15
|
Security Cover
|
16
|
Payments and Calculations
|
17
|
Application of Receipts
|
18
|
Application of Earnings
|
19
|
Events of Default
|
20
|
Fees and Expenses
|
21
|
Indemnities
|
22
|
No Set-Off or Tax Deduction
|
23
|
Illegality, etc.
|
24
|
Increased Costs
|
25
|
Set-Off
|
26
|
Transfers and Changes in Lending Offices
|
27
|
Variations and Waivers
|
28
|
Bail in
|
29
|
Notices
|
30
|
Supplemental
|
31
|
Law and Jurisdiction
|
Schedule 1 Lenders and Commitments
|
Schedule 2 Drawdown Notice
|
Schedule 3 Condition Precedent Documents
|
Part A
|
Part B
|
Schedule 4 Transfer Certificate
|
Schedule 5 List of Approved Brokers
|
Schedule 6 Form of Compliance Certificate
|
Schedule 7 The Ships
|
Schedule 8 Power of Attorney
|
Execution Pages
|
(1)
|
SCORPIO TANKERS INC.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "
Borrower
");
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, as
Lenders
;
|
(3)
|
HSH NORDBANK AG
as
Bookrunner
;
|
(4)
|
HSH NORDBANK AG
as
Mandated Lead Arranger
;
|
(5)
|
HSH NORDBANK AG
as
Agent
; and
|
(6)
|
HSH NORDBANK AG
, as
Security Trustee
.
|
1
|
INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b)
|
in relation to any other state, 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.
|
(a)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" 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; and
|
(b)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(a)
|
freely withdrawable on demand;
|
(b)
|
not subject to any Security Interest (other than pursuant to the Finance Documents);
|
(c)
|
denominated and payable in freely transferable and freely convertible currency; and
|
(d)
|
capable of being remitted to the Borrower or such subsidiary of the Borrower.
|
(a)
|
unencumbered securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognised standing organised under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and
|
(c)
|
such other securities or instruments as the Agent shall, with the authorisation of all the Lenders, agree in writing,
|
(a)
|
100 per cent. of the Equity Interests of any Guarantor ceasing to be ultimately owned and/or controlled by the Borrower (an "
Guarantor Disposal
");
|
(b)
|
a "person" or "group" (within the meaning of Sections 13(d) and 14(d) of the Exchange Act) other than any holders of the Borrower's Equity Interests as at the date of this Agreement, becoming the ultimate beneficial owner of the Borrower including, without limitation, any change from the date of this Agreement in the ultimate "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of more than 35 per cent. of the total voting power of the Voting Stock of the Borrower (calculated on a fully diluted basis); or
|
(c)
|
individuals who constitute the board of directors of the Borrower at the beginning of any period of two consecutive calendar years and yet ceasing for any reason to constitute at least 50 per cent. of the total members of the Borrower's board of directors at any time during such two year period;
|
(a)
|
in relation to a Lender as at the date of this Agreement, the amount set opposite its name under the heading "Commitment" in Schedule 1 (
Lenders and Commitments
) and the amount of any other Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement.
|
(a)
|
the Borrower or any Security Party or any of their advisers; or
|
(b)
|
another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly from the Borrower or any Security Party or any of their advisers,
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Creditor Party of Clause 26.13; or
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by the Borrower or any Security Party or any of their advisers; or
|
(iii)
|
is known by that Creditor Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Creditor Party after that date, from a source which is, as far as that Creditor Party is aware, unconnected with the Borrower or any Security Party and which, in either case, as far as that Creditor Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a)
|
plus
, to the extent deducted in computing the net income of the Borrower for that Accounting Period, the sum, without duplication, of:
|
(i)
|
all federal, state, local and foreign income taxes and tax distributions;
|
(ii)
|
Consolidated Net Interest Expense;
|
(iii)
|
depreciation, depletion, amortisation of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortisation of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey (including any underwater survey done in lieu thereof) of a Fleet Vessel during such period; and
|
(v)
|
any drydocking expenses;
|
(b)
|
minus
, to the extent added in computing the consolidated net income of the Borrower for that Accounting Period:
|
(i)
|
any non-cash income or non-cash gains; and
|
(ii)
|
any extraordinary gains on asset sales not received in the ordinary course of business.
|
(a)
|
all Financial Indebtedness; and
|
(b)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance with IFRS would be shown on the liability side of a balance sheet),
|
(a)
|
commitment fees;
|
(b)
|
interest income received; and
|
(c)
|
amortisation of deferred charges and arrangement fees, determined on a consolidated basis in accordance with IFRS and as shown in the consolidated statements of income for the Borrower.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, 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 prevent that, or any other party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other parties in accordance with the terms of the Finance Documents,
|
(a)
|
except to the extent that they fall within paragraph (b):
|
(i)
|
all freight, hire and passage moneys;
|
(ii)
|
compensation payable to the relevant Guarantor or the Security Trustee in the event of requisition of that Ship for hire;
|
(iii)
|
remuneration for salvage and towage services;
|
(iv)
|
demurrage and detention moneys;
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and
|
(vi)
|
all moneys which are at any time payable under Insurances in respect of loss of hire; and
|
(b)
|
if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship;
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
(a)
|
any release of Environmentally Sensitive Material from a Ship; or
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which such Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or such Ship and/or the Guarantor of such Ship and/or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which such Ship is actually or potentially liable to be arrested and/or where the Guarantor of such Ship and/or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
this Agreement;
|
(b)
|
the Agency and Trust Deed;
|
(c)
|
the Guarantee;
|
(d)
|
the Mortgages;
|
(e)
|
the General Assignments;
|
(f)
|
the Account Security Deeds;
|
(g)
|
any Charterparty Assignment;
|
(h)
|
any Intercompany Loan Assignment; and
|
(i)
|
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower, any Security Party or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the other documents referred to in this definition (other than any Approved Ship Manager's Undertakings).
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property
|
(e)
|
all capitalised lease obligations of the Debtor as lessee;
|
(f)
|
all Financial Indebtedness of persons other than the Debtor secured by a Security Interest on any asset of that person, whether or not such Financial Indebtedness is assumed by the Debtor, provided that the amount of such Financial Indebtedness shall be the lesser of:
|
(i)
|
the fair market value of such asset at such date of determination; and
|
(ii)
|
the amount of such Financial Indebtedness; and
|
(g)
|
all Financial Indebtedness incurred under any guarantee, indemnity or similar obligation to the extent such Financial Indebtedness is guaranteed, secured, expressed to be indemnified by, or otherwise assured by the Debtor.
|
(i)
|
the amount outstanding at any time of any Financial Indebtedness issued with an original issue discount shall be deemed to be the face amount of such Financial Indebtedness less the remaining unamortised portion of such original issue discount of such Financial Indebtedness at such time; and
|
(ii)
|
the calculation of Financial Indebtedness shall not take into account any liability of the Debtor for taxes.
|
(a)
|
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to that Ship; and
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan,
|
(a)
|
the applicable Screen Rate as of 11 a.m. (London time) on the Quotation Date for that period for the offering of deposits in the relevant currency and for a period comparable to that period; or
|
(b)
|
as otherwise determined pursuant to Clause 5.5,
|
(a)
|
the business, operations, property or condition (financial or otherwise) of the Borrower and/or any Guarantor; or
|
(b)
|
the ability of the Borrower and/or any Guarantor to perform its obligations under any Finance Document; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or intended to be granted pursuant to any of, the Finance Documents; or
|
(d)
|
the rights or remedies of any Creditor Party under any of the Finance Documents.
|
(a)
|
Security Interests created by the Finance Documents;
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(c)
|
liens for salvage;
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in relation to a Ship not prohibited by this Agreement or any other Finance Document;
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Guarantor that owns such Ship in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.13(d);
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Guarantor that owns such Ship or the Borrower, as the case may be, is actively prosecuting or defending such proceedings or arbitration in good faith;
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made; and
|
(h)
|
any Security Interest and right of set-off arising under or pursuant to any applicable general banking conditions
|
(a)
|
any Finance Document;
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document;
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c).
|
(a)
|
England and Wales, the Principality of Monaco, New York State of the United States of America, Germany and the Republic of the Marshall Islands;
|
(b)
|
if not within any of the jurisdictions referred to in (a) above, the country under the laws of which the company is incorporated or formed;
|
(c)
|
if not within any of the jurisdictions referred to in (a) above, a country in which the company has the centre of its main interests or in which the company's central management and control is or has recently been exercised.
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a),
|
(a)
|
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in dollars for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
|
(b)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator.
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
|
(b)
|
the security rights of a plaintiff under an action
in rem
; and
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.
|
(a)
|
all amounts which have become due for payment by the Borrower or any Security Party under the Finance Documents have been paid;
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document;
|
(c)
|
neither the Borrower nor any Security Party has any future or contingent liability under Clause 20, 21 or 22 or any other provision of this Agreement or another Finance Document; and
|
(d)
|
the Agent, the Security Trustee and all the Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document.
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
(b)
|
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension), unless it is within 45 days redelivered to the full control of the Guarantor owning that Ship;
|
(c)
|
any arrest, capture, seizure or detention of that Ship (including any theft) unless it is within 45 days redelivered to the full control of the Guarantor owning that Ship; and
|
(d)
|
any hijacking of that ship unless it is within 45 days redelivered to the full control of the Guarantor owning that Ship.
|
(a)
|
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earliest of:
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf with that Ship's insurers in which the insurers agree to treat such Ship as a total loss; and
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
(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 paragraph (a) above, or imposed elsewhere.
|
(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 ; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.2
|
Construction of certain terms.
In this Agreement:
|
1.3
|
Meaning of "month".
A period of one or more "
months
" ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (the "
numerically corresponding day
"), but:
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
1.4
|
Meaning of "subsidiary".
In this Agreement "
subsidiary
" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
|
1.5
|
General Interpretation.
In this Agreement:
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;
|
(c)
|
words denoting the singular number shall include the plural and vice versa; and
|
(d)
|
Clauses
1.1
to 1.5 apply unless the contrary intention appears.
|
1.6
|
Headings.
In interpreting a Finance Document or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall be entirely disregarded.
|
2
|
FACILITY
|
2.1
|
Amount of facility
. Subject to the other provisions of this Agreement, the Lenders shall make available to the Borrower a term loan facility to be made available to the Borrower in two (2) Advances in accordance with Clause 4 (
Drawdown
) in the aggregate principal amount of up to $34,000,000.
|
2.2
|
Lenders' participations in an Advance
|
2.3
|
Purpose of each Advance
|
3
|
POSITION OF THE LENDERS
|
3.1
|
Interests several.
The rights of the Lenders under this Agreement are several.
|
3.2
|
Individual right of action.
Each Lender shall be entitled to sue for any amount which has become due and payable by the Borrower to it under this Agreement without joining the Agent, the Security Trustee or any other Lender as additional parties in the proceedings.
|
3.3
|
Proceedings requiring Majority Lender consent.
Except as provided in Clause
3.2
, no Lender may commence proceedings against the Borrower, any Security Party, any Approved Ship Manager or Approved Sub-Manager in connection with a Finance Document without the prior consent of the Majority Lenders.
|
3.4
|
Obligations several.
The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
|
(a)
|
the obligations of the other Lenders being increased; nor
|
(b)
|
the Borrower, any Security Party, any Approved Ship Manager or Approved Sub-Manager or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document,
|
4
|
DRAWDOWN
|
4.1
|
Request for Advance.
Subject to the following conditions, the Borrower may request that an Advance be made by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date.
|
4.2
|
Availability
. The conditions referred to in Clause 4.1 are that:
|
(a)
|
the Drawdown Date has to be a Business Day during the Availability Period;
|
(b)
|
the aggregate of the Advances shall not exceed the lower of (i) $34,000,000 and (ii) 60 per cent. of the aggregate of the Fair Market Value of the Ships;
|
(c)
|
there shall be no more than two Advances;
|
(d)
|
the aggregate amount of the Advances once drawn shall not exceed the Total Commitments;
|
(e)
|
the Drawdown Date of the second Advance shall be no later than 30 Business Days from the Drawdown Date for the first Advance;
|
(f)
|
each Advance shall be made available in a single amount and any amount undrawn following the drawdown of the second Advance shall be cancelled in accordance with Clause 8.1(b) and may not be borrowed by the Borrower at a later date;
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice.
The Agent shall promptly notify the Lenders that it has received a Drawdown Notice and shall inform each Lender of:
|
(a)
|
the amount of the Advance requested and the Drawdown Date and the Ship to which that Advance relates;
|
(b)
|
the amount of that Lender's participation in that Advance; and
|
(c)
|
the duration of the first Interest Period applicable to that Advance.
|
4.4
|
Drawdown Notice irrevocable.
A Drawdown Notice must be signed by an officer or a duly authorised attorney-in-fact of the Borrower; and once served, a Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Majority Lenders.
|
4.5
|
Lenders to make available Contributions.
Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent the amount due from that Lender under Clause 2.2.
|
4.6
|
Disbursement of an Advance.
Subject to the provisions of this Agreement, the Agent shall on each Drawdown Date pay to the Borrower the amounts which the Agent receives from the Lenders under Clause 4.5; and that payment to the Borrower shall be made:
|
(a)
|
to the account which the Borrower specifies in the Drawdown Notice; and
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
4.7
|
Disbursement of an Advance to third party.
The payment of an Advance by the Agent under Clause 4.6 to the Borrower or such other person notified by the Borrower to the Agent shall constitute the making of that Advance and the Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution.
|
4.8
|
Cancellation of Commitments.
The Commitments in respect of any Advance which are unutilised at the end of the Availability Period for such Advance shall then be cancelled.
|
5
|
INTEREST
|
5.1
|
Payment of normal interest.
Subject to the provisions of this Agreement, interest on each Advance in respect of each Interest Period shall be paid by the Borrower on the last day of that Interest Period.
|
5.2
|
Normal rate of interest.
Subject to the provisions of this Agreement, the rate of interest on each Advance in respect of an Interest Period shall be the aggregate of (i) the Margin and (ii) LIBOR for that Interest Period.
|
5.3
|
Payment of accrued interest.
In the case of an Interest Period longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest Period.
|
5.4
|
Notification of Interest Periods and rates of normal interest.
The Agent shall notify the Borrower and each Lender of:
|
(a)
|
each rate of interest; and
|
(b)
|
the duration of each Interest Period,
|
5.5
|
Unavailability of Screen Rate
|
(a)
|
If no Screen Rate is available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(b)
|
If no Screen Rate is available for LIBOR for:
|
(i)
|
dollars; or
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(c)
|
If paragraph (b) above applies but no Reference Bank Rate is available for dollars or the relevant Interest Period, there shall be no LIBOR for the Loan or that part of the Loan and Clause 5.8 (
Cost of funds
) shall apply to the Loan or that part of the Loan for that Interest Period.
|
5.6
|
Calculation of Reference Bank Rate
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Quotation Date, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
|
(b)
|
If at or about 12.00 p.m. (London time) on the Quotation Date none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
5.7
|
Market disruption
|
(a)
|
If before close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan exceed 50 per cent. of the Loan or the relevant part of the Loan) (the "
Relevant Lender
") that the cost to it of funding its participation in the Loan or that part of the Loan would be in excess of LIBOR then Clause 5.8 (
Cost of funds
) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
|
(b)
|
If, at least 1 Business Day before a Drawdown Date, the Agent receives notification from a Lender (the "
Affected Lender
") that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its participation in the relevant Advance, the Affected Lender's obligation to participate in that Advance shall be suspended while that situation continues.
|
5.8
|
Cost of funds
|
(a)
|
If this Clause 5.8 (
Cost of funds
) applies, the rate of interest on each Lender's share of the Loan or the relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select.
|
(b)
|
If this Clause 5.8 (
Cost of funds
) applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(c)
|
Any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties.
|
6
|
INTEREST PERIODS
|
6.1
|
Commencement of term Interest Periods
|
6.2
|
Duration of normal term Interest Periods
|
(a)
|
three (3) months; or
|
(b)
|
in the case of the Interest Period applicable to the second Advance, a period ending on the last day of the Interest Period applicable to the other Advance then current, whereupon the Advances shall be consolidated and treated as a single Advance; or
|
(c)
|
such longer period (as proposed by the Borrower to the Agent not later than 11.00am (Hamburg time) 3 Business Days before the commencement of the Interest Period in respect of that Advance) as the Agent may, with the authorisation of all the Lenders, agree with the Borrower, failing which, the Interest Period shall be three (3) months).
|
6.3
|
Duration of Interest Periods for repayment instalments.
In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall end on that Repayment Date.
|
6.4
|
No Interest Period to extend beyond Maturity Date
. No Interest Period shall end after the Maturity Date and any Interest Period which would otherwise extend beyond the Maturity Date shall instead end on the Maturity Date.
|
6.5
|
Non-availability of matching deposits for Interest Period selected.
If, after the Borrower has selected and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time) on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of 3 months.
|
7
|
DEFAULT INTEREST
|
7.1
|
Payment of default interest on overdue amounts.
The Borrower shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrower under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is:
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or
|
(c)
|
if such amount has become immediately due and payable under Clause
19.4
, the date on which it became immediately due and payable.
|
7.2
|
Default rate of interest.
Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 2 per cent. above:
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at Clauses
7.3(a)
and (b); or
|
(b)
|
in the case of any other overdue amount, the rate set out at Clause 7.3(b).
|
7.3
|
Calculation of default rate of interest.
The rates referred to in Clause 7.2 are:
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period);
|
(b)
|
the Margin plus, in respect of successive periods select by the Agent for so long as such amounts remain unpaid:
|
(i)
|
LIBOR; or
|
(ii)
|
if LIBOR is unavailable, a rate from time to time determined by the Agent by reference to the actual cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.
|
7.4
|
Notification of interest periods and default rates.
The Agent shall promptly notify the Lenders and the Borrower of each interest rate determined by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that the Borrower is liable to pay such interest only with effect from the date of the Agent's notification.
|
7.5
|
Payment of accrued default interest.
Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
|
7.6
|
Compounding of default interest.
Any such default interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded by the default rate on a daily basis.
|
8
|
REPAYMENT, PREPAYMENT AND REBORROWING
|
8.1
|
Repayment of Loan
|
(a)
|
The Borrower shall repay the Loan by 20 consecutive quarterly instalments (each a "
Repayment Instalment
"), the first of which shall be repaid on the date falling three months after the first Drawdown Date relating to the Loan. The first 8 Repayment Instalments shall be $814,583 each and the next 12 Repayment Instalments shall be $708,333 each, the last of which shall be payable together with an additional balloon instalment equal to the then outstanding balance of the Loan.
|
(b)
|
If the aggregate amount advanced under the Loan is less than $34,000,000:
|
(i)
|
the repayment instalments referred to in this Clause 8.1 (
Repayment of Loan
) (including the balloon) shall be reduced pro rata and the Agent shall provide the Borrower and the other Creditor Parties with a repayment schedule for the Loan with the amended repayment instalments (and balloon); and
|
(ii)
|
the unutilised Commitments (if any) of each Lender shall be automatically cancelled at close of business on the earlier to occur of the expiry of the Availability Period and the Drawdown Date in relation to the second Advance.
|
8.2
|
Final Repayment Date.
On the final Repayment Date, the Borrower shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
|
8.3
|
Voluntary prepayment
|
8.4
|
Conditions for voluntary prepayment.
The conditions referred to in Clause 8.3 are that:
|
(a)
|
a partial prepayment of the Loan shall be $1,000,000 or a higher integral multiple of $100,000 or such lower amount as the Agent may approve; and
|
(b)
|
the Agent has received from the Borrower at least 3 Business Days' prior written notice specifying the amounts to be prepaid and cancelled and the date on which the prepayment and cancellation is to be made.
|
8.5
|
Effect of notice of prepayment.
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of all the Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
|
8.6
|
Notification of notice of prepayment.
The Agent shall notify the Lenders promptly upon receiving a prepayment notice.
|
8.7
|
Mandatory prepayment or cancellation on sale or Total Loss.
If a Ship is sold or there is a Guarantor Disposal to facilitate the sale or disposal of a Ship or a Ship becomes a Total Loss, the Borrower shall prepay the Loan by, in aggregate, the relevant amount (as defined below):
|
(a)
|
in the case of a sale, on the earlier of (i) the date on which the sale is completed by delivery of the Ship to the relevant buyer and (ii) the date of receipt by the Security Trustee of the proceeds of the sale; or
|
(b)
|
in the case of a Guarantor Disposal, on the date on which the Guarantor Disposal occurs; or
|
(c)
|
in the case of a Total Loss, on the earlier of (i) the date falling 180 days after the Total Loss Date and (ii) the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.
|
8.8
|
Mandatory prepayment or cancellation on Change of Control.
If there is a Change of Control, the Borrower shall prepay the Loan on or before the date falling 60 days following such Change of Control unless agreed otherwise by all the Lenders or the Change of Control consists of a Guarantor Disposal, where such Guarantor Disposal is made solely to facilitate the sale or disposal of a Ship and a corresponding prepayment is made in accordance with Clause 8.7.
|
8.9
|
Mandatory prepayment or cancellation on Illegality.
If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in an Advance or all or any part of the Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:
|
(a)
|
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and
|
(c)
|
the Borrower shall prepay that Lender's participation in each part of the Loan on the last day of the Interest Period for that part of the Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participation prepaid.
|
8.10
|
Amounts payable on prepayment.
A voluntary prepayment under Clause 8.3, a mandatory prepayment under Clauses 8.7, 8.8 and 8.9 and any cancellation of any Lender's Commitment under this Agreement shall be made together with:
|
(a)
|
accrued interest (and any other amount payable under Clause 21 or otherwise) in respect of the amount prepaid;
|
(b)
|
if the prepayment or any part of it is not made on the last day of the Interest Period applicable to the part of the Loan against which it is to be applied, any sums payable under Clause
21.1(b)
; and
|
(c)
|
in respect of a voluntary prepayment or reduction pursuant to Clause 8.3 only, a prepayment fee of 1.00 per cent. of the amount of the prepayment or reduction of the Loan as at the prepayment or reduction date in respect of any voluntary prepayment or reduction made prior to the first anniversary of the earlier of (i) 31 January 2017 and (ii) the date of this Agreement.
|
8.11
|
Application of partial prepayment
.
|
(a)
|
Each voluntary partial prepayment pursuant to Clause 8.3 where the aggregate amount of the partial prepayment is:
|
(i)
|
in an amount equal to or lesser than $5,000,000 shall be applied as regards the Loan, first against the balloon instalment and secondly against the Repayment Instalments as specified in Clause 8.1 in inverse order of maturity; and
|
(ii)
|
in an amount in excess of $5,000,000 shall be applied:
|
(A)
|
in respect of the amount up to and including $5,000,000, first against the balloon instalment and secondly against the Repayment Instalments as specified in Clause 8.1 in inverse order of maturity; and
|
(B)
|
in respect of the amount exceeding $5,000,000, pro rata against the Repayment Instalments and the balloon instalment as specified in Clause 8.1.
|
(b)
|
Any mandatory partial prepayment made pursuant to Clause 8.7 shall be applied pro rata against the Repayment Instalments and the balloon instalments as specified in Clause 8.1.
|
(c)
|
Any mandatory partial prepayment or cancellation made pursuant to Clauses 8.8, 8.9, 15.2, 23.3 and 24.6 (b)
s
hall be applied in an amount, in aggregate, equal to the amount of such prepayment and cancellation and, as regards the Loan, first against the balloon instalment and secondly against the repayment instalments for the Loan as specified in Clause 8.1 in inverse order of maturity.
|
8.12
|
Reborrowing.
No amount of the Loan repaid or prepaid may be reborrowed.
|
9
|
CONDITIONS PRECEDENT
|
9.1
|
Documents, fees and no default.
Each Lender's obligation to contribute to the Loan is subject to the following conditions precedent:
|
(a)
|
that, on or before the service of the first Drawdown Notice, the Agent receives the documents described in Part A of
Schedule 3
in form and substance satisfactory to the Agent and its lawyers;
|
(b)
|
that, on or before the Drawdown Date in relation to any Advance, the Agent receives or is satisfied that it will receive on the making of such Advance, the documents described in Part B of
Schedule 3
in form and substance satisfactory to it and its lawyers;
|
(c)
|
that, on or before the service of each Drawdown Notice, the Agent receives all fees contemplated by Clause 20.1 and has received payment of the expenses referred to in Clause
20.2
;
|
(d)
|
that both at the date of each Drawdown Notice and at each Drawdown Date:
|
(i)
|
no Event of Default or Latent Event of Default has occurred or would result from the borrowing of the relevant Advance;
|
(ii)
|
the representations and warranties in Clause
10.1
and those of the Borrower or any Security Party which are set out in the other Finance Documents would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing;
|
(iii)
|
no event or circumstance has occurred which has or is reasonably likely to have a Material Adverse Effect;
|
(iv)
|
there has been no material change in the consolidated financial condition, operations or business prospects of the Borrower since the date on which the Borrower provided the Compliance Certificate and Accounting Information accompanying such Compliance Certificate or in respect of any of the information concerning those topics appended to the Compliance Certificate; and
|
(v)
|
none of the circumstances contemplated by Clause 5.7 (
Market disruption
) has occurred and is continuing; and
|
(e)
|
that, the Agent is satisfied that the Borrower will be in compliance with the requirements of Clause 15 immediately following the making of the Advance; and
|
(f)
|
that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrower prior to the relevant Drawdown Date.
|
9.2
|
Waiver of conditions precedent.
If the Majority Lenders, at their discretion, permit an Advance to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrower shall ensure that those conditions are satisfied within 5 Business Days after the Drawdown Date relating to that Advance (or such longer period as the Agent may, with the authorisation of all Lenders, specify).
|
10
|
REPRESENTATIONS AND WARRANTIES
|
10.1
|
General.
The Borrower represents and warrants to each Creditor Party as follows.
|
10.2
|
Status.
The Borrower is duly incorporated and validly existing and in good standing under the laws of the Republic of the Marshall Islands.
|
10.3
|
Ownership of the Guarantors.
The Borrower is the ultimate beneficial owner of all the issued share capital and voting rights in respect of each Guarantor free of Security Interests save for the Security Interests created pursuant to the Finance Documents and Security Interests created in connection with the Existing Facility Agreement over the share capital and voting rights of that Guarantor.
|
10.4
|
Corporate power.
The Borrower (or, in the case of paragraph (a), each Guarantor) has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
|
(a)
|
to register the Ships in its ownership on the Approved Flag;
|
(b)
|
to execute the Finance Documents to which the Borrower is a party; and
|
(c)
|
to borrow under this Agreement and to make all the payments contemplated by, and to comply with, the Finance Documents to which the Borrower is a party.
|
10.5
|
Consents in force.
All the consents referred to in Clause 10.4 remain in force and nothing has occurred which makes any of them liable to revocation.
|
10.6
|
Legal validity; effective Security Interests.
The Finance Documents to which the Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):
|
(a)
|
constitute the Borrower's legal, valid and binding obligations enforceable against the Borrower in accordance with their respective terms; and
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
|
10.7
|
No third party Security Interests.
Without limiting the generality of Clause 10.6, at the time of the execution and delivery of each Finance Document:
|
(a)
|
the Borrower will have the right to create all the Security Interests which that Finance Document purports to create; and
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
10.8
|
No conflicts.
The execution by the Borrower of each Finance Document, and the borrowing by the Borrower of the Loan, and its compliance with each Finance Document will not involve or lead to a contravention of:
|
(a)
|
any law or regulation; or
|
(b)
|
the constitutional documents of the Borrower; or
|
(c)
|
any contractual or other obligation or restriction which is binding on the Borrower or any of its assets.
|
10.9
|
No withholding taxes.
All payments which the Borrower is liable to make under the Finance Documents may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
|
10.10
|
No default.
No Event of Default or Latent Event of Default has occurred.
|
10.11
|
Information.
All information which has been provided in writing by or on behalf of the Borrower or any Security Party to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause
11.5
; all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.7; and there has been no material adverse change in the financial position or state of affairs of the Borrower from that disclosed in the latest of those accounts.
|
10.12
|
No litigation.
No legal or administrative action involving the Borrower or any Security Party (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or taken or, to the Borrower's knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect.
|
10.13
|
No rebates etc.
There is no agreement or understanding to allow or pay any rebate, premium, commission, discount or other benefit or payment (howsoever described) to the Borrower or any Security Party, from the Borrower or any Security Party in connection with the Ships.
|
10.14
|
Compliance with certain undertakings.
At the date of this Agreement, the Borrower is in compliance with Clauses 11.2, 11.4, 11.8 and 11.12.
|
10.15
|
Taxes paid.
The Borrower has paid and has procured that each Guarantor has paid all taxes applicable to, or imposed on or in relation to it, its business or the Ship owned or to be owned by it.
|
10.16
|
ISM Code, ISPS Code and Environmental Laws compliance.
All requirements of the ISM Code, the ISPS Code and all Environmental Laws as they relate to the Borrower, the Guarantors, any Approved Ship Manager, any Approved Sub-Manager and the Ships have been complied with.
|
10.17
|
No money laundering.
Without prejudice to the generality of Clause
2.3
, in relation to the borrowing by the Borrower of the Loan, the performance and discharge of its obligations and liabilities under the Finance Documents, and the transactions and other arrangements affected or contemplated by the Finance Documents to which the Borrower is a party, the Borrower confirms (i) that it is acting for its own account; (ii) that it will use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified in this Agreement; and (iii) that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council).
|
10.18
|
No immunity.
The Borrower is not and no assets of the Borrower are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceedings (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
10.19
|
Pari passu.
The obligations of the Borrower under the Finance Documents to which it is a party rank at least
pari passu
with all other unsecured indebtedness of the Borrower other than indebtedness mandatorily preferred by law.
|
11
|
GENERAL UNDERTAKINGS
|
11.1
|
General.
The Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 11 at all times during the Security Period except as the Agent may, with the authorisation of all the Lenders, otherwise permit.
|
11.2
|
Title; negative pledge.
The Borrower will:
|
(a)
|
own (directly or indirectly) and maintain ownership of the entire legal and beneficial interest in the entire issued share capital of each Guarantor free from all Security Interests and other interests and rights of every kind except for those created by the Finance Documents and Security Interests created in connection with the Existing Facility Agreement over the share capital of that Guarantor;
|
(b)
|
procure that each Guarantor will:
|
(i)
|
hold the legal title to, and own the entire beneficial interest in the Ship to be owned by it, the Insurances and Earnings relating to that Ship and the Earnings Account in its name, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the Finance Documents and except for Permitted Security Interests; and
|
(ii)
|
not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future; and
|
(c)
|
procure that its liabilities under the Finance Documents to which it is a party do and will rank at least
pari passu
with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law;
|
11.3
|
No disposal of assets.
The Borrower will procure that no Guarantor will transfer, lease or otherwise dispose of:
|
(a)
|
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation except for demurrage claims and otherwise in the ordinary course of conducting its business as a ship owner ; or
|
(b)
|
make any substantial change to the nature of its business from that existing at the date of this Agreement.
|
11.4
|
No other liabilities or obligations to be incurred.
The Borrower will procure that no Guarantor, from the date of the Guarantee, will incur any liability or obligation (including, without limitation, any contingent liability) except liabilities and obligations:
|
(a)
|
under the Finance Documents to which it is a party;
|
(b)
|
reasonably incurred in the ordinary course of operating, upgrading, maintaining and chartering its Ship; and
|
(c)
|
in respect of Intercompany Loans made to the relevant Guarantor provided these comply with the requirements of Clause 11.19.
|
11.5
|
Information provided to be accurate.
All financial and other information which is provided in writing by or on behalf of the Borrower or any Security Party under or in connection with any Finance Document will be true, complete and not misleading and will not omit any material fact or consideration.
|
11.6
|
Provision of financial statements.
The Borrower will send to the Agent:
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of the Borrower, the audited consolidated accounts of the Borrower and its subsidiaries;
|
(b)
|
as soon as possible, but in no event later than 90 days after the end of each of the first three Accounting Periods in a calendar year, unaudited consolidated accounts of the Borrower and its subsidiaries which are certified as to their correctness by the chief financial officer of the Borrower;
|
(c)
|
a Compliance Certificate together with the annual reports that the Borrower delivers pursuant to paragraph (a) above and quarterly reports that the Borrower delivers in (b) above each certified by the chief financial officer of the Borrower; and
|
(d)
|
such other information and financial statements (including, without limitation, details of the operating performance, employment, positions and engagements of the Ships, annual budgets and projections) as may be requested by the Agent from time to time.
|
11.7
|
Form of financial statements.
All accounts (audited and unaudited) delivered under Clause 11.6 will:
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
(b)
|
fairly represent the financial condition of the Borrower and its subsidiaries at the date of those accounts and of their profit for the period to which those accounts relate; and
|
(c)
|
fully disclose or provide for all significant liabilities of the Borrower and its subsidiaries.
|
11.8
|
Consents.
The Borrower will, and will procure that each Guarantor will, maintain in force and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
|
(a)
|
for it to perform its obligations under any Finance Document to which it is a party;
|
(b)
|
for the validity or enforceability of any Finance Document to which it is a party; and
|
(c)
|
in the case of each Guarantor, to continue to own and operate the Ship owned by it
|
11.9
|
Maintenance of Security Interests.
The Borrower will:
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record or enrol any Finance Document (if applicable) with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion of the Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.10
|
Notification of litigation.
The Borrower will provide the Agent with details of any legal action involving the Borrower, any Security Party or any Ship, its Earnings or its Insurances as soon as such action is instituted unless it is clear that the legal action cannot be considered material in the context of any Finance Document.
|
11.11
|
Chief Executive Office.
The Borrower will maintain its chief executive office in the Principality of Monaco.
|
11.12
|
Confirmation of no default.
The Borrower will, within 2 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors of the Borrower and which:
|
(a)
|
states that no Event of Default or Latent Event of Default has occurred; or
|
(b)
|
states that no Event of Default or Latent Event of Default has occurred, except for a specified event or matter, of which all material details are given.
|
11.13
|
Notification of default.
The Borrower will notify the Agent as soon as the Borrower becomes aware of:
|
(a)
|
the occurrence of an Event of Default or a Latent Event of Default; or
|
(b)
|
any matter which indicates that an Event of Default or a Latent Event of Default may have occurred,
|
11.14
|
Provision of further information.
The Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating to:
|
(a)
|
the financial condition, business and operations of the Borrower;
|
(b)
|
the Borrower, any Security Party, any Ship, its Earnings or its Insurances; or
|
(c)
|
any other matter relevant to, or to any provision of, a Finance Document,
|
11.15
|
Provision of copies and translation of documents.
The Borrower will supply the Agent with a sufficient number of copies of the documents referred to above to provide 1 copy for each Creditor Party; and if the Agent so requires in respect of any of those documents, the Borrower will provide a certified English translation prepared by a translator approved by the Agent.
|
11.16
|
"Know your customer" checks.
The Borrower shall notify the Agent immediately if it becomes aware of any actual or intended change in its status or the status of any Security Party after the date of this Agreement. 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 the Borrower or any Security Party 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,
|
11.17
|
Compliance with laws.
The Borrower shall comply and shall procure that each Guarantor shall comply in all material respects with all applicable laws, including, without limitation, all Environmental Laws and regulations relating thereto.
|
11.18
|
Taxes.
The Borrower shall prepare and timely file all tax returns required to be filed by it and any member of the Group and pay and discharge all taxes imposed upon it and any member of the Group or in respect of any of its or any member of the Group's property and assets before the same shall become in default, as well as all lawful claims (including, without limitation, claims for labour, materials and supplies) which, if unpaid, might become a lien or any part thereof, except in each case, for any such taxes (a) as are being contested in good faith by appropriate proceedings and for which adequate reserves have been established, (b) as to which such failure to have paid does not create any risk of sale, forfeiture, loss, confiscation or seizure of a Ship or criminal liability, or (c) the failure of which to pay or discharge would not be likely to have a Material Adverse Effect.
|
11.19
|
Use of proceeds and Intercompany Loans.
The Borrower shall:
|
(a)
|
use the proceeds of each Advance to partially re-finance the Existing Facility Agreement and/or for general corporate purposes and where it on-lends part of the proceeds of each Advance directly or indirectly to the Guarantor which owns the relevant Ship, it shall procure that such Guarantor shall use the proceeds of such Advance solely as permitted pursuant to the terms of this Agreement; and
|
(b)
|
procure that any Intercompany Loan it provides whether directly or indirectly to a Guarantor pursuant to paragraph (a) above shall:
|
(i)
|
be fully subordinated to any and all obligations of the Guarantors and the rights of the Creditor Parties under the Finance Documents;
|
(ii)
|
not require the payment of interest prior to expiry of the Maturity Date;
|
(iii)
|
mature at least 1 year after the Maturity Date; and
|
(iv)
|
not be secured by any asset which is already, or is to be, the subject of a Security Interest created by the Borrower or any Security Party pursuant to any Finance Document;
|
(c)
|
furnish promptly to the Agent a true and complete copy of any instrument evidencing any Intercompany Loan, all other documents related thereto and a true and complete copy of each material amendment or other modification thereof; and
|
(d)
|
in respect of any such Intercompany Loan, execute and deliver to the Agent an Intercompany Loan Assignment and deliver to the Agent such other documents equivalent to those referred to in paragraphs 3, 4, and 6 of Part A of
Schedule 3
as the Agent may require.
|
12
|
CORPORATE AND FINANCIAL UNDERTAKINGS
|
12.1
|
General.
The Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent may, with the authorisation of all the Lenders, otherwise permit.
|
12.2
|
Maintenance of status
. The Borrower will:
|
(a)
|
maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Marshall Islands;
|
(b)
|
remain listed on the New York Stock Exchange; and
|
(c)
|
procure that each Guarantor shall maintain its separate corporate existence and remain in goodstanding under the laws of the Republic of the Marshall Islands.
|
12.3
|
Negative undertakings.
|
(a)
|
The Borrower will not and will procure that no Guarantor shall:
|
(i)
|
change its name, its type of organisation or the nature of its business; or
|
(ii)
|
change its Fiscal Year; or
|
(iii)
|
permit any act, event or circumstance to occur or arise which would or could result in a Change of Control of the Borrower or any Guarantor other than a Guarantor Disposal for the purposes of selling or disposing of a Ship where the relevant prepayment is made in accordance with Clause 8.7 or give rise whether directly or indirectly to a Material Adverse Effect; or
|
(iv)
|
enter into any form of amalgamation, merge or de-merger or any form of reconstruction or reorganisation.
|
(b)
|
The Borrower will procure that no Guarantor shall:
|
(i)
|
provide any form of credit or financial assistance to:
|
(A)
|
a person who is directly or indirectly interested in the Borrower's or the relevant Guarantor's share or loan capital; or
|
(B)
|
any company in or with which such a person is directly or indirectly interested or connected,
|
(ii)
|
issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital; or
|
(iii)
|
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative.
|
12.4
|
Dividends.
|
(a)
|
The Borrower may only pay a dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital provided that no Event of Default has occurred and is continuing at the time of the payment of such dividends or making of such distributions, redemptions, purchase or return or will result from the payment of such dividend or making of such distributions, redemptions, purchase or return; and
|
(b)
|
The Borrower will procure that no Guarantor shall pay a dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
|
(i)
|
any Event of Default has occurred and is continuing at the time of the payment of such dividend or making of such other form of distribution or effecting of such redemption, purchase or return of share capital or will result from such payment or making of such other form of distribution or effecting of such redemption, purchase or return of share capital; or
|
(ii)
|
such dividend or other form of distribution or redemption, purchase or return of share capital shall result in a breach of the financial covenants set out in Clauses 12.5, 12.6, 12.7 and
12.8
.
|
12.5
|
Minimum liquidity.
The Borrower shall, at all times, maintain Cash and Cash Equivalents on a consolidated basis, including all amounts on deposit with any bank, of not less than the greater of (a) $25,000,000 or (b) $250,000 per ship which is time chartered by the Borrower, plus $500,000 per Fleet Vessel (the "
Minimum Liquidity
"), provided that:
|
(a)
|
for the purpose of this Clause 12.5, "
Cash Equivalents
" shall include unutilised and freely available amounts under the Facility (where no default or termination event has occurred and is continuing and there is no restriction on borrowing under such Facility) with a maturity date in excess of 12 months after the date of the financial statements delivered pursuant to Clause 11.6; and
|
(b)
|
100 per cent. of the Minimum Liquidity shall at all times consist of Cash.
|
12.6
|
Minimum Consolidated Tangible Net Worth.
The Borrower shall maintain a Consolidated Tangible Net Worth of not less than $1,000,000,000 plus:
|
(a)
|
25 per cent. of the Borrower 's cumulative, positive consolidated net income for each Accounting Period commencing on or after 1 January 2016; and
|
(b)
|
50 per cent. of the Equity Proceeds realised from any issuance of Equity Interests in the Borrower occurring on or after 1 January 2016.
|
12.7
|
Maximum leverage.
The Borrower shall maintain a ratio of Net Debt to Consolidated Total Capitalisation of not more than 0.60 to 1.00, to be tested on the last day of each Accounting Period.
|
12.8
|
Minimum interest coverage.
The Borrower shall maintain a ratio of Consolidated EBITDA to Consolidated Net Interest Expense greater than 2.50 to 1.00. Such ratio shall be calculated on the last day of each Accounting Period on a trailing four quarter basis.
|
12.9
|
Material Changes in IFRS requirements.
If, at any time after the date of this Agreement, the IFRS requirements materially change so as to impact the financial covenants set out in this Clause 12 the Borrower shall notify the Agent and, if agreed between the Borrower and the Agent, this Agreement shall be amended and/or supplemented to reflect these changes.
|
13
|
INSURANCE
|
13.1
|
General.
The Borrower also undertakes with each Creditor Party to procure that each Guarantor will comply with the following provisions of this Clause 13 (
Insurance
) at all times during the Security Period except as the Agent, acting with the authorisation of the Majority Lenders, may otherwise permit in writing.
|
13.1
|
Maintenance of obligatory insurances.
The Borrower shall procure that each Guarantor shall keep the Ship owned by it insured at the expense of that Guarantor against:
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
(b)
|
war risks (including, without limitation, protection and indemnity war risks with a separate limit not less than hull value of the relevant Ship);
|
(c)
|
protection and indemnity risks (including, without limitation, protection and indemnity war risks in excess of the amount for war risks (hull) and oil pollution liability risks) in each case in the highest amount available in the international insurance market); and
|
(d)
|
any other risks the insurance of which the Security Trustee (acting on the instructions of the Majority Lenders), having regard to practices, recommendations and other circumstances prevailing at the relevant time, may from time to time require by notice to that Guarantor.
|
13.2
|
Terms of obligatory insurances.
The Borrower shall procure that each Guarantor shall effect such insurances in respect of the Ship owned by it in such amounts in such currency and upon such terms and conditions as shall from time to time be approved in writing by the Security Trustee acting reasonably, but in any event as follows:
|
(a)
|
in Dollars;
|
(b)
|
in the case of fire and usual marine risks and war risks, on an agreed value basis in an amount equal to at least the higher of (i) an amount which when aggregated with the amount for which any other Ship then subject to a Mortgage, is insured, is equal to 120 per cent. of the Loan and (ii) the Fair Market Value of that Ship;
|
(c)
|
in the case of oil pollution liability risks, for an amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry (with the International Group of Protection and Indemnity Clubs) and the international marine insurance market (currently at the time of entering this Agreement $1,000,000,000 for any one accident or occurrence);
|
(d)
|
in relation to protection and indemnity risks in respect of the full tonnage of that Ship;
|
(e)
|
in relation to war risks insurance, extended to cover piracy and terrorism where excluded under the fire and usual marine risks insurance;
|
(f)
|
on approved terms and conditions;
|
(g)
|
such other risks of whatever nature and howsoever arising in respect of which insurance would be maintained by a prudent owner of a vessel similar to that Ship; and
|
(h)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations which are members of the International Group of Protection and Indemnity Associations, and have an S&P rating of at least BBB- or a comparable rating by any other rating agency acceptable to the Security Trustee (acting on the instructions of the Majority Lenders).
|
13.3
|
Further protections for the Creditor Parties.
In addition to the terms set out in Clause 13.3 (
Terms of obligatory insurances
), the Borrower shall procure that:
|
(a)
|
each Guarantor and any and all third parties who are named assured or co-assured under any obligatory insurance shall assign their interest in any and all obligatory insurances and other Insurances if so required by the Agent (acting reasonably);
|
(b)
|
whenever the Security Trustee requires, the obligatory insurances name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation they may have under any applicable law against the Security Trustee but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
the interest of the Security Trustee as assignee and as loss payee shall be duly endorsed on all slips, cover notes, policies, certificates of entry or other instruments of insurance in respect of the obligatory insurances;
|
(d)
|
the obligatory insurances shall name the Security Trustee as sole loss payee with such directions for payment as the Security Trustee may specify;
|
(e)
|
the obligatory insurances shall provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
(f)
|
the obligatory insurances shall provide that the insurers shall waive, to the fullest extent permitted by English law, their entitlement (if any) (whether by statute, common law, equity, or otherwise) to be subrogated to the rights and remedies of the Security Trustee in respect of any rights or interests (secured or not) held by or available to the Security Trustee in respect of the Secured Liabilities, until the Secured Liabilities shall have been fully repaid and discharged, except that the insurers shall not be restricted by the terms of this paragraph (f) from making personal claims against persons (other than either Guarantor, the Borrower or any Creditor Party) in circumstances where the insurers have fully discharged their liabilities and obligations under the relevant obligatory insurances;
|
(g)
|
the obligatory insurances shall provide that the obligatory insurances shall be primary without right of contribution from other insurances effected by the Security Trustee or any other Creditor Party;
|
(h)
|
the obligatory insurances shall provide that the Security Trustee may make proof of loss if either Guarantor fails to do so; and
|
(i)
|
the obligatory insurances shall provide that if any obligatory insurance is cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Security Trustee, or if any obligatory insurance is allowed to lapse for non‑payment of premium, such cancellation, charge or lapse shall only be effective against the Security Trustee 14 days (or 7 days in the case of war risks) after receipt by the Security Trustee of prior written notice from the insurers of such cancellation, change or lapse.
|
13.4
|
Renewal of obligatory insurances.
The Borrower shall procure that each Guarantor shall:
|
(a)
|
at least 7 days before the expiry of any obligatory insurance effected by it:
|
(i)
|
notify the Security Trustee of the brokers, underwriters, insurance companies and any protection and indemnity or war risks association through or with whom that Guarantor proposes to renew that obligatory insurance and of the proposed terms and conditions of renewal; and
|
(ii)
|
seek the Security Trustee's approval to the matters referred to in paragraph (i);
|
(b)
|
at least 5 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Security Trustee's approval pursuant to paragraph (a); and
|
(c)
|
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal.
|
13.5
|
Copies of policies; letters of undertaking.
The Borrower shall procure that each Guarantor shall ensure that all approved brokers provide the Security Trustee with pro forma copies of all cover notes and policies relating to the obligatory insurances which they are to effect or renew and of a letter or letters of undertaking in a form required by the Security Trustee and including undertakings by the approved brokers that:
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4 (
Further protections for the Creditor Parties
);
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;
|
(d)
|
they will notify the Security Trustee, not less than 5 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from that Guarantor or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions; and
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Guarantor under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of that Ship forthwith upon being so requested by the Security Trustee.
|
13.6
|
Copies of certificates of entry; letters of undertaking.
The Borrower shall procure that each Guarantor shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by that Guarantor is entered provides the Security Trustee with:
|
(a)
|
a certified copy of the certificate of entry for that Ship; and
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Security Trustee.
|
13.7
|
Deposit of original policies.
The Borrower shall procure that each Guarantor shall ensure that all policies relating to obligatory insurances effected by it are deposited with the approved brokers through which the insurances are effected or renewed.
|
13.8
|
Payment of premiums.
The Borrower shall procure that each Guarantor shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all relevant receipts when so required by the Security Trustee.
|
13.9
|
Guarantees.
The Borrower shall procure that each Guarantor shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
|
13.10
|
Compliance with terms of insurances.
The Borrower shall procure that each Guarantor shall not do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in particular:
|
(a)
|
each Guarantor shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause
13.6(c)
) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;
|
(b)
|
no Guarantor shall make any changes relating to the classification or classification society or manager or operator of the Ship owned by it unless approved by the underwriters of the obligatory insurances;
|
(c)
|
each Guarantor shall make (and promptly supply copies to the Agent) of all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which that Ship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation) and, if applicable, shall procure that the Approved Ship Manager and any Approved Sub-Manager complies with this requirement; and
|
(d)
|
no Guarantor shall employ the Ship owned by it, or allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
13.11
|
Alteration to terms of insurances.
The Borrower shall procure that each Guarantor shall neither make nor agree to any material alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
|
13.12
|
Settlement of claims.
The Borrower shall not and shall procure that no Guarantor shall settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances and shall do all things necessary to ensure such collection or recovery is made.
|
13.13
|
Provision of copies of communications.
The Borrower shall procure that each Guarantor shall provide the Security Trustee, at the time of each such communication, copies of all material written communications between the relevant Guarantor and:
|
(a)
|
the approved insurance brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
|
(i)
|
that Guarantor's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii)
|
any credit arrangements made between that Guarantor and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
13.14
|
Provision of information and further undertakings.
In addition, the Borrower shall procure that each Guarantor shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated person) requests for the purpose of:
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause 13.16 or dealing with or considering any matters relating to any such insurances,
|
(i)
|
do all things necessary and provide the Agent and the Security Trustee with all documents and information to enable the Security Trustee to collect or recover any moneys in respect of the Insurances which are payable to the Security Trustee pursuant to the Finance Documents; and
|
(ii)
|
promptly provide the Agent with full information regarding any Major Casualty in consequence whereof the Ship owned by that Guarantor has become or may become a Total Loss and agree to any settlement of such casualty or other accident or damage to that Ship only with the Agent's prior written consent,
|
13.15
|
Mortgagee's interest and additional perils insurances.
The Security Trustee shall be entitled from time to time to effect, maintain and renew all or any of the following insurances in such amounts, on such terms, through such insurers and generally in such manner as the Majority Lenders may from time to time consider appropriate:
|
(a)
|
a mortgagee's interest insurance providing for the indemnification of the Creditor Parties for any losses under or in connection with any Finance Document (in an aggregate amount of up to 120 per cent. of the Loan) which directly or indirectly result from loss of or damage to a Ship or a liability of that Ship or of the Guarantor owning that Ship, being a loss or damage which is
prima facie
covered by an obligatory insurance but in respect of which there is a non-payment (or reduced payment) by the underwriters by reason of, or on the basis of an allegation concerning:
|
(i)
|
any act or omission on the part of that Guarantor, of any operator, charterer, manager or sub-manager of that Ship or of any officer, employee or agent of that Borrower or of any such person, including any breach of warranty or condition or any non-disclosure relating to such obligatory insurance;
|
(ii)
|
any act or omission, whether deliberate, negligent or accidental, or any knowledge or privity of that Guarantor, any other person referred to in paragraph (i) above, or of any officer, employee or agent of that Guarantor or of such a person, including the casting away or damaging of that Ship and/or that Ship being unseaworthy; and/or
|
(iii)
|
any other matter capable of being insured against under a mortgagee's interest marine insurance policy whether or not similar to the foregoing; and
|
(b)
|
a mortgagee's interest additional perils insurance providing for the indemnification of the Creditor Parties against, among other things, any possible losses or other consequences of any Environmental Claim, including the risk of expropriation, arrest or any form of detention of a Ship, the imposition of any Security Interest over that Ship and/or any other matter capable of being insured against under a mortgagee's interest additional perils policy whether or not similar to the foregoing, and in an aggregate amount of up to 110 per cent. of the Loan,
|
1
|
SHIP COVENANTS
|
1.1
|
General.
The Borrower also undertakes with each Creditor Party that it shall and that it shall procure that each Guarantor shall comply with the following provisions of this Clause 14 at all times during the Security Period except as the Agent, acting with the authorisation of the Majority Lenders, may otherwise permit in writing (and which shall not be unreasonably withheld or delayed in relation to Clause 14.2 (
Ship's name and registration
)).
|
1.2
|
Ship's name and registration.
The Borrower shall and shall procure that each Guarantor shall keep the Ship owned by it registered in its name under an Approved Flag; shall not do, omit to do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry of that Ship.
|
1.3
|
Repair and classification.
The Borrower shall, and shall procure that each Guarantor, each Approved Ship Manager and any Approved Sub-Manager shall, keep the Ship owned by that Guarantor in a good and safe condition and state of repair:
|
(a)
|
consistent with first-class ship ownership and management practice;
|
(b)
|
so as to maintain the highest class free of overdue recommendations and conditions, an Approved Classification Society; and
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered under the law of the applicable Approved Flag or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code,
|
1.4
|
Classification society undertaking.
The Borrower shall procure that each Guarantor shall instruct the Approved Classification Society in relation to its Ship (and in the case of dual classification, only the primary classification society):
|
(a)
|
to send to the Security Trustee, following receipt of a written request from the Security Trustee, certified true copies of all original class records and any other related records held by the Approved Classification Society in relation to the Ship owned by that Guarantor;
|
(b)
|
to allow the Security Trustee (or its agents), at any time and from time to time, to inspect the original class and related records of that Ship at the offices of the Approved Classification Society and to take copies of them;
|
(c)
|
to notify the Security Trustee immediately in writing if the Approved Classification Society:
|
(i)
|
receives notification from that Guarantor or any person that that Ship's Approved Classification Society is to be changed; or
|
(ii)
|
becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of that Ship's class under the rules or terms and conditions of that Guarantor's or that Ship's membership of the Approved Classification Society;
|
(d)
|
following receipt of a written request from the Security Trustee:
|
(i)
|
to confirm that that Guarantor is not in default of any of its contractual obligations or liabilities to the Approved Classification Society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the Approved Classification Society; or
|
(ii)
|
if that Guarantor is in default of any of its contractual obligations or liabilities to the Approved Classification Society, to specify to the Security Trustee in reasonable detail the facts and circumstances of such default, the consequences thereof, and any remedy period agreed or allowed by the Approved Classification Society.
|
1.5
|
Modification.
The Borrower shall procure that neither Guarantor shall make any modification or repairs to, or replacement of, its Ship or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value.
|
1.6
|
Removal of parts.
The Borrower shall procure that neither Guarantor shall remove any material part of its Ship, or any item of equipment installed on that Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on that Ship the property of that Guarantor and subject to the security constituted by the relevant Mortgage
Provided that
a Guarantor may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by it.
|
1.7
|
Surveys.
The Borrower shall procure that each Guarantor shall submit the Ship owned by it regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Security Trustee provide the Security Trustee, with copies of all technical survey reports.
|
1.8
|
Inspection.
The Borrower shall procure that each Guarantor shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship owned by that Guarantor at all reasonable times, with reasonable notice to the relevant Guarantor, always without interfering with the trading of the Ship, to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections at the Borrower's expense, and if the inspector or surveyor appointed by the Security Trustee under this Clause is of the opinion that there are any technical, commercial or operational actions being undertaken or omitted to be undertaken by the Guarantor which is the owner of that Ship, the Approved Ship Manager or the Approved Sub-Manager (as the case may be) which adversely affect the operation or value of that Ship, the Borrower shall procure that the Guarantors shall forthwith (at the Borrower’s or applicable Guarantor's expense) on the Security Trustee's demand remedy such action or inaction and provide the Security Trustee with evidence that it has or the Guarantors have taken such remedial action. Provided always that unless an Event of Default has occurred or that Ship's Approved Classification Society has issued a recommendation or condition affecting that Ship's class, the Borrower shall not have to pay for more than 1 inspection per Ship in each calendar year. Further, the Security Trustee shall use reasonable efforts not to interfere with the operation of that Ship when exercising its rights under this Clause 14 (
Ship Covenants
).
|
1.9
|
Prevention of and release from arrest.
The Borrower shall procure that each Guarantor shall promptly discharge:
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, the Earnings or the Insurances;
|
(b)
|
all taxes, dues and other amounts charged in respect of that Ship, the Earnings or the Insurances; and
|
(c)
|
all other outgoings whatsoever in respect of that Ship, the Earnings or the Insurances,
|
1.10
|
Compliance with laws etc.
The Borrower shall procure that each Guarantor shall:
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of that Guarantor;
|
(b)
|
not employ the Ship owned by it nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code; and
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ship owned by it to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless the prior written consent of the Security Trustee has been given and the Borrower has or has procured that the Guarantor which owns that Ship has (at the Borrower’s expense) effected any special, additional or modified insurance cover which the Security Trustee may require.
|
1.11
|
Provision of information.
The Borrower shall procure that each Guarantor shall promptly provide the Security Trustee with any information which it requests regarding:
|
(a)
|
the Ship owned by it, its employment, position and engagements;
|
(b)
|
the Earnings and payments and amounts due to the master and crew of the Ship owned by it;
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship owned by it and any payments made in respect of that Ship;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Approved Ship Manager's and/or Approved Sub-Manager's compliance and the compliance of the Ship owned by it with the ISM Code and the ISPS Code,
|
1.12
|
Notification of certain events.
The Borrower shall procure that each Guarantor shall:
|
(a)
|
before entering into any Assignable Charter, notify the Agent and provide copies of any draft charter relating to its Ship and, if applicable, any draft charter guarantee and that Guarantor shall be entitled to enter into such charter without the consent of the Creditor Parties
Provided
that
:
|
(i)
|
that Guarantor executes in favour of the Security Trustee a specific assignment of all its rights, title and interest in and to such charter and any charter guarantee in the form of a Charterparty Assignment;
|
(ii)
|
each Guarantor sends to the charterer and any charter guarantor a notice of the specific assignment of such charter and charter guarantee substantially in the form included in the relevant Charterparty Assignment and will use best commercial efforts to procure that the charterer and any charter guarantor provides to the Security Trustee an acknowledgment of the notice of assignment and, in the case where such charter is a demise charter, the relevant Guarantor shall use best commercial efforts to procure that the relevant charterer undertakes to the Security Trustee (1) to comply with all of that Guarantor's undertakings with regard to the employment, insurances, operation, repairs and maintenance of its Ship contained in this Agreement, the Guarantee, the Mortgage and the General Assignment in relation to that Ship and (2) the relevant charterer and any charter guarantor undertakes to provide an assignment of its interest in the insurances of the Ship in the form of a Charterparty Assignment;
|
(iii)
|
the relevant Guarantor provides certified true and complete copies of the charter relating to its Ship and of the current charter guarantee, if any, immediately after its execution;
|
(iv)
|
the Agent's receipt of a copy of the charter and any charter guarantee and its failure or neglect to act, delay or acquiescence in connection with the relevant Guarantor's entering into such charter shall not in any way constitute an acceptance by the Agent of whether or not the Earnings under the charter are sufficient to meet the debt service requirements under this Agreement nor shall it in any way affect the Agent's or the Security Trustee's entitlement to exercise its rights under the Finance Documents pursuant to Clause 19 upon the occurrence of an Event of Default arising as a result of an act or omission of the charterer or charter guarantor; and
|
(v)
|
each Guarantor delivers to the Agent such other documents equivalent to those referred to at paragraphs 2, 3, 4, 5, 6, 7 and 8 of Schedule 3, Part A as the Agent may require; and
|
(b)
|
immediately notify the Security Trustee by letter, of:
|
(i)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
(ii)
|
any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(iii)
|
any requirement, condition or recommendation made by any insurer or the Approved Classification Society or by any competent authority which is not complied with within the specified time;
|
(iv)
|
any arrest or detention of the Ship owned by it, any exercise or purported exercise of any lien on that Ship or its Earnings or any requisition of that Ship for hire;
|
(v)
|
any intended dry docking of the Ship owned by it;
|
(vi)
|
any Environmental Claim made against either Guarantor in connection with its Ship, or any Environmental Incident;
|
(vii)
|
any claim for breach of the ISM Code or the ISPS Code being made against either Guarantor, the Approved Ship Manager, the Approved Sub-Manager or otherwise in connection with the Ship owned by it;
|
(viii)
|
its intention to de-activate or lay up its Ship; or
|
(ix)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
1.13
|
Restrictions on chartering, appointment of managers etc.
The Borrower shall procure that neither Guarantor shall, in relation to the Ship owned by it:
|
(a)
|
enter into any charter in relation to that Ship under which more than two months' hire (or the equivalent) is payable in advance;
|
(b)
|
charter that Ship otherwise than on bona fide arm's length terms at the time when that Ship is fixed;
|
(c)
|
appoint a manager of that Ship other than the Approved Ship Manager or an Approved Sub-Manager or agree to any material alteration to the terms of the Approved Ship Manager's or Approved Sub-Manager's appointment save that changes to termination and insurance provisions shall always be permitted provided they do not affect the security granted to the Security Trustee; or
|
(d)
|
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $1,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.
|
1.14
|
Notice of Mortgage.
The Borrower shall procure that each Guarantor shall keep the Mortgage relative to its Ship registered against that Ship as a valid first preferred or, as the case may be, priority mortgage, carry on board that Ship a certified copy of that Mortgage and place and maintain in a conspicuous place in the navigation room and the Master's cabin of that Ship a framed printed notice stating that that Ship is mortgaged by that Guarantor to the Security Trustee.
|
1.15
|
Sharing of Earnings.
The Borrower shall procure that neither Guarantor shall enter into any agreement or arrangement for the sharing of any Earnings (other than (i) any profit sharing agreement with a charterer which takes effect above an agreed minimum charter hire rate payable to the relevant Guarantor under a charter to which that Guarantor is a party and (ii) any Approved Pooling Arrangement, in either case, on bona fide arm's length terms).
|
1.16
|
ISPS Code.
The Borrower shall procure that each Guarantor shall comply with the ISPS Code and in particular, without limitation, shall:
|
(a)
|
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain for that Ship an ISSC; and
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
1.17
|
Green Passport.
The Borrower shall procure that each Guarantor has obtained a Green Passport, or equivalent document acceptable to the Agent, within 30 days from the Drawdown Date of the relevant Advance in respect of the Ship owned by it which remains valid throughout the Security Period.
|
2
|
SECURITY COVER
|
2.1
|
Minimum required security cover.
Clause
15.2
applies if the Agent notifies the Borrower that:
|
(a)
|
the Fair Market Value of the Ships then subject to a Mortgage; plus
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15,
|
2.2
|
Provision of additional security; prepayment.
If the Agent serves a notice on the Borrower under Clause 15.1, the Borrower shall within 30 days after the date on which the Agent's notice is served, either:
|
(a)
|
prepay such part (at least) of the Loan as will eliminate the shortfall; or
|
(b)
|
provide, or ensure that a third party provides, additional security which, in the opinion of all of the Lenders acting in their absolute discretion, has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent may, with the authorisation of all of the Lenders, approve or require and, for this purpose, it is agreed that acceptable additional security shall include cash collateral in Dollars valued at par.
|
2.3
|
Valuation of Ship.
The market value of a Ship at any date is that shown by:
|
(a)
|
the arithmetic average of 2 valuations each prepared by an Approved Broker selected by the Agent;
|
(b)
|
as at a date not more than 30 days prior to the date such valuation is delivered to the Agent by such Approved Broker;
|
(c)
|
with or without physical inspection of that Ship (as the Agent may require);
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
|
2.4
|
Value of additional vessel security.
The net realisable value of any additional security which is provided under Clause
15.2
and which consists of a Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 15.2.
|
2.5
|
Valuations binding.
Any valuation under Clause
15.2
, 15.3 or 15.4 shall be binding and conclusive as regards the Borrower, as shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security Interest.
|
2.6
|
Provision of information.
The Borrower shall promptly provide the Agent and any Approved Broker acting under Clause 15.3 or 15.4 with any information which the Agent or the Approved Broker may request for the purposes of the valuation; and, if the Borrower fails to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved Broker or the Lenders (or the expert appointed by them) consider prudent.
|
2.7
|
Payment of valuation expenses.
Without prejudice to the generality of the Borrower's obligations under Clauses
20.2
, 20.3 and 20.4, the Borrower shall, subject to Clause 15.8, on demand, pay the Agent the amount of the fees and expenses of any Approved Broker instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause 15.
|
2.8
|
Frequency of valuations
|
(a)
|
The Borrower shall provide the valuations of each Ship required pursuant to paragraph 12 of
Part B
of
Schedule 3
at the Borrower's expense;
|
(b)
|
the Borrower shall provide to the Agent 2 valuations during each half of each Fiscal Year of the Borrower commencing on 1 January 2017 (such valuations to be attached to the Compliance Certificates for the relevant fiscal quarter to be provided by the Borrower) setting forth the Fair Market Value of each Ship in each case at the cost of the Borrower save that the Borrower shall not be required to pay for more than 2 sets of valuations of each Ship in each calendar year unless an Event of Default has occurred and is continuing or any valuation obtained would entitle the Agent to serve a notice pursuant to Clause 15.1 in which case such valuations required by the Agent shall be for the cost of the Borrower; and
|
(c)
|
the Agent shall be entitled, at its own expense, to obtain valuations of each Ship other than those referred to in paragraphs (a) and (b) above as often as it may request.
|
2.9
|
Application of prepayment.
Clause 8 shall apply in relation to any prepayment pursuant to Clause
15.2
.
|
2.10
|
Release of Additional Security.
It is agreed that where the Borrower or a third party has provided additional security pursuant to Clause
15.2
the Borrower is entitled to request the release of such additional security at its expense at any time following a testing of compliance by the Borrower of the minimum required security cover under Clause 15.1. Where the Borrower is shown to be in compliance with such minimum required security cover without including the additional security within the calculation and where the Borrower is in compliance with the minimum required security cover under Clause 15.1, such additional security shall be released at the Borrower's cost.
|
3
|
PAYMENTS AND CALCULATIONS
|
3.1
|
Currency and method of payments.
All payments to be made by the Lenders or by the Borrower and any Security Party under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
|
(a)
|
by not later than 11.00 a.m. (London time) on the due date;
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by the Borrower or another Security Party to the Agent or any Lender, to an account of the Agent as the Agent may from time to time notify to the Borrower and the other Creditor Parties, or to such other account with such other bank as the Agent may from time to time notify to the Borrower and the other Creditor Parties; and
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrower and the other Creditor Parties.
|
3.2
|
Payment on non-Business Day.
If any payment by the Borrower under a Finance Document would otherwise fall due on a day which is not a Business Day:
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day;
|
3.3
|
Basis for calculation of periodic payments.
All interest and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
3.4
|
Distribution of payments to Creditor Parties.
Subject to Clauses
16.5
, 16.6 and 16.7:
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, or the Security Trustee shall be made available by the Agent to that Lender or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.
|
3.5
|
Permitted deductions by Agent.
Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand.
|
3.6
|
Agent only obliged to pay when monies received.
Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrower or any Lender any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender until the Agent has satisfied itself that it has received that sum.
|
3.7
|
Refund to Agent of monies not received.
If and to the extent that the Agent makes available a sum to the Borrower or a Lender, without first having received that sum, the Borrower or the Lender concerned shall, on demand:
|
(a)
|
refund the sum in full to the Agent; and
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
|
3.8
|
Agent may assume receipt.
Clause 16.7 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.
|
3.9
|
Creditor Party accounts.
Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any Security Party.
|
3.10
|
Agent's memorandum account.
The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any Security Party.
|
3.11
|
Accounts prima facie evidence.
If any accounts maintained under Clauses
16.9
and
16.10
show an amount to be owing by the Borrower or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party.
|
4
|
APPLICATION OF RECEIPTS
|
4.1
|
Normal order of application.
Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:
|
(a)
|
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:
|
(i)
|
first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents other than those amounts referred to at paragraphs (ii) and (iii) below (including, but without limitation, all amounts payable by the Borrower under Clauses 20, 21 and 22 of this Agreement or by the Borrower or any Security Party under any corresponding or similar provision in any other Finance Document);
|
(ii)
|
secondly, in or towards satisfaction of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents; and
|
(iii)
|
thirdly, in or towards satisfaction of the Loan;
|
(b)
|
SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor Parties, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a);
|
(c)
|
THIRDLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
4.2
|
Variation of order of application.
The Agent may, with the authorisation of the Lenders, by notice to the Borrower, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 either as regards a specified sum or sums or as regards sums in a specified category or categories.
|
4.3
|
Notice of variation of order of application.
The Agent may give notices under Clause
17.2
from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.
|
4.4
|
Appropriation rights overridden.
This Clause 17 and any notice which the Agent gives under Clause
17.2
shall override any right of appropriation possessed, and any appropriation made, by the Borrower or any Security Party.
|
5
|
APPLICATION OF EARNINGS
|
5.1
|
Payment of Earnings.
The Borrower undertakes with each Creditor Party to ensure that, throughout the Security Period (subject only to the provisions of the General Assignment), all the Earnings of each Ship are paid to the Earnings Account for that Ship, at all times whilst such Ship is subject to a Mortgage.
|
5.2
|
Application of Earnings.
The Borrower undertakes with the Lenders to procure that money from time to time credited to, or for the time being standing to the credit of, an Earnings Account shall, unless and until an Event of Default shall have occurred and is continuing (whereupon the provisions of Clause 17.1 shall be and become applicable), be freely available to the Borrower.
|
5.3
|
Location of accounts.
The Borrower shall promptly:
|
(a)
|
comply with any requirement of the Agent as to the location or re‑location of the Earnings Accounts (or any of them); and
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts (or any of them).
|
5.4
|
Debits for expenses etc.
The Agent shall be entitled (but not obliged) from time to time to debit any Earnings Account without prior notice in order to discharge any amount due and payable under Clause 20 or 21 to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 20 or 21.
|
5.5
|
Borrower's obligations unaffected.
The provisions of this Clause 18 do not affect:
|
(a)
|
the liability of the Borrower to make payments of principal and interest on the due dates; or
|
(b)
|
any other liability or obligation of the Borrower or any Security Party under any Finance Document.
|
6
|
EVENTS OF DEFAULT
|
6.1
|
Events of Default.
An Event of Default occurs if:
|
(a)
|
the Borrower or any Security Party fails to pay when due any sum payable under a Finance Document or under any document relating to a Finance Document unless its failure to pay is caused by a Disruption Event and payment is made within 3 Business Days of its due date; or
|
(b)
|
any breach occurs of Clause
9.2
, 11.2, 11.3, 12.5, 12.6, 12.7, 12.8 and 15.2; or
|
(c)
|
any breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied 20 days after written notice from the Agent requesting action to remedy the same; or
|
(d)
|
(subject to any applicable grace period specified in the Finance Document) any breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach falling within paragraphs (a), (b) or (c)); or
|
(e)
|
any representation, warranty or statement made or repeated by, or by an officer of, the Borrower or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading when it is made or repeated; or
|
(f)
|
any of the following occurs in relation to any Financial Indebtedness of the Borrower on a consolidated basis exceeding $10,000,000 in aggregate or, in the case of any Security Party, $2,500,000 (or in either case, the equivalent in any other currency):
|
(i)
|
any Financial Indebtedness of that Relevant Person is not paid when due; or
|
(ii)
|
any Financial Indebtedness of that Relevant Person becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of that Relevant Person is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of that Relevant Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
(v)
|
any Security Interest securing any Financial Indebtedness of that Relevant Person becomes enforceable; or
|
(g)
|
any of the following occurs in relation to a Relevant Person:
|
(i)
|
a Relevant Person becomes unable to pay its debts as they fall due; or
|
(ii)
|
any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $10,000,000 in the case of the Borrower or $2,500,000 in the case of any Security Party or more or the equivalent in another currency; or
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person; or
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings, by a lawyer acting for a Relevant Person; or
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by (a) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (did) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Borrower or the Guarantors which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by all the Lenders and effected not later than 3 months after the commencement of the winding up; or
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not with a view to some other insolvency law procedure being implemented instead and either (a) the application or petition is dismissed or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed, or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both cases (a) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of any actual, interim or pending insolvency law procedure; or
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way at all; or
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise or fail to materialise; or
|
(xi)
|
in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or commenced or any step is taken which, in the opinion of the Lenders acting reasonably is similar to any of the foregoing.
|
(h)
|
any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened against a Relevant Person or its assets which has, will have or may have a Material Adverse Effect;
|
(i)
|
a Finance Document is amended, terminated, cancelled or suspended for any reason except with the prior written consent of the Agent, acting with the authorisation of all the Lenders;
|
(j)
|
the Borrower ceases or suspends carrying on its business or a part of its business which is material in the context of this Agreement; or
|
(k)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
(i)
|
for the Borrower or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which all the Lenders consider material under a Finance Document;
|
(ii)
|
for the Agent, the Security Trustee or the Lenders to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or
|
(l)
|
any consent necessary to enable any Guarantor to own, operate or charter the Ship owned by it or on the Approved Flag or to enable the Borrower, such Guarantor or any other Security Party to comply with any provision which all the Lenders consider material of a Finance Document, to which it is a party is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
|
(m)
|
any failure to change the flag state of a Ship after written notice from the Agent requesting a flag change as a result of governmental and/or political unrest which may in the Agent's opinion have a Material Adverse Effect; or
|
(n)
|
any arrest, capture, seizure or detention of a Ship unless it is within 30 Business Days redelivered to the full control of the Guarantor owning that Ship; or
|
(o)
|
any provision which all the Lenders consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest and which in each case such default continues unremedied 15 days after written notice from the Agent requesting action to remedy the same; or
|
(p)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
(q)
|
any of the Ships ceases to be employed by the relevant Approved Ship Manager on terms acceptable to the Agent or any of the circumstances described in Clause 19.1(g) or (j) occurs (
mutatis mutandis
) in relation to an Approved Ship Manager or an Approved Ship Manager or Approved Sub‑Manager breaches any provision of its Approved Ship Manager's Undertaking which the Agent considers material and the Borrower fails within a period of 15 days of it becoming aware of the occurrence of such circumstance or breach or of the receipt of a written notification from the Agent requesting the Borrower to remedy such circumstances or breach either to remedy such circumstances or breach or to substitute the relevant Approved Ship Manager or Approved Sub-Manager with another Approved Ship Manager or Approved Sub‑Manager which executes and delivers to the Security Trustee a replacement Approved Ship Manager's Undertaking; or
|
(r)
|
an event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.
|
6.2
|
Actions following an Event of Default.
On, or at any time after, the occurrence of an Event of Default which is continuing:
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
(i)
|
serve on the Borrower a notice stating that all or part of the Commitments and of the other obligations of each Lender to the Borrower under this Agreement are cancelled; and/or
|
(ii)
|
serve on the Borrower a notice stating that all or part of the Loan together with accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of all the Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law.
|
6.3
|
Termination of Commitments.
On the service of a notice under Clause
19.2(a)(i)
, the Commitments and all other obligations of each Lender to the Borrower under this Agreement shall be cancelled.
|
6.4
|
Acceleration of Loan.
On the service of a notice under Clause
19.2(a)(i)
, all or, as the case may be, the part of the Loan specified in the notice together with accrued interest and all other amounts accrued or owing from the Borrower or any Security Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
|
6.5
|
Multiple notices; action without notice.
The Agent may serve notices under Clauses
19.2(a)(i)
and (ii) simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in Clause 19.2 if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
6.6
|
Notification of Creditor Parties and Security Parties.
The Agent shall send to each Lender, the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrower under Clause 19.2; but the notice shall become effective when it is served on the Borrower, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide the Borrower or any Security Party with any form of claim or defence.
|
6.7
|
Creditor Party rights unimpaired.
Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause
3.1
.
|
6.8
|
Exclusion of Creditor Party liability.
No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to the Borrower or a Security Party:
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,
|
6.9
|
Relevant Persons.
In this Clause 19, a "
Relevant
Person
" means the Borrower and any Security Party.
|
6.10
|
Interpretation.
In Clause 19.1(f) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(g) "petition" includes an application.
|
7
|
FEES AND EXPENSES
|
7.1
|
Upfront fees.
The Borrower shall pay to the Agent on the date of this Agreement the following:
|
(a)
|
a structuring fee of $272,000, representing 0.8 per cent, of the Total Commitments; and
|
(b)
|
an arrangement fee of $187,000, representing 0.55 per cent, of the Total Commitments.
|
7.2
|
Costs of negotiation, preparation etc.
The Borrower shall pay to the Agent on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation, execution, syndication or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document including, without limitation, any legal fees (including VAT and disbursements) reasonably incurred by the Agent, Security Trustee, the Bookrunner and the Mandated Lead Arranger in this connection.
|
7.3
|
Costs of variations, amendments, enforcement etc.
The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Creditor Party concerned, the amount of all expenses incurred by a Creditor Party in connection with:
|
(a)
|
any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;
|
(b)
|
any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance Document, or any request for such a consent or waiver;
|
(c)
|
the valuation of any security provided or offered under Clause 15 or any other matter relating to such security; or
|
(d)
|
any step taken by the Lender concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.
|
7.4
|
Documentary taxes.
The Borrower shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrower to pay such a tax.
|
7.5
|
Financial Services Authority fees.
The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Lender concerned the amounts which the Agent from time to time notifies the Borrower that a Lender has notified the Agent to be necessary to compensate it for the cost attributable to its Contribution resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 and/or by the Bank of England and/or by the Financial Services Authority (or other United Kingdom governmental authorities or agencies) of a requirement to pay fees to the Financial Services Authority calculated by reference to liabilities used to fund its Contribution.
|
7.6
|
Certification of amounts.
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
8
|
INDEMNITIES
|
8.1
|
Indemnities regarding borrowing and repayment of Loan.
The Borrower shall fully indemnify the Agent and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:
|
(a)
|
an Advance not being borrowed on the date specified in the Drawdown Notice relating to such Advance for any reason other than a default by the Lender claiming the indemnity;
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;
|
(c)
|
any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrower on the amount concerned under Clause 7);
|
(d)
|
the occurrence of an Event of Default or a Latent Event of Default and/or the acceleration of repayment of the Loan under Clause 19;
|
8.2
|
Breakage costs.
Without limiting its generality, Clause 21.1 covers any claim, expense, liability or loss, including a loss of a prospective profit, incurred by a Lender:
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount); and
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one.
|
8.3
|
Miscellaneous indemnities.
The Borrower shall fully indemnify each Creditor Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may be made or brought against or incurred by a Creditor Party, in any country, as a result of or in connection with:
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document; or
|
(b)
|
any other Pertinent Matter,
|
8.4
|
Currency indemnity.
If any sum due from the Borrower or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "
Contractual Currency
") into another currency (the "
Payment
Currency
") for the purpose of:
|
(a)
|
making or lodging any claim or proof against the Borrower or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
(c)
|
enforcing any such order or judgment,
|
8.5
|
Mandatory Cost
|
(a)
|
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b)
|
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions).
|
8.6
|
Certification of amounts.
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
8.7
|
Sums deemed due to a Lender.
For the purposes of this Clause 21, a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
|
9
|
NO SET-OFF OR TAX DEDUCTION
|
9.1
|
No deductions.
All amounts due from the Borrower or any Security Party under a Finance Document shall be paid:
|
(a)
|
without any form of set‑off, cross-claim or condition; and
|
(b)
|
free and clear of any tax deduction except a tax deduction which the Borrower or such Security Party is required by law to make.
|
9.2
|
Grossing-up for taxes.
If the Borrower or any Security Party is required by law to make a tax deduction from any payment under a Finance Document (other than a FATCA Deduction):
|
(a)
|
the Borrower or such Security Party (as the case may be) shall notify the Agent as soon as it becomes aware of the requirement;
|
(b)
|
the Borrower or such Security Party (as the case may be) shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and
|
(c)
|
the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received.
|
9.3
|
Evidence of payment of taxes.
Within 1 month after making any tax deduction, the Borrower shall deliver to the Agent documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.
|
9.4
|
Tax deduction.
In this Clause 22 "
tax deduction
" means any deduction or withholding for or on account of any present or future tax other than a FATCA Deduction.
|
9.5
|
FATCA Deduction.
Each party to this Agreement 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 to this Agreement 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. Each party to this Agreement 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 this Agreement to whom it is making the payment and, in addition, shall notify the Borrower, the Agent and the other Creditor Parties.
|
9.6
|
Stamp taxes.
The Borrower shall pay and, within 3 Business Days of demand, indemnify each Creditor Party against any cost, loss or liability which that Creditor Party incurs in relation to all stamp duty, registration and other similar taxes payable in respect of any Finance Document.
|
9.7
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party;
|
(ii)
|
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
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Creditor Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
9.8
|
VAT
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party to a Creditor 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 paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Creditor Party to any Party under a Finance Document and such Creditor Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Creditor 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 Creditor Party must promptly provide an appropriate VAT invoice to that Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Creditor Party (the "
Supplier
") to any other Creditor 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):
|
(i)
|
(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 sub-paragraph (i) 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
|
(ii)
|
(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.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Creditor Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Creditor Party for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Creditor Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 22.8 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 any member of such group at such time.
|
(e)
|
In relation to any supply made by a Creditor Party to any Party under a Finance Document, if reasonably requested by such Creditor Party, that Party must promptly provide such Creditor Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Creditor Party's VAT reporting requirements in relation to such supply.
|
10
|
ILLEGALITY, ETC.
|
10.1
|
Illegality.
This Clause 23 applies if a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a specified date, become:
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
(b)
|
contrary to, or inconsistent with, any regulation,
|
10.2
|
Notification of illegality.
The Agent shall promptly notify the Borrower, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23.1 which the Agent receives from the Notifying Lender.
|
10.3
|
Prepayment; termination of Commitment.
On the Agent notifying the Borrower under Clause
23.2
, the Notifying Lender's Commitment shall terminate; and thereupon or, if later, on the date specified in the Notifying Lender's notice under Clause 23.1 as the date on which the notified event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance with Clause 8.
|
10.4
|
Mitigation.
If circumstances arise which would result in a notification under Clause 23.1 then, without in any way limiting the rights of the Notifying Lender under Clause
23.3
, the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
11
|
INCREASED COSTS
|
11.1
|
Increased costs.
This Clause 24 applies if a Lender (the "
Notifying Lender
") notifies the Agent that the Notifying Lender considers that as a result of:
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Notifying Lender's overall net income); or
|
(b)
|
the effect of complying with any law or regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement; or
|
(c)
|
the implementation or application of or compliance with any Basel III Regulation, CRD IV and CRR,
|
11.2
|
Meaning of "increased costs".
In this Clause 24, "increased costs" means, in relation to a Notifying Lender:
|
(a)
|
an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or having taken an assignment of rights under this Agreement, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums;
|
(b)
|
a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;
|
(c)
|
an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or
|
(d)
|
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender after providing evidence of its method of calculation to quantify such increased costs under this Agreement,
|
11.3
|
Notification to Borrower of claim for increased costs.
The Agent shall promptly notify the Borrower and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1.
|
11.4
|
Payment of increased costs.
The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
|
11.5
|
Notice of prepayment.
If the Borrower is not willing to continue to compensate the Notifying Lender for the increased cost under Clause
24.4
, the Borrower may give the Agent not less than 14 days' notice of its intention to prepay the Notifying Lender's Contribution at the end of an Interest Period.
|
11.6
|
Prepayment; termination of Commitment.
A notice under Clause
24.5
shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower's notice of intended prepayment; and:
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrower shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
|
11.7
|
Application of prepayment.
Clause 8 shall apply in relation to the prepayment.
|
12
|
SET‑OFF
|
12.1
|
Application of credit balances.
Each Creditor Party may without prior notice:
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Borrower to that Creditor Party under any of the Finance Documents; and
|
(b)
|
for that purpose:
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of the Borrower;
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
|
12.2
|
Existing rights unaffected.
No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
|
12.3
|
Sums deemed due to a Lender.
For the purposes of this Clause 25, a sum payable by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.
|
12.4
|
No Security Interest.
This Clause 25 gives the Creditor Parties a contractual right of set-off only, and does not create any equitable charge or other Security Interest over any credit balance of the Borrower.
|
13
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
13.1
|
Transfer by Borrower.
The Borrower may not, without the prior written consent of the Agent, given on the instructions of all the Lenders transfer any of its rights, liabilities or obligations under any Finance Document.
|
13.2
|
Transfer by a Lender.
Subject to Clause
26.5
a Lender (the "
Transferor Lender
") may at any time, without the consent of the Borrower or any Security Party but with the prior approval of the Agent, cause:
|
(a)
|
its rights in respect of all or part of its Contribution but in the case of part, in an amount no less than $5,000,000; or
|
(b)
|
its obligations in respect of all or part of its Commitment but in the case of part, in an amount no less than $5,000,000; or
|
(c)
|
a combination of (a) and (b),
|
13.3
|
Transfer Certificate, delivery and notification.
As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrower, the Security Parties, the Security Trustee and each of the other Lenders;
|
(b)
|
on behalf of the Transferee Lender, send to the Borrower and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b),
|
13.4
|
Effective Date of Transfer Certificate.
A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date Provided that it is signed by the Agent under Clause 26.3 on or before that date.
|
13.5
|
No transfer without Transfer Certificate.
Except as provided in Clause 26.17, no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
13.6
|
Lender re-organisation; waiver of Transfer Certificate.
However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in a successor, the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.
|
13.7
|
Effect of Transfer Certificate.
A Transfer Certificate takes effect in accordance with English law as follows:
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrower or any Security Party had against the Transferor Lender;
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
(c)
|
the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro‑rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of the Borrower or any Security Party against the Transferor Lender had not existed;
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.6 and Clause 20, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.
|
13.8
|
Maintenance of register of Lenders.
During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause
26.4
) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least 3 Business Days' prior notice.
|
13.9
|
Reliance on register of Lenders.
The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.
|
13.10
|
Authorisation of Agent to sign Transfer Certificates.
The Borrower, the Security Trustee and each Lender irrevocably authorises the Agent to sign Transfer Certificates on its behalf.
|
13.11
|
Registration fee.
In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $5,000 from the Transferor Lender or (at the Agent's option) the Transferee Lender.
|
13.12
|
Sub-participation; subrogation assignment.
A Lender may sub‑participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice to, the Borrower, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.
|
13.13
|
Disclosure of Confidential Information.
Any Creditor Party may disclose:
|
(a)
|
with the prior written consent of the Borrower, to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives such Confidential Information as that Creditor Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, representatives and professional advisers;
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or the Borrower and/or one or more of the Security Parties and to any of that person's Affiliates, representatives and professional advisers;
|
(iii)
|
appointed by any Creditor Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 26.17 and to any rating agency in relation to any such securitisation;
|
(viii)
|
who is a party; or
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document,
|
(A)
|
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C)
|
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Creditor Party, it is not practicable so to do in the circumstances; and
|
(c)
|
with the prior written consent of the Borrower, to any person appointed by that Creditor Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of 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 paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement substantially in the form of the Loan Market Association Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Creditor Party.
|
13.14
|
Change of lending office.
A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:
|
(a)
|
the date on which the Agent receives the notice; and
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
13.15
|
Notification.
On receiving such a notice, the Agent shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
|
13.16
|
Replacement of Reference Bank.
If any Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 then, unless the Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect, the first‑mentioned Reference Bank's appointment shall cease to be effective.
|
13.17
|
Security over Lenders' rights.
In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from the Borrower or any Security Party, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
|
(a)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(i)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities;
|
(ii)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
(iii)
|
require any payments to be made by the Borrower or any Security Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
14
|
VARIATIONS AND WAIVERS
|
14.1
|
Variations, waivers etc. by Majority Lenders
. Subject to Clause 27.2, a document shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by fax, by the Borrower, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security Party is party, by that Security Party.
|
14.2
|
Variations, waivers etc. requiring agreement of all Lenders.
However, as regards the following, Clause
27.1
applies as if the words "by the Agent on behalf of the Majority Lenders" were replaced by the words "by or on behalf of every Lender ":
|
(a)
|
a change to any Security Party, other than in accordance with the terms of the Finance Documents;
|
(b)
|
a reduction in the Margin;
|
(c)
|
a postponement to the date for, or a reduction in the amount of, any payment of principal, interest, fees or other sum payable under this Agreement;
|
(d)
|
an increase in any Lender's Commitment;
|
(e)
|
a change to the definition of "
Majority Lenders
";
|
(f)
|
a change to Clause 3 or this Clause 27;
|
(g)
|
a change to Clauses 12.5, 12.6, 12.7 and
12.8
;
|
(h)
|
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document;
|
(i)
|
an extension of the Availability Period; and
|
(j)
|
any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required.
|
14.3
|
Exclusion of other or implied variations.
Except for a document which satisfies the requirements of Clauses
27.1
and 27.2, no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
(b)
|
an Event of Default; or
|
(c)
|
a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general law; or
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law,
|
15
|
BAIL IN
|
15.1
|
Contractual recognition of bail-in
|
(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.
|
16
|
NOTICES
|
16.1
|
General.
Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter, electronic mail ("Email") or fax and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
|
16.2
|
Addresses for communications.
A notice by letter or fax shall be sent:
|
(a)
|
to the Borrower: Scorpio Tankers Inc.
|
(b)
|
to a Lender: At the address below its name in Schedule 1 in the relevant Transfer Certificate.
|
(c)
|
to the Agent: HSH Nordbank AG
Gerhart-Hauptmann-Platz 50, |
(d)
|
to the Security Trustee: in respect of administrative matters:
|
16.3
|
Effective date of notices.
Subject to Clauses 29.4 and
29.5
:
|
(a)
|
a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered;
|
(b)
|
a notice which is sent by Email shall be deemed to be served, and shall take effect, at the time when it is actually received in readable form; and
|
(c)
|
a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.
|
16.4
|
Service outside business hours.
However, if under Clause 29.3 a notice would be deemed to be served:
|
(a)
|
on a day which is not a business day in the place of receipt; or
|
(b)
|
on such a business day, but after 5 p.m. local time,
|
16.5
|
Illegible notices.
Clauses 29.3 and 29.4 do not apply if the recipient of a notice notifies the sender within 1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.
|
16.6
|
Valid notices.
A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:
|
(a)
|
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or
|
(b)
|
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.
|
16.7
|
Electronic communication between the Agent and a Lender.
Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by Email or other electronic means, if the Agent and the relevant Lender:
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(b)
|
notify each other in writing of their Email address and/or any other information required to enable the sending and receipt of information by that means; and
|
(c)
|
notify each other of any change to their respective Email addresses or any other such information supplied to them.
|
16.8
|
English language.
Any notice under or in connection with a Finance Document shall be in English.
|
16.9
|
Meaning of "notice".
In this Clause 29, "
notice
" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
|
17
|
SUPPLEMENTAL
|
17.1
|
Rights cumulative, non-exclusive.
The rights and remedies which the Finance Documents give to each Creditor Party are:
|
(a)
|
cumulative;
|
(b)
|
may be exercised as often as appears expedient; and
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
|
17.2
|
Severability of provisions.
If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.
|
17.3
|
Counterparts.
A Finance Document may be executed in any number of counterparts.
|
17.4
|
Third party rights.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
18
|
LAW AND JURISDICTION
|
18.1
|
English law.
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
|
18.2
|
Exclusive English jurisdiction.
Subject to Clause 31.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.
|
18.3
|
Choice of forum for the exclusive benefit of Creditor Parties.
Clause
31.2
is for the exclusive benefit of the Creditor Parties, each of which reserves the rights:
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
18.4
|
Process agent.
|
(a)
|
The Borrower irrevocably appoints Scorpio UK Limited at its office for the time being, presently at 10 Lower Grosvenor Place, London, SW1W 0EN (such communication to be marked preferably and if possible on the paper envelope and not on the courier packaging marked "
STNG Transaction
" for the urgent attention of General Counsel), to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.
|
(b)
|
If any agent appointed as an agent for service of process under this Clause is unable for any reason to act as agent for service of process, the Borrower (on behalf of itself and all of the other Security Parties) must immediately (and in any event no later than the end of the previous process agent's appointment) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose.
|
18.5
|
Creditor Party rights unaffected.
Nothing in this Clause 31 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
18.6
|
Meaning of "proceedings".
In this Clause 31, "
proceedings
" means proceedings of any kind, including an application for a provisional or protective measure and a "
Dispute
" means 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.
|
Lender
|
Lending Office
|
Commitment
|
HSH Nordbank AG
|
Gerhart-Hauptmann-Platz 50,
20095 Hamburg, Germany |
$34,000,000
|
1
|
We refer to the loan agreement (the "
Loan
Agreement
") dated [
l
] 2017 and made between ourselves as Borrower, the Lenders referred to therein, the Mandated Lead Arranger referred to therein, the Bookrunner referred to therein, yourselves as Agent and as Security Trustee in connection with a facility of up to US$34,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
2
|
We request to borrow an Advance pursuant to the Loan as follows:
|
(a)
|
Amount: US$[
l
];
|
(b)
|
Drawdown Date: [
l
] 2017;
|
(c)
|
[Duration of the first Interest Period shall be [
l
] months;] and
|
(d)
|
Payment instructions: [
l
].
|
3
|
We represent and warrant that:
|
(a)
|
the representations and warranties in Clause 10 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice and on the Drawdown Date with reference to the circumstances now existing; and
|
(b)
|
no Event of Default or Latent Event of Default has occurred or will result from the borrowing of the Loan.
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
1
|
A duly executed original of this Agreement and the Agency and Trust Deed.
|
2
|
Copies of the certificate of incorporation and constitutional documents of the Borrower and each Security Party.
|
3
|
Copies of resolutions of the directors of the Borrower and each Security Party and in the case of the Guarantors copies of resolutions of their shareholders authorising the execution of each of the Finance Documents to which the Borrower or that Security Party is a party and, in the case of the Borrower, authorising named officers to give Drawdown Notices and other notices under this Agreement.
|
1
|
The original of any power of attorney under which any Finance Document is executed on behalf of the Borrower (where a separate power of attorney is issued by the Borrower) or a Security Party.
|
2
|
An incumbency certificate in respect of the officers and directors (or equivalent) of each of the Borrower and the Security Parties and signature samples of any signatories to any Finance Document.
|
3
|
Evidence satisfactory to the Agent that all consents and approvals which the Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document have been obtained and any required filings have been made.
|
4
|
Documentary evidence that the agent for service of process named in Clause 31 has accepted its appointment.
|
5
|
Such documentation and other evidence in form and substance acceptable to the Agent or a Lender in order for each to carry out and be satisfied with the results of all necessary "know your customer" or other checks which it is required to carry out in relation to the transactions contemplated by this Agreement, and other Finance Documents including without limitation obtaining, verifying and recording certain information and documentation that will allow the Agent and each of the Lenders to identify the Borrower and each Security Party.
|
6
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of England, the Marshall Islands, The Netherlands and such other relevant jurisdictions as the Agent may require.
|
7
|
A Compliance Certificate together with all supporting Accounting Information and other evidence as required pursuant to the terms of this Agreement.
|
8
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 20 have been paid or will be paid by the first Drawdown Date.
|
9
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
10
|
The financial statements of the Borrower for its financial year ended 31 December 2015.
|
1
|
A certificate of an authorised signatory of the Guarantor and, if signing any Finance Document listed in paragraph 3 below, the Borrower and any other Security Party, certifying that each corporate and copy document provided by it under Part A of Schedule 3 remains correct, complete, has not been amended and is in full force and effect as at the relevant Drawdown Date and that there is no Event of Default.
|
2
|
Copies of resolutions of the directors of the Borrower and each Security Party and, in the case of the Guarantor, copies of resolutions of its shareholders, in each case, authorising the execution of the Finance Documents to which the Borrower or that Security Party is a party.
|
3
|
A duly executed original of the Mortgage, the Guarantee, the General Assignment, the Charterparty Assignment, the Accounts Security Deed and any Intercompany Loan Assignment (if applicable) in relation to the Guarantor and the Ship (and of each document required to be delivered by their respective terms).
|
4
|
Evidence that any Existing Security over the Ship (including any mortgages) has been released and evidence satisfactory to the Agent that the amount of the Existing Indebtedness in relation to the Ship has been prepaid.
|
5
|
The original of any power of attorney under which any Finance Document is to be executed on behalf of the Guarantor or the Borrower if applicable (and only where a separate power of attorney is issued by the Borrower).
|
6
|
Copies of all consents which the Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document entered into on or prior to the Drawdown Date not already provided under Part A of this Schedule.
|
7
|
The Agent and Lenders have been provided with all information and documentation they have requested in order to carry out and be reasonably satisfied with all further necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated by this Agreement and to satisfy all internal compliance policies of the Agent and the Lenders in relation to "know you customer" requirements.
|
8
|
Confirmation that any Intercompany Loans made or to be made available to the Guarantor have been or will be when made available fully subordinated to the rights of the Creditor Parties under the Finance Documents.
|
9
|
Documentary evidence that the Earnings Account in respect of the Ship has been opened with the Account Bank.
|
10
|
Documentary evidence that:
|
(a)
|
the Ship is definitively and permanently registered in the name of the Guarantor under the relevant Approved Flag in accordance with the laws of the applicable Approved Flag;
|
(b)
|
the Ship is in the absolute and unencumbered ownership of the Guarantor save as contemplated by the Finance Documents;
|
(c)
|
the Ship maintains class acceptable to the Agent free of all overdue recommendations and conditions of an Approved Classification Society;
|
(d)
|
the Mortgage in relation to the Ship has been duly registered against such Ship as a valid first preferred ship mortgage in accordance with the laws of the relevant Approved Flag; and
|
(e)
|
the Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with.
|
11
|
Documents establishing that the Ship is managed by the Approved Ship Manager on terms acceptable to the Lenders, together with:
|
(a)
|
the Approved Ship Manager's Undertaking in respect of the Ship; and
|
(b)
|
copies of the relevant Approved Ship Manager's Document of Compliance and of the Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and of the Ship's ISSC.
|
12
|
Valuations of the Ship to determine its Fair Market Value, addressed to the Agent and the Lenders, stated to be for the purposes of this Agreement and, notwithstanding paragraph (b) of Clause 15.3, in any event dated not earlier than the date falling 14 days prior to the relevant Drawdown Date and obtained in accordance with Clause 15 and showing that upon the drawdown of the Advance relating to the Ship, the Borrower will be in compliance with Clause 15.
|
13
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of England, Marshall Islands and such other relevant jurisdictions as the Agent may require.
|
14
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for the Ship as the Agent may require.
|
15
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 20 have been paid or will be paid by the first Drawdown Date.
|
16
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
To:
|
[Name of Agent] for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, each Lender, the Bookrunner and the Mandated Lead Arranger as defined in the Loan Agreement referred to below.
|
1
|
This Certificate relates to a loan agreement ("the "
Agreement
") dated [
l
] 2017 and made between (1) Scorpio Tankers Inc. (the "
Borrower
"), (2) the banks and financial institutions named therein as Lenders, (3) HSH Nordbank AG as Mandated Lead Arranger, (4) HSH Nordbank AG as Bookrunner, (5) HSH Nordbank AG as Agent and as Security Trustee for a loan facility of up to $34,000,000.
|
2
|
In this Certificate, terms defined in the Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate and:
|
3
|
The effective date of this Certificate is [
l
]
Provided that
this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4
|
[The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Agreement and every other Finance Document in relation to [
l
] per cent. of its Contribution, which percentage represents $[
l
].]
|
5
|
[By virtue of this Certificate and Clause 26 of the Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[
l
]] [from [
l
] per cent. of its Commitment, which percentage represents $[
l
]] and the Transferee acquires a Commitment of $[
l
].]
|
6
|
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Agreement provides will become binding on it upon this Certificate taking effect.
|
7
|
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Agreement.
|
8
|
The Transferor:
|
(a)
|
warrants to the Transferee and each Relevant Party that:
|
(i)
|
the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are required in connection with this transaction; and
|
(ii)
|
this Certificate is valid and binding as regards the Transferor;
|
(b)
|
warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4; and
|
(c)
|
undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose.
|
9
|
The Transferee:
|
(a)
|
confirms that it has received a copy of the Agreement and each of the other Finance Documents;
|
(b)
|
agrees that it will have no rights of recourse on any ground against either the Transferor, the Agent, the Security Trustee, any Lender, the Bookrunner or the Mandated Lead Arranger in the event that:
|
(i)
|
any of the Finance Documents prove to be invalid or ineffective;
|
(ii)
|
the Borrower or any Security Party fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents;
|
(iii)
|
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under any of the Finance Documents;
|
(c)
|
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Lender, the Bookrunner, or any Mandated Lead Arranger in the event that this Certificate proves to be invalid or ineffective;
|
(d)
|
warrants to the Transferor and each Relevant Party that:
|
(i)
|
it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and
|
(ii)
|
that this Certificate is valid and binding as regards the Transferee;
|
(e)
|
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10
|
The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
11
|
The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 9 as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded by it.
|
(a)
|
the Minimum Liquidity requirement is $[
l
], Cash and Cash Equivalents is $[
l
]; $[
l
] of which consists of Cash;
|
(b)
|
the Consolidated Tangible Net Worth is $[
l
];
|
(c)
|
the ratio of Net Debt to Consolidated Total Capitalisation is [
l
] to [
l
];
|
(d)
|
the ratio of Consolidated EBITDA to Consolidated Net Interest Expense is [
l
] to [
l
]; and
|
(e)
|
the Fair Market Value of the Ships plus the net realisation value of any additional security previously provided under Clause 15 [as at [date of most recent half/full year certificate] is not less than 140 per cent of the Loan.
[Note: Wording in square brackets is only relevant for quarterly compliance certificates]
|
|
Vessel
|
DWT
|
Built
|
Owner/Guarantor
|
1.
|
STI Onyx
|
52,000
|
Sep-12
|
STI Onyx Shipping Company Limited
|
2.
|
STI Duchessa
|
52,000
|
Jan-14
|
STI Duchessa Shipping Company Limited
|
THE BORROWER
|
|
SIGNED
by
|
|
Name: Micha Withoft
|
/s/ Micha Withoft
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
SCORPIO TANKERS INC.
|
|
in the presence of:
|
|
|
|
Name: Andrew Cottrell, Legal Intern
|
/s/ Andrew Cottrell
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
THE LENDERS
|
|
SIGNED
by
|
|
Name: Lucy Shtenko
|
/s/ Lucy Shtenko
|
for and on behalf of
|
Title: Attorney-in-Fact
|
HSH NORDBANK AG
|
|
in the presence of:
|
|
Name: Clementine Freeth
|
|
/s/ Clementine Freeth
|
|
Title: Trainee, WFW, LLP
|
|
|
|
THE MANDATED LEAD ARRANGER
|
|
SIGNED
by
|
|
Name: Lucy Shtenko
|
/s/ Lucy Shtenko
|
for and on behalf of
|
Title: Attorney-in-Fact
|
HSH NORDBANK AG
|
|
in the presence of:
|
|
Name: Clementine Freeth
|
|
/s/ Clementine Freeth
|
|
Title: Trainee, WFW, LLP
|
|
|
|
THE BOOKRUNNER
|
|
SIGNED
by
|
|
Name: Lucy Shtenko
|
/s/ Lucy Shtenko
|
for and on behalf of
|
Title: Attorney-in-Fact
|
HSH NORDBANK AG
|
|
in the presence of:
|
|
Name: Clementine Freeth
|
|
/s/ Clementine Freeth
|
|
Title: Trainee, WFW, LLP
|
|
|
|
THE SECURITY TRUSTEE
|
|
SIGNED
by
|
|
Name: Lucy Shtenko
|
/s/ Lucy Shtenko
|
for and on behalf of
|
Title: Attorney-in-Fact
|
HSH NORDBANK AG
|
|
in the presence of:
|
|
Name: Clementine Freeth
|
|
/s/ Clementine Freeth
|
|
Title: Trainee, WFW, LLP
|
|
|
|
THE AGENT
|
|
SIGNED
by
|
|
Name: Lucy Shtenko
|
/s/ Lucy Shtenko
|
for and on behalf of
|
Title: Attorney-in-Fact
|
HSH NORDBANK AG
|
|
in the presence of:
|
|
Name: Clementine Freeth
|
|
/s/ Clementine Freeth
|
|
Title: Trainee, WFW, LLP
|
|
Section 1
|
Interpretation
|
1
|
Definitions and Interpretation
|
Section 2
|
The Facility
|
2
|
The Facility
|
3
|
Purpose
|
4
|
Conditions of Utilisation
|
Section 3
|
Utilisation
|
5
|
Utilisation
|
Section 4
|
Repayment, Prepayment and Cancellation
|
6
|
Repayment
|
7
|
Prepayment and Cancellation
|
Section 5
|
Costs of Utilisation
|
8
|
Interest
|
9
|
Interest Periods
|
10
|
Changes to the Calculation of Interest
|
11
|
Fees
|
Section 6
|
Additional Payment Obligations
|
12
|
Tax Gross Up and Indemnities
|
13
|
Increased Costs
|
14
|
Other Indemnities
|
15
|
Mitigation by the Finance Parties
|
16
|
Costs and Expenses
|
Section 7
|
Guarantees and Join and Several Liability of Borrowers
|
17
|
Guarantee and Indemnity -- Parent Guarantor
|
18
|
Joint and Several Liability of the Borrowers
|
19
|
Guarantee and Indemnity -- Hedge Guarantors
|
Section 8
|
Representations, Undertakings and Events of Default
|
20
|
Representations
|
21
|
Information Undertakings
|
22
|
Financial Covenants
|
23
|
General Undertakings
|
24
|
Insurance Undertakings
|
25
|
General Ship Undertakings
|
26
|
Security Cover
|
27
|
Accounts, and application of Earnings and Hedge Receipts
|
28
|
Events of Default
|
Section 9
|
Changes to Parties
|
29
|
Changes to the Lenders
|
30
|
Changes to the Transaction Obligors
|
Section 10
|
The Finance Parties
|
31
|
The Facility Agent and the Mandated Lead Arrangers
|
32
|
The Security Agent
|
33
|
ECA Agent
|
34
|
Conduct of Business by the Finance Parties
|
35
|
Sharing among the Finance Parties
|
Section 11
|
Administration
|
36
|
Payment Mechanics
|
37
|
Set-Off
|
38
|
Bail-In
|
39
|
Notices
|
40
|
Calculations and Certificates
|
41
|
Partial Invalidity
|
42
|
Remedies and Waivers
|
43
|
Settlement or Discharge Conditional
|
44
|
Irrevocable Payment
|
45
|
Amendments and Waivers
|
46
|
Confidential Information
|
47
|
Confidentiality of Funding Rates
|
48
|
Counterparts
|
Section 12
|
Governing Law and Enforcement
|
49
|
Governing Law
|
50
|
Enforcement
|
Schedule 1 The Parties
|
Part A The Obligors
|
Part B The Original Lenders
|
Part C The Servicing Parties
|
Schedule 2 Conditions of Preceden
|
Part A Conditions Precedent to each Utilisation Request
|
Part B Conditions Precedent to each Utilisation
|
Schedule 3 Requests
|
Part A Utilisation Request
|
Execution Pages
|
(1)
|
STI GALATA SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands with registered number 77908 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower A
");
|
(2)
|
STI TAKSIM SHIPPING COMPANY LIMITED
(to be named
STI BOSPHORUS SHIPPING COMPANY LIMITED
), a corporation incorporated in the Republic of the Marshall Islands with registered number 77910 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower B
");
|
(3)
|
STI LEBLON SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands with registered number 77911 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower C
");
|
(4)
|
STI LA BOCA SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands with registered number 77912 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower D
");
|
(5)
|
STI SAN TELMO SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands with registered number 77913 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower E
");
|
(6)
|
STI JURERE SHIPPING COMPANY LIMITED
(to be named STI Donald C Trauscht Shipping Company Limited), a corporation incorporated in the Republic of the Marshall Islands with registered number 77914 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower F
");
|
(7)
|
STI ESLES II SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands with registered number 78196 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower G
");
|
(8)
|
STI JARDINS SHIPPING COMPANY LIMITED
, a corporation incorporated in the Republic of the Marshall Islands with registered number 77917 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as a borrower ("
Borrower H
");
|
(9)
|
SCORPIO TANKERS INC.
, a corporation incorporated in the Republic of the Marshall Islands with registered number 36141 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands as guarantor (the "
Parent Guarantor
");
|
(10)
|
THE COMPANIES
listed in Part A of Schedule 1 (
The Parties
) as hedge guarantors (the "
Hedge
Guarantors
");
|
(11)
|
MACQUARIE BANK LIMITED (LONDON BRANCH), THE EXPORT-IMPORT BANK OF KOREA and DEKABANK DEUTSCHE GIROZENTRALE
as mandated lead arrangers (the "
Mandated Lead Arrangers
");
|
(12)
|
THE FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as original commercial lenders (the “
Original Commercial Lenders
”);
|
(13)
|
THE FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as original lenders under the GIEK Guaranteed Facility (the “
Original GIEK Guaranteed Lenders
”);
|
(14)
|
THE FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as original lenders under the Kexim Guaranteed Facility (the “
Original Kexim Guaranteed Lenders
”);
|
(15)
|
THE EXPORT–IMPORT BANK OF KOREA
of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 07242, Republic of Korea as lender under the Kexim Direct Facility (“
Kexim
”);
|
(16)
|
THE FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as original hedge counterparties (the "
Original
Hedge Counterparties
");
|
(17)
|
MACQUARIE BANK LIMITED (LONDON BRANCH)
as global coordinator (the “
Global Coordinator
”);
|
(18)
|
MACQUARIE BANK LIMITED (LONDON BRANCH)
as agent for the Kexim Guaranteed Lenders and the GIEK Guaranteed Lenders (the “
ECA Agent
”);
|
(19)
|
WILMINGTON TRUST (LONDON) LIMITED
as agent of the other Finance Parties (the "
Facility Agent
"); and
|
(20)
|
WILMINGTON TRUST (LONDON) LIMITED
as security agent for the Secured Parties (the "
Security Agent
").
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
the Commercial Facility Margin for each Commercial Facility;
|
(b)
|
the GIEK Guaranteed Facility Margin for the GIEK Guaranteed Facility;
|
(c)
|
the Kexim Direct Facility Margin for the Kexim Direct Facility; and
|
(d)
|
the Kexim Guaranteed Facility Margin for the Kexim Guaranteed Facility.
|
(a)
|
Scorpio Commercial Management s.a.m. of 9, Boulevard Charles III, Monte Carlo, the Principality of Monaco;
|
(b)
|
any Affiliate or Subsidiary of Scorpio Commercial Management s.a.m. or the Parent Guarantor; or
|
(c)
|
any other company proposed by the Parent Guarantor which the Facility Agent (acting on the instructions of all the Lenders and the ECAs) may from time to time approve (such approval not to be unreasonably withheld or delayed) as the commercial manager of that Ship.
|
(a)
|
proposed by the Parent Guarantor or the Borrower that owns that Ship;
|
(b)
|
run by any Affiliate of the Approved Commercial Manager; and
|
(c)
|
approved in writing by the Facility Agent (acting on the instructions of all the Lenders) prior to that Ship's entry into such pooling arrangement.
|
(a)
|
Scorpio Ship Management s.a.m. of 9, Rue Du Gabian, Monte Carlo, the Principality of Monaco;
|
(b)
|
any Affiliate or subsidiary of Scorpio Ship Management s.a.m. or the Parent Guarantor;
|
(c)
|
V. Ships Ship Management, D’Amico International Shipping, Hellespont Shipping, Anglo-Eastern Ship Management, Astor Ship Management, Synergy Marine, Univan Ship Management Limited, C.P. Offen, Optimum Ship Services Ltd and Zenith Ship Management; or
|
(d)
|
any other company proposed by the Parent Guarantor which the Facility Agent (acting on the instructions of all the Lenders and the ECAs) may from time to time approve (such approval not to be unreasonably withheld or delayed) as the technical manager of that Ship.
|
(a)
|
the relevant Back-stop Date;
|
(b)
|
the Delivery Date of that Ship; or
|
(c)
|
such later date as the Facility Agent may, with the authorisation of all the Lenders and the ECAs, agree with the Borrowers.
|
(a)
|
the amount of its participation in the outstanding Loan; and
|
(b)
|
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
|
(a)
|
in relation to the Ship A, 25 October 2017;
|
(b)
|
in relation to the Ship B, 16 November 2017;
|
(c)
|
in relation to the Ship C, 30 January 2018;
|
(d)
|
in relation to the Ship D, 16 February 2018;
|
(e)
|
in relation to the Ship E, 10 April 2018;
|
(f)
|
in relation to the Ship F, 17 May 2018;
|
(g)
|
in relation to the Ship G, 24 July 2018; and
|
(h)
|
in relation to the Ship H, 20 August 2018.
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b)
|
in relation to any other state, 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.
|
(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 relation to the Loan, the relevant part of the Loan or that Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(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 in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a)
|
freely withdrawable on demand;
|
(b)
|
not subject to any Security (other than pursuant to any Security Document);
|
(c)
|
denominated and payable in a freely transferable and freely convertible currency; and
|
(d)
|
capable of being remitted to the Group.
|
(a)
|
unencumbered securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits (in each case, unencumbered) in the interbank market of any commercial bank of recognized standing organized under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of USD 500,000,000; and
|
(c)
|
such other securities or instruments as the Majority Lenders shall agree in writing,
|
(a)
|
in relation to Commercial Facility A, the date falling six years after the Utilisation Date of the relevant Ship Loan; or
|
(b)
|
in relation to Commercial Facility B, the date falling nine years after the Utilisation Date of the relevant Ship Loan.
|
(a)
|
in relation to an Original Commercial Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part B of Schedule 1 (
The Parties
) and the amount of any other Commercial Lender Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Commercial Lender, the amount of any Commercial Lender Commitment transferred to it under this Agreement,
|
(a)
|
any Original Commercial Lender; and
|
(b)
|
any bank, financial institution, a trust, fund or other entity which has become a Party as a Lender in relation to the Commercial Facility in accordance with Clause 29 (
Changes to the Lenders
),
|
(a)
|
in relation to a Commercial Lender, its Commercial Lender Commitment;
|
(b)
|
in relation to a GIEK Guaranteed Lender, its GIEK Guaranteed Lender Commitment.
|
(c)
|
in relation to Kexim or any other Lender under the Kexim Direct Facility, its Kexim Commitment;
|
(d)
|
in relation to a Kexim Guaranteed Lender, its Kexim Guaranteed Lender Commitment.
|
(a)
|
any member of the Group or any of its advisers; or
|
(b)
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
(i)
|
information that:
|
(A)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 46 (
Confidential Information
); or
|
(B)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(C)
|
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
(ii)
|
any Funding Rate.
|
(a)
|
plus
, to the extent deducted in computing the net income of the Parent Guarantor for that accounting period, the sum, without duplication, of:
|
(i)
|
all federal, state, local and foreign income taxes and tax distributions;
|
(ii)
|
Consolidated Net Interest Expense;
|
(iii)
|
depreciation, depletion, amortization of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortization of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey (including any underwater survey done in lieu thereof) of a vessel owned by the Group during such period; and
|
(v)
|
any drydocking expenses;
|
(b)
|
minus
, to the extent added in computing the consolidated net income of the Parent Guarantor for that accounting period, (i) any non-cash income, non-cash gains and (ii) any extraordinary gains on asset sales not incurred in the ordinary course of business.
|
(a)
|
all Financial Indebtedness; and
|
(b)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance with IFRS would be shown on the liability side of a balance sheet),
|
(a)
|
an account in the name of the Parent Guarantor with the Account Bank designated "Debt Service Reserve Account";
|
(b)
|
any other account in the name of the Parent Guarantor with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a) above, irrespective of the number or designation of such replacement account but to thereafter be designated as the "Debt Service Reserve Account"; or
|
(c)
|
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a)
|
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled (except for under an Approved Pooling Arrangement) or shared with any other person:
|
(i)
|
all freight, hire and passage moneys including, without limitation, all moneys payable under, arising out of or in connection with a Charter, any guarantee provided under a Charter or any Approved Pooling Arrangement;
|
(ii)
|
the proceeds of the exercise of any lien on sub-freights;
|
(iii)
|
compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire or use;
|
(iv)
|
remuneration for salvage and towage services;
|
(v)
|
demurrage and detention moneys;
|
(vi)
|
without prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
(vii)
|
all moneys which are at any time payable under any Insurances in relation to loss of hire;
|
(viii)
|
all monies which are at any time payable to a Borrower in relation to general average contribution; and
|
(b)
|
if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (viii) of paragraph (a) above are pooled or shared with any other
|
(a)
|
an account in the name of that Borrower with the Account Bank designated "Earnings Account";
|
(b)
|
any other account in the name of that Borrower with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a) above, irrespective of the number or designation of such replacement account; or
|
(c)
|
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a)
|
any release, emission, spill or discharge of Environmentally Sensitive Material whether within a Ship or from a Ship into any other vessel or into or upon the air, sea, land or soils (including the seabed) or surface water; 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
|
(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 Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
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;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(a)
|
this Agreement;
|
(b)
|
any Fee Letter;
|
(c)
|
each Utilisation Request;
|
(d)
|
any Security Document (excluding any Approved Ship Manager’s Undertaking);
|
(e)
|
any Hedging Agreement;
|
(f)
|
any subordination or intercreditor deed entered into pursuant to paragraph (n) of Clause 8.5 (
Hedging
);
|
(g)
|
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities (excluding any Approved Ship Manager’s Undertaking); or
|
(h)
|
any other document designated as such by the Facility Agent and the Borrowers (excluding any Approved Ship Manager’s Undertaking).
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereto or the completion of such services, except trade payables;
|
(e)
|
all Capitalized Lease Obligations of the Debtor as lessee;
|
(f)
|
all such Financial Indebtedness as described in sub paragraphs (a) to (e) of persons other than the Debtor secured by any Security on any asset of the Debtor, whether or not such Financial Indebtedness is assumed by the Debtor, provided that the amount of such Financial Indebtedness shall be the lesser of (i) the fair market value of such asset at such date of determination and (ii) the amount of such Financial Indebtedness; and
|
(g)
|
all such Financial Indebtedness as described in sub-paragraphs (a) to (e) of persons other than the Debtor under any guarantee, indemnity to similar obligation entered into by the Debtor to the extent such Financial Indebtedness is guaranteed, indemnified, etc. by the Debtor.
|
(a)
|
its Earnings;
|
(b)
|
its Insurances;
|
(c)
|
any Requisition Compensation;
|
(d)
|
the warranties under the Shipbuilding Contract in relation to that Ship; and
|
(e)
|
any Long Term Charter and any guarantee of that Long Term Charter in relation to that Ship,
|
(a)
|
in relation to an Original GIEK Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part B of Schedule 1 (
The Parties
) and the amount of any other GIEK Guaranteed Lender Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other GIEK Guaranteed Lender, the amount of any GIEK Guaranteed Lender Commitment transferred to it under this Agreement,
|
(a)
|
any Original GIEK Guaranteed Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the GIEK Guaranteed Facility in accordance with Clause 29 (
Changes to the Lenders
),
|
(a)
|
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that Ship, that Ship's Earnings or otherwise in relation to that Ship; and
|
(b)
|
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan,
|
(a)
|
in relation to an Original Kexim Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part B of Schedule 1 (
The Parties
) and the amount of any other Kexim Guaranteed Lender Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Kexim Guaranteed Lender, the amount of any Kexim Guaranteed Lender Commitment transferred to it under this Agreement,
|
(a)
|
any Original Kexim Guaranteed Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Kexim Guaranteed Facility in accordance with Clause 29 (
Changes to the Lenders
),
|
(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; and
|
(c)
|
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
|
(a)
|
Kexim;
|
(b)
|
the Original GIEK Guaranteed Lenders;
|
(c)
|
the Original Kexim Guaranteed Lenders;
|
(d)
|
the Original Commercial Lenders; and
|
(e)
|
any New Lender,
|
(a)
|
the applicable Screen Rate
as of the Specified Time for dollars and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or
|
(b)
|
as otherwise determined pursuant to Clause 10.1 (
Unavailability of Screen Rate
),
|
(a)
|
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or
|
(b)
|
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ per cent. of the Loan immediately before such repayment.
|
(a)
|
as at a date not more than 30 days previously;
|
(b)
|
by an Approved Valuer;
|
(c)
|
with or without physical inspection of that Ship or vessel (as the Facility Agent may require); and
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any Charter,
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of the Obligors taken as a whole; or
|
(b)
|
the ability of an Obligor to perform its payment and other material obligations under any Finance Documents; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party (as defined in the Finance Documents).
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(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.
|
(a)
|
which is a Long Term Charter; or
|
(b)
|
in relation to a charterer that is not an affiliate of the Group, the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 12 months, except where such Charter is a Long Term Charter;
|
(c)
|
in relation to a charterer that is an Affiliate of the Group, the duration of which is less than (and is not capable of being equal to or exceeding, by virtue of any optional extensions) 24 months;
|
(d)
|
entered into pursuant to an Approved Pooling Arrangement; or
|
(e)
|
any other Charter which is approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders and the ECAs,
|
(a)
|
any Financial Indebtedness incurred under the Finance Documents;
|
(b)
|
any hedging agreement entered into with a Non-Lender Hedge Counterparty in accordance with the provisions of Clause 8.5 (
Hedging
);
|
(c)
|
any Intra-Group Loans that are subordinated and subject to Security in accordance with the provisions of Clause 23.15 (
Financial Indebtedness
).
|
(a)
|
Security created by the Finance Documents;
|
(b)
|
any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
|
(c)
|
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice;
|
(d)
|
liens for salvage;
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading; and
|
(f)
|
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship and not as a result of any default or omission by any Borrower, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Borrower that owns the Ship in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 25.15 (
Restrictions on chartering
);
|
(g)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Borrower that owns such Ship or the Parent Guarantor, as the case may be, is actively prosecuting or defending such proceedings or arbitration in good faith; and
|
(h)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made.
|
(a)
|
its Original Jurisdiction;
|
(b)
|
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;
|
(c)
|
any jurisdiction where it conducts its business; and
|
(d)
|
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a)
|
any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected (whether
de jure
or
de facto
) by any government or official authority or by any person or persons claiming to be or to represent a government or official authority; and
|
(b)
|
any capture or seizure of that Ship (including any hijacking or theft) by any person whatsoever.
|
(a)
|
an account in the name of that Borrower with the Account Bank designated "Retention Account";
|
(b)
|
any other account in the name of that Borrower with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a) above, irrespective of the number or designation of such replacement account; or
|
(c)
|
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a)
|
imposed by law or regulation of the United Kingdom, the Council of the European Union, the European Commission, any member state of the European Union, the United Nations or its Security Council, the United States of America (including the Office of Foreign Assets Control of the US Department of Treasury) or Australia regardless of whether the same is or is not binding on any Obligor; or
|
(b)
|
otherwise imposed by any law or regulation binding on an Obligor or to which an Obligor is subject (which shall include without limitation, any extra-territorial sanctions imposed by law or regulation of the United States of America).
|
(a)
|
any Account Security;
|
(b)
|
any Shares Security and Assignment of Intra-Group Loan Receivables;
|
(c)
|
any Hedging Agreement Security;
|
(d)
|
any Mortgage;
|
(e)
|
any General Assignment;
|
(f)
|
any Approved Ship Manager’s Undertaking;
|
(g)
|
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or
|
(h)
|
any other document designated as such by the Facility Agent and the Borrowers.
|
(a)
|
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b)
|
all obligations expressed to be undertaken by an Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
|
(c)
|
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d)
|
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
|
(i)
|
rights intended for the sole benefit of the Security Agent; and
|
(ii)
|
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a)
|
in relation to Ship A, the shipbuilding contract dated 11 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower A for the construction by the Builder of Ship A and its purchase by Borrower A;
|
(b)
|
in relation to Ship B, the shipbuilding contract dated 11 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower B for the construction by the Builder of Ship B and its purchase by Borrower B;
|
(c)
|
in relation to Ship C, the shipbuilding contract dated 11 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower C for the construction by the Builder of Ship C and its purchase by Borrower C;
|
(d)
|
in relation to Ship D, the shipbuilding contract dated 11 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower D for the construction by the Builder of Ship D and its purchase by Borrower D;
|
(e)
|
in relation to Ship E, the shipbuilding contract dated 12 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower E for the construction by the Builder of Ship E and its purchase by Borrower E;
|
(f)
|
in relation to Ship F, the shipbuilding contract dated 12 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower F for the construction by the Builder of Ship F and its purchase by Borrower F;
|
(g)
|
in relation to Ship G, the shipbuilding contract dated 13 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower G for the construction by the Builder of Ship G and its purchase by Borrower G; and
|
(h)
|
in relation to Ship H, the shipbuilding contract dated 13 August 2015 as amended from time to time and made between (i) the Builder and (ii) Borrower H for the construction by the Builder of Ship H and its purchase by Borrower H.
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
|
(b)
|
any Requisition of that Ship unless that Ship is returned to the full control of the relevant Borrower within three Months of such Requisition.
|
(a)
|
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and
|
(c)
|
in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a)
|
a Finance Document;
|
(b)
|
a Shipbuilding Contract;
|
(c)
|
any Long Term Charter; or
|
(d)
|
any other document designated as such by the Facility Agent and a Borrower.
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b)
|
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a)
|
a person which is resident for tax purposes in the US; or
|
(b)
|
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(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 paragraph (a) above, or imposed elsewhere.
|
(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; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, a reference in this Agreement to:
|
(i)
|
the "
Account
Bank
", any "
Mandated Lead Arranger
", the "
Facility
Agent
", any "
Finance
Party
", any "
Hedge
Counterparty
", any "
Lender
", any "
Obligor
", any "
Party
", any "
Secured
Party
", the "
Security
Agent
" or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;
|
(ii)
|
"
assets
" includes present and future properties, revenues and rights of every description;
|
(iii)
|
a liability which is "
contingent
" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv)
|
"
document
" includes a deed and also a letter, fax or telex;
|
(v)
|
"
expense
" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi)
|
a "
Finance Document
", a "
Security Document
" or "
Transaction Document
" or any other agreement or instrument is a reference to that Finance Document, Security Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(vii)
|
"
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;
|
(viii)
|
"
law
" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix)
|
"
proceedings
" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x)
|
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);
|
(xi)
|
a "
regulation
" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(xii)
|
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii)
|
a time of day is a reference to London time;
|
(xiv)
|
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xv)
|
words denoting the singular number shall include the plural and vice versa; and
|
(xvi)
|
"
including
" and "
in
particular
" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b)
|
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.
|
(c)
|
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(d)
|
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.
|
(e)
|
A Potential Event of Default is "
continuing
" if it has not been remedied or waived and an Event of Default is "
continuing
" if it has not been waived.
|
1.3
|
Construction of insurance terms
|
1.4
|
Agreed forms of Finance Documents
|
(a)
|
in a form attached to a certificate dated the same date as this Agreement (and signed by each Borrower and the Facility Agent); or
|
(b)
|
in any other form agreed in writing between each Borrower and the Facility Agent acting with the authorisation of all the Lenders and the ECAs.
|
1.5
|
Third party rights
|
(a)
|
Unless expressly provided to the contrary in a Finance Document including but not limited to Clause 11.5 (
Kexim Guarantee Premium
), Clause 11.6 (
GIEK Guarantee Premium
), Clause 14.2 (
Other indemnities)
and Clause 29.10 (
Transfer to an ECA
), a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "
Third Parties Act
") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Subject to Clause 45.3 (
Other exceptions
) but otherwise 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.
|
(c)
|
Any Affiliate, Receiver, Delegate or any other person described in paragraph (d) of Clause 14.2 (
Other indemnities
), paragraph (b) of Clause 31.11 (
Exclusion of liability
) or paragraph (b) of Clause 32.11 (
Exclusion of liability
)
may, subject to this Clause 1.5 (
Third party rights
) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2
|
THE FACILITY
|
2.1
|
The Facility
|
(a)
|
a term loan facility which certain Commercial Lenders have agreed to make available in an aggregate principal amount of up to USD 15,000,000 (referred to as the Commercial Facility A);
|
(b)
|
a term loan facility which certain Commercial Lenders have agreed to make available in an aggregate principal amount of up to USD 25,000,000 (referred to as the Commercial Facility B);
|
(c)
|
a term loan export credit facility which the GIEK Guaranteed Lenders have agreed to make available in an aggregate principal amount not exceeding the Total GIEK Guaranteed Facility Loan Commitment, being up to USD 32,000,000 (referred to as the GIEK Guaranteed Facility);
|
(d)
|
a term loan export credit facility which Kexim has agreed to make available in an aggregate principal amount not exceeding the Total Kexim Direct Facility Loan Commitment, being up to USD 52,000,000 (referred to as the Kexim Direct Facility); and
|
(e)
|
a term loan export credit facility which the Kexim Guaranteed Lenders have agreed to make available in an aggregate principal amount not exceeding the Total Kexim Guaranteed Facility Loan Commitment, being up to USD 48,000,000 (referred to as the Kexim Guaranteed Facility).
|
2.2
|
Finance Parties' rights and obligations
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. 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 Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
|
(c)
|
A Finance Party may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
(d)
|
Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the consent of any other Finance Party or joining any other Finance Party to the relevant proceedings, but, for the avoidance of doubt, no Finance Party shall be permitted to make a double recovery.
|
2.3
|
Borrowers' Agent
|
(a)
|
Each Borrower by its execution of this Agreement irrevocably appoints the Parent Guarantor to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
|
(i)
|
the Parent Guarantor on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Borrower notwithstanding that they may affect the Borrower, without further reference to or the consent of that Borrower; and
|
(ii)
|
each Finance Party to give any notice, demand or other communication to that Borrower pursuant to the Finance Documents to the Parent Guarantor,
|
(b)
|
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Parent Guarantor or given to the Parent Guarantor under any Finance Document on behalf of a Borrower or in connection with any Finance Document (whether or not known to any Borrower) shall be binding for all purposes on that Borrower as if that Borrower had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Parent Guarantor and any Borrower, those of the Parent Guarantor shall prevail.
|
3
|
PURPOSE
|
3.1
|
Purpose
|
3.2
|
Monitoring
|
4
|
CONDITIONS OF UTILISATION
|
4.1
|
Initial conditions precedent
|
4.2
|
Further conditions precedent
|
(a)
|
on the date of each Utilisation Request and on the proposed Utilisation Date and before the relevant Advance is made available:
|
(i)
|
no Default is continuing or would result from the proposed Advance;
|
(ii)
|
the Repeating Representations to be made by each Obligor are true; and
|
(b)
|
the Facility Agent has received on or before the relevant Utilisation Date, or is satisfied it will receive when the relevant Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (
Conditions Precedent
) in respect of the Ship to which the relevant Advance relates in form and substance satisfactory to the Facility Agent.
|
4.3
|
Notification of satisfaction of conditions precedent
|
(a)
|
The Facility Agent shall notify the Borrowers and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2 (
Further conditions precedent
).
|
(b)
|
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.4
|
Waiver of conditions precedent
|
5
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
(a)
|
The Borrowers may utilise a Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b)
|
The Borrowers may not deliver more than one Utilisation Request in respect of each Ship, and the Utilisation in respect of that Ship must be pro rata across the five Facilities.
|
5.2
|
Completion of a Utilisation Request
|
(a)
|
Each Utilisation Request is irrevocable (except where the prior written consent of all the Lenders and the ECAs has been obtained) and will not be regarded as having been duly completed unless:
|
(i)
|
the proposed Utilisation Date in relation to a Ship Loan is the Delivery Date of that Ship and is a Business Day within the relevant Availability Period;
|
(ii)
|
the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and amount
);
|
(iii)
|
it specifies the account of the Builder in accordance with the Shipbuilding Contract and/or the account of an Obligor for reimbursement to that Obligor of amounts already paid by it to the Builder; and
|
(iv)
|
all applicable deductible items have been completed.
|
(b)
|
Only one Advance may be requested under each Facility in each Utilisation Request.
|
5.3
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request must be dollars.
|
(b)
|
The aggregate amount of each proposed Advance in relation to a Ship must be an amount which:
|
(i)
|
is the lesser of:
|
(A)
|
60 per cent. of the Contract Price for the relevant Ship; or
|
(B)
|
60 per cent. of the Market Value of the relevant Ship; and
|
(ii)
|
would not oblige the Borrowers to provide additional security or prepay part of the Advance if the ratio set out in Clause 26 (
Security Cover
) was applied and notice was given by the Facility Agent under Clause 26.2 (
Minimum required security cover
)immediately after the relevant Advance was made.
|
(c)
|
The amount of the proposed Advance must be an amount which is not more than the Available Facility.
|
5.4
|
Lenders' participation
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender's participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before making that Advance.
|
(c)
|
The Facility Agent shall notify each Lender, the ECAs and the ECA Agent of the amount of each Advance and the amount of its participation (if any) in that Advance by the Specified Time.
|
5.5
|
Cancellation of Commitments
|
5.6
|
Retentions and payment to third parties
|
(a)
|
If so specified in a Utilisation Request, to deduct from the proceeds of any Advance any fees then payable to the Finance Parties in accordance with Clause 11 (
Fees
), any solicitors fees and disbursements together with any applicable VAT and any other items listed as deductible items in the relevant Utilisation Request and to apply them in payment of the items to which they relate; and
|
(b)
|
on each Utilisation Date, to pay to, or for the account of, the Borrower which is to utilise the relevant Advance the balance (after any deduction made in accordance with paragraph (a) above) of the amounts which the Facility Agent receives from the Lenders in respect of the relevant Advance. That payment shall be made in like funds as the Facility Agent received from the Lenders in respect of the relevant Advance to the account of the Builder and/or, in relation to reimbursement to an Obligor of amounts already paid, that Obligor which the Borrowers specify in the relevant Utilisation Request.
|
5.7
|
Disbursement of Advance to third party
|
5.8
|
Prepositioning of funds
|
(a)
|
each Lender agrees to fund its participation in such Advance on the Preposition Date, which date shall be specified in the relevant Utilisation Request and which shall be no more than three Business Days prior to the Delivery Date of the Ship to which that Advance relates;
|
(b)
|
on the relevant Preposition Date, the Facility Agent shall (and the Obligors and all Finance Parties agree that the Facility Agent shall) preposition such amount as requested by the Borrowers in the Utilisation Request at the Builder’s bank as directed by the Borrowers in the Utilisation
|
(i)
|
authorise the release of funds by the Builder’s Bank on the relevant Delivery Date (which date will be the Utilisation Date) upon receipt of a protocol of delivery and acceptance in respect of such Ship duly executed by the Builder and the relevant Borrower and countersigned by a representative of the Facility Agent;
|
(ii)
|
provide that:
|
(A)
|
such prepositioned funds shall be returned to the Facility Agent if that Ship is not delivered to the relevant Borrower by the Builder under the relevant Shipbuilding Contract within a period of 18 days (or such longer period as the Facility Agent (acting on the instructions of all the Lenders) may subsequently agree in writing) from the Preposition Date;
|
(B)
|
upon receipt by the Facility Agent of such prepositioned funds in accordance with paragraph (A) above, the Facility Agent shall place such funds into the Retention Account of the relevant Borrower where such funds shall be held on behalf of the Borrowers until:
|
(1)
|
a new delivery date of the relevant Ship which falls within the Availability Period for the relevant Ship Loan is confirmed following which the Facility Agent shall release such funds from that Retention Account and preposition such funds in accordance with Clause 5.7 (
Disbursement of Advance to third party
) and this Clause 5.8 (
Prepositioning of funds
); or
|
(2)
|
the Borrowers instruct the Facility Agent to apply such funds in prepayment of the relevant Ship Loan in accordance with Clause 7.4 (
Voluntary prepayment of Loan
) which instruction shall be made if the relevant Ship is not delivered by the end of the Availability Period, in which case the Utilisation Date in respect of such funds shall be deemed to have occurred on the last date of the Availability Period and such funds shall be immediately applied in prepayment of the relevant Ship Loan; and
|
(c)
|
each Borrower and the Parent Guarantor agree to pay interest on the amount of the funds so prepositioned from the Preposition Date at the rate described in Clause 8.1 (
Calculation of interest
) on the basis of successive interest periods of one day and so that such interest shall be paid together with the first payment of interest on such Advance after the Utilisation Date in respect of it or, if such Utilisation Date does not occur, within three Business Days of demand by the Facility Agent.
|
6
|
REPAYMENT
|
6.1
|
Repayment of Loan
|
(a)
|
The Borrowers shall repay the Loan as follows:
|
(i)
|
the amounts utilised under Commercial Facility A in respect of each Ship Loan shall be repaid by 24 consecutive quarterly instalments according to a 15 year amortisation profile, the first 23 of which shall be equal instalments and the last instalment to be a balloon repayment repaid on the relevant Commercial Facility Termination Date,
|
(ii)
|
the amounts utilised under Commercial Facility B in respect of each Ship Loan shall be repaid by 36 consecutive quarterly instalments according to a 15 year amortisation profile, the first 35 of which shall be equal instalments and the last instalment to be a balloon repayment repaid on the relevant Commercial Facility Termination Date; and
|
(iii)
|
the amounts utilised under each ECA Facility in respect of each Ship Loan shall be repaid by 48 consecutive quarterly equal instalments according to a 12 year straight-line amortisation profile, the last of which to be repaid on the relevant ECA Facility Termination Date,
|
(b)
|
The first Repayment Instalment under each Ship Loan shall be repaid on the date falling three Months after the Utilisation Date of that Ship Loan.
|
(c)
|
Schedule 10 (
Repayment Schedule
) shall be updated following each Utilisation Date if so required to reflect the actual Repayment Instalments to be made in respect of the actual Advance.
|
6.2
|
Termination Date
|
6.3
|
Reborrowing
|
7
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
(a)
|
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b)
|
upon the Facility Agent notifying the Borrowers, the Available Commitment of that Lender will be immediately cancelled; and
|
(c)
|
the Borrowers shall prepay that Lender's participation in the Loan on the last day of the Interest Period for the Loan occurring after the Facility Agent has notified the Borrowers or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participation prepaid.
|
7.2
|
Change of control
|
(a)
|
If a Change of Control occurs without the prior written consent of the Majority Lenders and the ECAs:
|
(i)
|
the Parent Guarantor shall immediately notify the Facility Agent upon becoming aware of that Change of Control; and
|
(ii)
|
the Facility Agent shall, by notice to the Borrowers, cancel the Facility and declare the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and the Loan and all such outstanding interest and other amounts will become immediately due and payable.
|
(b)
|
In this Clause 7.2 (
Change of control
):
|
(a)
|
a "person" or "group" (within the meaning of Sections 13(d) and 14(d) of the Exchange Act) other than any holders of the Parent Guarantor’s Equity Interests as at the date of this Agreement, becoming the ultimate beneficial owner of the Parent Guarantor including, without limitation, any change from the date of this Agreement in the ultimate "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of more than 35 per cent. of the total voting power of the Voting Stock of the Parent Guarantor (calculated on a fully diluted basis); or
|
(b)
|
individuals who constitute the board of directors of the Parent Guarantor at the beginning of any period of two consecutive calendar years and yet ceasing for any reason to constitute at least 50 per cent. of the total members of the Parent Guarantor's board of directors at any time during such two year period.
|
7.3
|
Automatic cancellation
|
7.4
|
Voluntary prepayment of Loan
|
7.5
|
ECA prepayment option
|
(a)
|
In the event that a Commercial Facility
has not been extended hereunder by the relevant Commercial Lenders or otherwise refinanced on terms acceptable to the ECAs by the date falling two Months prior to the relevant Commercial Facility Termination Date, each of Kexim (in relation to the Kexim Direct Facility) and each ECA (acting through the ECA Agent) shall have the option, but not the obligation, to terminate the relevant ECA Support and the relevant ECA Facility Loan at the relevant Commercial Facility Termination Date. Unless the Borrowers have been notified in writing by Kexim (in relation to the Kexim Direct Facility) and the ECA Agent (in relation to the GIEK Guaranteed Facility and the Kexim Guaranteed Facility) no later than 45 days before the relevant Commercial Facility Termination Date that Kexim and the ECAs are satisfied with such terms and do not require prepayment, then such prepayment options shall be deemed to have been exercised, and the Borrowers shall prepay in full each of the Advances made by Kexim under the Kexim Direct Facility Loan, the GIEK Guaranteed Lenders under the GIEK Guaranteed Facility Loan and/or the Kexim Guaranteed Lenders under the Kexim Guaranteed Facility Loan, as the case may be on the relevant Commercial Facility Termination Date without premium, penalty or additional costs of any kind.
|
(b)
|
This right of prepayment for the benefit of Kexim (in relation to the Kexim Direct Facility) and of each ECA (acting through the ECA Agent) set out in paragraph (a) above shall thereafter also arise for Kexim and each ECA at all other relevant times where a Commercial Facility
having been extended or refinanced for a further period pursuant to paragraph (a) above has not been further extended or otherwise refinanced by the date falling two Months prior to the maturity date of so extended or refinanced Commercial Facility, so long as any ECA Facility Loan remains at such time outstanding under this Agreement.
|
(c)
|
If the option to terminate any ECA Facility Loan on the Termination Date in respect of Commercial Facility A (or the maturity date of so extended or refinanced Commercial Facility A, as the case may be) is exercised in accordance with paragraphs (a) or (b) above then the Borrowers shall also prepay in full the Commercial Facility B Loan on the Termination Date in respect of Commercial Facility A (or the maturity date of so extended or refinanced Commercial Facility A).
|
7.6
|
Mandatory cancellation on default under a Shipbuilding Contract
|
(a)
|
any party to any Shipbuilding Contract rescinds, cancels, repudiates, terminates, novates or assigns a Shipbuilding Contract or any Shipbuilding Contract otherwise ceases to remain in full force and effect for any reason; or
|
(b)
|
a Ship has not been delivered to, and accepted by, the relevant Borrower prior to the end of the Availability Period in respect of the Ship Loan for that Ship,
|
(i)
|
the Borrowers shall promptly notify the Facility Agent upon becoming aware of that event; and
|
(ii)
|
if the Majority Lenders so require, the Facility Agent shall cancel all amounts to be made available in respect of that Ship.
|
7.7
|
Mandatory prepayment on sale or Total Loss
|
(a)
|
If a Ship is sold or becomes a Total Loss, the Borrowers shall on the Relevant Date prepay the Ship Loan applicable to that Ship.
|
(b)
|
On the Relevant Date, the Borrowers shall also prepay such part of the Loan as shall eliminate any shortfall arising if the ratio set out in Clause 26 (
Security Cover
) were applied immediately following the payment referred to in paragraph (a) above.
|
(c)
|
Provided that no Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship after the prepayment referred to in paragraphs (a) and (b) has been made together with all other amounts that are payable on any such prepayment pursuant to the Finance Documents shall be paid to the Borrower that owned the relevant Ship.
|
(d)
|
In this Clause 7.7 (
Mandatory prepayment on sale or Total Loss
):
|
(i)
|
in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and
|
(ii)
|
in the case of a Total Loss of a Ship, on the earlier of:
|
(A)
|
the date falling 180 days after the Total Loss Date; and
|
(B)
|
the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.8
|
Mandatory prepayment of Hedging Prepayment Proceeds
|
7.9
|
Mandatory prepayment – refund under Shipbuilding Contract
|
(a)
|
If any member of the Group receives, from the Builder or any Affiliate of the Builder, any rebate, premium, inducement, commission, discount or any other benefit or payment which reduces the Contract Price of a Ship payable under the relevant Shipbuilding Contract (always excluding for the avoidance of doubt any liquidated damages payable to the relevant Borrower under the Shipbuilding Contract):
|
(i)
|
the relevant Borrower shall procure that the relevant Group member shall promptly notify the Facility Agent upon becoming aware of such an event; and
|
(ii)
|
60 per cent. of any amount received shall be paid to the Facility Agent in prepayment of the Loan on the next repayment date falling under Clause 6 (
Repayment
).
|
7.10
|
Loss of ECA Support
|
7.11
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 (
Prepayment and Cancellation
) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made, the amount of that cancellation or prepayment and, if relevant, the part of the Loan to be prepaid or cancelled.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and amounts (if any) payable under the Hedging Agreements in connection with that prepayment and, subject to the fee provided for in Clause 11.4 (
Kexim prepayment fee
), any Break Costs, without premium or penalty.
|
(c)
|
No Borrower may reborrow any part of the Facility which is prepaid.
|
(d)
|
No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e)
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Facility Agent receives a notice under this Clause 7 (
Prepayment and Cancellation
) it shall promptly forward a copy of that notice to either the Borrowers or the affected Lenders and the ECAs and/or Hedge Counterparties, as appropriate.
|
(g)
|
If all or part of any Lender's participation in the Loan is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
|
7.12
|
Application of prepayments or partial prepayments
|
8
|
INTEREST
|
8.1
|
Calculation of interest
|
(a)
|
the Applicable Margin; and
|
(b)
|
LIBOR.
|
8.2
|
Payment of interest
|
(a)
|
The Borrowers shall pay accrued interest on the Loan or any part of the Loan together with the applicable GIEK Guarantee Premium (payable pursuant to paragraph (a) of Clause 11.6 (
GIEK Guarantee Premium
)) on the last day of each Interest Period (each an "
Interest
Payment
Date
").
|
(b)
|
If an Interest Period is longer than three Months, the Borrowers shall also pay interest then accrued on the Loan or the relevant part of the Loan on the dates falling at three Monthly intervals after the first day of the Interest Period.
|
8.3
|
Default interest
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document (other than a Hedging Agreement) on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 2.00 per cent. per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent. Any interest accruing under this Clause 8.3 (
Default interest
) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b)
|
If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan or that part of the Loan:
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or that part of the Loan; and
|
(ii)
|
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2.00 per cent. per annum higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c)
|
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4
|
Notification of rates of interest
|
(a)
|
The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
|
(b)
|
The Facility Agent shall promptly notify the Borrowers of each Funding Rate relating to the Loan, any part of the Loan or any Unpaid Sum.
|
8.5
|
Hedging
|
(a)
|
Each Borrower may at any time, but is not obliged to, enter into Hedging Agreements with any Hedge Counterparty and shall from that time onwards maintain such Hedging Agreements in accordance with this Clause 8.5 (
Hedging
).
|
(b)
|
Each Hedging Agreement shall:
|
(i)
|
be in a form and on terms and conditions agreed by the Majority Lenders, and documented on using a form of ISDA Master Agreement;
|
(ii)
|
be with a Hedge Counterparty and each Hedge Counterparty shall also be a Lender;
|
(iii)
|
be for a term ending on (or before) the relevant Termination Date;
|
(iv)
|
have settlement dates coinciding with the Interest Payment Dates; and
|
(v)
|
provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
|
(c)
|
The rights of each Borrower under the Hedging Agreements shall be assigned by way of security under a Hedging Agreement Security.
|
(d)
|
The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
|
(e)
|
Neither a Hedge Counterparty nor a Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent, acting on the instructions of the Majority Lenders, which instructions no Lender shall unreasonably withhold, condition or delay.
|
(f)
|
Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement.
|
(g)
|
If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed the Loan or a Facility, as the case may be, at that time, the Borrowers must promptly notify the Facility Agent and must, at the request of the Facility Agent (acting on the instructions of the Majority Lenders), reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) so that it no longer exceeds or will not exceed the Loan or that Facility, as the case may be, then or that will be outstanding and shall provide evidence that the transactions have been so reduced.
|
(h)
|
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above will be apportioned as between those transactions
pro rata
.
|
(i)
|
Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which no Borrower has any actual or contingent indebtedness.
|
(j)
|
A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if a Borrower is in breach of its payment obligations under any transaction in respect of that Hedging Agreement.
|
(k)
|
Each Hedge Counterparty consents to, and acknowledges notices of, the charging by way of security by each Borrower pursuant to the relevant Hedging Agreement Security of its rights under the Hedging Agreements to which it is party in favour of the Security Agent.
|
(l)
|
Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.
|
(m)
|
The Security Agent shall not be liable for the performance of any of a Borrower's obligations under a Hedging Agreement.
|
(n)
|
Additionally, a Borrower may, subject to the provisions of paragraph (o) below, enter into hedging agreements with a person other than a Hedge Counterparty (a “
Non-Lender Hedge Counterparty
") for the purpose of hedging interest payable under this Agreement, subject to:
|
(i)
|
any subordination and intercreditor deed (in form and substance reasonably satisfactory to the Majority Lenders, with each of the Lenders acting reasonably) being entered into between the Finance Parties and the Non-Lender Hedge Counterparty prior to the entering into by that Borrower of such hedging agreement;
|
(ii)
|
that Borrower creating Security in favour of the Security Agent of its rights and interests in any such hedging agreement with a Non-Lender Hedge Counterparty, in agreed form; and
|
(iii)
|
all payments to that Borrower under any such hedging agreement with a Non-Lender Hedge Counterparty being made to the relevant Earnings Account in accordance with Clause 27.1 (
Earnings Account
); and
|
(iv)
|
all liabilities of that Borrower to the Non-Lender Hedge Counterparty under such hedging agreement being fully subordinated to the rights of the Secured Parties under the Finance Documents and until the end of the Security Period.
|
(o)
|
Each Borrower agrees that, prior to it entering into any interest rate swap or other hedge instrument with a Non-Lender Hedge Counterparty for the purpose of hedging any interest payable under this Agreement, it shall offer for a period of not less than ten Business Days to enter into a swap, or other instrument, on the same proposed terms and conditions with the Hedge Counterparties (with each Hedge Counterparty taking such portion as may be agreed between that Borrower and the Hedge Counterparties or, if one or more Hedge Counterparties declines such an offer or that Borrower elects only to enter into the hedge instrument with one of them, the remaining Hedge Counterparty or Hedge Counterparties (as the case may be) shall be entitled to take such portion as it or they (as the case may be) may agree with that Borrower). If all Hedge Counterparties decline such an offer or if that Borrower elects not to proceed on the basis that the offers are not competitive, that Borrower may then (subject, and without prejudice, to the requirements set out elsewhere in the Finance Documents) enter into such swap, or other instrument, on the same terms and conditions offered to those declining Hedge Counterparties (and in the same proportion as those Hedge Counterparties would have taken if they had accepted), with the Non-Lender Hedge Counterparty, subject to the requirements described in paragraph (n) above.
|
9
|
INTEREST PERIODS
|
9.1
|
Interest Periods
|
(a)
|
Subject to this Clause 9 (
Interest Periods
), each Interest Period for an Advance shall be three Months.
|
(b)
|
The first Interest Period for an Advance shall start on the Utilisation Date of that Advance and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
(c)
|
An Interest Period in respect of an Advance shall not extend beyond the applicable Termination Date, but shall be shortened so that it ends on the applicable Termination Date.
|
(d)
|
In respect of a Repayment Instalment, an Interest Period for a part of the Advance equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(e)
|
Each Advance shall have one Interest Period only at any time.
|
9.2
|
Non-Business Days
|
10
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Unavailability of Screen Rate
|
(a)
|
Interpolated Screen Rate
: If no Screen Rate is available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(b)
|
Cost of funds
: If no Screen Rate is available for LIBOR for:
|
(i)
|
dollars; or
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,
|
10.2
|
Market disruption
|
10.3
|
Cost of funds
|
(a)
|
If this Clause 10.3 (
Cost of funds
) applies, the rate of interest on each Lender's share of the Loan or the relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select.
|
(b)
|
If this Clause 10.3 (
Cost of funds
) applies and the Facility Agent or the Borrowers so require, the Facility Agent and the Borrowers shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(c)
|
Subject to Clause 45.4 (
Replacement of Screen Rate
), any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties.
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Facility Agent under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
(e)
|
If this Clause 10.3 (
Cost of funds
) applies pursuant to Clause 10.2 (
Market disruption
) and:
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above,
|
(f)
|
the cost to that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be LIBOR.
|
10.4
|
Break Costs
|
(a)
|
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 a Borrower on a day other than the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Facility 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
|
(a)
|
The Borrowers shall pay to the Facility Agent:
|
(i)
|
for the account of each Lender, a fee computed at the rate of 40 per cent. of the relevant Applicable Margin on that Lender's Available Commitment from time to time for the Availability Period; and
|
(ii)
|
for the account of GIEK, a fee computed at the rate of 40 per cent. of the GIEK Guarantee Premium on the available, undrawn amount of the Total GIEK Guaranteed Facility Loan Commitment from time to time for the Availability Period.
|
(b)
|
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 and, if cancelled, on the cancelled amount of the relevant Lender's Commitment (or, in relation to sub-paragraph (ii) of paragraph (a) above, on the cancelled amount of the Total GIEK Guaranteed Facility Loan Commitment) at the time the cancellation is effective.
|
11.2
|
Facility Agent fee
|
11.3
|
Security Agent fee
|
11.4
|
Kexim prepayment fee
|
11.5
|
Kexim Guarantee Premium
|
(a)
|
The Borrowers acknowledge that the Kexim Guaranteed Lenders shall procure the placement of the Kexim Guarantee either through the ECA Agent or directly with the Kexim Guarantor and shall benefit from it throughout the duration of the Security Period. The Borrowers agree to pay to the Facility Agent (for the account of the Kexim Guarantor) the portion of the Kexim Guarantee Premium in respect of the Kexim Guarantee in relation to each Ship prior to the Utilisation Date of the Ship Loan in relation to that Ship, at such time and in such amount as notified to the Borrowers by the Facility Agent (acting on behalf of KEXIM). An invoice for the KEXIM Guarantee Premium shall be provided to the Borrowers by the ECA Agent or by the Facility Agent (acting on behalf of the ECA Agent) or the Kexim Guarantor in advance of (and not less than two Business Days prior to) the Utilisation Date of the Ship Loan in relation to that Ship.
|
(b)
|
Each Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the Kexim Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Kexim Guarantee Premium (or any part thereof) shall be refundable only in accordance with the terms of the Kexim Guarantee.
|
(c)
|
Each Borrower acknowledges that the amount of the Kexim Guarantee Premium will be solely determined by the Kexim Guarantor and no Kexim Guaranteed Lender is in any way involved in the determination of the amount of the Kexim Guarantee Premium and agrees that the Borrowers shall have no claim or defence against any Kexim Guaranteed Lender in connection with the amount of the Kexim Guarantee Premium.
|
11.6
|
GIEK Guarantee Premium
|
(a)
|
The Borrowers acknowledge that the GIEK Guaranteed Lenders shall procure the placement of the GIEK Guarantee either through the ECA Agent or directly with GIEK and shall benefit from it throughout the duration of the Security Period. The Borrowers agree to pay to the Facility Agent (for the account of GIEK) the GIEK Guarantee Premium in respect of the GIEK Guarantee on each Interest Payment Date throughout the duration of the Security Period, at such time and in such amount as notified to the Borrowers by the Facility Agent (acting on behalf of GIEK).
|
(b)
|
Each Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the GIEK Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever.
|
(c)
|
Each Borrower acknowledges that the amount of the GIEK Guarantee Premium will be solely determined by GIEK and no GIEK Guaranteed Lender is in any way involved in the determination of the amount of the GIEK Guarantee Premium and agrees that the Borrowers shall have no claim or defence against any GIEK Guaranteed Lender in connection with the amount of the GIEK Guarantee Premium.
|
12
|
TAX GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
(a)
|
In this Agreement:
|
(b)
|
Unless a contrary indication appears, in this Clause 12 (
Tax Gross Up and Indemnities
) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
(c)
|
This Clause 12 (
Tax Gross Up and Indemnities
) shall not apply to any Hedging Agreement.
|
12.2
|
Tax gross-up
|
(a)
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The 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 Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrowers and that Obligor.
|
(c)
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment 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.
|
12.3
|
Tax indemnity
|
(a)
|
The Obligors shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b)
|
Paragraph (a) above shall not apply:
|
(i)
|
with respect to any Tax assessed on a Finance Party:
|
(A)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
); or
|
(B)
|
relates to a FATCA Deduction required to be made by a Party.
|
(c)
|
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Obligors.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (
Tax indemnity
), notify the Facility Agent.
|
12.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b)
|
that Finance Party has obtained and utilised that Tax Credit,
|
12.5
|
Stamp taxes
|
12.6
|
VAT
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party 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 paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party 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 that Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the "
Supplier
") to any other Finance Party (the "
Recipient
") under a Finance Document, and any Party other than the Recipient (the "
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):
|
(i)
|
(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 sub-paragraph (i) 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
|
(ii)
|
(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.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 12.6 (
VAT
) to any Party shall, at any time when that Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be).
|
(e)
|
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.
|
12.7
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party; and
|
(ii)
|
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
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation or exchange of information regime.
|
(b)
|
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e)
|
If a Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i)
|
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii)
|
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii)
|
where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(i)
|
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(ii)
|
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f)
|
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrowers.
|
(g)
|
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrowers.
|
(h)
|
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.8
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13
|
INCREASED COSTS
|
13.1
|
Increased costs
|
(a)
|
Subject to Clause 13.3 (
Exceptions
), the Borrowers shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates 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,
|
(iii)
|
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.
|
(b)
|
In this Agreement:
|
(i)
|
"
Basel III
" means:
|
(A)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" 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;
|
(B)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(C)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(ii)
|
"
CRD IV
" means:
|
(A)
|
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012;
|
(B)
|
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
|
(C)
|
any other law or regulation which implements Basel III.
|
(iii)
|
"
Increased Costs
" means:
|
(A)
|
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(B)
|
an additional or increased cost; or
|
(C)
|
a reduction of any amount due and payable under any Finance Document,
|
13.2
|
Increased cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (
Increased costs
) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrowers.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3
|
Exceptions
|
(a)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(c)
|
compensated for by Clause 12.3 (
Tax indemnity
) (or would have been compensated for under Clause 12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (
Tax indemnity
) applied);
|
(d)
|
compensated for by any payment made pursuant to Clause 14.3 (
Mandatory Cost
);
|
(e)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(f)
|
incurred by a Hedge Counterparty in its capacity as such.
|
14
|
OTHER INDEMNITIES
|
14.1
|
Currency indemnity
|
(a)
|
If any sum due from an Obligor under the Finance Documents (a "
Sum
"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "
First Currency
") in which that Sum is payable into another currency (the "
Second Currency
") for the purpose of:
|
(i)
|
making or filing a claim or proof against that Obligor; or
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c)
|
This Clause 14.1 (
Currency indemnity
) does not apply to any sum due to a Hedge Counterparty in its capacity as such.
|
14.2
|
Other indemnities
|
(a)
|
Each Obligor shall, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i)
|
the occurrence of any Event of Default;
|
(ii)
|
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 35 (
Sharing among the Finance Parties
);
|
(iii)
|
funding, or making arrangements to fund, its participation in an Advance 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 Secured Party alone);
|
(iv)
|
the arrangements described in Clause 5.8 (
Prepositioning of funds
) (other than by reason of default or negligence by that Secured Party alone); or
|
(v)
|
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers.
|
(b)
|
Each Obligor shall, on demand, indemnify each ECA and each Finance Party, each Affiliate of a Finance Party and each officer or employee of an ECA, a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (
Other indemnities
) an "
Indemnified Person
"), against any cost, loss or liability incurred by that Indemnified Person (i) pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, (ii) in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, (iii) having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or (iv) any incident occurring in relation to, any Ship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c)
|
The indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i)
|
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or Social Law or any Sanctions; or
|
(ii)
|
in connection with any Environmental Claim or Social Claim.
|
(d)
|
Any Affiliate of a Finance Party or any officer or employee of an ECA, a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (
Other indemnities
) subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
14.3
|
Mandatory Cost
|
(a)
|
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b)
|
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions),
|
14.4
|
Indemnity to the Facility Agent
|
(a)
|
any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:
|
(i)
|
investigating any event which it reasonably believes is a Default; or
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
(iii)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Transaction Documents and any ECA Support; and
|
(b)
|
any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 36.11 (
Disruption to Payment Systems etc.
) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
|
14.5
|
Indemnity to the Security Agent
|
(a)
|
Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them:
|
(i)
|
in relation to or as a result of:
|
(A)
|
any failure by an Obligor to comply with its obligations under Clause 16 (
Costs and Expenses
);
|
(B)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(C)
|
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(D)
|
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;
|
(E)
|
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
(F)
|
any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
|
(G)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
|
(ii)
|
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b)
|
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (
Indemnity to the Security Agent
) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15
|
MITIGATION BY THE FINANCE PARTIES
|
15.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (
Illegality
), Clause 12 (
Tax Gross Up and Indemnities
), Clause 13 (
Increased Costs
) or paragraph (a) of Clause 14.3 (
Mandatory Cost
) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2
|
Limitation of liability
|
(a)
|
Each Obligor shall, on demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (
Mitigation
).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 15.1 (
Mitigation
) if either:
|
(i)
|
a Default has occurred and is continuing; or
|
(ii)
|
in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
(a)
|
this Agreement and any other documents referred to in this Agreement (including for the avoidance of doubt any ECA Support) or in a Security Document; and
|
(b)
|
any other Transaction Documents or ECA Support executed after the date of this Agreement.
|
16.2
|
Amendment costs
|
(a)
|
an Obligor requests an amendment, waiver or consent; or
|
(b)
|
an amendment is required pursuant to Clause 36.9 (
Change of currency
); or
|
(c)
|
an Obligor requests, and the Security Agent agrees to, the release of all or any part of the Security Assets from the Transaction Security,
|
16.3
|
Enforcement and preservation costs
|
17
|
GUARANTEE AND INDEMNITY – PARENT GUARANTOR
|
17.1
|
Guarantee and indemnity
|
(a)
|
guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Finance Documents;
|
(b)
|
undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Parent Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and
|
(c)
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Parent Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (
Guarantee and Indemnity – Parent Guarantor
) if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2
|
Continuing guarantee
|
17.3
|
Reinstatement
|
17.4
|
Waiver of defences
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g)
|
any insolvency or similar proceedings.
|
17.5
|
Immediate recourse
|
17.6
|
Appropriations
|
(a)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured 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 the Parent Guarantor shall not be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from the Parent Guarantor or on account of the Parent Guarantor's liability under this Clause 17 (
Guarantee and Indemnity – Parent Guarantor
).
|
17.7
|
Deferral of Parent Guarantor's rights
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d)
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Parent Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (
Guarantee and indemnity
);
|
(e)
|
to exercise any right of set-off against any Obligor; and/or
|
(f)
|
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
|
17.8
|
Additional security
|
17.9
|
Applicability of provisions of Guarantee to other Security
|
18
|
JOINT AND SEVERAL LIABILITY OF THE BORROWERS
|
18.1
|
Joint and several liability
|
18.2
|
Waiver of defences
|
(a)
|
this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
|
(b)
|
any payment by any ECA under any ECA Support;
|
(c)
|
any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
|
(d)
|
any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document; or
|
(e)
|
any time, waiver or consent granted to, or composition with any other Borrower or other person;
|
(f)
|
the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(g)
|
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 other Borrower 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;
|
(h)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any other person;
|
(i)
|
any 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 any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(j)
|
any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
|
(k)
|
any insolvency or similar proceedings.
|
18.3
|
Principal Debtor
|
18.4
|
Borrower restrictions
|
(a)
|
Subject to paragraph (b) below, during the Security Period no Borrower shall:
|
(i)
|
claim any amount which may be due to it from any other Borrower whether in respect of a payment made under, or matter arising out of, this Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
|
(ii)
|
take or enforce any form of security from any other Borrower for such an amount, or in any way seek to have recourse in respect of such an amount against any asset of any other Borrower; or
|
(iii)
|
set off such an amount against any sum due from it to any other Borrower; or
|
(iv)
|
prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or
|
(v)
|
exercise or assert any combination of the foregoing.
|
(b)
|
If during the Security Period, the Facility Agent, by notice to a Borrower, requires it to take any action referred to in paragraph (a) above in relation to any other Borrower, that Borrower shall take that action as soon as practicable after receiving the Facility Agent's notice.
|
18.5
|
Deferral of Borrowers' rights
|
(a)
|
to be indemnified by any other Borrower; or
|
(b)
|
to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents.
|
19
|
GUARANTEE AND INDEMNITY – HEDGE GUARANTORS
|
19.1
|
Guarantee and indemnity
|
(a)
|
guarantees to each Hedge Counterparty punctual performance by each Borrower of all that Borrower's obligations under the Hedging Agreements;
|
(b)
|
undertakes with each Hedge Counterparty that whenever a Borrower does not pay any amount when due under or in connection with any Hedging Agreement, that Hedge Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and
|
(c)
|
agrees with each Hedge Counterparty that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Hedge Counterparty immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on the date when it would have been due. The amount payable by a Hedge Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 19 (
Guarantee and Indemnity – Hedge Guarantors
) if the amount claimed had been recoverable on the basis of a guarantee.
|
19.2
|
Continuing guarantee
|
19.3
|
Reinstatement
|
19.4
|
Waiver of defences
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g)
|
any insolvency or similar proceedings.
|
19.5
|
Immediate recourse
|
19.6
|
Appropriations
|
(a)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured 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 Hedge Guarantor shall be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from any Hedge Guarantor or on account of any Hedge Guarantor's liability under this Clause 19 (
Guarantee and Indemnity – Hedge Guarantors
).
|
19.7
|
Deferral of Hedge Guarantors' rights
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d)
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Hedge Guarantor has given a guarantee, undertaking or indemnity under Clause 19 (
Guarantee and Indemnity – Hedge Guarantors
);
|
(e)
|
to exercise any right of set-off against any Obligor; and/or
|
(f)
|
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
|
19.8
|
Additional security
|
19.9
|
Applicability of provisions of Guarantee to other Security
|
20
|
REPRESENTATIONS
|
20.1
|
General
|
20.2
|
Status
|
(a)
|
It is a corporation, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction.
|
(b)
|
It and, in relation to the Parent Guarantor, each of its Subsidiaries, has the power to own its assets and carry on its business as it is being conducted.
|
20.3
|
Share capital and ownership
|
(a)
|
Each Borrower has an authorised share capital of 1500 shares of USD1.00 each, all of which have been issued in registered form and all of which shares have been issued fully paid.
|
(b)
|
The legal title to and beneficial interest in the shares in each Borrower is held by the Parent Guarantor, free of any Security (other than Permitted Security) or any other claim.
|
(c)
|
None of the shares in any Borrower is subject to any option to purchase, pre-emption rights or similar rights.
|
20.4
|
Binding obligations
|
20.5
|
Validity, effectiveness and ranking of Security
|
(a)
|
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b)
|
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c)
|
The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first ranking priority or such priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or
pari passu
ranking security.
|
(d)
|
No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.
|
20.6
|
Non-conflict with other obligations
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its constitutional documents; or
|
(c)
|
any contractual or other obligation or restriction which is binding on it or any of its assets.
|
20.7
|
Power and authority
|
(a)
|
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i)
|
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents;
|
(ii)
|
in the case of each Borrower, its registration of the Ship owned by it under its Approved Flag.
|
(b)
|
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party.
|
20.8
|
Validity and admissibility in evidence
|
(a)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(b)
|
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
20.9
|
Governing law and enforcement
|
(a)
|
Subject to the Legal Reservations, the choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b)
|
Subject to the Legal Reservations, any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its Relevant Jurisdictions.
|
20.10
|
Insolvency
|
(a)
|
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 28.8 (
Insolvency proceedings
); or
|
(b)
|
creditors' process described in Clause 28.9 (
Creditors' process
),
|
20.11
|
No filing or stamp taxes
|
(a)
|
registration of each Ship in the relevant ship registry of its Approved Flag, which registration and related fees shall be made and paid promptly and in accordance with the terms of the relevant Finance Documents; and
|
(b)
|
such UCC filings and other filings or registrations as the legal counsels to the Lenders may consider appropriate or desirable, which shall be arranged by the relevant legal counsel to the Lenders (with the cooperation of the Obligors as required) and any fees in relation thereto shall be paid promptly by the Obligors on demand.
|
20.12
|
Deduction of Tax
|
20.13
|
No default
|
(a)
|
No Event of Default and, on the date of this Agreement and on each Utilisation Date, no Default is continuing or might reasonably be expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b)
|
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or to which its assets are subject.
|
20.14
|
No misleading information
|
(a)
|
Any factual information provided by any Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b)
|
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect.
|
20.15
|
Financial Statements
|
(a)
|
The Parent Guarantor’s Original Financial Statements (on a consolidated basis) were prepared in accordance with IFRS consistently applied.
|
(b)
|
The Parent Guarantor’s Original Financial Statements fairly present its financial condition as at the end of the relevant financial year and results of operations during the relevant financial year on a consolidated basis.
|
(c)
|
There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of the Group since 31 December 2015.
|
(d)
|
The Parent Guarantor’s most recent financial statements delivered pursuant to Clause 21.2 (
Financial statements
):
|
(i)
|
have been prepared in accordance with Clause 21.4 (
Requirements as to financial statements
); and
|
(ii)
|
fairly present its financial condition as at the end of the relevant financial year and operations during the relevant financial year on a consolidated basis.
|
(e)
|
Since the date of the most recent financial statements delivered pursuant to Clause 21.2 (
Financial statements
) there has been no material adverse change in the business, assets or financial condition of any Obligor.
|
20.16
|
Pari passu ranking
|
20.17
|
No proceedings pending or threatened
|
(a)
|
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected 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 it or any Obligor.
|
(b)
|
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against it or any Obligor.
|
20.18
|
Completeness of the Transaction Documents
|
(a)
|
The copies of the Shipbuilding Contracts and any copy of a Long Term Charter delivered to the Facility Agent before the date of this Agreement are true and complete copies and, to the best of the Obligors’ knowledge and belief, each Shipbuilding Contract and any Long Term Charter is in full force and effect.
|
(b)
|
No material amendments or additions to the Shipbuilding Contracts or any Long Term Charter have been agreed nor have any material rights under any Shipbuilding Contract or any Long Term Charter been waived.
|
20.19
|
No rebates etc.
|
20.20
|
Valuations
|
(a)
|
All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation delivered to the Facility Agent in accordance with this Agreement was true and accurate as at the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b)
|
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.
|
(c)
|
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect.
|
20.21
|
No breach of laws
|
20.22
|
Compliance with Environmental Laws and Social Laws
|
20.23
|
No Environmental Claim or Social Claim
|
(a)
|
No Environmental Claim or Social Claim has been made or, to the knowledge of the Obligors, threatened against any Borrower or any Ship.
|
(b)
|
No Environmental Claim which could reasonably be expected to:
|
(i)
|
exceed USD 250,000; or
|
(ii)
|
result in a Material Adverse Effect,
|
20.24
|
No Environmental Incident or Social Incident
|
20.25
|
ISM and ISPS Code compliance
|
20.26
|
Taxes paid
|
(a)
|
It is not materially overdue in the filing of any Tax returns and it is not 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 it with respect to Taxes.
|
20.27
|
Financial Indebtedness
|
20.28
|
Overseas companies
|
20.29
|
Good title to assets
|
20.30
|
Ownership
|
(a)
|
With effect on and from the Delivery Date of a Ship, the relevant Borrower who owns that Ship will be the sole legal and beneficial owner of that Ship, its Earnings and its Insurances.
|
(b)
|
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 Transaction Security created or intended to be created by such Obligor.
|
(c)
|
The constitutional documents of each Obligor do not and could not restrict or inhibit any transfer of the shares of the Borrowers on creation or enforcement of the security conferred by the Security Documents.
|
20.31
|
Centre of main interests and establishments
|
20.32
|
Place of business
|
(a)
|
For purposes of the UCC, the Parent Guarantor has only one place of business located at, or, if it has more than one place of business, the chief executive office from which it manages the main part of its business operations and conducts its affairs is located at 9, Boulevard Charles, III Monaco 98000.
|
(b)
|
The Parent Guarantor does not have a place of business in the U.S., the District of Columbia, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the U.S, other than its representative office at 150 East 58
th
Street, New York, New York, 10155.
|
20.33
|
No employee or pension arrangements
|
20.34
|
Sanctions
|
(a)
|
No Obligor:
|
(i)
|
is a Prohibited User;
|
(ii)
|
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited User;
|
(iii)
|
owns or controls a Prohibited User; or
|
(iv)
|
has a Prohibited User serving as a director, officer or, to the best of its knowledge, employee in breach of Sanctions.
|
(b)
|
No proceeds of any Advance or the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited User in breach of Sanctions nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
20.35
|
ECA conditions
|
20.36
|
No Charter
|
20.37
|
Repetition
|
21
|
INFORMATION UNDERTAKINGS
|
21.1
|
General
|
21.2
|
Financial statements
|
(a)
|
as soon as they become available, but in any event within 120 days after the end of each financial year of the Parent Guarantor, the audited consolidated financial statements of the Parent Guarantor for that financial year;
|
(b)
|
as soon as the same become available, but in any event within 60 days after the end of each quarter (other than the fourth quarter) of each financial year of the Parent Guarantor, the consolidated financial statement of the Parent Guarantor for that financial quarter year; and
|
(c)
|
as soon as possible, but in no event later than 90 days after the end of each financial year of the Parent Guarantor, a budget in a format approved by the Facility Agent (including P&L, balance sheet and cash flow forecast) during the next financial year of the Parent Guarantor
|
21.3
|
Compliance Certificate
|
(a)
|
The Parent Guarantor shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a)(ii) or paragraph (b)(ii) of Clause 21.2 (
Financial statements
), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 22 (
Financial Covenants
) and, when applicable, Clause 26.2 (
Minimum required security cover
) as at the date as at which those financial statements were drawn up.
|
(b)
|
Each Compliance Certificate shall be signed by an authorised signatory for the Parent Guarantor.
|
21.4
|
Requirements as to financial statements
|
(a)
|
Each set of financial statements delivered pursuant to Clause 21.2 (
Financial statements
) shall be certified by an officer of the relevant company as fairly presenting its financial condition and operations as at the date as at which those financial statements were drawn up.
|
(b)
|
The Obligors shall procure that each set of financial statements delivered pursuant to Clause 21.2 (
Financial statements
) is prepared using IFRS.
|
(c)
|
In relation to any set of financial statements, if any Obligor notifies the Facility Agent that there has been a change in IFRS, the accounting practices or reference periods and its auditors, it shall deliver to the Facility Agent:
|
(i)
|
a description of any change necessary for those financial statements to reflect IFRS, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
(ii)
|
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders 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 that Obligor's Original Financial Statements.
|
21.5
|
Information: miscellaneous
|
(a)
|
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any Obligor, and which would, if adversely determined, have a Material Adverse Effect, and each Obligor shall take all steps necessary to defend such litigation, arbitration or administrative proceedings in good faith and shall inform the Facility Agent of any such actions unless it cannot be considered material in the context of the Finance Documents;
|
(c)
|
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which is made against any Obligor and which might have a Material Adverse Effect;
|
(d)
|
promptly, its constitutional documents where these have been amended or varied (it being understood that no amendment or variation of any constitutional documents which might have a Material Adverse Effect shall be permitted);
|
(e)
|
promptly, such further information and/or documents regarding:
|
(i)
|
each Ship, goods transported on each Ship, its Earnings and its Insurances;
|
(ii)
|
the Security Assets;
|
(iii)
|
compliance of the Obligors with the terms of the Finance Documents;
|
(iv)
|
the financial condition, assets and operations of any Obligor,
|
(f)
|
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it or as may be required by any regulatory authority.
|
21.6
|
Notification of Default
|
(a)
|
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b)
|
Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility 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).
|
21.7
|
Use of websites
|
(a)
|
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "
Website Lenders
") which accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (the "
Designated Website
") if:
|
(i)
|
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii)
|
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii)
|
the information is in a format previously agreed between the relevant Obligor and the Facility Agent.
|
(b)
|
The Facility 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 Obligors or any of them and the Facility Agent.
|
(c)
|
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
(i)
|
the Designated Website cannot be accessed due to technical failure;
|
(ii)
|
the password specifications for the Designated Website change;
|
(iii)
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv)
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v)
|
if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d)
|
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors shall comply with any such request within 10 Business Days.
|
21.8
|
"Know your customer" checks
|
(a)
|
If:
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii)
|
any change in the status of an Obligor (including, without limitation, a change of ownership of an Obligor) after the date of this Agreement; or
|
(iii)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b)
|
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order for that Servicing Party 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.
|
22
|
FINANCIAL COVENANTS
|
22.1
|
General
|
22.2
|
Minimum Liquidity
|
22.3
|
Minimum Tangible Net Worth
|
(a)
|
25 per cent. of the Parent Guarantor’s cumulative, positive Consolidated Net Income for each fiscal quarter commencing on or after January 1, 2016; and
|
(b)
|
50 per cent. of the value of the equity proceeds realized from any issuance of equity interests in the Parent Guarantor occurring on or after January 1, 2016.
|
22.4
|
Maximum Leverage
|
22.5
|
Minimum Interest Coverage
|
23
|
GENERAL UNDERTAKINGS
|
23.1
|
General
|
23.2
|
Authorisations
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b)
|
supply certified copies to the Facility Agent of,
|
(i)
|
perform its obligations under the Transaction Documents to which it is a party;
|
(ii)
|
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Ship, of any Transaction Document to which it is a party; and
|
(iii)
|
own and operate each Ship (in the case of the Borrowers).
|
23.3
|
Compliance with laws
|
23.4
|
Anti-bribery, anti-corruption and anti-money laundering
|
(a)
|
Each Obligor confirms:
|
(i)
|
that it is acting for its own account in relation to the Facilities and in relation to the performance and discharge of its obligations and liabilities under the Finance Documents or any Hedging Agreement, and the transactions and other arrangements affected or contemplated by the Finance Documents or any Hedging Agreement to which it is a party;
|
(ii)
|
that it will use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified in this Agreement; and
|
(iii)
|
that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council).
|
(b)
|
Each Obligor shall conduct its businesses in compliance with all applicable anti-corruption laws or applicable laws on Corrupt Practices and maintain policies and procedures designed to promote and achieve compliance with such laws.
|
(c)
|
No Obligor shall, and shall ensure that none of its Affiliates or respective officers, directors or employees will offer, give, insist on, receive or solicit any illegal payment or improper advantage to influence the action of any person in connection with the this Agreement in breach of applicable anti-corruption laws.
|
(d)
|
Each Obligor confirms that it is aware of Sections 387–389, cf. Section 15 of the Norwegian Penal Code of 2005 (No.
straffeloven
) (the “
Penal Code
”) pursuant to which corruption and participation in corruption may be charged with penalties of fines or up to three years of imprisonment or up to 10 years of imprisonment in severe cases and that the Penal Code criminalises corruption in the public as well as the private sector.
|
23.5
|
Environmental and social compliance
|
(a)
|
comply with all Environmental Laws and Social Laws;
|
(b)
|
obtain, maintain and ensure compliance with all requisite Environmental and Social Approvals;
|
(c)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law or Social Law,
|
23.6
|
Environmental Claims and Social Claims
|
(a)
|
any Environmental Claim and Social Claim against any Obligor which is current, pending or threatened; and
|
(b)
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim and Social Claim being commenced or threatened against any Obligor,
|
23.7
|
Taxation
|
(a)
|
Each Obligor shall 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:
|
(i)
|
such payment is being contested in good faith;
|
(ii)
|
adequate reserves are maintained for those Taxes and the costs required to contest them and both have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 21.2 (
Financial statements
); and
|
(iii)
|
such payment can be lawfully withheld.
|
(b)
|
No Obligor shall change its residence for Tax purposes.
|
23.8
|
Overseas companies
|
23.9
|
Pari passu ranking
|
23.10
|
Title
|
(a)
|
With effect from the Delivery Date in respect of each Ship, the relevant Borrower who owns that Ship shall hold the legal title to, and own the entire beneficial interest in that Ship, its Earnings and its Insurances;
|
(b)
|
With effect on and from its creation or intended creation, each Obligor shall hold the legal title to, and own the entire beneficial interest in any other assets the subject of any Transaction Security created or intended to be created by such Obligor.
|
23.11
|
Negative pledge
|
(a)
|
No Borrower shall create or permit to subsist any Security over any of its assets.
|
(b)
|
The Parent Guarantor shall not create or permit to subsist any Security over any of its assets which are the subject of the Security created or intended to be created by the Finance Documents.
|
(c)
|
No Borrower shall:
|
(i)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an;
|
(ii)
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii)
|
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
|
(iv)
|
enter into any other preferential arrangement having a similar effect,
|
(d)
|
Paragraphs (a) to (c) above do not apply to any Permitted Security.
|
23.12
|
Disposals
|
(a)
|
No Borrower shall 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 (including without limitation any Ship, its Earnings or its Insurances).
|
(b)
|
Paragraph (a) above does not apply to:
|
(i)
|
any Charter as all Charters are subject to Clause 25.15 (
Restrictions on chartering
); or
|
(ii)
|
any sale of a Ship on arm’s length if the Borrowers can demonstrate prior to such sale to the Facility Agent's satisfaction that the net proceeds of such sale shall be sufficient to enable the relevant Borrower to comply with its mandatory prepayment obligation under Clause 7.7 (
Mandatory prepayment on sale or Total Loss
) and, upon such sale, the net proceeds of such sale are sufficient to enable the relevant Borrower to comply with its mandatory prepayment obligation under Clause 7.7 (
Mandatory prepayment on sale or Total Loss
); or
|
(iii)
|
any demurrage claim as the Borrower shall always be able to deal with prior to an Event of Default which is continuing.
|
23.13
|
Merger
|
23.14
|
Change of business
|
(a)
|
The Parent Guarantor shall procure that no change is made to the nature of the business of the Parent Guarantor from that carried on at the date of this Agreement.
|
(b)
|
The Parent Guarantor shall not commence any business other than in connection with or for the purpose of managing, chartering and operating the Ships and any other ships and directly or indirectly owning the equity interests in each Borrower and any other Subsidiaries.
|
(c)
|
No Borrower shall engage in any business other than the ownership, management, chartering and operation of its Ship.
|
23.15
|
Financial Indebtedness
|
(a)
|
No Borrower shall incur or permit to be outstanding any Financial Indebtedness (including any intra-group Financial Indebtedness) except Permitted Financial Indebtedness or other liabilities or obligations reasonably incurred in the ordinary course of operating, maintaining and chartering its Ship.
|
(b)
|
Intra-Group Loans shall only be permitted to the extent each Intra-Group Loan shall:
|
(i)
|
not require payment of interest during the Security Period;
|
(ii)
|
mature at least one year after the expiry of the Security Period;
|
(iii)
|
be unsecured;
|
(iv)
|
be subject to an assignment under the Shares Security and Assignment of Intra-Group Loan Receivables and subordinated, in terms of payment and priority, to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Facility Agent,
|
(c)
|
The Parent Guarantor shall not incur or permit to be outstanding any Financial Indebtedness after the date of this Agreement unless:
|
(i)
|
it is in compliance with the provisions of Clause 22 (
Financial Covenants
); and
|
(ii)
|
no Event of Default has occurred and is continuing or would result as a result thereof.
|
23.16
|
Expenditure
|
23.17
|
Share capital
|
(a)
|
purchase, cancel or redeem any of its share capital;
|
(b)
|
increase or reduce its authorised share capital;
|
(c)
|
issue any further shares except to the Parent Guarantor and provided such new shares are made subject to the terms of the Shares Security applicable to that Borrower immediately upon the issue of such new shares in a manner satisfactory to the Facility Agent and the terms of that Shares Security are complied with;
|
(d)
|
appoint any further director or officer of that Borrower (unless the provisions of the Shares Security applicable to that Borrower are complied with).
|
23.18
|
Dividends
|
(a)
|
No Borrower shall make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital where there is an Event of Default which is continuing or where the making or payment of such dividend or distribution would result in the occurrence of an Event of Default.
|
(b)
|
The Parent Guarantor shall not make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital where there is an Event of Default which is continuing or where the making or payment of such dividend or distribution would result in the occurrence of an Event of Default.
|
23.19
|
Other transactions
|
(a)
|
No Borrower shall:
|
(i)
|
be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted Financial Indebtedness;
|
(ii)
|
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Borrower assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents or other obligations reasonably incurred in the ordinary course of operating, maintaining and chartering its Ship.
|
(iii)
|
enter into any material agreement other than:
|
(A)
|
the Transaction Documents;
|
(B)
|
any other agreement expressly allowed under any other term of this Agreement; and
|
(iv)
|
enter into any transaction on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at arms' length; or
|
(v)
|
acquire any shares or other securities.
|
(b)
|
The Parent Guarantor shall not enter into any material transactions on terms which are less favourable to it than those which it could obtain in a bargain made at arms' length.
|
23.20
|
Unlawfulness, invalidity and ranking; Security imperilled
|
(a)
|
make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents;
|
(b)
|
cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable;
|
(c)
|
cause any Transaction Document to cease to be in full force and effect;
|
(d)
|
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e)
|
imperil or jeopardise the Transaction Security.
|
23.21
|
No immunity
|
23.22
|
Compliance with ECA Support
|
(a)
|
No Obligor shall act (or omit to act) in a manner that is inconsistent with or which could result in a breach of any requirement of any ECA under or in connection with any ECA Support and, in particular:
|
(i)
|
each Obligor shall do all that is reasonably necessary and within its control to ensure that all requirements of any ECA under or in connection with its ECA Support are complied with;
|
(ii)
|
each Obligor will cooperate with the Facility Agent and the ECA Agent to take all steps necessary on the part of the Obligors (or any of them) to ensure that all ECA Support remains in full force and effect throughout the Security Period; and
|
(iii)
|
each Obligor will use reasonable efforts to assist the ECA Agent in making any claim under any ECA Support.
|
(b)
|
Each Obligor shall promptly:
|
(i)
|
notify the Facility Agent and the ECA Agent promptly after it becomes aware of the occurrence of any Default or Event of Default;
|
(ii)
|
provide copies of all financial or other information reasonably required by the Facility Agent and/or the ECA Agent to satisfy any request for information by any ECA pursuant to its ECA Support. Each Obligor agrees that it shall be reasonable for the Facility Agent and/or the ECA Agent to make a request under this Clause 23.22 (
Compliance with ECA Support
) if it is required to do so as a condition of maintaining the ECA Support in full force and effect.
|
(c)
|
The Parent Guarantor shall:
|
(i)
|
15 Business Days prior to each Utilisation Date (other than the first Utilisation Date) issue a certificate (in the form set out in Schedule 13 (
Working Conditions Side Letter CP Certificate
) declaring that the Working Conditions Side Letter remains in full force and effect and that the Parent Guarantor is in compliance with its terms; and
|
(ii)
|
no later than 30 Business Days after the final Utilisation Date under this Agreement provide a copy of the completion report required to be provided pursuant to the Working Conditions Side Letter to GIEK.
|
23.23
|
Further assurance
|
(a)
|
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)):
|
(i)
|
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of any of the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii)
|
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii)
|
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv)
|
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b)
|
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
24
|
INSURANCE UNDERTAKINGS
|
24.1
|
General
|
24.2
|
Maintenance of obligatory insurances
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
(b)
|
hull interest and/or freight interest;
|
(c)
|
freight, demurrage & defence risks;
|
(d)
|
war risks (including acts of terrorism and piracy and the amended version of AHIS Addendum (April 1 1984) and similar arrangements);
|
(e)
|
protection and indemnity risks (including liability for oil pollution and excess war risk protection and indemnity cover); and
|
(f)
|
any other risks against which the Facility Agent acting on the instructions of the Majority Lenders and the ECAs considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable for that Borrower to insure and which are specified by the Facility Agent by notice to that Borrower.
|
24.3
|
Terms of obligatory insurances
|
(a)
|
in dollars;
|
(b)
|
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
|
(i)
|
120 per cent. of the Ship Loan relating to the Ship owned by it; and
|
(ii)
|
the Market Value of that Ship;
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market, as of the date of this Agreement not to be less than USD 1,000,000,000;
|
(d)
|
in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
|
(e)
|
on approved terms; and
|
(f)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
24.4
|
Further protections for the Finance Parties
|
(a)
|
subject always to paragraph (b), name that Borrower as the sole named insured unless the interest of every other named insured is limited:
|
(i)
|
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A)
|
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B)
|
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii)
|
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b)
|
whenever the Facility Agent requires, name (or be amended to name) the Security Agent as additional named insured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(d)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(e)
|
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(f)
|
provide that the Security Agent may make proof of loss if that Borrower fails to do so.
|
24.5
|
Renewal of obligatory insurances
|
(a)
|
at least seven days before the expiry of any obligatory insurance effected by it:
|
(i)
|
notify the Facility Agent of the approved brokers (or other insurers) and any protection and indemnity or war risks association through or with which it proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii)
|
obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i) above;
|
(b)
|
at least five days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval pursuant to paragraph (a) above; and
|
(c)
|
procure that the approved brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
|
24.6
|
Copies of policies; letters of undertaking
|
(a)
|
pro forma
copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b)
|
a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the approved brokers that:
|
(i)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 24.4 (
Further protections for the Finance Parties
);
|
(ii)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii)
|
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv)
|
they will, if they have not received notice of renewal instructions from the relevant Borrower or its agents, notify the Security Agent not less than five days before the expiry of the obligatory insurances;
|
(v)
|
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and
|
(vii)
|
they will arrange for a separate policy to be issued in respect of the Ship owned by that Borrower forthwith upon being so requested by the Facility Agent.
|
24.7
|
Copies of certificates of entry
|
(a)
|
a certified copy of the certificate of entry for that Ship;
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c)
|
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.
|
24.8
|
Deposit of original policies
|
24.9
|
Payment of premiums
|
24.10
|
Guarantees
|
24.11
|
Compliance with terms of insurances
|
(a)
|
No Borrower shall do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part.
|
(b)
|
Without limiting paragraph (a) above, each Borrower shall:
|
(i)
|
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 24.6 (
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior approval;
|
(ii)
|
not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it unless approved by the underwriters of the obligatory insurances;
|
(iii)
|
make all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation) and, if so requested by the Facility Agent acting reasonably, provide copies of such declarations to the Facility Agent on an annual basis; and
|
(iv)
|
not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
24.12
|
Alteration to terms of insurances
|
24.13
|
Settlement of claims
|
(a)
|
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty without consent of the Facility Agent (acting on the authorisation of the Majority Lenders, which authorisation shall not be unreasonably withheld); and
|
(b)
|
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
24.14
|
Provision of copies of communications
|
(a)
|
the approved brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters,
|
(i)
|
that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii)
|
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
24.15
|
Provision of information
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause 24.16 (
Mortgagee's interest, additional perils and interest insurances
) or dealing with or considering any matters relating to any such insurances,
|
24.16
|
Mortgagee's interest, additional perils and interest insurances
|
(a)
|
The Security Agent shall effect, maintain and renew a mortgagee's interest marine insurance, a mortgagee's interest additional perils insurance and a mortgagee's interest insurance in such amounts (for a value of no less than 120 per cent. of the Loan), on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b)
|
The Obligors shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
25
|
GENERAL SHIP UNDERTAKINGS
|
25.1
|
General
|
25.2
|
Ships' names and registration
|
(a)
|
keep that Ship registered in its name under an Approved Flag from time to time at its port of registration;
|
(b)
|
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
|
(c)
|
not change the name of that Ship,
|
(i)
|
the prior written consent of the Majority Lenders and the ECAs (not to be unreasonably withheld or delayed in relation to a flag that is an Approved Flag);
|
(ii)
|
that Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage on that Ship and on such other terms and in such other form as the Facility Agent, acting with the authorisation of the Lenders, shall approve or require; and
|
(iii)
|
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of the Lenders, shall approve or require.
|
25.3
|
Repair and classification
|
(a)
|
Each Borrower shall keep the Ship owned by it in a good and safe condition and state of repair:
|
(i)
|
consistent with first class ship ownership and management practice; and
|
(ii)
|
so as to maintain the Approved Classification free of overdue recommendations and conditions.
|
(b)
|
Each Borrower shall, in relation to the Ship owned by it, instruct the Approved Classification Society (and in the case of dual classification, only the primary classification society):
|
(i)
|
to send to the Facility Agent, following receipt of a written at the request of the Facility Agent (acting on the instructions of any Lender or ECA), certified true copies of all original class records held by the Approved Classification Society in relation to that Ship; and
|
(ii)
|
to allow the Facility Agent (or its agents), at any time and from time to time, to inspect the original class and related records of that Borrower and that Ship at the offices of the Approved Classification Society and to take copies of them and share those copies with the Lenders and the ECAs.
|
25.4
|
Modifications
|
25.5
|
Removal and installation of parts
|
(a)
|
Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any item of equipment installed on any Ship unless:
|
(i)
|
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;
|
(ii)
|
the replacement part or item is free from any Security in favour of any person other than the Security Agent; and
|
(iii)
|
the replacement part or item becomes, on installation on that Ship, the property of that Borrower and subject to the security constituted by the Mortgage on that Ship.
|
(b)
|
A Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that Borrower.
|
25.6
|
Surveys
|
25.7
|
Inspection
|
(a)
|
Each Borrower shall permit (and shall procure that any Approved Ship Manager and any charterer or operator of the Ship owned by it shall permit) the Security Agent (acting through surveyors or other persons appointed by it for that purpose) to board the Ship owned by it once a year at the expense of that Borrower on an annual basis (which inspection shall not disrupt the normal running, management or operations and trading pattern of that Ship) to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections.
|
(b)
|
If a Default has occurred, the inspections referred to in paragraph (a) above may be conducted at any time and on any number of occasions and at the expense of that Borrower.
|
25.8
|
Prevention of and release from arrest
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;
|
(b)
|
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
|
(c)
|
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
|
25.9
|
Compliance with laws etc.
|
(a)
|
comply, or procure compliance with all laws or regulations:
|
(i)
|
relating to its business generally; and
|
(ii)
|
relating to the Ship owned by it, its ownership, employment, operation, management and registration,
|
(A)
|
the ISM Code, the ISPS Code, all Environmental Laws, all Social Laws and the laws of the Approved Flag if failure to so comply has or is likely to have a Material Adverse Effect; and
|
(B)
|
all Applicable Sanctions;
|
(b)
|
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental and Social Approvals; and
|
(c)
|
without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner contrary to:
|
(i)
|
any law or regulation including but not limited to the ISM Code, the ISPS Code and all Environmental Laws and Social Laws, which has or is likely to have a Material Adverse Effect; or
|
(ii)
|
Sanctions.
|
25.10
|
ISPS Code
|
(a)
|
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain an ISSC for that Ship; and
|
(c)
|
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
25.11
|
Sanctions and Ship trading
|
(a)
|
that the Ship owned by it shall not be used by or for the benefit of a Prohibited User in breach of Sanctions;
|
(b)
|
that such Ship shall not be used in trading in any manner contrary to Sanctions;
|
(c)
|
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation in the Insurances; and
|
(d)
|
that each charterparty in respect of that Ship shall contain, for the benefit of that Borrower, language which broadly gives effect to the provisions of paragraph (c) of Clause 25.9 (
Compliance with laws etc.
) as regards Sanctions.
|
25.12
|
Trading in war zones
|
(a)
|
the prior written consent of the Security Agent acting on the instructions of the Majority Lenders (not to be unreasonably withheld or delayed) has been given; and
|
(b)
|
that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of the Majority Lenders may require.
|
25.13
|
Provision of information
|
(a)
|
that Ship, its employment, position and engagements;
|
(b)
|
the Earnings and payments and amounts due to its master and crew;
|
(c)
|
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Approved Ship Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code,
|
25.14
|
Notification of certain events
|
(a)
|
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c)
|
any requisition of that Ship for hire;
|
(d)
|
any requirement or recommendation made in relation to that Ship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e)
|
any arrest or detention of that Ship or any exercise or purported exercise of any lien on that Ship or the Earnings, such notification to be provided no later than 10 days after such event;
|
(f)
|
any intended dry docking of that Ship;
|
(g)
|
any Environmental Claim and any Social Claim made against that Borrower or in connection with that Ship, or any Environmental Incident and any Social Incident made against that Borrower or in connection with that Ship which would in any of the foregoing cases be likely to result in a Material Adverse Effect (it being agreed by the Parties that this paragraph (g) is a material obligation for the purposes of paragraph (b) of the definition of Material Adverse Effect);
|
(h)
|
any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Ship Manager or otherwise in connection with that Ship; or
|
(i)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
25.15
|
Restrictions on chartering etc.
|
(a)
|
No Borrower shall, in relation to the Ship owned by it:
|
(i)
|
let that Ship on demise charter for any period (or permit any sub-demise charter of that Ship) except with the prior written consent of all the Lenders and the ECAs and subject to the relevant Borrower granting an assignment of its rights and interests in such demise charter and obtaining an assignment of the rights and interests of such demise charterer to the Insurances;
|
(ii)
|
enter into any time, voyage or consecutive voyage charter in respect of that Ship other than a Permitted Charter;
|
(iii)
|
de activate or lay up that Ship; or
|
(iv)
|
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed USD 1,500,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason
.
|
(b)
|
Each Borrower shall, in relation to any Long Term Charter entered into for the Ship owned by it:
|
(i)
|
furnish promptly to the Facility Agent a true and complete copy of that Long Term Charter and any guarantee of that Long Term Charter and a true and complete copy of each material amendment or other modification thereof; and
|
(ii)
|
procure that its rights under that Long Term Charter and any guarantee of that Long Term Charter are assigned under the General Assignment and use commercially reasonable efforts to obtain an acknowledgement executed by the charterer and any charter guarantor and shall deliver any such other documentation in relation thereto as the Security Agent may require.
|
25.16
|
Change of Approved Ship Manager and appointment of Approved Sub-Manager
|
(a)
|
No Borrower shall, in relation to the Ship owned by it:
|
(i)
|
terminate a Management Agreement without the prior written consent of the Facility Agent (acting on the authorisation of the Majority Lenders, such authorisation not to be unreasonably withheld);
|
(ii)
|
appoint a manager of that Ship other than an Approved Ship Manager other than in accordance with this Clause 25.16 (
Change of Approved Ship Manager and appointment of Approved Sub-Manager
).
|
(b)
|
If, in accordance with the terms of this Agreement, there is a change of Approved Ship Manager, the Obligors shall procure that:
|
(i)
|
the relevant Borrower who owns the Ship shall promptly provide the Facility Agent with a copy of the Management Agreement pursuant to which such Approved Ship Manager is to be appointed; and
|
(ii)
|
the new Approved Ship Manager shall provide to the Facility Agent on or prior to the commencement of its appointment, an Approved Ship Manager's Undertaking.
|
(c)
|
Each Borrower shall procure that, in relation to the Ship owned by it, an Approved Ship Manager may only appoint an Approved Sub-Manager in relation to the commercial or technical, as relevant, management of the Ship so long as that Approved Ship Manager continues to remain primarily liable to perform the management responsibilities in relation to that Ship and, if so appointed as Approved Sub-Manager of that Ship, such Approved Sub-Manager shall be appointed on substantially the same terms as that Approved Ship Manager (including provision of an Approved Ship Manager’s Undertaking) and the relevant Obligor shall not, and shall procure that that Approved Ship Manager shall not, agree to any material alteration to the terms of the Approved Sub-Manager’s appointment.
|
(d)
|
If:
|
(i)
|
an Approved Ship Manager or an Approved Sub-Manager breaches any provision of its Approved Ship Manager's Undertaking which the Facility Agent considers material; and
|
(ii)
|
the relevant Borrower that owns the relevant Ship fails within a period of 15 days of it becoming aware of the occurrence of such circumstance or breach or of the receipt of a written notification from the Facility Agent requesting it to remedy such circumstance or breach,
|
25.17
|
Notice of Mortgage
|
25.18
|
Sharing of Earnings
|
25.19
|
Green Passport
|
25.20
|
Scrapping policy
|
25.21
|
Notification of compliance
|
26
|
SECURITY COVER
|
26.1
|
Provision of valuations
|
(a)
|
Each Borrower shall obtain two valuations to be provided on or about 31 December and two valuations to be provided on or about 30 June of each financial year (and in each case, each valuation to be dated within 4 weeks from either 31 December or 30 June, as the case may be) of the Ship owned by it and any other vessel over which additional Security has been created in accordance with Clause 26.4
(Value of additional vessel security
), from Approved Valuers, to enable the Facility Agent to determine the Market Value of that Ship or vessel, on or about 31 December and 30 June of each financial year (with such valuations being provided together with a Compliance Certificate under Clause 21.3 (
Compliance Certificate
)) and, upon the occurrence of an Event of Default which is continuing, at such other times as the Facility Agent may request.
|
(b)
|
In addition, the Lenders (acting reasonably) shall be entitled to instruct the Facility Agent to arrange for valuations of a Ship and any other vessel over which additional Security has been created in accordance with Clause 26.4
(Value of additional vessel security
), to be carried out at any time to determine the Market Value of that Ship or vessel, which valuations shall be obtained at the cost of the Lenders unless the valuations evidence a breach of the threshold required under Clause 26.2 (
Minimum required security cover
) in which case the valuations shall be at the cost of the Obligors.
|
26.2
|
Minimum required security cover
|
(i)
|
the aggregate Market Value of each Ship then subject to a Mortgage; plus
|
(ii)
|
the net realisable value of additional Security previously provided under this Clause 26 (
Security Cover
),
|
26.3
|
Provision of additional security; prepayment
|
(a)
|
If the Facility Agent serves a notice on the Borrowers under Clause 26.2 (
Minimum required security cover
), the Borrowers shall, on or before the date falling 20 days after the date (the "
Prepayment Date
") on which the Facility Agent's notice is served, prepay such part of the Loan as shall eliminate the shortfall.
|
(b)
|
A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders and the ECAs:
|
(i)
|
has a net realisable value at least equal to the shortfall; and
|
(ii)
|
is documented in such terms as the Facility Agent may approve or require,
|
26.4
|
Value of additional vessel security
|
26.5
|
Valuations binding
|
26.6
|
Provision of information
|
(a)
|
Each Borrower shall promptly provide the Facility Agent and any Approved Valuer acting under this Clause 26 (
Security Cover
) with any information which the Facility Agent or that Approved Valuer may request for the purposes of the valuation.
|
(b)
|
If a Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved Valuer or the Facility Agent considers prudent.
|
26.7
|
Prepayment mechanism
|
26.8
|
Release of additional security
|
(a)
|
the aggregate of the Market Value of each Ship then subject to a Mortgage; plus
|
(b)
|
net realisable value of additional security previously provided under Clause 26.3 (
Provision of additional security; prepayment
),
|
27
|
ACCOUNTS, APPLICATION OF EARNINGS AND HEDGE RECEIPTS
|
27.1
|
Earnings Account and Retention Account
|
27.2
|
Debt Service Reserve Account
|
(a)
|
The Parent Guarantor shall:
|
(i)
|
no later than the date of the first Utilisation Request under this Agreement, open a Debt Service Reserve Account in respect of the Ships; and
|
(ii)
|
before each Utilisation Date in relation to a Ship under this Agreement, deposit an amount equal to or greater than the Debt Service in relation to the Ship for which that Utilisation relates into the Debt Service Reserve Account (and the Facility Agent shall provide an invoice specifying that amount not less than two Business Days prior to that Utilisation Date).
|
(b)
|
In this Clause 27.2 (
Debt Service Reserve Account
), "
Debt Service
" means, at any date of determination under this Agreement, the aggregate amount of the Repayment Instalments and accrued interest (based on the then current LIBOR rate), in each case falling due under this Agreement on the next Repayment Date and Interest Payment Date.
|
27.3
|
Payment of Earnings
|
27.4
|
Monthly retentions
|
(a)
|
one-third of the amount of any Repayment Instalment falling due under Clause 6.1 (
Repayment of Loan
) on the next Repayment Date; and
|
(b)
|
the relevant fraction of the aggregate amount of interest on the Loan which is payable under this Agreement in respect of any Interest Period then current; and
|
(c)
|
if applicable, the relevant fraction of the aggregated net amount which is payable by any Borrower to any Hedge Counterparty under any Hedging Agreement on the next due date for payment of such amount under the relevant Hedging Agreement.
|
(i)
|
the numerator is one; and
|
(ii)
|
the denominator is:
|
(A)
|
the number of months comprised in the relevant then current Interest Period; or
|
(B)
|
if the period is shorter, the number of months from the later of the commencement of the relevant current Interest Period or the last due date for payment of interest on the Loan or the relevant part of the Loan to the next due date for payment of interest on the Loan or the relevant part of the Loan under this Agreement.
|
27.5
|
Shortfall in Earnings
|
(a)
|
If the credit balance on a Borrower’s Earnings Account is insufficient in any calendar month for the required amount to be transferred to its Retention Account under Clause 27.4 (
Monthly retentions
), the Borrowers shall procure that the amount of the insufficiency is made up on such date as it makes the transfer under Clause 27.4 (
Monthly retentions
).
|
(b)
|
Without prejudicing the Facility Agent's right to make such demand at any time, the Facility Agent may, if so authorised by the Majority Lenders, permit the relevant Borrower to make up all or part of the insufficiency by increasing the amount of any transfer under Clause 27.4 (
Monthly retentions
) from the Earnings received by it in the next or subsequent calendar months.
|
27.6
|
Application of retentions
|
(a)
|
The Security Agent has sole signing rights in relation to the Retention Accounts.
|
(b)
|
Until an Event of Default occurs, the Facility Agent shall instruct the Security Agent to release to it, on each Repayment Date and on each Interest Payment Date in respect of a Ship Loan, for distribution to the Finance Parties in accordance with Clause 36.2 (
Distributions by the Facility Agent
) so much of the then balance on the Retention Account relative to that Ship as equals:
|
(i)
|
any Repayment Instalment due on that Repayment Date; and
|
(ii)
|
the amount of interest payable on that Interest Payment Date,
|
27.7
|
Right to apply amounts on Earnings Accounts, Retention Accounts and Debt Service Reserve Account
|
(a)
|
to withdraw all or any part of the amount standing to the credit of any Earnings Account, any Retention Account or the Debt Service Reserve Account and to use the amount withdrawn in or towards discharging the Secured Liabilities; and/or
|
(b)
|
to transfer or remit all or any part of the amount standing to the credit of any Earnings Account, any Retention Account or the Debt Service Reserve Account to any Secured Party up to the amount of the Secured Liabilities to, or for the benefit of, that Secured Party,
|
27.8
|
Release of accrued interest
|
27.9
|
Restrictions on dealing with the Accounts
|
(a)
|
Subject to the provisions of this Clause 27 (
Accounts, application of Earnings and Hedge Receipts
), each Borrower shall be entitled to withdraw, transfer and in other ways deal with all or any part of the amount standing to the credit of its Earnings Account so long as no Event of Default has occurred and for so long as the same is continuing.
|
(b)
|
No Obligor shall attempt to withdraw, transfer or in any other way deal with all or any part of the amount standing to the credit of any Retention Account or the Debt Service Reserve Account.
|
(c)
|
No Obligor shall purport to give any authorisation or instruction to the Account Bank or the Facility Agent concerning any Retention Account or the Debt Service Reserve Account in conflict with this Clause 27 (
Accounts, application
of Earnings
and Hedge Receipts
).
|
(d)
|
Each Obligor shall, if so required by the Facility Agent, promptly execute any document which the Facility Agent or the Account Bank may specify for the purpose of, or in connection with, any withdrawal, transfer or other dealing with all or any part of the amount standing to the credit of any Retention Account or the Debt Service Reserve Account.
|
27.10
|
Location of Accounts
|
(a)
|
comply with any requirement of the Facility Agent as to the location or relocation of its Accounts (or any of them); and
|
(b)
|
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) its Accounts.
|
28
|
EVENTS OF DEFAULT
|
28.1
|
General
|
28.2
|
Non-payment
|
(a)
|
its failure to pay is caused by:
|
(i)
|
administrative or technical error; or
|
(ii)
|
a Disruption Event; and
|
(b)
|
payment is made within three Business Days of its due date.
|
28.3
|
Specific obligations
|
28.4
|
Other obligations
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 28.2 (
Non-payment
) and Clause 28.3 (
Specific obligations
)).
|
(b)
|
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of the Facility Agent giving notice to the Borrowers or (if earlier) any Obligor becoming aware of the failure to comply.
|
28.5
|
Misrepresentation
|
28.6
|
Cross default
|
(a)
|
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c)
|
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d)
|
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor 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 28.6 (
Cross default)
if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than:
|
(i)
|
in relation to a Borrower, USD 1,000,000 (or its equivalent in any other currency); or.
|
(ii)
|
in relation to the Parent Guarantor, USD 10,000,000 (or its equivalent in any other currency).
|
28.7
|
Insolvency
|
(a)
|
An Obligor:
|
(i)
|
is unable or admits inability to pay its debts as they fall due;
|
(ii)
|
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
(iii)
|
suspends or threatens to suspend making payments on any of its debts; or
|
(iv)
|
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.
|
(b)
|
The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c)
|
A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
28.8
|
Insolvency proceedings
|
(a)
|
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor;
|
(ii)
|
a composition, compromise, assignment or arrangement with any creditor of any Obligor;
|
(iii)
|
the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Obligor or any of its assets; or
|
(iv)
|
enforcement of any Security over any assets of any Obligor,
|
(b)
|
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 30 days of commencement.
|
28.9
|
Creditors' process
|
28.10
|
Ownership of the Borrowers
|
28.11
|
Unlawfulness, invalidity and ranking
|
(a)
|
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.
|
(b)
|
Any obligation of an Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c)
|
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d)
|
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
28.12
|
Security imperilled
|
28.13
|
Arrest
|
28.14
|
Expropriation
|
(a)
|
an arrest or detention of a Ship referred to in Clause 28.13 (
Arrest
); or
|
(b)
|
any Requisition.
|
28.15
|
Repudiation and rescission of agreements
|
28.16
|
Litigation
|
28.17
|
Material adverse change
|
28.18
|
Termination of ECA Support
|
28.19
|
Acceleration
|
(a)
|
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b)
|
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable;
|
(c)
|
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders; and/or
|
(d)
|
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents,
|
28.20
|
Enforcement of security
|
29
|
CHANGES TO THE LENDERS
|
29.1
|
Assignments and transfers by the Lenders
|
(a)
|
assign any of its rights; or
|
(b)
|
transfer by novation any of its rights and obligations,
|
(i)
|
another bank or financial institution or pension fund; or
|
(ii)
|
in respect of any transfer by a Commercial Lender of its participation or commitment in the Commercial Facility to a trust or fund (other than a pension fund) with the prior written consent of each of the ECAs (such consent not to be unreasonably withheld or delayed),
|
29.2
|
Conditions of assignment or transfer
|
(a)
|
The consent of the Borrowers is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i)
|
to another Lender or an Affiliate of a Lender;
|
(ii)
|
to a bank;
|
(iii)
|
to a financial institution which has, at any time previously, been a Lender;
|
(iv)
|
to an ECA in accordance with Clause 29.10 (
Transfer to an ECA
); or
|
(v)
|
made at a time when an Event of Default is continuing.
|
(b)
|
The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld or delayed. Each Borrower will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by that Borrower within that time.
|
(c)
|
The consent of a Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to any amount payable under Clause 14.3 (
Mandatory Cost
).
|
(d)
|
The consent of the Kexim Guarantor is required for an assignment or transfer by a Kexim Guaranteed Lender (such consent not to be unreasonably withheld or delayed).
|
(e)
|
Macquarie Factoring (UK) Limited may not, without the consent of the ECAs (such consent not to be unreasonably withheld or delayed), transfer its participation in the Commercial Facility A Loan if such transfer would result in Macquarie Factoring (UK) Limited holding less than 33.33 per cent. of the Commercial Facility A Loan outstanding at such time (being an amount of USD 5,000,000 as at the date of the Facility Agreement), unless the assignment or transfer is to Macquarie Bank Limited.
|
(f)
|
The consent of GIEK (such decision not to be unreasonably delayed and consent not to be unreasonably withheld) is required for an assignment or transfer by Macquarie Factoring (UK) Limited in its capacity as a GIEK Guaranteed Lender, unless the assignment or transfer is to Macquarie Bank Limited (in which case Macquarie Factoring (UK) Limited shall provide a written notice to GIEK at least 15 Business Days prior to the date of such assignment or transfer to Macquarie Bank Limited).
|
(g)
|
An assignment will only be effective on:
|
(i)
|
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and
|
(ii)
|
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(h)
|
Each Obligor agrees that all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrowers or any other Obligor had against the Existing Lender.
|
(i)
|
A transfer will only be effective if the procedure set out in Clause 29.5 (
Procedure for transfer
) is complied with.
|
(j)
|
If:
|
(i)
|
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (
Tax Gross Up and Indemnities
) or under that clause as incorporated by reference or in full in any other Finance Document or Clause 13 (
Increased Costs
),
|
(k)
|
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the 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.
|
29.3
|
Assignment or transfer fee
|
29.4
|
Limitation of responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents;
|
(ii)
|
the financial condition of any Obligor;
|
(iii)
|
the performance and observance by any Obligor of its obligations under the Transaction Documents or any other documents; or
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities throughout the Security Period.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(i)
|
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 29 (
Changes to the Lenders
); or
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Transaction Documents or otherwise.
|
29.5
|
Procedure for transfer
|
(a)
|
Subject to the conditions set out in Clause 29.2 (
Conditions of assignment or transfer
), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b)
|
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
Subject to Clause 29.9 (
Pro rata interest settlement
), on the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "
Discharged Rights and Obligations
");
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii)
|
the Facility Agent, the Security Agent, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security 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 Facility Agent, the Security Agent, the Mandated Lead Arrangers and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv)
|
the New Lender shall become a Party as a "Lender".
|
29.6
|
Procedure for assignment
|
(a)
|
Subject to the conditions set out in Clause 29.2 (
Conditions of assignment or transfer
) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(b)
|
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c)
|
Subject to Clause 29.9 (
Pro rata interest settlement
), on the Transfer Date:
|
(i)
|
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii)
|
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 the Transaction Security); and
|
(iii)
|
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilise procedures other than those set out in this Clause 29.6 (
Procedure for assignment
) to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 29.5 (
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 29.2 (
Conditions of assignment or transfer
).
|
29.7
|
Copy of Transfer Certificate or Assignment Agreement to Borrowers
|
29.8
|
Security over Lenders' rights
|
(a)
|
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b)
|
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by 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.
|
29.9
|
Pro rata interest settlement
|
(a)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("
Accrued Amounts
") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the 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 six Monthly intervals 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 to the Existing Lender; and
|
(ii)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 29.9 (
Pro rata interest settlement
), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(c)
|
In this Clause 29.9 (
Pro rata interest settlement
) references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
29.10
|
Transfer to an ECA
|
(a)
|
If an ECA makes a payment under its ECA Support (being the GIEK Guarantee in relation to GIEK and the Kexim Guarantee in relation to the Kexim Guarantor), then, to the extent that it is required to do so by that ECA under that ECA Support, an ECA Guaranteed Lender receiving a payment pursuant to that ECA Support shall, at the cost of the Borrowers and without any requirement for the consent of any Borrower, transfer to that ECA (in accordance with, and subject to, Clause 29.5 (
Procedure for transfer
) a part of its participation in the Loan equal to the amount paid to it by that ECA.
|
(b)
|
A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant ECA Guaranteed Lender to recover any remaining part of its participation in a Loan or any other moneys owing to it under this Agreement or any other Finance Documents.
|
(c)
|
If an ECA makes any payment to an ECA Guaranteed Lender under its ECA Support:
|
(i)
|
the obligations and liabilities of the Obligors (and of any of them) under this Agreement and each of the other Finance Documents shall not be reduced, discharged nor affected in any way;
|
(ii)
|
that ECA shall be entitled to be subrogated to the rights of that ECA Guaranteed Lender against the Obligors under this Agreement and each of the other Finance Documents;
|
(iii)
|
that ECA shall be entitled to the extent of such payment to exercise the rights of that ECA Guaranteed Lender against the Obligors (and against any of them) under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued on it are fully reimbursed to that ECA; and
|
(iv)
|
with respect to the obligations and liabilities of the Obligors owed to that ECA Guaranteed Lender under the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to that ECA by way of subrogation of the rights of that ECA Guaranteed Lender.
|
(d)
|
The Obligors shall indemnify each ECA in respect of any costs or expenses (including legal fees) suffered or incurred by it in connection with any transfer referred to in paragraph (a) above.
|
29.11
|
Additional Hedge Counterparties
|
(a)
|
The Borrowers or a Lender may request that a Lender or a New Lender becomes an Additional Hedge Counterparty, with the prior approval of the Facility Agent and (in the case of a request by a Lender) the Borrowers, by delivering to the Facility Agent a duly executed Hedge Counterparty Accession Letter.
|
(b)
|
The relevant Lender or New Lender will become an Additional Hedge Counterparty when the Facility Agent enters into the relevant Hedge Counterparty Accession Letter.
|
30
|
CHANGES TO THE OBLIGORS
|
30.1
|
Assignment or transfer by Obligors
|
30.2
|
Release of security
|
(a)
|
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i)
|
the disposal is permitted by the terms of any Finance Document;
|
(ii)
|
all the Lenders and the ECAs agree to the disposal;
|
(iii)
|
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv)
|
the disposal is being effected by enforcement of a Security Document,
|
(b)
|
If the Security Agent is satisfied that a release is allowed under this Clause 30.2 (
Release of security
) (at the request and expense of the Borrowers) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Obligor under the Finance Documents.
|
30.3
|
Release of Borrower
|
(a)
|
If a Ship is sold or becomes a Total Loss and the Borrowers repay the Ship Loan to which that Ship relates and any other amount due and outstanding in relation thereto in accordance with Clause 7.7 (
Mandatory prepayment on sale or Total Loss
), the Borrower who owned that Ship may request by written notice to the Facility Agent to be released from all its obligations under the Finance Documents.
|
(b)
|
If the Facility Agent is satisfied (acting on the authorisation of all the Lenders and the ECAs) that no Default has occurred or would result from the proposed release, the Facility Agent shall, following receipt of the notice referred to in paragraph (a) above and at the expense of the Borrowers, arrange for each Finance Party to enter into any document and do all such other things which are reasonably required to achieve that release. Any release will not affect the obligations of any other Obligor under the Finance Documents.
|
31
|
THE FACILITY AGENT AND THE MANDATED LEAD ARRANGERS
|
31.1
|
Appointment of the Facility Agent
|
(a)
|
Each of the Mandated Lead Arrangers, the Lenders and the Hedge Counterparties appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each of the Mandated Lead Arrangers, the Lenders and the Hedge Counterparties authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
31.2
|
Instructions
|
(a)
|
The Facility Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
(b)
|
The Facility 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 Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
Paragraph (a) above shall not apply:
|
(i)
|
where a contrary indication appears in a Finance Document;
|
(ii)
|
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e)
|
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 45 (
Amendments and Waivers
), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g)
|
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties 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 (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h)
|
Without prejudice to the remainder of this Clause 31.2 (
Instructions
), in the absence of instructions, the Facility Agent shall not be obliged to take any action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
|
(i)
|
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
31.3
|
Duties of the Facility Agent
|
(a)
|
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c)
|
Without prejudice to Clause 29.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d)
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e)
|
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f)
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Mandated Lead Arrangers or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g)
|
The Facility 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).
|
31.4
|
Role of the Mandated Lead Arrangers
|
31.5
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Facility Agent or any Mandated Lead Arranger as a trustee or fiduciary of any other person.
|
(b)
|
Neither the Facility Agent nor any Mandated Lead Arranger shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
31.6
|
Application of receipts
|
31.7
|
Business with the Group
|
31.8
|
Rights and discretions
|
(a)
|
The Facility Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 28.2 (
Non-payment
));
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii)
|
any notice or request made by any Borrower is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e)
|
The Facility 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 Facility 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.
|
(f)
|
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g)
|
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor any Mandated Lead Arranger is obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i)
|
Notwithstanding any provision of any Finance Document to the contrary, the Facility 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.
|
31.9
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, any Mandated Lead Arranger, an Obligor or any other person in, or in connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party or Secured 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.
|
31.10
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Obligor of its obligations under any Transaction Document; or
|
(c)
|
whether any other event specified in any Transaction Document has occurred.
|
31.11
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 36.11 (
Disruption to Payment Systems etc.
) or any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c)
|
The Facility 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 Facility Agent if the Facility 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 Facility Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Facility Agent or any Mandated Lead Arranger to carry out:
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Transaction Document or the Security Property 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 Facility 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 Facility Agent at any time which increase the amount of that loss. In no event shall the Facility 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 Facility Agent has been advised of the possibility of such loss or damages.
|
31.12
|
Lenders' indemnity to the Facility Agent
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 36.11 (
Disruption to Payment Systems etc.
) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
31.13
|
Resignation of the Facility Agent
|
(a)
|
The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b)
|
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d)
|
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent) agree with the proposed successor Facility Agent amendments to this Clause 31 (
The Facility Agent and the Mandated Lead Arrangers
) and any other term of this Agreement dealing with the rights or obligations of the Facility 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 Facility Agent's normal fee rates and those amendments will bind the Parties.
|
(e)
|
The retiring Facility Agent shall make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents. The Borrowers shall, within three Business Days of demand, reimburse the retiring Facility Agent for the amount of all reasonable and documented costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(f)
|
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g)
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (
Indemnity to the Facility Agent
) and this Clause 31 (
The Facility Agent and the Mandated Lead Arrangers
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility 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.
|
(h)
|
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above.
|
(i)
|
The consent of the Borrowers shall be required for an assignment or transfer of rights and/or obligations by the Facility Agent (such consent not to be unreasonably withheld or delayed and to be deemed granted within 15 Business Days from the day it has been sought unless it has been expressly refused within that period).
|
(j)
|
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
(i)
|
the Facility Agent fails to respond to a request under Clause 12.7 (
FATCA Information
) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii)
|
the information supplied by the Facility Agent pursuant to Clause 12.7 (
FATCA Information
) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii)
|
the Facility Agent notifies the Borrowers and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
31.14
|
Confidentiality
|
(a)
|
In acting as Facility Agent for the Finance Parties, the Facility 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.
|
(b)
|
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor any Mandated Lead Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
31.15
|
Relationship with the other Finance Parties
|
(a)
|
Subject to Clause 29.9 (
Pro rata interest settlement
), the Facility Agent may treat the person shown in its records as Lender or Hedge Counterparty at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office or, as the case may be, the Hedge Counterparty:
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b)
|
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent and any reference to any instructions being given by or sought from any Finance Party or group of Finance Parties by or to the Security Agent in this Agreement must be given or sought through the Facility Agent.
|
(c)
|
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 39.5 (
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 (or such other information), department and officer by that Lender for the purposes of Clause 39.2 (
Addresses
) and sub-paragraph (ii) of paragraph (a) of Clause 39.5 (
Electronic communication
) and the Facility 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.
|
31.16
|
Credit appraisal by the Finance Parties
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c)
|
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property, including but not limited to any ECA Support;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e)
|
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
31.17
|
Deduction from amounts payable by the Facility Agent
|
31.18
|
Reliance and engagement letters
|
31.19
|
Full freedom to enter into transactions
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
(i)
|
any securities issued or to be issued by any Obligor or any other person; or
|
(ii)
|
any options or other derivatives in connection with such securities; and
|
(c)
|
to provide advice or other services to any Obligor or other member of the Group or any person who is a party to, or referred to in, a Finance Document,
|
32
|
THE SECURITY AGENT
|
32.1
|
Trust
|
(a)
|
The Security Agent declares that it holds the Security Property, save for the Security Property governed by Dutch law, on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 32 (
The Security Agent
) and the other provisions of the Finance Documents.
|
(b)
|
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
32.2
|
Parallel Debt (Covenant to pay the Security Agent)
|
(a)
|
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent an amount equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b)
|
The Parallel Debt of an Obligor:
|
(i)
|
shall become due and payable at the same time as and for the same amount of its Corresponding Debt;
|
(ii)
|
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c)
|
For purposes of this Clause 32.2 (
Parallel Debt (Covenant to pay the Security Agent)
), the Security Agent:
|
(i)
|
is the independent and separate creditor of each Parallel Debt;
|
(ii)
|
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt and any security granting such Parallel Debt shall not be held on trust; and
|
(iii)
|
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d)
|
The Parallel Debt of an Obligor shall be:
|
(i)
|
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii)
|
increased to the extent that its Corresponding Debt has increased,
|
(e)
|
All amounts received or recovered by the Security Agent in connection with this Clause 32.2 (
Parallel Debt (Covenant to pay the Security Agent)
) to the extent permitted by applicable law, shall be applied in accordance with Clause 36.5 (
Application of receipts; partial payments
).
|
(f)
|
This Clause 32.2 (
Parallel Debt (Covenant to pay the Security Agent)
) shall apply, with any necessary modifications, to each Finance Document.
|
32.3
|
Enforcement through Security Agent only
|
32.4
|
Instructions
|
(a)
|
The Security Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders (or the Facility Agent on their behalf) if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders (or the Facility Agent on their behalf); and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
(b)
|
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or the Facility Agent on their behalf) (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
Paragraph (a) above shall not apply:
|
(i)
|
where a contrary indication appears in a Finance Document;
|
(ii)
|
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv)
|
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A)
|
Clause 32.27 (
Application of receipts
);
|
(B)
|
Clause 32.28 (
Permitted Deductions
); and
|
(C)
|
Clause 32.29 (
Prospective liabilities
).
|
(e)
|
If giving effect to instructions given by the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 45 (
Amendments and Waivers
), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i)
|
it has not received any instructions as to the exercise of that discretion; or
|
(ii)
|
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g)
|
The Security Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties 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 (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h)
|
Without prejudice to the remainder of this Clause 32.4 (
Instructions
), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
(i)
|
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
32.5
|
Duties of the Security Agent
|
(a)
|
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c)
|
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d)
|
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e)
|
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
32.6
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor.
|
(b)
|
The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account.
|
32.7
|
Business with the Group
|
32.8
|
Rights and discretions
|
(a)
|
The Security Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents;
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked;
|
(C)
|
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; 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,
|
(b)
|
The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through the Facility Agent and may give to the Facility Agent any notice or other communication required to be given by the Security Agent to any Finance Party.
|
(c)
|
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i)
|
no Default has occurred;
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii)
|
any notice or request made by any Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(d)
|
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(e)
|
Without prejudice to the generality of paragraph (c) above or paragraph (f) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(f)
|
The Security 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 Security 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.
|
(g)
|
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(h)
|
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(i)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not 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.
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Security 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.
|
32.9
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, any Mandated Lead Arranger, an Obligor or any other person in, or in connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Secured 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.
|
32.10
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Obligor of its obligations under any Transaction Document; or
|
(c)
|
whether any other event specified in any Transaction Document has occurred.
|
32.11
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c)
|
The Security 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 Security Agent if the Security 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 Security Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate, any liability of the Security Agent or any Receiver arising under or in connection with any Transaction Document or the Security Property 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 Security Agent, Receiver or Delegate 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 Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate 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 Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
32.12
|
Lenders' indemnity to the Security Agent
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's or Receiver's gross negligence or wilful misconduct) in acting as Security Agent or Receiver under the Finance Documents (unless the Security Agent or Receiver has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
32.13
|
Resignation of the Security Agent
|
(a)
|
The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b)
|
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d)
|
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrowers shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all reasonable and documented costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(e)
|
The Security Agent's resignation notice shall only take effect upon:
|
(i)
|
the appointment of a successor; and
|
(ii)
|
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f)
|
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 32.24 (
Winding up of trust
) and paragraph (d) above) but shall remain entitled to the benefit of Clause 14.5 (
Indemnity to the Security Agent
) and this Clause 32 (
The Security Agent
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security 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.
|
(g)
|
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.
|
(h)
|
The consent of the Borrowers shall be required for an assignment or transfer of rights and/or obligations by the Security Agent (such consent not to be unreasonably withheld or delayed and to be deemed granted within 15 Business Days from the day it has been sought unless it has been expressly refused within that period).
|
32.14
|
Confidentiality
|
(a)
|
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
32.15
|
Credit appraisal by the Finance Parties
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c)
|
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e)
|
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
32.16
|
Reliance and engagement letters
|
32.17
|
No responsibility to perfect Transaction Security
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Security Assets;
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d)
|
take, or to require any Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e)
|
require any further assurance in relation to any Security Document.
|
32.18
|
Insurance by Security Agent
|
(a)
|
The Security Agent shall not be obliged:
|
(i)
|
to insure any of the Security Assets;
|
(ii)
|
to require any other person to maintain any insurance; or
|
(iii)
|
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b)
|
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
32.19
|
Custodians and nominees
|
32.20
|
Delegation by the Security Agent
|
(a)
|
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b)
|
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c)
|
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
32.21
|
Additional Security Agents
|
(a)
|
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i)
|
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii)
|
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii)
|
for obtaining or enforcing any judgment in any jurisdiction,
|
(b)
|
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c)
|
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
32.22
|
Acceptance of title
|
32.23
|
Releases
|
32.24
|
Winding up of trust
|
(a)
|
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(b)
|
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i)
|
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and
|
(ii)
|
any Security Agent which has resigned pursuant to Clause 32.13 (
Resignation of the Security Agent
) shall release, without recourse or warranty, all of its rights under each Security Document.
|
32.25
|
Powers supplemental to Trustee Acts
|
32.26
|
Disapplication of Trustee Acts
|
32.27
|
Application of receipts
|
(a)
|
in discharging any sums owing to the Security Agent (in its capacity as such) (other than pursuant to Clause 32.2 (
Parallel Debt (Covenant to pay the Security Agent)
) or any Receiver or Delegate;
|
(b)
|
in payment or distribution to the Facility Agent, on its behalf and on behalf of the other Secured Parties, for application towards the discharge of all sums due and payable by any Obligor under any of the Finance Documents in accordance with Clause 36.5 (
Application of receipts; partial payments
);
|
(c)
|
if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment or distribution to any person to whom the Security Agent is obliged to pay or distribute in priority to any Obligor; and
|
(d)
|
the balance, if any, in payment or distribution to the relevant Obligor.
|
32.28
|
Permitted Deductions
|
(a)
|
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
|
(b)
|
pay all Taxes which may be assessed against it in respect of any of the Security 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).
|
32.29
|
Prospective liabilities
|
(a)
|
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b)
|
any part of the Secured Liabilities,
|
32.30
|
Investment of proceeds
|
32.31
|
Currency conversion
|
(a)
|
For the purpose of, or pending the discharge of, any of the Secured Liabilities 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.
|
(b)
|
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
32.32
|
Good discharge
|
(a)
|
Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf of the Secured Parties and any payment made in that way shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(b)
|
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
32.33
|
Amounts received by Obligors
|
32.34
|
Application and consideration
|
32.35
|
Full freedom to enter into transactions
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
(i)
|
any securities issued or to be issued by any Obligor or any other person; or
|
(ii)
|
any options or other derivatives in connection with such securities; and
|
(c)
|
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document,
|
33
|
ECA AGENT
|
33.1
|
Appointment and duties of ECA Agent
|
(a)
|
Each GIEK Guaranteed Lender appoints the ECA Agent to act as its agent under and in connection with the GIEK Guarantee and the Finance Documents and each Kexim Guaranteed Lender appoints the ECA Agent to act as its agent under and in connection with the Kexim Guarantee and the Finance Documents.
|
(b)
|
Each ECA Guaranteed Lender authorises the ECA Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the ECA Agent under, or in connection with, the relevant ECA Support and the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c)
|
The ECA Agent shall (or shall procure that the Facility Agent shall) promptly forward to each ECA Guaranteed Lender and, to the extent any such document is from a Party other than an ECA, the ECAs the original or a copy of any document which is delivered to the ECA Agent for that ECA Guaranteed Lender by any other Party or by the relevant ECA. Such document (or correspondence to which such document is attached) shall be dated and signed and shall include the guarantee number for the GIEK Guarantee.
|
(d)
|
Except where the relevant ECA Support or a Finance Document specifically provides otherwise, the ECA Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e)
|
Each ECA Guaranteed Lender authorises the ECA Agent to consult with the relevant ECA (where necessary) in relation to any waivers, consents or approvals under or pursuant to the Finance Documents or the relevant ECA Support, including but not limited to any amendment, modification or waiver which:
|
(i)
|
varies the dates for, or increases the amount of, or changes the currency or the priority of, any payment of any amount under the Finance Documents;
|
(ii)
|
amends, extends or waives any of the conditions precedent referred to in Clause 4.1 (
Initial conditions precedent
) or Clause 4.2 (
Further conditions precedent
) of the Facilities Agreement; or
|
(iii)
|
imposes a new obligation on the relevant ECA, or increases an existing obligation of the relevant ECA under the relevant ECA Support or any other Finance Document,
|
(f)
|
The ECA Agent's duties under the relevant ECA Support and the Finance Documents are solely mechanical and administrative in nature and the ECA Agent shall have no duties or obligations as agent other than those expressly conferred on it by the Finance Documents.
|
(g)
|
Nothing in this Agreement or any Finance Document shall permit or oblige any ECA Guaranteed Lender or the ECA Agent to act (or omit to act) in a manner that is inconsistent with any requirement under or in connection with the relevant ECA Support and, in particular:
|
(i)
|
each ECA Guaranteed Lender shall be authorised to take all such actions as it may deem necessary to ensure that all requirements of the relevant ECA under or in connection with the relevant ECA Support are complied with; and
|
(ii)
|
no ECA Guaranteed Lender shall be obliged to do anything if, in its opinion (upon consultation with the relevant ECA), to do so could result in a breach of any requirement of that ECA under or in connection with the relevant ECA Support or affect the validity of the relevant ECA Support.
|
(h)
|
In case of any conflict between the Finance Documents and any ECA Support, the relevant ECA Support shall, as between the ECA Guaranteed Lenders relying on it and the relevant ECA, prevail, and to the extent of such conflict or inconsistency, none of the relevant ECA Guaranteed Lenders or the ECA Agent shall assert to that ECA, the terms of the relevant Finance Documents.
|
33.2
|
Application of certain Clauses
|
33.3
|
ECA Guaranteed Lenders' representations
|
(a)
|
Each GIEK Guaranteed Lender represents and warrants to the ECA Agent that:
|
(i)
|
no information provided by it in writing to the ECA Agent or to GIEK prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission;
|
(ii)
|
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the ECA Agent being in breach of any of its obligations in its capacity as ECA Agent under the GIEK Guarantee or any of the Finance Documents, or result in the GIEK Guaranteed Lenders being in breach of any of their respective obligations as guaranteed parties under the GIEK Guarantee, or which would otherwise prejudice the ECA Agent's ability to make a claim on behalf of the GIEK Guaranteed Lenders under the GIEK Guarantee;
|
(iii)
|
it has reviewed the GIEK Guarantee and is aware of its provisions; and
|
(iv)
|
the representations and warranties made by the ECA Agent on its behalf under the GIEK Guarantee are true and correct with respect to it in all respects.
|
(b)
|
Each Kexim Guaranteed Lender represents and warrants to the ECA Agent that:
|
(i)
|
no information provided by it in writing to the ECA Agent or to the Kexim Guarantor prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission;
|
(ii)
|
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the ECA Agent being in breach of any of its obligations in its capacity as ECA Agent under the Kexim Guarantee or any of the Finance Documents, or result in the Kexim Guaranteed Lenders being in breach of any of their respective obligations as insured parties under the Kexim Guarantee, or which would otherwise prejudice the ECA Agent's ability to make a claim on behalf of the Kexim Guaranteed Lenders under the Kexim Guarantee;
|
(iii)
|
it has reviewed the Kexim Guarantee and is aware of its provisions; and
|
(iv)
|
the representations and warranties made by the ECA Agent on its behalf under the Kexim Guarantee are true and correct with respect to it in all respects.
|
33.4
|
Claims under ECA Support
|
(a)
|
All communication between the ECA Guaranteed Lenders and the relevant ECA shall be carried out through the ECA Agent.
|
(b)
|
Each ECA Guaranteed Lender acknowledges and agrees that it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the relevant ECA Support except through the ECA Agent and that all of the rights of the ECA Guaranteed Lenders under the relevant ECA Support shall only be exercised by the ECA Agent.
|
33.5
|
Payments by an ECA
|
33.6
|
ECA Guaranteed Lenders' indemnity to the ECA Agent
|
(a)
|
Each ECA Guaranteed 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 ECA Agent and every Receiver, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the ECA Agent's or Receiver's gross negligence or wilful misconduct) in acting as ECA Agent or Receiver under the Finance Documents (unless the ECA Agent or Receiver has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any ECA Guaranteed Lender for any payment that ECA Guaranteed Lender makes to the ECA Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the ECA Guaranteed Lender claims reimbursement relates to a liability of the ECA Agent to an Obligor.
|
34
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
35
|
SHARING AMONG THE FINANCE PARTIES
|
35.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b)
|
the Facility 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 Facility Agent and distributed in accordance with Clause 36 (
Payment Mechanics
), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "
Sharing Payment
") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 36.5 (
Application of receipts; partial payments
).
|
35.2
|
Redistribution of payments
|
35.3
|
Recovering Finance Party's rights
|
35.4
|
Reversal of redistribution
|
(a)
|
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "
Redistributed Amount
"); and
|
(b)
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
35.5
|
Exceptions
|
(a)
|
This Clause 35 (
Sharing among the Finance Parties
) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
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.
|
36
|
PAYMENT MECHANICS
|
36.1
|
Payments to the Facility Agent
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility 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 Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
36.2
|
Distributions by the Facility Agent
|
36.3
|
Distributions to an Obligor
|
36.4
|
Clawback and pre-funding
|
(a)
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility 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 Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c)
|
If the Facility Agent is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrowers:
|
(i)
|
the Borrowers shall on demand refund it to the Facility Agent; and
|
(ii)
|
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrowers shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
36.5
|
Application of receipts; partial payments
|
(a)
|
If the Facility 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, the Facility Agent or the Security Agent (as applicable) shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i)
|
first
, in or towards payment
pro rata
of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the Security Agent, any Receiver or any Delegate under the Finance Documents;
|
(ii)
|
secondly
, in or towards payment of any accrued interest (including the GIEK Guaranteed Premium) and fees due but unpaid to the Lenders under this Agreement; and
|
(iii)
|
thirdly
, in or towards payment of any principal due but unpaid to the Lenders under this Agreement; and
|
(iv)
|
fourthly
, in or towards payment of any periodical payments (not being payments as a result of termination or closing out) due but unpaid to the Hedge Counterparties under the Hedging Agreements;
|
(v)
|
fifthly
, any payments as a result of termination or closing out due but unpaid to the Hedge Counterparties under the Hedging Agreements; and
|
(vi)
|
sixthly,
in or towards payment
pro rata
of any other sum due to any Finance Party but unpaid under the Finance Documents
.
|
(b)
|
The Facility Agent shall, if so directed by the Majority Lenders, vary, or instruct the Security Agent to vary (as applicable), the order set out in sub-paragraphs (i) to (iv) of paragraph (a) above.
|
(c)
|
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
36.6
|
No set-off by Obligors
|
(a)
|
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
|
(b)
|
Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.
|
36.7
|
Business Days
|
(a)
|
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).
|
(b)
|
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
36.8
|
Currency of account
|
(a)
|
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c)
|
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
36.9
|
Change of currency
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrowers); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility 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 Interbank Market and otherwise to reflect the change in currency.
|
36.10
|
Currency Conversion
|
(a)
|
For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b)
|
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
36.11
|
Disruption to Payment Systems etc.
|
(a)
|
the Facility Agent may, and shall if requested to do so by a Borrower, consult with the Borrowers with a view to agreeing with the Borrowers such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b)
|
the Facility Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c)
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d)
|
any such changes agreed upon by the Facility 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 45 (
Amendments and Waivers
);
|
(e)
|
the Facility 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 Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 36.11 (
Disruption to Payment Systems etc.
); and
|
(f)
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
37
|
SET-OFF
|
38
|
BAIL-IN
|
(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.
|
39
|
NOTICES
|
39.1
|
Communications in writing
|
39.2
|
Addresses
|
(a)
|
in the case of the Obligors, that specified in Schedule 1 (
The Parties
);
|
(b)
|
in the case of each Lender, each Hedge Counterparty or any other Obligor, that specified in Schedule 1 (
The Parties
) or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c)
|
in the case of the Facility Agent, that specified in Schedule 1 (
The Parties
); and
|
(d)
|
in the case of the Security Agent, that specified in Schedule 1 (
The Parties
),
|
39.3
|
Delivery
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i)
|
if by way of fax, when received in legible form; or
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,
|
(b)
|
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention of the department or officer of that Servicing Party specified in Schedule 1 (
The Parties
) (or any substitute department or officer as that Servicing Party shall specify for this purpose).
|
(c)
|
All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d)
|
Any communication or document made or delivered to the Borrowers in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e)
|
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
39.4
|
Notification of address and fax number
|
39.5
|
Electronic communication
|
(a)
|
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:
|
(i)
|
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
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(b)
|
Any such electronic communication as specified in paragraph (a) above 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.
|
(c)
|
Any such electronic communication as specified in paragraph (a) above 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 Facility Agent or the Security Agent only if it is addressed in such a manner as the Facility Agent or the Security Agent shall specify for this purpose.
|
(d)
|
Any electronic communication which becomes effective, in accordance with paragraph (c) above, 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.
|
(e)
|
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 39.5 (
Electronic communication
).
|
39.6
|
English language
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
(i)
|
in English; or
|
(ii)
|
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
39.7
|
Hedging Agreement
|
40
|
CALCULATIONS AND CERTIFICATES
|
40.1
|
Accounts
|
40.2
|
Certificates and determinations
|
40.3
|
Day count convention
|
41
|
PARTIAL INVALIDITY
|
42
|
REMEDIES AND WAIVERS
|
43
|
SETTLEMENT OR DISCHARGE CONDITIONAL
|
44
|
IRREVOCABLE PAYMENT
|
45
|
AMENDMENTS AND WAIVERS
|
45.1
|
Required consents
|
(a)
|
Subject to Clause 45.2 (
All Lender matters
) and Clause 45.3 (
Other exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 45 (
Amendments and Waivers
).
|
(c)
|
Without prejudice to the generality of Clause 31.8 (
Rights and discretions
), the Facility 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.
|
45.2
|
All Lender matters
|
(a)
|
the definition of "Majority Lenders" in Clause 1.1 (
Definitions
);
|
(b)
|
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(c)
|
a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(d)
|
a change in currency of payment of any amount under the Finance Documents;
|
(e)
|
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments rateably under the Facility;
|
(f)
|
a change to any Obligor other than in accordance with Clause 30 (
Changes to the Obligors
);
|
(g)
|
any provision which expressly requires the consent of all the Lenders;
|
(h)
|
this Clause 45 (
Amendments and Waivers
);
|
(i)
|
any change to the preamble (Background), Clause 2 (
The Facility
), Clause 3 (
Purpose
), Clause 5 (
Utilisation
), Clause 7.5 (
ECA prepayment option
), Clause 7.6 (
Mandatory cancellation on default under a Shipbuilding Contract
), Clause 7.7 (
Mandatory prepayment on sale or Total Loss
), Clause 7.8 (
Mandatory prepayment of Hedging Prepayment Proceeds
), Clause 8 (
Interest
), Clause 26.2 (
Minimum Required Security Cover
) (except for any increase to the minimum required security cover described in Clause 26.2 (
Minimum required security cover
) which shall not require the consent of the Lenders or ECAs), Clause 27 (
Accounts, application
of Earnings and Hedge Receipts), Clause 29 (
Changes to the Lenders
), Clause 35 (
Sharing among the Finance Parties
), Clause 49 (
Governing Law
), Clause 50 (
Enforcement
) or Schedule 2 (
Conditions Precedent
);
|
(j)
|
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction Security as it relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
|
(k)
|
(other than as expressly permitted by the provisions of any Finance Document), the nature or scope of:
|
(i)
|
the guarantees and indemnities granted under Clause 17 (
Guarantee and Indemnity – Parent Guarantor
);
|
(ii)
|
the guarantees and indemnities granted under Clause 19 (
Guarantee and Indemnity – Hedge Guarantors
);
|
(iii)
|
the joint and several liability of the Borrowers under Clause 18 (
Joint and Several Liability of the Borrowers
);
|
(iv)
|
the Security Assets; or
|
(v)
|
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(l)
|
the release of the guarantees and indemnities granted under Clause 17 (
Guarantee and Indemnity – Parent Guarantor
) or Clause 19 (
Guarantee and Indemnity – Hedge Guarantors
) or the release of the joint and several liability of the Borrowers under Clause 18 (
Joint and Several Liability of the Borrowers
) or of any Transaction Security 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 the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document,
|
45.3
|
Other exceptions
|
(a)
|
An amendment or waiver which relates to the rights or obligations of a Servicing Party, a Mandated Lead Arranger, the ECA Agent or any ECA (each in their capacity as such) may not be effected without the consent of that Servicing Party, Mandated Lead Arranger, the ECA Agent or that ECA, as the case may be.
|
(b)
|
An amendment or waiver which relates to and would adversely affect the rights or obligations of a Hedge Counterparty (in its capacity as such) may not be effected without the consent of that Hedge Counterparty.
|
(c)
|
The Borrowers and the Facility Agent or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party with the consent of the other parties to that Fee Letter.
|
45.4
|
Replacement of Screen Rate
|
(a)
|
Subject to Clause 45.3 (
Other exceptions
), if the Screen Rate is not available for dollars, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to dollars, in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that benchmark rate) may be made with the consent of the Majority Lenders and the Obligors.
|
(b)
|
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 5 Business Days (unless the Borrowers and the Facility Agent agree to a longer time period in relation to any request) of that request being made:
|
(i)
|
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
45.5
|
Obligor Intent
|
46
|
CONFIDENTIAL INFORMATION
|
46.1
|
Confidentiality
|
46.2
|
Disclosure of Confidential Information
|
(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives and any ECA such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent or Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii)
|
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 31.15 (
Relationship with the other Finance Parties
));
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 29.8 (
Security over Lenders' rights
);
|
(viii)
|
who is a Party, a member of the Group or any related entity of an Obligor;
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or
|
(x)
|
with the consent of the Parent Guarantor;
|
(A)
|
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C)
|
in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c)
|
to any person appointed by that Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of 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 paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/ Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Finance Party;
|
(d)
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information;
|
46.3
|
Disclosure by GIEK
|
46.4
|
Disclosure to numbering service providers
|
(a)
|
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
|
(i)
|
names of Obligors;
|
(ii)
|
country of domicile of Obligors;
|
(iii)
|
place of incorporation of Obligors;
|
(iv)
|
date of this Agreement;
|
(v)
|
Clause 49 (
Governing Law
);
|
(vi)
|
the names of the Facility Agent and the Mandated Lead Arrangers;
|
(vii)
|
date of each amendment and restatement of this Agreement;
|
(viii)
|
amount of Total Commitments;
|
(ix)
|
currency of the Facility;
|
(x)
|
type of Facility;
|
(xi)
|
ranking of Facility;
|
(xii)
|
Termination Date for Facility;
|
(xiii)
|
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above; and
|
(xiv)
|
such other information agreed between such Finance Party and the Borrowers,
|
(b)
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c)
|
Each Obligor represents that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
46.5
|
Entire agreement
|
46.6
|
Inside information
|
46.7
|
Notification of disclosure
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 46.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 46 (
Confidential Information
).
|
46.8
|
Continuing obligations
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
47
|
CONFIDENTIALITY OF FUNDING RATES
|
47.1
|
Confidentiality and disclosure
|
(a)
|
The Facility Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.
|
(b)
|
The Facility Agent may disclose:
|
(i)
|
any Funding Rate to the Borrowers pursuant to Clause 8.4 (
Notification of rates of interest
); and
|
(ii)
|
any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender, as the case may be.
|
(c)
|
The Facility Agent may disclose any Funding Rate, and each Obligor may disclose any Funding Rate, to:
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives, if any person to whom that Funding Rate is to be given pursuant to this sub-paragraph (i) is informed in writing of its confidential nature and that it 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 that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;
|
(ii)
|
any person 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 if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
(iii)
|
any person 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 if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
(iv)
|
any person with the consent of the relevant Lender, as the case may be.
|
47.2
|
Related obligations
|
(a)
|
The Facility Agent and each Obligor acknowledge that each Funding Rate is or may be price sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.
|
(b)
|
The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender:
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph (c) of Clause 47.1 (
Confidentiality and disclosure
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 47 (
Confidentiality of Funding Rates
).
|
47.3
|
No Event of Default
|
48
|
COUNTERPARTS
|
49
|
GOVERNING LAW
|
50
|
ENFORCEMENT
|
50.1
|
Jurisdiction
|
(a)
|
Unless specifically provided in another Finance Document in relation to that Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with any Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a "
Dispute
").
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c)
|
This Clause 50.1 (
Jurisdiction
) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
50.2
|
Service of process
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i)
|
irrevocably appoints Scorpio UK Limited at its business address for the time being, presently at 10 Lower Grosvenor Place, London, SW1W 0EN (such communication to be marked preferably and if possible on the paper envelope (not any courier exterior) with “STNG Transaction” for the urgent attention of General Counsel) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
Borrowers and Hedge Guarantors
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
STI Galata Shipping Company Limited
|
Marshall Islands
|
77908
|
c/o Scorpio Tankers Inc,
Le Millenium, 9 Boulevard Charles III, 98000 Monaco
Attn: Mr Luca Forgione - Legal Department
Fax No: + 3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
STI Taksim Shipping Company Limited (tbn STI Bosphorus Shipping Company Limited)
|
Marshall Islands
|
77910
|
|
STI Leblon Shipping Company Limited
|
Marshall Islands
|
77911
|
|
STI La Boca Shipping Company Limited
|
Marshall Islands
|
77912
|
|
STI San Telmo Shipping Company Limited
|
Marshall Islands
|
77913
|
|
STI Jurere Shipping Company Limited (tbn STI Donald C Trauscht Shipping Company Limited)
|
Marshall Islands
|
77914
|
|
STI Esles II Shipping Company Limited
|
Marshall Islands
|
78196
|
|
STI Jardins Shipping Company Limited
|
Marshall Islands
|
77917
|
|
Parent Guarantor
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
Scorpio Tankers Inc.
|
Marshall Islands
|
36141
|
Le Millenium,
9 Boulevard Charles III, 98000 Monaco
Attn: Mr Luca Forgione - Legal Department
Fax No: + 3 77 97 77 83 46
Email: legal@scorpiogroup.net
|
DekaBank Deutsche Girozentrale
|
USD 48,000,000
|
Mainzer Landstrasse 16
60325 Frankfurt am Main
Germany
Attention: Stefan Schuett
Tel: +49 69 7147 2603
Fax: +49 69 7147 2171
Email: stefan.schuett@deka.de
With a copy to:
Attention: Nicole Holzhaeuser / Iris Menzel
Tel: +49 69 7147 5586
Fax: +49 69 7147 2171
Emails:
Kredit-Support.Kreditservice@deka.de
nicole.holzhaeuser@deka.de
iris.menzel@deka.de
|
Total Kexim Guaranteed Facility Loan Commitment:
USD 48,000,000
|
||
KEXIM
|
||
The Export–Import Bank of Korea
|
USD 52,000,000
|
BIFC 20
th
floor, Munhyeongeumyung-ro 40, Namgu, Busan 608-828, Korea
Attention: Seo Hye-lim
Senior Loan Officer
Telephone: +82 51 922 8826
Facsimile: +82 51 922 8849
E-mail: hyelim@koreaexim.go.kr
With a copy to:
Attention: Kim Ji-Eun,
Loan Officer
Telephone: +82 51 922 8827
Facsimile: +82 51 922 8849
E-mail: jekim@koreaexim.go.kr
|
Total Kexim Direct Facility Loan Commitment:
USD 52,000,000
|
|
|
The Export–Import Bank of Korea
|
BIFC 20
th
floor, Munhyeongeumyung-ro 40, Namgu, Busan 608-828, Korea
Attention: Seo Hye-lim
Senior Loan Officer
Telephone: +82 51 922 8826
Facsimile: +82 51 922 8849
E-mail: hyelim@koreaexim.go.kr
With a copy to:
Attention: Kim Ji-Eun,
Loan Officer
Telephone: +82 51 922 8827
Facsimile: +82 51 922 8849
E-mail: jekim@koreaexim.go.kr
|
Name of Facility Agent
|
Address for communication
|
Wilmington Trust (London) Limited
|
Third Floor
King’s Arms Yard
London
EC2R 7AF
England
Attention: Chris Hurford
Tel: +44 (0)20 7397 3600
Fax +44 (0)20 7397 3601
Email: Churford@Wilmingtontrust.com
|
Name of Security Agent
|
Address for communication
|
Wilmington Trust (London) Limited
|
Third Floor
King’s Arms Yard
London
EC2R 7AF
England
Attention: Chris Hurford
Tel: +44 (0)20 7397 3600
Fax +44 (0)20 7397 3601
Email: Churford@Wilmingtontrust.com
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
Obligors
|
1.1
|
A copy of the constitutional documents of each Obligor.
|
1.2
|
A copy of a resolution of the board of directors of each Obligor:
|
(a)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.3
|
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party.
|
1.4
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.
|
1.5
|
If required, a copy of a resolution signed by the Parent Guarantor as the holder of the issued shares in each Borrower, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Borrower is a party.
|
1.6
|
A certificate of each Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.7
|
A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this paragraph 1 of Part A of Schedule 2 (
Conditions Precedent
) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2
|
Transaction Documents
|
2.1
|
Copies of any Hedging Agreement executed by a Hedge Counterparty and a Borrower, if any.
|
2.2
|
Copies of each Shipbuilding Contract and of any amendments or variations signed or issued by a Borrower or the Builder (or both of them) under or in connection with it.
|
3
|
Finance Documents
|
3.1
|
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (
Conditions Precedent
).
|
3.2
|
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this Schedule 2 (
Conditions Precedent
).
|
4
|
Security
|
4.1
|
A duly executed original of:
|
(a)
|
in respect of the first Utilisation Request only, the Account Security in relation to the Debt Service Reserve Account;
|
(b)
|
the Account Security in relation to each Account in respect of the relevant Borrower;
|
(c)
|
the Shares Security and Assignment of Intra-Group Loan Receivables in respect of the relevant Borrower,
|
(d)
|
if any Hedging Agreement has been entered into, the Hedging Agreement Security in respect of the relevant Borrower,
|
5
|
GIEK documents
|
5.1
|
A duly executed original of the GIEK Guarantee on terms satisfactory to the ECA Agent and all the GIEK Guaranteed Lenders.
|
5.2
|
Evidence that any costs and expenses which are then due and payable to GIEK has been paid in accordance with the terms of the GIEK Guarantee.
|
5.3
|
Any other requirements of GIEK pursuant to the GIEK Guarantee being met.
|
6
|
Kexim documents
|
6.1
|
A duly executed original of the Kexim Guarantee on terms satisfactory to the ECA Agent and all the Kexim Guaranteed Lenders.
|
6.2
|
Evidence that any amount of the Kexim Guarantee Premium in relation to the Kexim Guarantee and any costs and expenses which are then due and payable to the Kexim Guarantor has been paid in accordance with the terms of the Kexim Guarantee.
|
6.3
|
Any other requirements of the Kexim Guarantor pursuant to the Kexim Guarantee being met.
|
7
|
Legal opinions
|
7.1
|
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in England, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
7.2
|
If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in the relevant jurisdiction, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
7.3
|
Legal opinions of the legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in such other relevant jurisdictions as the Facility Agent may require.
|
7.4
|
A legal opinion of Loyens and Loeff, Dutch legal advisers to the MLA and Security Agent.
|
7.5
|
A legal opinion of Advokatfirmaet BAHR DA, Norwegian legal advisers to the GIEK Guaranteed Lenders, in such form as agreed between that legal adviser and the GIEK Guaranteed Lenders.
|
7.6
|
A legal opinion of Shin & Kim, Korean legal advisers to Kexim, in such form as agreed between that legal adviser and the Kexim Guaranteed Lenders.
|
8
|
Other documents and evidence
|
8.1
|
A written statement from the Parent Guarantor that there are no ongoing discussions or arrangements with the Lenders to accept any waiver or amendment on any financial covenant, except where that waiver or amendment request relates (i) directly to the interest coverage covenant, and/or (ii) to the exclusion of impairment charges from the calculation of any of the financial covenants.
|
8.2
|
A duly executed original of the Working Conditions Side Letter.
|
8.3
|
Evidence that any process agent referred to in Clause 50.2 (
Service of process
), if not an Obligor, has accepted its appointment.
|
8.4
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility 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 Transaction Document or for the validity and enforceability of any Transaction Document.
|
8.5
|
Copies of the Original Financial Statements certified by any Director and / or officer of the Parent Guarantor.
|
8.6
|
Evidence that the relevant Earnings Account and Retention Account have been opened.
|
8.7
|
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (
Fees
), Clause 16 (
Costs and Expenses
) and any other fees, costs or expenses payable in connection with the provision of the Facility have been paid or will be paid by its due date.
|
8.8
|
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents.
|
1
|
Borrowers
|
2
|
Ship and other security
|
2.1
|
Documentary evidence that the relevant Ship:
|
(a)
|
has been unconditionally delivered by the Builder to, and accepted by, the relevant Borrower under the relevant Shipbuilding Contract and that the full purchase price payable and all other sums due to the Builder under the relevant Shipbuilding Contract, other than the sums to be financed pursuant to the relevant Utilisation, have been paid to the Builder;
|
(b)
|
is registered in the name of the relevant Borrower under the Approved Flag.
|
(c)
|
is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
|
(d)
|
maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and
|
(e)
|
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
2.2
|
Documents establishing that the relevant Ship will, as from the relevant Utilisation Date, be managed commercially by the relevant Approved Commercial Manager and managed technically by the relevant Approved Technical Manager and/or the relevant Approved Sub‑Manager (such documents the "
Management Agreements
"), together with:
|
(a)
|
an Approved Ship Manager's Undertaking executed by the relevant Approved Ship Manager and/or the Approved Sub‑Manager which is party to a Management Agreement with the Parent Guarantor; and
|
(b)
|
copies of the relevant Approved Technical Manager's Document of Compliance and of the relevant Ship's Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent requires) and an ISSC.
|
2.3
|
Information in a form satisfactory to the Facility Agent about the relevant Ship’s employment, including copies of any Long Term Charter and of all documents signed or issued by a Borrower or the charterer (or both of them) under or in connection with it.
|
2.4
|
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
2.5
|
Valuations of the relevant Ship, addressed to the Facility Agent on behalf of the Finance Parties, stated to be for the purposes of this Agreement and dated not earlier than 30 days before the Delivery Date from two Approved Valuers which shows a value for that Ship of not less than 135 per cent. of the Loan (after the Advance has been utilised).
|
2.6
|
Details of the relevant Ship’s tracking device (INMARSAT number).
|
3
|
Finance Documents
|
4
|
Legal opinions
|
5
|
GIEK conditions
|
5.1
|
Confirmation from GIEK (acting through the ECA Agent) that it has received:
|
(a)
|
all necessary exporter declarations; and
|
(b)
|
evidence satisfactory to it that the Norwegian equipment manufactured by the Norwegian exporters has been delivered in accordance with the terms of the relevant equipment contracts; and
|
5.2
|
Confirmation from GIEK (acting through the ECA Agent) that it has received:
|
(a)
|
in relation to each Utilisation Date under this Agreement, a certificate, to be delivered to the Facility Agent no later than 15 Business Days prior to the relevant Utilisation Date (other than the first Utilisation Date), from the Parent Guarantor in the form set out in Schedule 13 (
Working Conditions Side Letter CP Certificate
) confirming that the Working Conditions Side Letter remains in full force and effect and that the Parent Guarantor is in compliance with its terms;
|
(b)
|
in relation to the Utilisation Date under this Agreement on or before the delivery of Ship C, a duly executed original of the “Plan” (as defined in the Working Conditions Side Letter) required to be provided pursuant to the Working Conditions Side Letter.
|
6
|
ECA Support
|
6.1
|
Confirmation from the ECA Agent that it has not received any notification that any relevant ECA Support has been revoked and is no longer in full force and effect.
|
7
|
Other documents and evidence
|
7.1
|
Evidence that the Debt Service Reserve Account has been funded in accordance with Clause 27.2 (
Debt Service Reserve Account
).
|
7.2
|
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the relevant Utilisation Date.
|
7.3
|
Evidence that the relevant Borrower (or any other member of the Group) has paid (or will pay on the Utilisation Date, as the case may be) to the Builder an amount equal to the higher of (i) 40 per cent. of the Contract Price for that Ship and (ii) the difference between the Contract Price for that Ship and 60 per cent. of the Market Value of that Ship (it being understood that in relation to amounts paid such evidence shall be provided by way of confirmation from the Builder detailing the amounts of the pre-delivery instalments received).
|
From:
|
STI Galata Shipping Company Limited, STI Taksim Shipping Company Limited (tbn STI Bosphorus Shipping Company Limited), STI Leblon Shipping Company Limited, STI La Boca Shipping Company Limited, STI San Telmo Shipping Company Limited, STI Jurere Shipping Company Limited (tbn STI Donald C Trauscht Shipping Company Limited), STI Esles II Shipping Company Limited and STI Jardins Shipping Company Limited as Borrowers
|
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 draw an Advance under each Facility on [
l
] in respect of Ship [A][B][C][D][E][F][G][H] (or, if that is not a Business Day, the next Business Day).
|
3
|
We wish to draw such Advances in the following amounts:
|
4
|
[not applicable / You are authorised and requested to deduct from the Advance prior to funds being remitted the following amounts set out against the following items:
|
5
|
We confirm that each condition specified in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2 (
Further conditions precedent
) of the Agreement as they relate to the Advance to which this Utilisation Request refers is satisfied on the date of this Utilisation Request or will be satisfied when the relevant Advance is made available.
|
6
|
The [net] proceeds of this Advance should be credited to [account].
|
7
|
Subject to the provisions of paragraph (a) of Clause 5.2 (
Completion of a Utilisation Request
), this Utilisation Request is irrevocable.
|
1
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2
|
We refer to Clause 29.5 (
Procedure for transfer
) of the Agreement:
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 29.5 (
Procedure for transfer
) of the Agreement.
|
(b)
|
The proposed Transfer Date is [
l
].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 39.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 29.4 (
Limitation of responsibility of Existing Lenders
) of the Agreement.
|
4
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are is governed by English law.
|
6
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
To:
|
Wilmington Trust (London) Limited as Facility Agent and STI Galata Shipping Company Limited, STI Taksim Shipping Company Limited (tbn STI Bosphorus Shipping Company Limited), STI Leblon Shipping Company Limited, STI La Boca Shipping Company Limited, STI San Telmo Shipping Company Limited, STI Jurere Shipping Company Limited (tbn STI Donald C Trauscht Shipping Company Limited), STI Esles II Shipping Company Limited and STI Jardins Shipping Company Limited as Borrowers, for and on behalf of each Obligor
|
1
|
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2
|
We refer to Clause 29.6 (
Procedure for assignment
):
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule.
|
(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
(d)
|
All rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrowers or any other Obligor had against the Existing Lender.
|
3
|
The proposed Transfer Date is [
l
].
|
4
|
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5
|
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 39.2 (
Addresses
) are set out in the Schedule.
|
6
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 29.4 (
Limitation of responsibility of Existing Lenders
).
|
7
|
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 29.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrowers
), to the Borrowers (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.
|
8
|
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
9
|
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10
|
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
1
|
We refer to the Agreement. This is a Hedge Counterparty Accession Letter. Terms defined in the Agreement have the same meaning in this Hedge Counterparty Accession Letter unless given a different meaning in this Hedge Counterparty Accession Letter.
|
2
|
We refer to Clause 29.11 (
Additional Hedge Counterparties
). The Additional Hedge Counterparty agrees to become an Additional Hedge Counterparty and to be bound by the terms of the Agreement as an Additional Hedge Counterparty.
|
3
|
This Hedge Counterparty Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
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 hereby represent that no Event of Default has occurred as at the date of this Certificate [other than [
l
]].
|
3
|
We hereby certify that, as at the date of this certificate:
|
3.1
|
the Minimum Liquidity requirement is USD[
l
],Cash and Cash Equivalents is USD [
l
];
|
3.2
|
the Consolidated Tangible Net Worth is USD [
l
];
|
3.3
|
the ratio of Net Debt to Consolidated Total Capitalization is [
l
] to [
l
];
|
3.4
|
the ratio of Consolidated EBITDA to Consolidated Net Interest Expense is [
l
] to [
l
]; and
|
3.5
|
the Market Value of the Ships plus the net realisation value of any additional security previously provided under Clause 26 (Security Cover) is USD [
l
] [as at [date of most recent half/full year certificate].
|
Ship name
|
Name
of the Borrower owner |
Hull #
|
Dwt
|
Contract Price
|
Estimated Delivery Date
|
STI Galata (Ship A)
|
Borrower A
|
2601
|
51,000
|
USD 35,813,600
|
March 2017
|
STI Bosphorus (Ship B)
|
Borrower B
|
2602
|
51,000
|
USD 35,813,600
|
April 2017
|
STI Leblon (Ship C)
|
Borrower C
|
2603
|
51,000
|
USD 35,813,600
|
July 2017
|
STI La Boca (Ship D)
|
Borrower D
|
2604
|
51,000
|
USD 35,813,600
|
July 2017
|
STI San Telmo (Ship E)
|
Borrower E
|
2605
|
51,000
|
USD 36,063,600
|
September 2017
|
STI Donald C Trauscht (Ship F)
|
Borrower F
|
2606
|
51,000
|
USD 36,063,600
|
October 2017
|
STI Esles II (Ship G)
|
Borrower G
|
2607
|
51,000
|
USD 36,063,600
|
December 2017
|
STI Jardins (Ship H)
|
Borrower H
|
2608
|
51,000
|
USD 36,063,600
|
January 2018
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (
Delivery of a Utilisation Request
)
|
Five Business Days before the intended Utilisation Date (Clause 5.1 (
Delivery of a Utilisation Request
))
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (
Lenders' participation
)
|
Three Business Days before the intended Utilisation Date.
|
LIBOR is fixed
|
Quotation Day as of 11:00 am London time
|
|
|
|
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,868,478.460)
|
(3,114,130.770)
|
(3,986,087.380)
|
(6,477,392.000)
|
(5,979,131.070)
|
(21,425,219.680)
|
(21,425,219.680)
|
1
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,999,621.810)
|
2
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,574,023.940)
|
3
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,148,426.070)
|
4
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,722,828.190)
|
5
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,297,230.320)
|
6
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,871,632.450)
|
7
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,446,034.580)
|
8
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,020,436.710)
|
9
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,594,838.840)
|
10
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,169,240.960)
|
11
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,743,643.090)
|
12
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,318,045.220)
|
13
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,892,447.350)
|
14
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,466,849.480)
|
15
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,041,251.610)
|
16
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,615,653.740)
|
17
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,190,055.860)
|
18
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,764,457.990)
|
19
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,338,860.120)
|
20
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,913,262.250)
|
21
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,487,664.380)
|
22
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,062,066.510)
|
23
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(11,636,468.630)
|
24
|
1,152,228.38
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
1,546,684.95
|
(10,089,783.690)
|
25
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,695,327.120)
|
26
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,300,870.560)
|
27
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,906,413.990)
|
28
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,511,957.430)
|
29
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,117,500.870)
|
30
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,723,044.300)
|
31
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,328,587.740)
|
32
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,934,131.180)
|
33
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,539,674.610)
|
34
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,145,218.050)
|
35
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(5,750,761.480)
|
36
|
-
|
1,297,554.49
|
83,043.49
|
134,945.67
|
124,565.23
|
1,640,108.87
|
(4,110,652.610)
|
37
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,768,098.230)
|
38
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,425,543.840)
|
39
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,082,989.460)
|
40
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,740,435.080)
|
41
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,397,880.690)
|
42
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,055,326.310)
|
43
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,712,771.920)
|
44
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,370,217.540)
|
45
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,027,663.150)
|
46
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(685,108.770)
|
47
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(342,554.380)
|
48
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
0.00
|
Quarter
|
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
|
(1,868,478.460)
|
(3,114,130.770)
|
(3,986,087.380)
|
(6,477,392.000)
|
(5,979,131.070)
|
(21,425,219.680)
|
(21,425,219.680)
|
1
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,999,621.810)
|
2
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,574,023.940)
|
3
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,148,426.070)
|
4
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,722,828.190)
|
5
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,297,230.320)
|
6
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,871,632.450)
|
7
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,446,034.580)
|
8
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,020,436.710)
|
9
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,594,838.840)
|
10
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,169,240.960)
|
11
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,743,643.090)
|
12
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,318,045.220)
|
13
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,892,447.350)
|
14
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,466,849.480)
|
15
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,041,251.610)
|
16
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,615,653.740)
|
17
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,190,055.860)
|
18
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,764,457.990)
|
19
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,338,860.120)
|
20
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,913,262.250)
|
21
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,487,664.380)
|
22
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,062,066.510)
|
23
|
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(11,636,468.630)
|
24
|
|
1,152,228.38
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
1,546,684.95
|
(10,089,783.690)
|
25
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,695,327.120)
|
26
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,300,870.560)
|
27
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,906,413.990)
|
28
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,511,957.430)
|
29
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,117,500.870)
|
30
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,723,044.300)
|
31
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,328,587.740)
|
32
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,934,131.180)
|
33
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,539,674.610)
|
34
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,145,218.050)
|
35
|
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(5,750,761.480)
|
36
|
|
-
|
1,297,554.49
|
83,043.49
|
134,945.67
|
124,565.23
|
1,640,108.87
|
(4,110,652.610)
|
37
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,768,098.230)
|
38
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,425,543.840)
|
39
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,082,989.460)
|
40
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,740,435.080)
|
41
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,397,880.690)
|
42
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,055,326.310)
|
43
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,712,771.920)
|
44
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,370,217.540)
|
45
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,027,663.150)
|
46
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(685,108.770)
|
47
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(342,554.380)
|
48
|
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
0.00
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,868,478.460)
|
(3,114,130.770)
|
(3,986,087.380)
|
(6,477,392.000)
|
(5,979,131.070)
|
(21,425,219.680)
|
(21,425,219.680)
|
1
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,999,621.810)
|
2
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,574,023.940)
|
3
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,148,426.070)
|
4
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,722,828.190)
|
5
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,297,230.320)
|
6
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,871,632.450)
|
7
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,446,034.580)
|
8
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,020,436.710)
|
9
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,594,838.840)
|
10
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,169,240.960)
|
11
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,743,643.090)
|
12
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,318,045.220)
|
13
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,892,447.350)
|
14
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,466,849.480)
|
15
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,041,251.610)
|
16
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,615,653.740)
|
17
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,190,055.860)
|
18
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,764,457.990)
|
19
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,338,860.120)
|
20
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,913,262.250)
|
21
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,487,664.380)
|
22
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,062,066.510)
|
23
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(11,636,468.630)
|
24
|
1,152,228.38
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
1,546,684.95
|
(10,089,783.690)
|
25
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,695,327.120)
|
26
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,300,870.560)
|
27
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,906,413.990)
|
28
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,511,957.430)
|
29
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,117,500.870)
|
30
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,723,044.300)
|
31
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,328,587.740)
|
32
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,934,131.180)
|
33
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,539,674.610)
|
34
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,145,218.050)
|
35
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(5,750,761.480)
|
36
|
-
|
1,297,554.49
|
83,043.49
|
134,945.67
|
124,565.23
|
1,640,108.87
|
(4,110,652.610)
|
37
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,768,098.230)
|
38
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,425,543.840)
|
39
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,082,989.460)
|
40
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,740,435.080)
|
41
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,397,880.690)
|
42
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,055,326.310)
|
43
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,712,771.920)
|
44
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,370,217.540)
|
45
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,027,663.150)
|
46
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(685,108.770)
|
47
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(342,554.380)
|
48
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
0.00
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,868,478.460)
|
(3,114,130.770)
|
(3,986,087.380)
|
(6,477,392.000)
|
(5,979,131.070)
|
(21,425,219.680)
|
(21,425,219.680)
|
1
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,999,621.810)
|
2
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,574,023.940)
|
3
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(20,148,426.070)
|
4
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,722,828.190)
|
5
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(19,297,230.320)
|
6
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,871,632.450)
|
7
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,446,034.580)
|
8
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(18,020,436.710)
|
9
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,594,838.840)
|
10
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(17,169,240.960)
|
11
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,743,643.090)
|
12
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(16,318,045.220)
|
13
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,892,447.350)
|
14
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,466,849.480)
|
15
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(15,041,251.610)
|
16
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,615,653.740)
|
17
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(14,190,055.860)
|
18
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,764,457.990)
|
19
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(13,338,860.120)
|
20
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,913,262.250)
|
21
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,487,664.380)
|
22
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(12,062,066.510)
|
23
|
31,141.31
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
425,597.87
|
(11,636,468.630)
|
24
|
1,152,228.38
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
1,546,684.95
|
(10,089,783.690)
|
25
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,695,327.120)
|
26
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(9,300,870.560)
|
27
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,906,413.990)
|
28
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,511,957.430)
|
29
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(8,117,500.870)
|
30
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,723,044.300)
|
31
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(7,328,587.740)
|
32
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,934,131.180)
|
33
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,539,674.610)
|
34
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(6,145,218.050)
|
35
|
-
|
51,902.18
|
83,043.49
|
134,945.67
|
124,565.23
|
394,456.56
|
(5,750,761.480)
|
36
|
-
|
1,297,554.49
|
83,043.49
|
134,945.67
|
124,565.23
|
1,640,108.87
|
(4,110,652.610)
|
37
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,768,098.230)
|
38
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,425,543.840)
|
39
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(3,082,989.460)
|
40
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,740,435.080)
|
41
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,397,880.690)
|
42
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(2,055,326.310)
|
43
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,712,771.920)
|
44
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,370,217.540)
|
45
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(1,027,663.150)
|
46
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(685,108.770)
|
47
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
(342,554.380)
|
48
|
-
|
-
|
83,043.49
|
134,945.67
|
124,565.23
|
342,554.38
|
0.00
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,881,521.540)
|
(3,135,869.230)
|
(4,013,912.620)
|
(6,522,608.000)
|
(6,020,868.930)
|
(21,574,780.320)
|
(21,574,780.320)
|
1
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(21,146,211.520)
|
2
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,717,642.730)
|
3
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,289,073.930)
|
4
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,860,505.140)
|
5
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,431,936.340)
|
6
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,003,367.550)
|
7
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,574,798.750)
|
8
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,146,229.960)
|
9
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,717,661.160)
|
10
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,289,092.370)
|
11
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,860,523.570)
|
12
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,431,954.780)
|
13
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,003,385.980)
|
14
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,574,817.190)
|
15
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,146,248.390)
|
16
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,717,679.600)
|
17
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,289,110.800)
|
18
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,860,542.010)
|
19
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,431,973.210)
|
20
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,003,404.420)
|
21
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,574,835.620)
|
22
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,146,266.830)
|
23
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(11,717,698.030)
|
24
|
1,160,271.62
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
1,557,481.72
|
(10,160,216.310)
|
25
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,763,006.210)
|
26
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,365,796.110)
|
27
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,968,586.010)
|
28
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,571,375.900)
|
29
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,174,165.800)
|
30
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,776,955.700)
|
31
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,379,745.590)
|
32
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,982,535.490)
|
33
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,585,325.390)
|
34
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,188,115.290)
|
35
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(5,790,905.180)
|
36
|
-
|
1,306,612.18
|
83,623.18
|
135,887.67
|
125,434.77
|
1,651,557.80
|
(4,139,347.390)
|
37
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,794,401.770)
|
38
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,449,456.160)
|
39
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,104,510.540)
|
40
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,759,564.920)
|
41
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,414,619.310)
|
42
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,069,673.690)
|
43
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,724,728.080)
|
44
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,379,782.460)
|
45
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,034,836.850)
|
46
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(689,891.230)
|
47
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(344,945.620)
|
48
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
0.00
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,881,521.540)
|
(3,135,869.230)
|
(4,013,912.620)
|
(6,522,608.000)
|
(6,020,868.930)
|
(21,574,780.320)
|
(21,574,780.320)
|
1
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(21,146,211.520)
|
2
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,717,642.730)
|
3
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,289,073.930)
|
4
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,860,505.140)
|
5
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,431,936.340)
|
6
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,003,367.550)
|
7
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,574,798.750)
|
8
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,146,229.960)
|
9
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,717,661.160)
|
10
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,289,092.370)
|
11
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,860,523.570)
|
12
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,431,954.780)
|
13
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,003,385.980)
|
14
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,574,817.190)
|
15
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,146,248.390)
|
16
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,717,679.600)
|
17
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,289,110.800)
|
18
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,860,542.010)
|
19
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,431,973.210)
|
20
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,003,404.420)
|
21
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,574,835.620)
|
22
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,146,266.830)
|
23
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(11,717,698.030)
|
24
|
1,160,271.62
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
1,557,481.72
|
(10,160,216.310)
|
25
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,763,006.210)
|
26
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,365,796.110)
|
27
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,968,586.010)
|
28
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,571,375.900)
|
29
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,174,165.800)
|
30
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,776,955.700)
|
31
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,379,745.590)
|
32
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,982,535.490)
|
33
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,585,325.390)
|
34
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,188,115.290)
|
35
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(5,790,905.180)
|
36
|
-
|
1,306,612.18
|
83,623.18
|
135,887.67
|
125,434.77
|
1,651,557.80
|
(4,139,347.390)
|
37
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,794,401.770)
|
38
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,449,456.160)
|
39
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,104,510.540)
|
40
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,759,564.920)
|
41
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,414,619.310)
|
42
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,069,673.690)
|
43
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,724,728.080)
|
44
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,379,782.460)
|
45
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,034,836.850)
|
46
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(689,891.230)
|
47
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(344,945.620)
|
48
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
0.00
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,881,521.540)
|
(3,135,869.230)
|
(4,013,912.620)
|
(6,522,608.000)
|
(6,020,868.930)
|
(21,574,780.320)
|
(21,574,780.320)
|
1
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(21,146,211.520)
|
2
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,717,642.730)
|
3
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,289,073.930)
|
4
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,860,505.140)
|
5
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,431,936.340)
|
6
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,003,367.550)
|
7
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,574,798.750)
|
8
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,146,229.960)
|
9
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,717,661.160)
|
10
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,289,092.370)
|
11
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,860,523.570)
|
12
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,431,954.780)
|
13
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,003,385.980)
|
14
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,574,817.190)
|
15
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,146,248.390)
|
16
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,717,679.600)
|
17
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,289,110.800)
|
18
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,860,542.010)
|
19
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,431,973.210)
|
20
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,003,404.420)
|
21
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,574,835.620)
|
22
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,146,266.830)
|
23
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(11,717,698.030)
|
24
|
1,160,271.62
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
1,557,481.72
|
(10,160,216.310)
|
25
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,763,006.210)
|
26
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,365,796.110)
|
27
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,968,586.010)
|
28
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,571,375.900)
|
29
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,174,165.800)
|
30
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,776,955.700)
|
31
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,379,745.590)
|
32
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,982,535.490)
|
33
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,585,325.390)
|
34
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,188,115.290)
|
35
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(5,790,905.180)
|
36
|
-
|
1,306,612.18
|
83,623.18
|
135,887.67
|
125,434.77
|
1,651,557.80
|
(4,139,347.390)
|
37
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,794,401.770)
|
38
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,449,456.160)
|
39
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,104,510.540)
|
40
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,759,564.920)
|
41
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,414,619.310)
|
42
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,069,673.690)
|
43
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,724,728.080)
|
44
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,379,782.460)
|
45
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,034,836.850)
|
46
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(689,891.230)
|
47
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(344,945.620)
|
48
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
0.00
|
Quarter
|
Commercial Facility Loan A
|
Commercial Facility Loan B
|
GIEK Guaranteed Facility Loan
|
Kexim Direct Facility Loan
|
Kexim Guaranteed Facility
|
Total Repayments/ (drawdowns)
|
Total Loan Balance
|
-
|
(1,881,521.540)
|
(3,135,869.230)
|
(4,013,912.620)
|
(6,522,608.000)
|
(6,020,868.930)
|
(21,574,780.320)
|
(21,574,780.320)
|
1
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(21,146,211.520)
|
2
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,717,642.730)
|
3
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(20,289,073.930)
|
4
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,860,505.140)
|
5
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,431,936.340)
|
6
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(19,003,367.550)
|
7
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,574,798.750)
|
8
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(18,146,229.960)
|
9
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,717,661.160)
|
10
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(17,289,092.370)
|
11
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,860,523.570)
|
12
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,431,954.780)
|
13
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(16,003,385.980)
|
14
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,574,817.190)
|
15
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(15,146,248.390)
|
16
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,717,679.600)
|
17
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(14,289,110.800)
|
18
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,860,542.010)
|
19
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,431,973.210)
|
20
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(13,003,404.420)
|
21
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,574,835.620)
|
22
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(12,146,266.830)
|
23
|
31,358.69
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
428,568.80
|
(11,717,698.030)
|
24
|
1,160,271.62
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
1,557,481.72
|
(10,160,216.310)
|
25
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,763,006.210)
|
26
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(9,365,796.110)
|
27
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,968,586.010)
|
28
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,571,375.900)
|
29
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(8,174,165.800)
|
30
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,776,955.700)
|
31
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(7,379,745.590)
|
32
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,982,535.490)
|
33
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,585,325.390)
|
34
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(6,188,115.290)
|
35
|
-
|
52,264.49
|
83,623.18
|
135,887.67
|
125,434.77
|
397,210.10
|
(5,790,905.180)
|
36
|
-
|
1,306,612.18
|
83,623.18
|
135,887.67
|
125,434.77
|
1,651,557.80
|
(4,139,347.390)
|
37
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,794,401.770)
|
38
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,449,456.160)
|
39
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(3,104,510.540)
|
40
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,759,564.920)
|
41
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,414,619.310)
|
42
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(2,069,673.690)
|
43
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,724,728.080)
|
44
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,379,782.460)
|
45
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(1,034,836.850)
|
46
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(689,891.230)
|
47
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
(344,945.620)
|
48
|
-
|
-
|
83,623.18
|
135,887.67
|
125,434.77
|
344,945.62
|
0.00
|
|
Borrower
|
STI Galata Shipping Company Limited
|
STI Taksim Shipping Company Limited (tbn STI Bosphorus Shipping Company Limited)
|
STI Leblon Shipping Company Limited
|
STI La Boca Shipping Company Limited
|
STI San Telmo Shipping Company Limited
|
STI Jurere Shipping Company Limited (tbn STI Donald C Trauscht Shipping Company Limited)
|
STI Esles II Shipping Company Limited
|
STI Jardins Shipping Company Limited
|
|
|
Vessel Contract Price
|
35,813,600
|
35,813,600
|
35,813,600
|
35,813,600
|
36,063,600
|
36,063,600
|
36,063,600
|
36,063,600
|
287,508,800
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitment amount (USD)
|
|
|||||||
Name of Lender
|
Total Commitment (USD)
|
Ship A
|
Ship B
|
Ship C
|
Ship D
|
Ship E
|
Ship F
|
Ship G
|
Ship H
|
|
Macquarie Factoring (UK) Limited
|
15,000,000
|
1,868,478
|
1,868,478
|
1,868,478
|
1,868,478
|
1,881,522
|
1,881,522
|
1,881,522
|
1,881,522
|
|
DekaBank Deutsche Girozentrale
|
25,000,000
|
3,114,131
|
3,114,131
|
3,114,131
|
3,114,131
|
3,135,869
|
3,135,869
|
3,135,869
|
3,135,869
|
|
Macquarie Factoring (UK) Limited
|
32,000,000
|
3,986,087
|
3,986,087
|
3,986,087
|
3,986,087
|
4,013,913
|
4,013,913
|
4,013,913
|
4,013,913
|
|
DekaBank Deutsche Girozentrale
|
48,000,000
|
5,979,131
|
5,979,131
|
5,979,131
|
5,979,131
|
6,020,869
|
6,020,869
|
6,020,869
|
6,020,869
|
|
The Export–Import Bank of Korea
|
52,000,000
|
6,477,392
|
6,477,392
|
6,477,392
|
6,477,392
|
6,522,608
|
6,522,608
|
6,522,608
|
6,522,608
|
|
Total
|
172,000,000
|
21,425,220
|
21,425,220
|
21,425,220
|
21,425,220
|
21,574,780
|
21,574,780
|
21,574,780
|
21,574,780
|
|
1
|
Scorpio commits to a process of engagement with the Builder in order to establish that the health, safety and labour conditions for all workers, including sub-contractors, involved in the construction of the Ships, are in accordance with applicable national laws and international standards relating to health, safety and labour (being, determined by reference to the core ILO Labour conventions).
|
2
|
Scorpio declares that it will, in good faith, conduct an assessment to identify potential risks and take measures, where necessary and practicable, to improve conditions on site at the Builder during such period in relation to the construction of the Ships.
|
3
|
Scorpio commits to provide GIEK with a plan on how it intends to assess and address any potential and/or identified risks (“Plan”). This shall include, as a minimum, the following: (1) Health and safety training, (2) Rest and working hours, (3) Due diligence and management of sub-contractors in relation to health and safety, as well as labour and working conditions, (4) Use of migrant/foreign workers (in particular the legitimacy of recruitment regimes utilized to source migrant workers), in each case in relation to the conditions on site at the Builder in relation to the construction of the Ships. In the event that any other major risks related to health, safety, and labour condition are identified by Scorpio during its assessment, these shall also be
|
4
|
The Plan, which shall be in a form acceptable to GIEK, is to be prepared and delivered to GIEK prior to delivery of third Ship to be financed pursuant to the Facility Agreement and supported under the GIEK guarantee.
|
5
|
Thereafter, up to delivery of the final Ship to be financed pursuant to the Facility Agreement, Scorpio will provide a quarterly update to GIEK on the implementation of the Plan.
|
6
|
Scorpio will also provide a completion report no later than 30 business days after delivery of the last Ship to be financed pursuant to the Facility Agreement. The completion report shall outline the status in relation to implementation of the Plan, any eventual outstanding points, and final observations.
|
7
|
It is understood that GIEK has zero tolerance for all forms of forced labour, child labour, other serious breaches of local labor laws or international standards (ILO core labour conventions). Scorpio shall inform GIEK in writing as soon as reasonably practical upon becoming aware, and shall take immediate measures to require the Builder to rectify such practices. In the event that GIEK or a 3rd party engaged by GIEK wants to visit the Builder as a follow up, Scorpio will assist in facilitating this together with GIEK.
|
8
|
GIEK will receive a written notice as soon as reasonably practical after Scorpio has become aware of any fatalities or serious injuries of personnel, including subcontracted personnel, at the Builder or when Scorpio becomes aware of any labour strikes, demonstrations, or fines/sanctions to the Builder from labour authorities.
|
1
|
We refer to the Agreement. Terms defined in the Agreement have the same meaning in this Certificate unless given a different meaning in this Certificate.
|
2
|
We refer to paragraph (c) of Clause 23.22 (
Compliance with ECA Support
) of the Agreement. We hereby confirm that as at the date of this Certificate the Working Conditions Side Letter remains in full force and effect and we are in compliance with its terms.
|
3
|
This certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
1.
|
BANK:
WOORI BANK, HEAD OFFICE, SEOUL, KOREA
|
2.
|
ACCOUNT NO.:
04-022-936 (BIC CODE: HVBKKRSEXXX)
|
3.
|
CORRESPONDENT BANK:
DEUTSCHE BANK TRUST COMPANY AMERICA (BIC CODE: BKTRUS33XXX)
|
4.
|
BENEFICIARY: HYUNDAI MIPO DOCKYARD CO., LTD.
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI GALATA SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI TAKSIM SHIPPING COMPANY LIMITED
|
|
(tbn STI BOSPHORUS SHIPPING COMPANY
|
|
LIMITED)
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI LEBLON SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI LA BOCA SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI SAN TELMO SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI JURERE SHIPPING COMPANY LIMITED
|
|
(tbn STI DONALD C TRAUSCHT SHIPPING
|
|
COMPANY LIMITED)
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI ESLES II SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI JARDINS SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
PARENT GUARANTOR
|
|
|
|
SIGNED
by
|
|
Name: Micha Withoft
|
/s/ Micha Withoft
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
SCORPIO TANKERS INC.
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
HEDGE GUARANTORS
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI GALATA SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI TAKSIM SHIPPING COMPANY LIMITED
|
|
(tbn STI BOSPHORUS SHIPPING COMPANY
|
|
LIMITED)
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI LEBLON SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI LA BOCA SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI SAN TELMO SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI JURERE SHIPPING COMPANY LIMITED
|
|
(tbn STI DONALD C TRAUSCHT SHIPPING
|
|
COMPANY LIMITED)
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI ESLES II SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
SIGNED
by
|
|
Name: Chrysa Kitsou
|
/s/ Chrysa Kitsou
|
Title: Attorney-in-Fact
|
|
for and on behalf of
|
|
STI JARDINS SHIPPING COMPANY LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Andrew Cottrell
|
Witness' Name: Andrew Cottrell
|
|
Witness' Address:
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
ORIGINAL COMMERCIAL LENDERS
|
|
|
|
SIGNED
by
|
/s/ Sarai Jacob-Whelan
|
|
Name: Sarai Jacob-Whelan
|
duly authorised
|
Title: Senior Manger - Legal
|
for and on behalf of
|
/s/ Huan Ke
|
MACQUARIE FACTORING (UK) LIMITED
|
Name: Huan Ke
|
in the presence of:
|
Title: Division Director
|
|
|
Witness' Signature:
|
/s/ Sandie Tolan
|
Witness' Name:
|
Name: Sandie Tolan
|
Witness' Address:
|
|
|
|
SIGNED
by
|
/s/ Joanna Sissens
|
|
Name: Joanna Sissens
|
duly authorised
|
Title: Attorney-in-Fact
|
for and on behalf of
|
|
DEKABANK DEUTSCHE GIROZENTRALE
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Aimee Myhre
|
Witness' Name:
|
Name: Aimee Myhre
|
Witness' Address:
|
Title: Trainee Solicitor
|
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
ORIGINAL GIEK GUARANTEED LENDERS
|
|
|
|
SIGNED
by
|
/s/ Sarai Jacob-Whelan
|
|
Name: Sarai Jacob-Whelan
|
duly authorised
|
Title: Senior Manger - Legal
|
for and on behalf of
|
/s/ Huan Ke
|
MACQUARIE FACTORING (UK) LIMITED
|
Name: Huan Ke
|
in the presence of:
|
Title: Division Director
|
|
|
Witness' Signature:
|
/s/ Sandie Tolan
|
Witness' Name:
|
Name: Sandie Tolan
|
Witness' Address:
|
|
|
|
KEXIM
|
|
|
|
SIGNED
by
|
/s/ Tae-kyoon Lee
|
|
|
duly authorised
|
|
for and on behalf of
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Hye-lim Seo
|
Witness' Name:
|
Name: Hye-lim-Seo
|
Witness' Address:
|
38 Eunhaeng-ro, Yeongdeungo-gu, Seoul, Korea
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
MARITIME PROJECT FINANCE DEPARTMENT
|
|
|
ORIGINAL KEXIM GUARANTEED LENDERS
|
|
|
|
SIGNED
by
|
/s/ Joanna Sissens
|
|
Name: Joanna Sissens
|
duly authorised
|
Title: Attorney-in-Fact
|
for and on behalf of
|
|
DEKABANK DEUTSCHE GIROZENTRALE
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Aimee Myhre
|
Witness' Name:
|
Name: Aimee Myhre
|
Witness' Address:
|
Title: Trainee Solicitor
|
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
ORIGINAL HEDGE COUNTERPARTIES
|
|
|
|
SIGNED
by
|
/s/ Sarai Jacob-Whelan
|
|
Name: Sarai Jacob-Whelan
|
duly authorised
|
Title: Senior Manger - Legal
|
for and on behalf of
|
/s/ Huan Ke
|
MACQUARIE FACTORING (UK) LIMITED
|
Name: Huan Ke
|
in the presence of:
|
Title: Division Director
|
|
|
Witness' Signature:
|
/s/ Sandie Tolan
|
Witness' Name:
|
Name: Sandie Tolan
|
Witness' Address:
|
|
|
|
SIGNED
by
|
/s/ Joanna Sissens
|
|
Name: Joanna Sissens
|
duly authorised
|
Title: Attorney-in-Fact
|
for and on behalf of
|
|
DEKABANK DEUTSCHE GIROZENTRALE
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Aimee Myhre
|
Witness' Name:
|
Name: Aimee Myhre
|
Witness' Address:
|
Title: Trainee Solicitor
|
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
SIGNED
by
|
/s/ Tae-kyoon Lee
|
|
|
duly authorised
|
|
for and on behalf of
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Hye-lim Seo
|
Witness' Name:
|
Name: Hye-lim-Seo
|
Witness' Address:
|
38 Eunhaeng-ro, Yeongdeungo-gu, Seoul, Korea
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
MARITIME PROJECT FINANCE DEPARTMENT
|
|
|
MANDATED LEAD ARRANGERS
|
|
|
|
SIGNED
by
|
/s/ Sarai Jacob-Whelan
|
|
Name: Sarai Jacob-Whelan
|
duly authorised
|
Title: Senior Manger - Legal
|
for and on behalf of
|
/s/ Huan Ke
|
MACQUARIE FACTORING (UK) LIMITED
|
Name: Huan Ke
|
in the presence of:
|
Title: Division Director
|
|
|
Witness' Signature:
|
/s/ Sandie Tolan
|
Witness' Name:
|
Name: Sandie Tolan
|
Witness' Address:
|
|
|
|
SIGNED
by
|
/s/ Tae-kyoon Lee
|
|
|
duly authorised
|
|
for and on behalf of
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Hye-lim Seo
|
Witness' Name:
|
Name: Hye-lim-Seo
|
Witness' Address:
|
38 Eunhaeng-ro, Yeongdeungo-gu, Seoul, Korea
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
MARITIME PROJECT FINANCE DEPARTMENT
|
|
|
SIGNED
by
|
/s/ Joanna Sissens
|
|
Name: Joanna Sissens
|
duly authorised
|
Title: Attorney-in-Fact
|
for and on behalf of
|
|
DEKABANK DEUTSCHE GIROZENTRALE
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Aimee Myhre
|
Witness' Name:
|
Name: Aimee Myhre
|
Witness' Address:
|
Title: Trainee Solicitor
|
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
|
London EC2A 2HB
|
|
|
GLOBAL COORDINATOR AND ECA AGENT
|
|
|
|
SIGNED
by
|
/s/ Sarai Jacob-Whelan
|
|
Name: Sarai Jacob-Whelan
|
duly authorised
|
Title: Senior Manger - Legal
|
for and on behalf of
|
/s/ Huan Ke
|
MACQUARIE FACTORING (UK) LIMITED
|
Name: Huan Ke
|
in the presence of:
|
Title: Division Director
|
|
|
Witness' Signature:
|
/s/ Sandie Tolan
|
Witness' Name:
|
Name: Sandie Tolan
|
Witness' Address:
|
|
|
|
FACILITY AGENT
|
|
|
|
SIGNED
by
|
/s/ Keith Reader
|
|
Name: Keith Reader
|
duly authorised
|
Title: Authorised Signatory
|
for and on behalf of
|
|
WILMINGTON TRUST (LONDON)
|
|
LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Chris Herford
|
Witness' Name:
|
Name: Chris Herford
|
Witness' Address:
|
Address: Third Floor,
|
|
1 King's Arms Yard,
|
|
London, EC2R 7AF
|
|
|
SECURITY AGENT
|
|
|
|
SIGNED
by
|
/s/ Keith Reader
|
|
Name: Keith Reader
|
duly authorised
|
Title: Authorised Signatory
|
for and on behalf of
|
|
WILMINGTON TRUST (LONDON)
|
|
LIMITED
|
|
in the presence of:
|
|
|
|
Witness' Signature:
|
/s/ Chris Herford
|
Witness' Name:
|
Name: Chris Herford
|
Witness' Address:
|
Address: Third Floor,
|
|
1 King's Arms Yard,
|
|
London, EC2R 7AF
|
i.
|
Amendments to the Loan Agreement.
|
i.
|
The following definitions are added to Clause 1.1 in alphabetical order:
|
ii.
|
Clause 12.3 of the Loan Agreement is hereby amended and restated to read as follows:
|
“
12.3
|
Minimum tangible net worth
. The Borrower shall maintain a Consolidated Tangible Net Worth of not less than $1,000,000,000 plus:
|
i.
|
25% of the Borrower’s cumulative, positive consolidated net income for each fiscal quarter commencing on or after January 1, 2016; and
|
ii.
|
50% of the value of the Equity Proceeds realized from any issuance of Equity Interests in the Borrower occurring on or after January 1, 2016.”
|
iii.
|
Clause 12.5 of the Loan Agreement is hereby amended and restated to read as follows:
|
“
12.5
|
Free liquidity
. The Borrower shall maintain Consolidated Liquidity, including all amounts on deposit with any Lead Arranger, in an amount equal to the greater of (a) $25,000,000 and (b) the sum of (i) the product of $500,000 multiplied by the number of vessels owned by the Borrower or by a subsidiary of the Borrower at such time and (ii) the product of $250,000 multiplied by the number of vessels time chartered in by the Borrower or a subsidiary of the Borrower at such time,
provided that
the Free Liquidity shall at all times consist of cash.”
|
(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."
|
(a)
|
there is no proceeding for the dissolution or liquidation of such party;
|
(b)
|
the representations and warranties contained in the Loan Agreement, as amended hereby, are true and correct as though made on and as of the date hereof, except for (A) representations or warranties which expressly relate to an earlier date in which case such representations and warranties shall be true and correct, in all material respects, as of such earlier date or (B) representations or warranties which are no longer true as a result of a transaction expressly permitted by the Loan Agreement;
|
(c)
|
there is no material misstatement of fact in any information provided by each of the Borrower and the Guarantors to the Agent or the Lenders or the Swap Banks since June 30, 2016, and such information did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
|
(d)
|
there is no event occurring and continuing, or resulting from this Second Amendatory Agreement, that constitutes a Potential Event of Default or an Event of Default; and
|
(e)
|
there have been no amendments to the constitutional documents of any Security Party since the date such documents were delivered previously to the Agent.
|
SCORPIO TANKERS INC.
as Borrower
By:
_/s/ Brian M. Lee_____________________
Name: Brian M. Lee
Title: Chief Financial Officer
|
|
NORDEA BANK FINLAND PLC, NEW YORK BRANCH, as Agent on behalf of the Majority Lenders, and as Agent and Security Trustee in their own rights
By:
__/s/ Martin Lunder
_____________________
Name: Martin Lunder
Title: Senior Vice President
|
|
By:
_/s/ Lynn Sauro_________________________
Name: Lynn Sauro
Title: First Vice President
|
|
STI ONYX SHIPPING COMPANY LIMITED
STI SAPPHIRE SHIPPING COMPANY LIMITED
STI EMERALD SHIPPING COMPANY LIMITED
STI BERYL SHIPPING COMPANY LIMITED
STI LE ROCHER SHIPPING COMPANY LIMITED
STI LARVOTTO SHIPPING COMPANY LIMITED
STI DUCHESSA SHIPPING COMPANY LIMITED
as Guarantors
By:
__/s/ Brian M. Lee
_____________________
Name: Brian M. Lee
Title: Secretary
|
(a)
|
Clause 12.3 (Minimum Consolidated Tangible Net Worth) of the Loan Agreement is hereby amended by deleting such Clause in its entirety and replacing said Clause with the following new Clause 12.3 in lieu thereof:
|
(a)
|
From and including January 1, 2016, the Guarantor shall maintain a Consolidated Tangible Net Worth of not less than $1,000,000,000.00 plus:
|
(i)
|
25% of the Guarantor’s cumulative, positive consolidated net income for each fiscal quarter commencing on or after January 1, 2016; and
|
(ii)
|
50% of the value of the Equity Proceeds realised from any issuance of Equity Interests in the Guarantor occurring on or after January 1, 2016.”
|
(b)
|
Clause 12.5 (Minimum Liquidity) is hereby amended by deleting such Clause in its entirety and replacing said Clause with the following new Clause 12.5 in lieu thereof:
|
SK 26596 0019 7121782 v2
|
|
|
(c)
|
Clause 15.2 (Collateral Maintenance Ratio) is hereby amended by deleting such Clause in its entirety and replacing said Clause with the following new Clause 15.2 in lieu thereof:
|
(a)
|
the aggregate Fair Market Value of the Ships; plus
|
(b)
|
the net realizable value of any additional Collateral previously provided under this Clause 15,
|
(i)
|
from February 28, 2014 to and including December 31, 2015, 135%;
|
(ii)
|
from and including January 1, 2016 to and including December 31, 2016, 165%;
|
(iii)
|
from and including January 1, 2017 to and including December 31, 2017, 160%;
|
(iv)
|
from and including January 1, 2018 to and including December 31, 2018, 155%;
|
(v)
|
from and including January 1, 2019 to and including December 31, 2019, 150%;
|
(vi)
|
thereafter, 145%,
|
(d)
|
A new Clause 35 (Contractual Recognition of Bail-In) is hereby inserted into the Loan Agreement as follows:
|
(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;
|
SK 26596 0019 7121782 v2
|
2
|
)
|
(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.
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time ; and
|
(b)
|
in relation to any other state, 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.
|
(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; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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
|
SK 26596 0019 7121782 v2
|
3
|
)
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.”
|
SK 26596 0019 7121782 v2
|
4
|
)
|
(a)
|
each party hereto shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Agent in accordance with the notice requirements set forth in Clause 29 of the Loan Agreement,
|
(b)
|
The representations and warranties of the Borrower and Guarantor set forth in Section 3 above shall be true and correct on and as of the Effective Date, and
|
(c)
|
the Security Parties shall have paid to the Agent and/or any other Creditor Party all fees, costs and expenses (including, without limitation, reasonable and documented legal fees and expenses) payable to each of the them pursuant to the terms of this Amendment to the extent then due.
|
SK 26596 0019 7121782 v2
|
5
|
)
|
|
STI ACTON SHIPPING COMPANY LIMITED
STI BRIXTON SHIPPING COMPANY LIMITED
STI BROADWAY SHIPPING COMPANY LIMITED
STI CAMDEN SHIPPING COMPANY LIMITED
STI CLAPHAM SHIPPING COMPANY LIMITED
STI COMANDANTE SHIPPING COMPANY LIMITED
STI CONDOTTI SHIPPING COMPANY LIMITED
STI ELYSEES SHIPPING COMPANY LIMITED
STI FINCHLEY SHIPPING COMPANY LIMITED
STI FULHAM SHIPPING COMPANY LIMITED
STI HACKNEY SHIPPING COMPANY LIMITED
STI MADISON SHIPPING COMPANY LIMITED
STI ORCHARD SHIPPING COMPANY LIMITED
STI PARK SHIPPING COMPANY LIMITED
STI PIMLICO SHIPPING COMPANY LIMITED
STI POPLAR SHIPPING COMPANY LIMITED
STI SLOANE SHIPPING COMPANY LIMITED
STI VENETO SHIPPING COMPANY LIMITED
as Borrowers
By:
_/s/ Brian M. Lee
_________________________
Name: _
Brian M. Lee
__________________________
Its: _
Secretary
_____________________________
|
|
SCORPIO TANKERS INC.
as Guarantor
By:
_/s/ Brian M. Lee
________________ ________
Name: __
Brian M. Lee
_______________________
Its: _
Chief Financial Officer____________________
|
|
|
|
|
DNB BANK ASA, NEW YORK BRANCH
as Agent and Security Trustee
By:
__/s/ Sanjiv Nayar
___________________________
Name: __
Sanjiv Nayar
_________________________
Its: ___
Senior Vice President
________________________
By:
__/s/ Sybille Andaur
___________________________
Name: __
Sybille Andaur
_________________________
Its: ___
First Vice President
________________________
|
|
|
|
i.
|
Amendments to the Loan Agreement.
|
i.
|
The following definitions are added to Clause 1.1 in alphabetical order:
|
ii.
|
Clause 12.3 of the Loan Agreement is hereby amended and restated to read as follows:
|
“
12.3
|
Minimum Consolidated Tangible Net Worth
. The Guarantor shall maintain a Consolidated Tangible Net Worth of not less than $1,000,000,000 plus:
|
i.
|
25% of the Guarantor’s cumulative, positive consolidated net income for each fiscal quarter commencing on or after January 1, 2016; and
|
ii.
|
50% of the value of the Equity Proceeds realized from any issuance of Equity Interests in the Guarantor occurring on or after January 1, 2016.”
|
iii.
|
Clause 12.5 of the Loan Agreement is hereby amended and restated to read as follows:
|
“
12.5
|
Minimum liquidity
. The Guarantor shall maintain Consolidated Liquidity, including all amounts on deposit with any bank, of not less than (a) $25,000,000 or (b) an amount equal to the aggregate of (i) the product of $500,000 multiplied by the number of vessels owned by the Guarantor or by a subsidiary of the Guarantor at such time and (ii) the product of $250,000 multiplied by the number of vessels time chartered in by the Guarantor or a subsidiary of the Guarantor at such time (the “
Minimum Liquidity
”), whichever is greater,
provided that
the Minimum Liquidity shall at all times consist of cash.”
|
iv.
|
Clause 15.2 of the Loan Agreement is hereby amended and restated to read as follows:
|
i.
|
the aggregate Fair Market Value of the Ships; plus
|
ii.
|
the net realizable value of any additional Collateral previously provided under this Clause 15,
|
i.
|
during the period from January 1, 2016 until December 31, 2016, 165 percent;
|
ii.
|
during the period from January 1, 2017 until December 31, 2017, 160 percent;
|
iii.
|
during the period from January 1, 2018 until December 31, 2018, 155 percent;
|
iv.
|
during the period from January 1, 2019 until December 31, 2019, 150 percent; and
|
v.
|
at all times thereafter, 145 percent.”
|
(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."
|
2.
|
Conditions to effectiveness.
|
STI BATTERSEA SHIPPING COMPANY LIMITED
STI MAYFAIR SHIPPING COMPANY LIMITED
STI HAMMERSMITH SHIPPING COMPANY LIMITED
STI ROTHERHITHE SHIPPING COMPANY LIMITED
STI TRIBECA SHIPPING COMPANY LIMITED
STI BRONX SHIPPING COMPANY LIMITED
STI SOHO SHIPPING COMPANY LIMITED
STI OXFORD SHIPPING COMPANY LIMITED
STI GRAMERCY SHIPPING COMPANY LIMITED
STI CONNAUGHT SHIPPING COMPANY LIMITED
STI MANHATTAN SHIPPING COMPANY LIMITED
STI BROOKLYN SHIPPING COMPANY LIMITED
STI QUEENS SHIPPING COMPANY LIMITED
STI WINNIE SHIPPING COMPANY LIMITED
STI NOTTING HILL SHIPPING COMPANY LIMITED
STI LAUREN SHIPPING COMPANY LIMITED
STI WESTMINSTER SHIPPING COMPANY LIMITED
as Borrowers
By: __
/s/ Brian M. Lee
_____________________
Name: Brian M. Lee
Title: Secretary
|
|
DNB BANK ASA, NEW YORK BRANCH, as Agent on behalf of the Majority Lenders, K-Sure Agent, and as Agent and Security Trustee in their own rights
By:
__/s/ Ahelia Singh________________________
Name: Ahelia Singh
Title: Assistant Vice President
|
|
By:
_/s/ Mita Zalavadia_________________________
Name: Mita Zalavadia
Title: Assistant Vice President
|
|
SCORPIO TANKERS INC.
as Guarantor
By:
_/s/ Brian M. Lee______________________
Name: Brian M. Lee
Title: Chief Financial Officer
|
Amendment and Restatement Deed in relation to a Secured Loan Facility dated 18 December 2015 as amended by a Side Letter dated 2 February 2016
|
Dated 29 December 2016
|
(1) STI Memphis Shipping Company Limited
STI Battery Shipping Company Limited
(as Existing Borrowers)
(2) STI Sapphire Shipping Company Limited
STI Emerald Shipping Company Limited
(as New Borrowers)
(3) Scorpio Tankers Inc.
(as Guarantor)
(4) BNP Paribas
(as Arranger)
(5) BNP Paribas
(as Agent)
(6) BNP Paribas
(as Swap Provider)
(7) BNP Paribas
(as Security Agent)
(8) The Financial Institutions
listed in Schedule 1 (as Original Lenders) |
1
|
Interpretation
|
3
|
|
2
|
Conditions
|
4
|
|
3
|
Representations
|
4
|
|
4
|
Amendments to Loan Agreement
|
5
|
|
5
|
Confirmations and Undertakings
|
5
|
|
6
|
Notices, Governing Law and Enforcement
|
5
|
|
Schedule 1
|
The Original Lenders
|
6
|
|
Schedule 2
|
Effective Date Confirmation
|
7
|
|
Schedule 3
|
Amended and Restated Loan Agreement
|
8
|
|
(1)
|
STI Memphis Shipping Company Limited ("Borrower A")
and
STI Battery Shipping Company Limited ("Borrower B")
, each a company incorporated under the laws of the Republic of the Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 (together the "
Existing Borrowers
"); and
|
(2)
|
STI Sapphire Shipping Company Limited ("Borrower C") and STI Emerald Company Limited ("Borrower D")
,
each a company incorporated under the laws of the Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 (together, the "
New Borrowers
" and together with the Existing Borrowers (the "
Borrowers
")); and
|
(3)
|
Scorpio Tankers Inc.
, a company incorporated under the laws of the Republic of the Marshall Islands, with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 (the
"
Guarantor
"); and
|
(4)
|
BNP Paribas
, acting as mandated lead arranger through its office at 16, rue de Hanovre, 75002 Paris, France (in that capacity, the "
Arranger
"); and
|
(5)
|
BNP Paribas
, acting as agent through its office at 16, rue de Hanovre, 75002 Paris, France (in that capacity, the "
Agent
"); and
|
(6)
|
BNP Paribas,
acting as swap provider through its office at 787 Seventh Avenue, 10019 New York, New York, United States of America
and any Lender that from time to time enters into a Master Agreement with the Borrowers and which accedes to the Loan Agreement in its capacity as swap provider
(together the "
Swap Providers
" and each a "
Swap Provider
");
|
(7)
|
BNP Paribas
, acting as security agent through its office at 16, rue de Hanovre, 75002 Paris, France (in that capacity, the "
Security Agent
"); and
|
(8)
|
The Financial Institutions
listed in
Schedule 1
(
The Original Lender
), each acting through its Facility Office (together the "
Original Lenders
" and each an "
Original Lender
").
|
(A)
|
The Existing Borrowers and the New Borrowers have requested to be joint and several borrowers under the Loan Agreement and have requested an increase to the Maximum Loan Amount to fifty nine million eight hundred thousand dollars (USD59,800,000) to
|
(B)
|
The Finance Parties have agreed to give their consent to the Request and have agreed to add Borrower C and Borrower D as joint and several Borrowers together with Borrower A and Borrower B as at the Effective Date, subject to and upon the terms and conditions contained in this Amendment and Restatement Deed.
|
(C)
|
The parties to this Amendment and Restatement Deed have agreed to amend and restate the Loan Agreement on the terms and subject to the conditions set out in this Amendment and Restatement Deed in the form attached to this Amendment and Restatement Deed at
Schedule 3
. The parties to this Amendment and Restatement Deed have also agreed to amend and supplement certain of the Security Documents that have been entered into prior to this Amendment and Restatement Deed in order to extend the security created by those Security Documents to secure the Borrowers' obligations under the Loan Agreement as it is amended and restated.
|
1
|
Interpretation
|
1.1
|
In this Amendment and Restatement Deed "
Effective Date
" means the date on which the Agent confirms to the Borrower in writing substantially in the form set out in Schedule 2 that all of the conditions referred to in Clause 2.1 have been satisfied, which confirmation the Agent shall be under no obligation to give if an Event of Default shall have occurred.
|
1.2
|
In this Amendment and Restatement Deed "
Finance Parties
" means the Agent, the Security Agent, the Arranger, the Swap Provider and the Lenders.
|
1.3
|
In this Amendment and Restatement Deed "
Security Parties
" means all parties to this Amendment and Restatement Deed other than the Finance Parties and "
Security Party
" means any one of them, and "
Existing Security Parties
" means the Existing Borrowers and the Guarantor.
|
1.4
|
All words and expressions defined in the Loan Agreement shall have the same meaning when used in this Amendment and Restatement Deed unless the context otherwise requires, and clause 1.2 of the Loan Agreement shall apply to the interpretation of this Amendment and Restatement Deed as if it is set out in full.
|
1.5
|
The Agent and the Borrowers hereby designate this Amendment and Restatement Deed as a Finance Document.
|
1.6
|
All obligations, representations, warranties, covenants and undertakings of the Borrowers under or pursuant to this Amendment and Restatement Deed shall, unless otherwise expressly provided, be entered into, made or given by them jointly and severally.
|
2
|
Conditions
|
2.1
|
As conditions for the agreement of the Finance Parties to the requests specified in Recital A above and for the effectiveness of Clause 4, the Borrower shall deliver or cause to be delivered to or to the order of the Agent the following documents and evidence:
|
2.1.1
|
a certificate from a duly authorised officer of each of the Existing Security Parties confirming that none of the documents previously delivered to the Agent pursuant to clauses
4.1
and
4.2
of the Loan Agreement have been amended or modified in any way since the date of their delivery to the Agent, or copies, certified by a duly authorised officer of the relevant Security Party in question as true, complete, accurate and neither amended nor revoked, of any which have been amended or modified;
|
2.1.2
|
a copy, certified by a director or the secretary of each of the Existing Security Parties as true, complete and accurate and neither amended nor revoked, of a resolution of the directors of each of the Existing Security Parties approving, and authorising or ratifying the execution of, this Amendment and Restatement Deed and any document to be executed by them pursuant to this Amendment and Restatement Deed;
|
2.1.3
|
a notarially attested and legalised power of attorney of each of the Existing Security Parties under which this Amendment and Restatement Deed and any documents required pursuant to it are to be executed by that party;
|
2.1.4
|
for each of Borrower C and Borrower D, the equivalent documents listed in paragraph 1 of
Schedule 2
, Part I of the Loan Agreement; with references therein to "Guarantor and the Borrowers" being deemed to be references to Borrower C and Borrower D;
|
2.1.5
|
a duly executed mortgage addendum in respect of each of Vessel A and Vessel B in respect of the first preferred Marshall Islands mortgage over each of Vessel A and Vessel B together with evidence of the registration of the mortgage addenda with the Marshall Islands Ship Registry.
|
2.2
|
All documents and evidence delivered to the Agent pursuant to Clause 2.1 shall:
|
2.2.1
|
be in form and substance acceptable to the Agent;
|
2.2.2
|
be accompanied, if required by the Agent, by translations into the English language, certified in a manner acceptable to the Agent; and
|
2.2.3
|
if required by the Agent, be certified, notarised, legalised or attested in a manner acceptable to the Agent.
|
3
|
Representations
|
4
|
Amendments to Loan Agreement
|
4.1
|
With effect from the Effective Date the Loan Agreement shall be read and construed as if:
|
4.1.1
|
references to "this Agreement" are references to the Loan Agreement as amended and supplemented by this Amendment and Restatement Deed; and
|
4.1.2
|
references to the Finance Documents include this Amendment and Restatement Deed.
|
4.2
|
With effect from the Effective Date, Borrower C and Borrower D shall accede to the Loan Agreement as joint and several borrowers, and agree to perform and assume all of the obligations and liabilities of the Borrowers under the Loan Agreement.
|
4.3
|
All other terms and conditions of the Loan Agreement shall remain unaltered and in full force and effect.
|
5
|
Confirmations and Undertakings
|
5.1
|
Each of the Existing Security Parties confirms that all of its respective obligations under or pursuant to each of the Security Documents to which it is a party remain in full force and effect, despite the amendments to the Loan Agreement made in this Amendment and Restatement Deed, as if all references in any of the Security Documents to the Loan Agreement are references to the Loan Agreement as amended and supplemented by this Amendment and Restatement Deed.
|
5.2
|
The definition of any term defined in any of the Security Documents shall, to the extent necessary, be modified to reflect the amendments to the Loan Agreement made in or pursuant to this Amendment and Restatement Deed.
|
5.3
|
Without prejudice to or in any way limiting the general effect of Clauses
5.1
and
5.2
, each of the Existing Security Parties hereby agrees and confirms that the security and obligations created by the Finance Documents to which they are a party and their obligations thereunder shall secure and extend to the obligations of the Borrowers under the Loan Agreement as amended and restated by this Amendment and Restatement Deed and under the Finance Documents. Furthermore, the Guarantor confirms and agrees that the Guarantee shall extend to and guarantee the performance of the Borrowers of all of their obligations under the Loan Agreement as amended and restated and under any and all of the Finance Documents. In all other respects, the Existing Security Parties' obligations under the Finance Documents remain in full force and effect.
|
6
|
Notices, Governing Law and Enforcement
|
Name of Original Lender
|
BNP Paribas
|
To:
|
STI Memphis Shipping Company Limited
|
US$59,800,000 Secured Loan Agreement
|
Dated 18 December 2015 as amended by a side letter dated 2 February 2016 and as amended and restated pursuant to an amendment and restatement deed dated 29 December 2016
|
(1) STI Memphis Shipping Company Limited
STI Battery Shipping Company Limited
STI Sapphire Shipping Company Limited
STI Emerald Shipping Company Limited
(as Borrowers)
(2) Scorpio Tankers Inc.
(as Guarantor)
(3) The Financial Institutions
listed in Schedule 1 (as Original Lenders)
(4) BNP Paribas
(as Arranger)
(5) BNP Paribas
(as Agent)
(6) BNP Paribas
(as Swap Provider)
(7) BNP Paribas
(as Security Agent) |
|
Section 1 Interpretation
|
|
1
|
Definitions and Interpretation
|
|
|
Section 2 The Loan
|
|
2
|
The Loan
|
|
3
|
Purpose
|
|
4
|
Conditions of Utilisation
|
|
|
Section 3 Utilisation
|
|
5
|
Advance
|
|
|
Section 4 Repayment, Prepayment and Cancellation
|
|
6
|
Repayment
|
|
7
|
Illegality, Prepayment and Cancellation
|
|
|
Section 5 Costs of Utilisation
|
|
8
|
Interest
|
|
9
|
Interest Periods
|
|
10
|
Changes to the Calculation of Interest
|
|
11
|
Fees
|
|
|
Section 6 Additional Payment Obligations
|
|
12
|
Tax Gross Up and Indemnities
|
|
13
|
Increased Costs
|
|
14
|
Other Indemnities
|
|
15
|
Mitigation by the Lenders
|
|
16
|
Costs and Expenses
|
|
|
Section 7 Security and Application of Moneys
|
|
17
|
Security Documents and Application of Moneys
|
|
18
|
Guarantee and Indemnity
|
|
|
Section 8 Representations, Undertakings and Events of Default
|
|
19
|
Representations
|
|
20
|
Information Undertakings
|
|
21
|
Financial Covenants
|
|
22
|
General Undertakings
|
|
23
|
Events of Default
|
|
|
Section 9 Changes to Parties
|
|
24
|
Changes to the Lenders
|
|
25
|
Changes to the Security Parties
|
|
|
Section 10 The Finance Parties
|
|
26
|
Role of the Agent, the Security Agent and the Arranger
|
|
27
|
Conduct of Business by the Finance Parties
|
|
28
|
Sharing among the Finance Parties
|
|
|
Section 11 Administration
|
|
29
|
Payment Mechanics
|
|
30
|
Set-Off
|
|
31
|
Notices
|
|
32
|
Calculations and Certificates
|
|
33
|
Partial Invalidity
|
|
34
|
Remedies and Waivers
|
|
35
|
Amendments and Waivers
|
|
36
|
Confidentiality
|
|
37
|
Disclosure of Lender Details by Agent
|
|
38
|
Counterparts
|
|
39
|
Joint and Several Liability
|
|
|
Section 12 Governing Law and Enforcement
|
|
40
|
Governing Law
|
|
41
|
Enforcement
|
|
42
|
Patriot Act Notice
|
|
Schedule 1
|
The Original Lenders
|
|
Schedule 2
|
Part I Conditions Precedent
|
|
Part II Conditions Subsequent
|
|
|
Schedule 3
|
Drawdown Request
|
|
Schedule 4
|
Form of Transfer Certificate
|
|
Schedule 5
|
Form of Assignment Agreement
|
|
Schedule 6
|
Form of Compliance Certificate
|
|
Dated
|
2016
|
(9)
|
STI Memphis Shipping Company Limited
("
Borrower A
")
STI Battery Shipping Company Limited
("
Borrower B
"),
STI Sapphire Shipping Company Limited
("
Borrower C
")
STI Emerald Shipping Company Limited
("
Borrower D
") (each a company incorporated under the laws of the Republic of the Marshall Islands, with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960) (each a Borrower and together the "
Borrowers
"); and
|
(10)
|
Scorpio Tankers Inc.
, a company incorporated under the laws of the Republic of the Marshall Islands, with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 (the
"
Guarantor
"); and
|
(11)
|
The Financial Institutions
listed in Schedule 1, Part 1 (
The Original Lenders
), each acting through its Facility Office (together the "
Original Lenders
" and each an "
Original Lender
"); and
|
(12)
|
BNP Paribas
, acting as mandated lead arranger through its office at 16, rue de Hanovre, 75002 Paris, France (in that capacity, the "
Arranger
"); and
|
(13)
|
BNP Paribas
, acting as agent through its office at 16, rue de Hanovre, 75002 Paris, France (in that capacity, the "
Agent
"); and
|
(14)
|
BNP Paribas,
acting as swap provider through its office at 787 Seventh Avenue, 10019 New York, New York, United States of America
and any Lender that from time to time enters into a Master Agreement with the Borrowers in its capacity as swap provider
(together the "
Swap Providers
" and each a "
Swap Provider
"); and
|
(15)
|
BNP Paribas
, acting as security agent through its office at 16, rue de Hanovre, 75002 Paris, France (in that capacity, the "
Security Agent
").
|
(D)
|
Each Borrower is the owner of its relevant Vessel and has registered that Vessel under an Approved Flag.
|
(E)
|
Each of the Original Lenders has agreed to advance to the relevant Borrower on a joint and several basis, its Commitment (aggregating, with all the other Commitments), up to $59,800,000 to assist the Borrowers to finance part of the purchase price of Vessel A and to refinance existing debt in relation to Vessel B, Vessel C and Vessel D.
|
Section 1
|
Interpretation
|
1
|
Definitions and Interpretation
|
1.1
|
Definitions
In this Agreement:
|
(a)
|
proposed by the Borrowers;
|
(b)
|
run by any Affiliate of the Commercial Manager; and
|
(c)
|
approved in writing by the Agent prior to that Vessel's entry into such pooling arrangement.
|
(a)
|
the interest (excluding the Margin) 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;
|
(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 in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a)
|
in respect of the Borrowers, the occurrence of any act, event or circumstance that without prior written consent of the Majority Lenders results in the Guarantor owning directly or indirectly less than 100% of the issued and outstanding equity in a Borrower; and
|
(b)
|
in respect of the Guarantor:
|
(i)
|
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than any director or officer or any holders of 5% or more of the Guarantor's equity as of the date of this Agreement, becomes the ultimate "beneficial owner" (as defined in Rule 13(d)-3 under the Exchange Act and including by reason of any change in the ultimate "beneficial ownership" of the equity of the Guarantor) of more than 35% of the total voting rights of the Guarantor (calculated on a fully diluted basis); or
|
(ii)
|
individuals who at the beginning of any period of two consecutive calendar years constituted the Board of Directors or equivalent governing body of the Guarantor (together with any new directors (or equivalent) whose election by such Board of Directors or equivalent governing body or whose nomination for election was approved
|
(a)
|
any charter pursuant to an Approved Pooling Arrangement; and
|
(b)
|
any other charter or contract of employment in respect of a Vessel that a Borrower enters into with a company within the Group.
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Schedule 1 (
The Original Lenders
) and the amount of any other Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a)
|
any Security Party or any of its advisers; or
|
(b)
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Security Party or any of its advisers,
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36 (
Confidentiality
); or
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by any Security Party 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 Security Party and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a)
|
any release, emission, spill or discharge into a Vessel or 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/or a Vessel and/or any Security Party and/or any operator or manager of a Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c)
|
any other incident in which Environmentally Sensitive Material is released, 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 and/or where any Security Party and/or any operator or manager of a Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
(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.
|
(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;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within (a) or (b), 1 January 2019,
|
(a)
|
all obligations of the Debtor for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the Debtor;
|
(b)
|
all obligations of the Debtor evidenced by bonds, debentures, notes or other similar instruments;
|
(c)
|
all obligations of the Debtor in respect of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the Debtor (including reimbursement obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet;
|
(d)
|
all obligations of the Debtor to pay the deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereto or the completion of such services, except trade payables;
|
(e)
|
all Capitalized Lease Obligations of the Debtor as lessee;
|
(f)
|
all such Financial Indebtedness as described in sub paragraphs (a) to (e) of persons other than the Debtor secured by an Encumbrance on any asset of the Debtor, whether or not such Financial Indebtedness is assumed by the Debtor, provided that the amount of such Financial Indebtedness shall be the lesser of (i) the fair market value of such asset at such date of determination and (ii) the amount of such Financial Indebtedness; and
|
(g)
|
all such Financial Indebtedness as described in sub-paragraphs (a) to (e) of persons other than the Debtor under any guarantee, indemnity to similar obligation entered into by the Debtor to the extent such Financial Indebtedness is guaranteed, indemnified, etc. by the Debtor.
|
(a)
|
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
|
(b)
|
the Agent otherwise rescinds or repudiates a Finance Document; or
|
(c)
|
an Insolvency Event has occurred and is continuing with respect to the Agent;
|
(i)
|
its failure to pay is caused by:
|
(ii)
|
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(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
|
(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;
|
(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 (h); or
|
(j)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Tranche; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Tranche,
|
(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
|
(a)
|
any Original Lender; and
|
(b)
|
any bank, financial institution or other entity which has become a Party as a Lender in accordance with Clause 24 (
Changes to the Lenders
),
|
(a)
|
the applicable Screen Rate; or
|
(b)
|
(if no Screen Rate is available for the Interest Period of that Tranche) the Interpolated Screen Rate for that Tranche; or
|
(c)
|
(if (i) no Screen Rate is available for the currency of the Loan or (ii) no Screen Rate is available for the Interest Period of that Tranche and it is not possible to calculate the Interpolated Screen Rate for that Tranche) the Reference Bank Rate,
|
(a)
|
as to be acceded to in respect of the commercial management of the Vessels pursuant to confirmation letters to be made between the relevant Borrower, Scorpio Tankers Inc. and the Commercial Manager; and
|
(b)
|
as to be acceded to in respect of the technical management of the Vessels pursuant to confirmation letters to be between the relevant Borrower, Scorpio Tankers Inc. and the Technical Manager.
|
(a)
|
in relation to the commercial management of the Vessels, the Commercial Manager; and
|
(b)
|
in relation to the technical management of the Vessels, the Technical Manager,
|
(a)
|
they will remain the commercial or technical managers of the Vessels (as the case may be);
|
(b)
|
they will not, without the prior written consent of the Agent, subcontract or delegate the commercial or technical management of the Vessels (as the case may be) to any third party other than an Approved Sub-manager provided that the Borrowers shall procure from such Approved Sub-manager a Manager's Undertaking;
|
(c)
|
if required by the Agent, the interests of the Managers in the Insurances will be assigned to the Security Agent with first priority; and
|
(d)
|
(following the occurrence of an Event of Default) all claims of the Managers against the Borrowers shall be subordinated to the claims of the Finance Parties under the Finance Documents.
|
(a)
|
the business, property or financial condition of a Borrower or the Guarantor; or
|
(b)
|
the ability of any Security Party 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; or
|
(d)
|
the rights or remedies of any Finance Party under any of the Finance Documents.
|
(a)
|
of assets in exchange for other assets comparable or superior as to type, value and quality;
|
(b)
|
of obsolete or redundant vehicles, plant and equipment for cash; and
|
(c)
|
arising as a result of any Permitted Encumbrance.
|
(a)
|
any Encumbrance which has the prior written approval of the Agent;
|
(b)
|
any Encumbrance created pursuant to a Finance Document;
|
(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 a Security Party, up to an aggregate amount (including when aggregated with amounts owing and secured by liens under para (e) below) that at any time does not exceed $500,000;
|
(d)
|
any Quasi-Security arising as a result of a disposal which is a Permitted Disposal; or
|
(e)
|
any liens for current crews' wages and salvage and other maritime liens incurred in the ordinary course of trading a Vessel up to an aggregate amount (including when aggregated with amounts owing and secured by liens under para (c) above) that at any time does not exceed $500,000.
|
(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; and
|
(c)
|
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of a Vessel;
|
(b)
|
any expropriation, confiscation, requisition or acquisition of that Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one (1) year without any right to an extension), unless it is within three (3) months redelivered to the full control of the Borrower owning that Vessel; or
|
(c)
|
any arrest, capture, seizure or detention of that Vessel (including any hijacking, piracy or theft) unless it is within three (3) months redelivered to the full control of the Borrower owning that Vessel;
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b)
|
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a)
|
all benefits derived by the Security Agent from Clause 17 (
Security and Application of Moneys
); and
|
(a)
|
all benefits arising under (including, without limitation, all proceeds of the enforcement of) each of the Security Documents,
|
(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.
|
Designation
|
Type of Vessel
|
Name
|
IMO number
|
Borrower
|
"
Vessel A
"
|
50,000 dwt MR product tanker
|
"STI MEMPHIS"
|
9681156
|
Borrower A
|
"
Vessel B
"
|
50,000 dwt MR product tanker
|
"STI BATTERY"
|
9707807
|
Borrower B
|
"Vessel C"
|
50,000 dwt MR product tanker
|
"STI SAPPHIRE"
|
9650573
|
Borrower C
|
"Vessel D"
|
50,000 dwt MR product tanker
|
"STI EMERALD"
|
9655913
|
Borrower D
|
1.2
|
Construction
Unless a contrary indication appears, any reference in this Agreement to:
|
1.2.1
|
any "
Lender
", any "
Borrower
", the "
Guarantor
",
the "
Arranger
", the "
Agent
", any "
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;
|
1.2.2
|
"
assets
" includes present and future properties, revenues and rights of every description;
|
1.2.3
|
a "
Finance Document
", a "
Security Document
", a "
Relevant Document
" or any other document is a reference to that Finance Document, Security Document, Relevant Document or other document as amended, novated, supplemented, extended or restated from time to time;
|
1.2.4
|
a "
group of Lenders
" includes all the Lenders;
|
1.2.5
|
"
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;
|
1.2.6
|
a "
person
" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership or other entity (whether or not having separate legal personality);
|
1.2.7
|
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;
|
1.2.8
|
a provision of law is a reference to that provision as amended or re-enacted from time to time; and
|
1.2.9
|
a time of day (unless otherwise specified) is a reference to London time.
|
1.3
|
Headings
Section, Clause and Schedule headings are for ease of reference only.
|
1.4
|
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.
|
1.5
|
Default
A Default is "continuing" if it has not been remedied or waived.
|
1.6
|
Currency symbols and definitions
"
$
", "
USD
"
and "
dollars
" denote the lawful currency of the United States of America.
|
1.7
|
Third party rights
|
1.8
|
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.
|
1.9
|
Contractual recognition of bail-in
|
1.9.1
|
In this Clause 1.9:
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b)
|
in relation to any other state, 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.
|
(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; and
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that 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 Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
1.9.2
|
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:
|
(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.
|
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, a term loan comprising Tranche A, Tranche B, Tranche C and Tranche D and not exceeding in aggregate 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 a Security Party shall be a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph 2.2.3 below. 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 a loan or any other amount owed by a Security Party 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 Security Party.
|
2.2.3
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
3
|
Purpose
|
3.1
|
Purpose
The Borrowers shall apply the Loan for the purposes referred to in Preliminary
(B)
.
|
3.2
|
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed under this Agreement.
|
4
|
Conditions of Utilisation
|
4.1
|
Initial conditions precedent
|
4.1.1
|
The Lenders will only be obliged to comply with Clause 5.3 (
Lenders' participation
) in relation to the advance of a Tranche if, on or before the relevant Drawdown Date, 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, save that references in Section 2 of that Part I to "the Vessel" or to any person or document relating to a Vessel shall be deemed to relate solely to the Vessel specified in the relevant Drawdown Request or to any person or document relating to that Vessel respectively and references to the "Borrowers" or "Borrower" shall mean Borrower A in the case of the Tranche that is to be used to finance Vessel A and Borrower B in the case of the Tranche that is to be used to refinance Vessel B, Borrower C in the case of the Tranche that is to be used to refinance Vessel C and Borrower D in the case of the Tranche that is to be used to refinance Vessel D in each case as specified in the relevant Drawdown request. The Agent shall notify the Borrowers and the Lenders promptly upon being so satisfied.
|
4.1.2
|
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
|
4.2.1
|
The Lenders will only be obliged to advance a Tranche if on the date of a Drawdown Request and on the proposed Drawdown Date:
|
(a)
|
no Default has occurred and is continuing or would result from the advance of that Tranche; and
|
(b)
|
the representations made by each Borrower and the Guarantor under Clause 19 (
Representations
) are true.
|
4.2.2
|
The Lenders will only be obliged to advance a Tranche if that Tranche is not in excess of the relevant Maximum Tranche Amount
|
4.2.3
|
The Lenders will only be obliged to advance a Tranche if that Tranche will not increase the Loan to a sum in excess of the Maximum Loan Amount.
|
4.2.4
|
The Lenders will only be obliged to advance Tranche B if Borrower B has acceded to this Agreement in accordance with this Agreement.
|
4.3
|
Conditions subsequent
The Borrowers undertake to deliver or to cause to be delivered to the Agent within seven days after the each Drawdown Date the additional documents and other evidence listed in Part II of Schedule 2 (
Conditions Subsequent
) except for (a) the evidence listed in paragraph 6 of Part II of Schedule 2 (
Conditions Subsequent
) which the Borrowers undertake to deliver or to cause to be delivered to the Agent within the date specified in the Fee Letter and (b) the evidence listed in paragraphs 7 to 10 of Part II of Schedule 2 (
Conditions Subsequent
) which the Borrowers undertake to deliver or to cause to be delivered to the Agent within 30 days of each Drawdown Date, save that references in that Part II to "the Vessel" or to any person or document relating to a Vessel shall be deemed to relate solely to the Vessel specified in the relevant Drawdown Request or to any person or document relating to that Vessel respectively.
|
4.4
|
No waiver
If the Lenders in their sole discretion agree to advance a Tranche to the Borrowers 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 seven days after the Drawdown Date or such other date specified by the Agent (acting on the instructions of all the Lenders).
|
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.
|
Section 3
|
Utilisation
|
5
|
Advance
|
5.1
|
Delivery of a Drawdown Request
The Borrowers may request a Tranche to be advanced, in a single advance, by delivery to the Agent of a duly completed Drawdown Request not more than ten and not fewer than three Business Days before the proposed Drawdown Date. Any Drawdown Request which becomes effective, in accordance with Clause 31.3, after 10.00 a.m. in the place of receipt shall be deemed only to become effective on the following day.
|
5.2
|
Completion of a Drawdown Request
A Drawdown 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 Drawdown 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 any Tranche available by the relevant Drawdown Date through its Facility Office.
|
5.3.2
|
The amount of each Lender's participation in any Tranche 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 on the earlier of (i) the Drawdown Date of the final Tranche to be advanced and (ii) the end of the Availability Period of the final Tranche to be advanced, to the extent that it is unutilised at that time.
|
Section 4
|
Repayment, Prepayment and Cancellation
|
6
|
Repayment
|
6.1
|
Repayment of Tranche A and Tranche B
With effect from the Restatement Date the Borrowers agree to repay each of Tranche A and Tranche B to the Agent for the account of the Lenders by 20 consecutive quarterly instalments. After the Restatement Date, each repayment instalment for each of Tranche A and Tranche B shall be in a sum of $575,000, and next instalment for both Tranche A and Tranche B shall fall due on the 15 June 2017, and all subsequent instalments will be due at consecutive intervals of six calendar months thereafter, together with a final payment (the "
Tranche A and Tranche B
Balloon
") falling due on the Termination Date, which shall be in an amount to reduce the amount outstanding in respect of Tranche A and Tranche B to nil.
|
6.2
|
Repayment of Tranche C and Tranche D
The Borrowers agree to repay each of Tranche C and Tranche D to the Agent for the account of the Lenders by 10 consecutive semi annual instalments. Each repayment instalment for each of Tranche C and Tranche D shall be in a sum of $575,000 with the first instalment due on 15 June 2017 and then subsequent instalments falling due at consecutive intervals of six calendar months thereafter, together with a final payment (the "
Tranche C and Tranche D Balloon
") falling due on the Termination Date, which shall be in an amount to reduce the amount outstanding in respect of each of Tranche C and Tranche D to nil.
|
6.3
|
Termination Date
On the Termination Date relevant to each Tranche all Indebtedness related to that Tranche shall be repaid in full.
|
6.4
|
Reduction of Repayment Instalments in respect of Tranche A and Tranche B
If the aggregate amount advanced to the Borrowers in respect of a Tranche is less than US$17,250,000, the amount of each Repayment Instalment for that Tranche shall be reduced pro rata to the amount actually advanced. For the avoidance of doubt, the Tranche A and Tranche B Balloon shall not exceed $10,350,00 for each of Tranche A and Tranche B.
|
6.5
|
Reduction of Repayment Instalments in respect of Tranche C and Tranche D
If the aggregate amount advanced to the Borrowers in respect of Tranche C or Tranche D is less than US$13,800,000, the amount of each Repayment Instalment for that Tranche shall be reduced pro rata to the amount actually advanced. For
|
6.6
|
Reborrowing
The Borrowers may not reborrow any part of a Tranche which is repaid or prepaid.
|
7
|
Illegality, Prepayment and Cancellation
|
7.1
|
Illegality
If it becomes unlawful in any jurisdiction (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
|
the Borrowers shall repay that Lender's participation in each Tranche on the last day of its 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 30 days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being an amount which is an integral multiple of $2,000,000 of the undrawn amount of a Tranche. Any cancellation under this Clause 7.2 shall reduce the Commitments of the Lenders rateably.
|
7.3
|
Voluntary prepayment of the Loan
The Borrowers may prepay the whole or any part of the Loan (but, if in part, being an amount which is an integral multiple of $2,000,000) subject as follows:
|
7.3.1
|
they give the Agent not less than 30 days' (or such shorter period as the Majority Lenders may agree) prior notice; and
|
7.3.2
|
any prepayment under this Clause 7.3 shall be applied in prepayment of the remaining Repayment Instalments in respect of each Tranche (including the relevant Balloon) on a pro rata basis and then in inverse order of maturity in respect of that Tranche.
|
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 the Borrowers is required to be increased under Clause 12.2.2 (
Tax gross-up
); or
|
(b)
|
any Lender claims indemnification from the Borrowers under Clause 12.3 (
Tax indemnity
) or Clause 13.1 (
Increased costs
),
|
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 in respect of each Tranche 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
|
7.5
|
Mandatory prepayment on sale or Total Loss
If a 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 whole of the Tranche in respect of that Vessel then outstanding. Any such prepayment shall be applied:
|
7.5.1
|
firstly, in respect of any Break Costs;
|
7.5.2
|
secondly, in payment of any accrued but unpaid interest due to the Lenders under this Agreement;
|
7.5.3
|
thirdly, in prepayment of the remaining Repayment Instalments in respect of that Tranche (including the relevant Balloon) and any amounts due under any Master Agreement on a pro-rata basis and then in inverse order of maturity;
|
7.5.4
|
fourthly, any surplus shall be released to the order of the Borrowers
provided that
the Borrowers are in compliance with Clause 17.16 (
Additional security
).
|
7.6
|
Mandatory prepayment on Change of Control
If a Change of Control occurs:
|
7.6.1
|
the relevant Borrower and/or the Guarantor (as the case may be) shall promptly notify the Agent upon having knowledge of that event;
|
7.6.2
|
no Lender shall be obliged to fund or continue to fund the relevant Tranche; and
|
7.6.3
|
the Agent, acting on the instructions of the Majority Lenders, may, by not less than 10 Business Days' notice to the Borrowers:
|
(a)
|
in the case of a Change of Control in respect of a Borrower, cancel the Commitments in respect of the Tranche relating to the Vessel owned by that Borrower and declare all amounts outstanding under that Tranche immediately due and payable together with accrued interest (and any other amount payable under Clause 14 or otherwise); and
|
(b)
|
in the case of a Change of Control in respect of the Guarantor, cancel the loan facility provided for under this Agreement and declare the Loan, together with accrued interest (and any other amount payable under Clause 14 or otherwise), and all other amounts accrued under the Finance Documents, immediately due and payable, whereupon the Total Commitments shall be cancelled and all such outstanding amounts will become immediately due and payable by the Borrowers.
|
7.7
|
Restrictions
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.
|
Section 5
|
Costs of Utilisation
|
8
|
Interest
|
8.1
|
Calculation of interest
The rate of interest on each Tranche for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
8.1.1
|
the relevant Margin applicable to that Tranche; and
|
8.1.2
|
LIBOR.
|
8.2
|
Payment of interest
Interest shall accrue day to day, shall be calculated on the basis of a 360 day year, and the Borrowers shall pay accrued interest on each Tranche on the last day of each Interest Period.
|
8.3
|
Default interest
If the Borrowers fail to pay any amount payable by them 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 Tranche 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 8.3 shall be immediately payable by the Borrowers on demand by the Agent.
|
8.4
|
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
|
Duration of Interest Periods
The duration of each Interest Period for each Tranche shall be six (6) months, subject as follows:
|
9.1.1
|
the period of an Interest Period may be varied by agreement between the Borrowers and the Agent (acting on the instructions of all of the Lenders);
|
9.1.2
|
the fixed duration of an Interest Period is subject to Clauses 9.2 (
Interest Periods to meet Repayment Dates
) and 9.3 (
Non-Business Days
);
|
9.1.3
|
the Interest Period that is current at the time of the Restatement Date and which is applicable to Tranche A and Tranche B shall end on 28 February 2017, and the immediately following Interest Period for Tranche A and Tranche B shall run from 1 March 2017 to 15 June 2017;
|
9.1.4
|
the first interest periods applicable to Tranche C and Tranche D shall each be for a period commencing on the respective Drawdown Date for Tranche C or Tranche D, as applicable, and ending on 15 June 2017;
|
9.1.5
|
an Interest Period for a Tranche shall not extend beyond the relevant Termination Date in relation to the relevant Tranche; and
|
9.1.6
|
each Interest Period shall start on the Drawdown Date of the Tranche or (if the Tranche is already made) on the last day of the preceding Interest Period of that Tranche and end on the date which numerically corresponds to the Drawdown Date of that Tranche or the last day of the preceding
|
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 relevant Tranche equal to the Repayment Instalment due in respect of that Tranche on that next Repayment Date and that separate Interest Period shall expire on that next Repayment Date. If a Borrower enters into a Master Agreement and a hedging contract in relation to interest payable on all or part of the Loan, that Borrower shall procure that the terms of such hedging contract provide that each calculation period under that hedging contract is, at all times, aligned with each corresponding Interest Period.
|
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).
|
9.4
|
Confidential Rates
|
9.4.1
|
The Agent and each Borrower agree to keep each Confidential Rate confidential and not to disclose it to anyone, save to the extent permitted by Clauses 9.4.2, 9.4.3 and 9.4.4 below.
|
9.4.2
|
The Agent may disclose:
|
(a)
|
any Funding Rate to the relevant Borrower pursuant to Clause
8.4
(
Notification of rates of interest
); and
|
(b)
|
any Confidential Rate to any person appointed by it 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, to the extent necessary to enable such service provider to provide any of the services referred to in this Clause 9.4.2(b) if the service provider to whom the Confidential Rate is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Reference Bank or Lender, as the case may be.
|
9.4.3
|
The Agent may disclose any Confidential Rate, and each Borrower may disclose my Funding Rate, to:
|
(a)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Confidential Rate is to be given pursuant to this Clause 9.4.3(a) is informed in writing of its confidential nature and that the Confidential Rate 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 that Confidential Rate or is otherwise bound by requirements of confidentiality in relation to that Confidential Rate;
|
(b)
|
Any person 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 if the person to whom that Confidential Rate is to be given is informed in writing of its confidential nature and that the Confidential Rate may be price-sensitive information except that there shall be no requirement to so inform if, in
|
(c)
|
Any person 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 if the person to whom that confidential Rate is to be given is informed in writing of its confidential nature and that the Confidential Rate may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Borrower, as the case may be, it is not practicable to do so in the circumstances; and
|
(d)
|
Any person with the consent of the relevant Reference Bank or Lender, as the case may be.
|
9.4.4
|
The Agent's obligations in this Clause 9.4 relating to quotations provided by Reference Banks are without prejudice to its obligations to make notifications under Clause
8.4
(
Notification of rates of interest
) provided that (other than pursuant to Clause 9.4.2(a) above) the Agent shall not include the details of any individual quotation provided by a Reference Bank as part of any such notification.
|
9.4.5
|
The Agent and each Borrower acknowledge that each Confidential Rate is or may be price-sensitive information and that the use of such a Confidential Rate may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Borrower undertake not to use any Confidential Rate for any unlawful purpose.
|
9.4.6
|
The Agent and each Borrower agree (to the extent permitted by law and regulation) to inform the relevant Reference Bank or Lender, as the case may be:
|
(a)
|
of the circumstances of any disclosure of any Confidential Rate made pursuant to Clause 9.4.3(b) above except where such disclosure is made to any of the persons referred to in that Clause 9.4.3(b) during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that any Confidential Rate has been disclosed in breach of this Clause
9.4
.
|
10
|
Changes to the Calculation of Interest
|
10.1
|
Absence of quotations
Subject to Clause 10.2 (
Market disruption
), if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by 11.00 am on the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.
|
10.2
|
Market disruption
If a Market Disruption Event occurs for any Interest Period, then the rate of interest on each Lender's share of the relevant Tranche for that Interest Period shall be the percentage rate per annum which is the sum of:
|
10.2.1
|
the relevant Margin; and
|
10.2.2
|
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 relevant Tranche from whatever source it may reasonably select.
|
(a)
|
no Screen Rate is available for an Interest Period and two (2) or more of the Reference Banks do not, before 1:00 p.m. (London time) on the Quotation Date, provide quotations to the Agent in order to fix LIBOR; or
|
(b)
|
at least one (1) Business Day before the start of an Interest Period, Lenders having Commitments together amounting to 50% or more of the Loan (or, if an Advance has not been made, Commitments amounting to 50% or more of the Total Commitments) notify the Agent that the cost to those Lenders of funding their respective Commitments (or any part of them) from whatever source such Lenders may reasonably select during the Interest Period in the London Interbank Market at or about 11:00 a.m. (London time) on the Quotation Date for the Interest Period would exceed the LIBOR fixed by the Agent for that Interest Period.
|
10.3
|
Alternative basis of interest or funding
|
10.3.1
|
If a Market Disruption Event occurs 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.
|
10.3.2
|
Any alternative basis agreed pursuant to Clause 10.3.1 shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties.
|
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 a Tranche or Unpaid Sum being paid by the Borrowers on a day other than the last day of an Interest Period for that Tranche or Unpaid Sum.
|
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 forty per cent. (40%) of the relevant Margin per annum of the undrawn portion of the Total Commitments during the period commencing on the date of this Agreement (in relation to the undrawn amount of Tranche A and Tranche B) or on the Restatement Date (in relation to the undrawn amount of Tranche C and Tranche D) to and including the earlier to occur of (i) the Drawdown Date in respect of the final Tranche to be advanced and (ii) the latest date on which the Availability Period may end.
|
11.2
|
Upfront fee
The Borrowers shall pay to the Arranger fees in the amount and at the times agreed in the Fee Letters.
|
Section 6
|
Additional Payment Obligations
|
12
|
Tax Gross Up and Indemnities
|
12.1
|
Definitions
In this Agreement:
|
12.2
|
Tax gross-up
Each Borrower shall (and shall procure that each other Security Party shall) make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law, subject as follows:
|
12.2.1
|
a Borrower shall promptly upon becoming aware that it or any other Security Party 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 any such other Security Party;
|
12.2.2
|
if a Tax Deduction is required by law to be made by a Borrower or any other Security Party, the amount of the payment due from that Borrower or that other Security Party 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;
|
12.2.3
|
if a Borrower or any other Security Party is required to make a Tax Deduction, that Borrower shall (and shall procure that such other Security Party shall) make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law; and
|
12.2.4
|
within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower making that Tax Deduction shall (and shall procure that such other Security Party shall) deliver to the Agent for the Finance Party entitled to the payment 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.
|
12.3
|
Tax indemnity
|
12.3.1
|
Each Borrower 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.
|
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,
|
(b)
|
to the extent a loss, liability or cost:
|
(i)
|
is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
); or
|
(ii)
|
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 under this Clause 12.3, notify the Agent.
|
12.4
|
Tax Credit
If a Borrower or any other Security Party 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,
|
12.5
|
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.
|
12.6
|
VAT
|
12.6.1
|
All amounts
expressed to be payable under a Finance Document by any Party or any Security Party 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 12.6.2, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party or any Security Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party or Security Party 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).
|
12.6.2
|
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 12.6.2(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
|
(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.
|
12.6.3
|
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.
|
12.6.4
|
Any reference in this Clause 12.6 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).
|
12.6.5
|
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.
|
12.7
|
FATCA information
|
12.7.1
|
Subject to Clause 12.7.3, 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.
|
12.7.2
|
If a Party confirms to another Party pursuant to Clause 12.7.1(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.
|
12.7.3
|
Clause 12.7.1 shall not oblige any Finance Party to do anything, and Clause 12.7.1(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.
|
12.7.4
|
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 12.7.1(a) or 12.7.1(b) (including, for the avoidance of doubt, where Clause 12.7.3 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
|
FATCA Deduction
|
12.8.1
|
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.
|
12.8.2
|
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 or any request from or requirement of any central bank or other fiscal, monetary or other authority made after the date of this Agreement (including Basel III and any other which relates to capital adequacy or liquidity controls or which affects the manner in which that Finance Party allocates capital resources to obligations under this Agreement and/or a Master Agreement) or (iii) the implementation or application of or compliance with Basel III, CRR or CRD IV or any other law or regulation which implements Basel III, CRR or CRD IV (whether such implementation, application or compliance is by a government, regulator, a Lender or any Affiliate of a Lender) or (iv) any change in the risk weight allocated by that Finance Party to the Borrowers after the date of this Agreement.
|
(i)
|
a reduction in the rate of return from the Loan or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
(b)
|
"
Basel III
" means (a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" 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, (b) the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated and (c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III";
|
13.1.2
|
"
CRR
" means Regulation EU No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU No 648/2012), as amended, supplemented or restated; and
|
13.1.3
|
"
CRD IV
" means 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, as amended, supplemented or restated.
|
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;
|
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
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
13.3.5
|
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, Finance Party or any of its Affiliates).
|
14
|
Other Indemnities
|
14.1
|
Currency indemnity
If any sum due from a Borrower or the 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:
|
14.1.1
|
making or filing a claim or proof against that Borrower or the 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,
|
14.2
|
Other indemnities
|
14.2.1
|
The Borrowers shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:
|
(a)
|
the occurrence of any Event of Default;
|
(b)
|
a failure by a Borrower to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (
Sharing among the Finance Parties
);
|
(c)
|
funding, or making arrangements to fund, a Tranche following delivery by the Borrowers of a Drawdown Request but that Tranche not being advanced 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 a Finance Party alone); or
|
(d)
|
a Tranche (or part of a Tranche) 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.
|
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 applicable 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 provided always that the Agent shall: (i) notify the Borrowers of any such investigation in writing and (ii) the Borrowers do not provide the Agent with any documentation or information reasonably requested by the Agent within three (3) Business Days of such request; 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 29.12 (
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
The Borrowers and the Guarantor 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;
|
14.4.5
|
any default by any Security Party 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 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 Security Party 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 and the Arranger 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, perfection and amendment and restatement 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 (including, without limitation, any valuation of a Vessel); and
|
16.1.4
|
any discharge, release or reassignment of any of the Security Documents.
|
16.2
|
Amendment costs
If (a) a Security Party requests an amendment, waiver or consent or (b) an amendment is required under Clause 29.11 (
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 duly documented expenses (including legal fees) reasonably incurred by the Agent and the Security Agent (and, in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.
|
16.3
|
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.
|
16.4
|
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.
|
Section 7
|
Security and Application of Moneys
|
17
|
Security Documents and Application of Moneys
|
17.1
|
Security Documents
As security for the payment of the Indebtedness, the Borrowers shall execute and deliver to the Security Agent or cause to be executed and delivered to the Security Agent the following documents in such forms and containing such terms and conditions as the Security Agent shall require:
|
17.1.1
|
first preferred mortgages over the Vessels;
|
17.1.2
|
first priority deeds of assignment of the Insurances, Earnings
.
Requisition Compensation and any Charters of the Vessels; and the first priority assignments of Insurances from the Managers contained in the Managers' Undertakings;
|
17.1.3
|
the guarantee and indemnity from the Guarantor;
|
17.1.4
|
first priority charges of all the issued shares of the Borrowers;
|
17.1.5
|
first priority deeds of assignment over any Master Agreement Proceeds; and
|
17.1.6
|
first priority account security deeds in respect of all amounts from time to time standing to the credit of the Accounts.
|
17.2
|
Earnings and Retention Accounts
The Borrowers shall maintain the 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.
|
17.3
|
Earnings
The Borrowers shall procure that all Earnings (after deduction only of Operating Expenses) and any Requisition Compensation are credited to the Earnings Account.
|
17.4
|
Application of Earnings
Subject to no Event of Default continuing, each of the Borrowers shall be entitled to freely withdraw and transfer any credit balance held in the Earnings Accounts for the payment of Operating Expenses.
|
17.5
|
Transfers to Retention Account
As described in clauses 17.5.1 to 17.5.6 during the Facility Period and at the times set out, the Borrowers shall procure for each Tranche that there is transferred from the Earnings Account to the Retention Account:
|
17.5.1
|
one-third of the amount of the Repayment Instalment plus interest due on next Repayment Date, on 15 April of each year during the Facility Period.
|
17.5.2
|
one-third of the amount of the Repayment Instalment plus interest due on next Repayment Date, on 15 May of each year during the Facility Period.
|
17.5.3
|
one-third of the amount of the Repayment Instalment plus interest due on next Repayment Date, on 15 June of each year during the Facility Period.
|
17.5.4
|
one-third of the amount of the Repayment Instalment plus interest due on next Repayment Date, on 15 October of each year during the Facility Period.
|
17.5.5
|
one-third of the amount of the Repayment Instalment plus interest due on next Repayment Date, on 15 November of each year during the Facility Period.
|
17.5.6
|
one-third of the amount of the Repayment Instalment plus interest due on next Repayment Date, on 15 December of each year during the Facility Period.
|
17.5.7
|
any amount due under any Master Agreement,
|
17.6
|
Additional payments to Retention Account
If for any reason the amount standing to the credit of the Earnings Account is insufficient to make any transfer to the Retention Account required by Clause 17.5 (
Transfers to Retention Account
), the Borrowers shall, without demand, procure that there is credited to the Retention Account, on the date on which the relevant amount would have been transferred from the Earnings Account, an amount equal to the amount of the shortfall.
|
17.7
|
Application of Retention Account
The Borrowers shall procure that there is transferred from the Retention Account to the Agent for the account of the Lenders or the Swap Provider as the case may be:
|
17.7.1
|
on each Repayment Date, the amount of the Repayment Instalment then due; and
|
17.7.2
|
on each Interest Payment Date, the amount of interest then due,
|
17.8
|
Borrowers' obligations not affected
If for any reason the amount standing to the credit of the Retention 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.
|
17.9
|
Release of surplus
Any amount remaining to the credit of the Earnings Account following the making of any transfer under Clause 17.4 (
Application of Earnings
) or required by Clause 17.5 (
Transfers to Retention Account
) shall (unless a Default is continuing) be released to or to the order of the Borrowers and may, for the avoidance of doubt be withdrawn by the Borrowers.
|
17.10
|
Restriction on withdrawal
During the Facility Period no sum may be withdrawn from the Accounts (except in accordance with this Clause
17
) without the prior written consent of the Security Agent. The Accounts shall not be overdrawn.
|
17.11
|
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 any or all of the 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.
|
17.12
|
Access to information
The Borrowers agree that 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 Accounts, and irrevocably waive any right of confidentiality which may exist in relation to those records.
|
17.13
|
Statements
Without prejudice to the rights of the Security Agent under Clause
17.11
(
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, written statements of account showing all entries made to the credit and debit of each of the Accounts during the immediately preceding calendar month.
|
17.14
|
Application after acceleration
From and after the giving of notice to the Borrowers by the Agent under Clause
23.2
(
Acceleration
), the Borrowers shall procure that all sums from time to time standing to the credit of any of the Accounts are immediately transferred to the Security Agent or any Receiver or Delegate for application in accordance with Clause
17.14
Application of moneys by Security Agent
) and the Borrowers irrevocably authorise the Security Agent to instruct the Account Holder to make those transfers.
|
17.15
|
Application of moneys by Security Agent
The Borrowers and the Finance Parties irrevocably authorise the Security Agent or any Receiver or Delegate to apply all moneys which it receives and is entitled to receive:
|
17.15.1
|
pursuant to a sale or other disposition of a Vessel or any right, title or interest in a Vessel; or
|
17.15.2
|
by way of payment of any sum in respect of any Master Agreement Proceeds, the Insurances, Earnings or any Requisition Compensation; or
|
17.15.3
|
by way of transfer of any sum from any of the Accounts; or
|
17.15.4
|
otherwise under or in connection with any Security Document,
|
17.15.5
|
first, any unpaid fees, costs, expenses and default interest due to the Agent and the Security Agent (and, in the case of the Security Agent, to any Receiver or Delegate) under all or any of the Finance Documents, such application to be apportioned between the Agent and the Security Agent pro rata to the aggregate amount of such items due to each of them;
|
17.15.6
|
second, any unpaid fees, costs, expenses (including any sums paid by the Lenders under Clause 26.11 (
Indemnity
)) of the Lenders due under this Agreement, such application to be apportioned between the Lenders pro rata to the aggregate amount of such items due to each of them;
|
17.15.7
|
third, any accrued but unpaid default interest due to the Lenders under this Agreement, such application to be apportioned between the Lenders pro rata to the aggregate amount of such default interest due to each of them;
|
17.15.8
|
fourth, any other accrued but unpaid interest due to the Lenders under this Agreement, such application to be apportioned between the Lenders pro rata to the aggregate amount of such interest due to each of them;
|
17.15.9
|
fifth, any principal of the Loan due and payable but unpaid under this Agreement, such application to be apportioned between the Lenders pro rata to the aggregate amount of such principal due to each of them; and
|
17.15.10
|
sixth, any other sum due and payable to any Finance Party but unpaid under all or any of the Finance Documents, such application to be apportioned between the Finance Parties pro rata to the aggregate amount of any such sum due to each of them,
|
17.16
|
Additional security
If at any time the aggregate of the FMV of the Vessels (that are at that time subject to a Mortgage) 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 its discretion (in all other cases)) for the time being provided to the Security Agent under this Clause 17.16 is less than 140% of the amount of the
Loan then outstanding (the "
VTL Coverage
"), the Borrowers shall, within 30 days of the Agent's request, at the Borrowers' option:
|
17.16.1
|
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
|
17.16.2
|
give to the Security Agent other additional security in amount and form acceptable to the Security Agent in its discretion; or
|
17.16.3
|
prepay the Loan in the amount of the shortfall.
|
17.17
|
Contingent Amount
If the Borrowers and a Swap Provider enter into a Master Agreement for the hedging of the Borrowers' exposure to interest rate fluctuations, the Borrowers and the Swap Providers agree that the Mortgages shall secure any obligations payable by the Borrowers to the Swap Providers at any time pursuant to any Master Agreement in a maximum aggregate amount of up to $17,250,000 and the Swap Providers further agree that each of the other Security Documents shall not have any limitation as to the amount payable by the Borrowers to the Swap Providers at any time pursuant to any Master Agreement which is secured by such other Security Documents.
|
18
|
Guarantee and Indemnity
|
18.1
|
Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
|
18.1.1
|
guarantees to each Finance Party punctual performance by each other Security Party of all that Security Party's obligations under the Finance Documents;
|
18.1.2
|
undertakes with each Finance Party that whenever another Security Party does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
|
18.1.3
|
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 a Security Party 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 the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 18 if the amount claimed had been recoverable on the basis of a guarantee.
|
18.2
|
Continuing Guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Security Party under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
|
18.3
|
Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Security Party 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 the Guarantor under this Clause 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
|
18.4
|
Waiver of defences
The obligations of the Guarantor under this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18.4, would reduce, release or prejudice any of its obligations under this Clause 18 (without limitation and whether or not known to it or any Finance Party) including:
|
18.4.1
|
any time, waiver or consent granted to, or composition with, any Security Party or other person;
|
18.4.2
|
the release of any other Security Party or any other person under the terms of any composition or arrangement with any creditor of any Security Party;
|
18.4.3
|
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 Security Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
18.4.4
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Security Party or any other person;
|
18.4.5
|
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;
|
18.4.6
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
18.4.7
|
any insolvency or similar proceedings.
|
18.5
|
Guarantor intent
Without prejudice to the generality of Clause 18.4 (
Waiver of defences
), the 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 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.
|
18.6
|
Immediate recourse
The 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 the Guarantor under this Clause 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
|
18.7
|
Appropriations
Until all amounts which may be or become payable by the Security Parties 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:
|
18.7.1
|
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 the Guarantor shall not be entitled to the benefit of the same; and
|
18.7.2
|
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 18.
|
18.8
|
Deferral of Guarantor's rights
Until all amounts which may be or become payable by the Security Parties under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, the Guarantor will not 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:
|
18.8.1
|
to be indemnified by a Security Party;
|
18.8.2
|
to claim any contribution from any other guarantor of any Security Party's obligations under the Finance Documents;
|
18.8.3
|
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;
|
18.8.4
|
to bring legal or other proceedings for an order requiring any Security Party to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 18.1 (
Guarantee and indemnity
);
|
18.8.5
|
to exercise any right of set-off against any Security Party; and/or
|
18.8.6
|
to claim or prove as a creditor of any Security Party in competition with any Finance Party.
|
18.9
|
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.
|
18.10
|
Subordination
The Guarantor agrees and undertakes with the Finance Parties that all claims of whatsoever nature which it has or may have at any time against the Borrowers or either of them or any other Security Party or any of their respective property or assets shall rank after and be in all respects subordinate to any and all claims, whether actual or contingent, which the Finance Parties have or may have at any time against the Borrowers or either of them or such other Security Party or any of its property or assets and that it will not without the prior written consent of the Agent (acting on the instructions of the Majority Lenders):
|
18.10.1
|
demand or accept payment in whole or in part of any moneys owing to it by the Borrowers or either of them or any other Security Party;
|
18.10.2
|
take any steps to enforce its rights to recover any moneys owing to it by the Borrowers or any of them or any other Security Party and more particularly (but without limitation) take or issue any judicial or other legal proceedings against the Borrowers or either of them or other Security Party or any of their respective property or assets; or
|
18.10.3
|
prove in the liquidation or other dissolution of the Borrowers or either of them or other Security Party in competition with a Finance Party.
|
Section 8
|
Representations, Undertakings and Events of Default
|
19
|
Representations
|
19.1
|
Representations
Each Borrower and the Guarantor
make the representations and warranties set out in this Clause 19 to each Finance Party.
|
19.1.1
|
Status
Each of the Security Parties:
|
(a)
|
is a corporation duly incorporated and validly existing under the law of its jurisdiction of incorporation; and
|
(b)
|
has the power to own its assets and carry on its business as it is being conducted.
|
19.1.2
|
Binding obligations
Subject to the Legal Reservations:
|
(a)
|
the obligations expressed to be assumed by each of the Security Parties 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 19.1.2(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.
|
19.1.3
|
Non-conflict with other obligations
The entry into and performance by each of the Security Parties of, and the transactions contemplated by, the Relevant Documents do not conflict with:
|
(a)
|
any law or regulation applicable to such Security Party;
|
(b)
|
the constitutional documents of such Security Party; or
|
(c)
|
any agreement or instrument binding upon such Security Party or any of such Security Party's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
19.1.4
|
Power and authority
|
(a)
|
Each of the Security Parties 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 Security Party 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.
|
19.1.5
|
Validity and admissibility in evidence
All Authorisations required or desirable:
|
(a)
|
to enable each of the Security Parties 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 Security Party is a party admissible in evidence in its Relevant Jurisdictions,
|
19.1.6
|
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 Security Party.
|
(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 Security Party.
|
19.1.7
|
Insolvency
No corporate action, legal proceeding or other procedure or step described in Clause 23.1.7 (
Insolvency proceedings
) or creditors' process described in Clause 23.1.8 (
Creditors' process
) has been taken or threatened in relation to a Security Party; and none of the circumstances described in Clause 23.1.6 (
Insolvency
) applies to a Security Party.
|
19.1.8
|
No filing or stamp taxes
Under the laws of the Relevant Jurisdictions of each relevant Security Party 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 tax 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 registration, filing, taxes and fees will be made and paid promptly after the date of the relevant Finance Document.
|
19.1.9
|
Deduction of Tax
None of the Security Parties 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.
|
19.1.10
|
No default
|
(a)
|
No Event of Default and, on the date of this Agreement and each Drawdown Date, no Default has occurred and is continuing or is reasonably likely to result from the advance of any Tranche 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 (howsoever described) under any other agreement or instrument which is binding on any of the Security Parties or to which its assets are subject which has or is reasonably likely to have a Material Adverse Effect.
|
19.1.11
|
No misleading information
Save as disclosed in writing to the Agent and the Arranger prior to the date of this Agreement:
|
(a)
|
all material information provided to a Finance Party by or on behalf of any of the Security Parties 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 Security Parties (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.
|
19.1.12
|
Financial statements
|
(a)
|
The Original Financial Statements were prepared in accordance with
IFRS
consistently applied.
|
(b)
|
The audited Original Financial Statements give a true and fair view of the Guarantor's financial condition and results of operations during the relevant financial year.
|
(c)
|
There has been no material adverse change in the Guarantor's assets, business or financial condition since the date of the Original Financial Statements.
|
(d)
|
The Guarantor's most recent financial statements delivered pursuant to Clause 20.1 (
Financial statements
):
|
(i)
|
have been prepared in accordance with
IFRS
as applied to the Original Financial Statements; and
|
(ii)
|
give a true and fair view of (if audited) or fairly represent (if unaudited) its consolidated financial condition as at the end of, and consolidated results of operations for, the period to which they relate.
|
(e)
|
Since the date of the most recent financial statements delivered pursuant to Clause 20.1
(
Financial statements
) there has been no material adverse change in the business, assets or financial condition of the Guarantor.
|
19.1.13
|
No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which are reasonably likely to have a Material Adverse Effect have been started or threatened against any of the Security Parties.
|
19.1.14
|
No breach of laws
None of the Security Parties has breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
|
19.1.15
|
Environmental laws
|
(a)
|
Each of the Security Parties is in compliance with Clause 22.3 (
Environmental compliance
) and 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 is threatened against any of the Security Parties where that claim has or is reasonably likely, if determined against that Security Party, to have a Material Adverse Effect.
|
19.1.16
|
Taxation
|
(a)
|
None of the Security Parties 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 Security Parties with respect to Taxes.
|
(c)
|
Each of the Security Parties is resident for Tax purposes only in its Original Jurisdiction.
|
19.1.17
|
No Encumbrance or Financial Indebtedness
|
(a)
|
No Encumbrance exists over all or any of the present or future assets of the Borrowers.
|
(b)
|
The Borrowers do not have any Financial Indebtedness outstanding other than as permitted by this Agreement.
|
19.1.18
|
Pari passu ranking
The payment obligations of each of the Security Parties 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.
|
19.1.19
|
No adverse consequences
|
(a)
|
It is not necessary under the laws of the Relevant Jurisdictions of any of the Security Parties:
|
(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,
|
(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 Security Parties by reason only of the execution, performance and/or enforcement of any Finance Document.
|
19.1.20
|
Disclosure of material facts
No Borrower nor the Guarantor is aware of any material facts or circumstances which have not been disclosed to the Agent and which might, if disclosed, have adversely affected the decision of a person considering whether or not to make loan facilities of the nature contemplated by this Agreement available to the Borrowers.
|
19.1.21
|
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.
|
19.1.22
|
No Immunity
No Security Party or any of its assets is immune to any legal action or proceeding
|
19.1.23
|
Anti-bribery, anti-corruption and anti-money laundering
None of the Security Parties nor any of their Subsidiaries, directors or officers, or, to the best knowledge of the Borrowers and the Guarantor or any Affiliate, agent or employee of a Security Party, has engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption or anti-money laundering laws, regulations or rules in any applicable jurisdiction and each Security Party has instituted and maintains policies and procedures designed to prevent violation of such laws, regulations and rules.
|
19.1.24
|
Sanctions
None of the Security Parties, any of their Subsidiaries, directors or officers, or, to the best knowledge of the Borrowers and the Guarantor, any Affiliate, agent or employee of a Security Party is an individual or entity (a "
Person
"), that is, or is owned or controlled by Persons that are: (i) the target of any Sanctions (a "
Sanctioned Person
"), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions prohibiting any dealings with such government, country, or territory (a "
Sanctioned Country
").
|
19.1.25
|
Patriot Act
To the extent applicable the Borrowers and the Guarantor are in compliance with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto and (ii) the Patriot Act. No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
|
19.2
|
Repetition
Each Repeating Representation is deemed to be repeated by each Borrower and the Guarantor
by reference to the facts and circumstances then existing on the date of each Drawdown Request, on each Drawdown Date and on the first day of each Interest Period and on the Restatement Date.
|
20
|
Information Undertakings
|
20.1
|
Financial statements
The Guarantor shall supply to the Agent in sufficient copies for all of the Lenders:
|
20.1.1
|
as soon as the same become available, but in any event within 120 days after the end of each of its financial years, its audited consolidated financial statements for that financial year; and
|
20.1.2
|
as soon as the same become available, but in any event within 60 days after the end of each quarter during each of its financial years, its unaudited consolidated quarterly financial statements for that quarter.
|
20.2
|
Compliance Certificate
|
20.2.1
|
The Guarantor shall supply to the Agent, with each set of its financial statements delivered pursuant to Clause 20.1 (
Financial statements
) a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (
Financial Covenants
) as at the date as at which those financial statements were drawn up.
|
20.2.2
|
The Guarantor shall supply to the Agent, with each set of its annual financial statements, and every 6 months thereafter, delivered pursuant to Clause 20.1.1 (
Financial statements
), valuations issued no more than 30 days prior to such date by two Approved Shipbrokers evidencing the FMV of the Vessels which the Agent shall use in order to determine compliance with Clause 17.15 (
Additional Security
), such valuations being at the cost of the Borrowers.
|
20.2.3
|
Each Compliance Certificate shall be signed by a director or officer of the Guarantor.
|
20.3
|
Requirements as to financial statements
|
20.3.1
|
shall be certified by a director of the Guarantor as giving a true and fair view of (in the case of annual financial statements), or fairly representing (in other cases), its financial condition as at the date as at which those financial statements were drawn up; and
|
20.3.2
|
shall be prepared using IFRS, 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 IFRS, 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 IFRS, 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 21 (
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.
If, at any time after the Effective Date, the IFRS requirements materially change so as to impact the financial covenants set out in Clauses 21.1, 21.2, 21.3 and 21.4, the Borrowers shall notify the Agent and the Lenders and, if agreed between the Borrowers and the Lenders, this Agreement shall be amended and/or supplemented to reflect these changes.
|
20.4
|
Information: miscellaneous
Each Borrower and the Guarantor shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):
|
20.4.1
|
at the same time as they are dispatched, copies of all documents dispatched by a Security Party to its shareholders generally (or any class of them) or dispatched by any Security Party to its creditors generally (or any class of them);
|
20.4.2
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Security Party, and which are reasonably likely to have a Material Adverse Effect;
|
20.4.3
|
promptly, such information as the Security Agent may reasonably require about the Charged Property and compliance of the Security Parties with the terms of any Security Documents including without limitation cash flow analyses and details of the operating costs of any Vessel;
|
20.4.4
|
promptly on request, such further information regarding the financial condition, assets and operations of any Security Party (including any requested amplification or explanation of any item in the financial statements, budgets or other material provided by any Security Party under this Agreement, any changes to management of a Borrower or the Guarantor 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; and
|
20.4.5
|
promptly on request, such further information as any Finance Party through the Agent may reasonably request.
|
20.5
|
Notification of default
|
20.5.1
|
Each Borrower and the Guarantor
shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
|
20.5.2
|
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).
|
20.6
|
"Know your customer" checks
|
20.6.1
|
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 a Security Party 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,
|
20.6.2
|
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
|
Financial Covenants
|
21.1
|
Minimum Liquidity
Cash and Cash Equivalents shall at all times be the greater of (i) $25,000,000 and (ii) $500,000 per vessel owned by the Group (the "
Minimum Liquidity
"). For the purpose of this test, Cash and Cash Equivalents can include unutilised and freely available parts of revolving credit facilities (where no default or termination event has occurred and is continuing and there is no restriction on borrowing under such facilities) with a maturity date in excess of 12 months after the date of the
annual financial statements delivered pursuant to Clause 20.1.1 (
Financial statements
) or the financial statements delivered pursuant to Clause 20.1.2
(
Financial statements
) (as the case may be) provided that 50% of the Minimum Liquidity shall at all times consist of Cash.
|
21.2
|
Minimum Tangible Net Worth
The Guarantor shall maintain a Consolidated Tangible Net Worth of not less than $677,286,768 plus (a) 25% of the Guarantor's cumulative, positive consolidated net income for each fiscal quarter commencing on or after 1 October 2013 and
(b)
50% of the value of the equity proceeds realized from any issuance of equity interests in the Guarantor occurring on or after 1 October 2013.
|
21.3
|
Maximum Leverage
A ratio of Net Debt to Consolidated Total Capitalisation of not more than 0.60 to 1.00.
|
21.4
|
Minimum Interest Coverage
A ratio of Consolidated EBITDA to Consolidated Net Interest Expense calculated on a four quarter trailing basis equal to or greater than 2.50 to 1.00.
|
(a)
|
freely withdrawable on demand;
|
(b)
|
not subject to any Encumbrance (other than pursuant to any Security Document);
|
(c)
|
denominated and payable in a freely transferable and freely convertible currency; and
|
(d)
|
capable of being remitted to the Group.
|
(a)
|
unencumbered securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits (in each case, unencumbered) in the interbank market of any commercial bank of recognized standing organized under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and
|
(c)
|
such other securities or instruments as the Majority Lenders shall agree in writing,
|
(a)
|
plus
, to the extent deducted in computing the net income of the Guarantor for that accounting period, the sum, without duplication, of:
|
(i)
|
all federal, state, local and foreign income taxes and tax distributions;
|
(ii)
|
Consolidated Net Interest Expense;
|
(iii)
|
depreciation, depletion, amortization of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortization of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey (including any underwater survey done in lieu thereof) of a vessel owned by the Group during such period; and
|
(v)
|
any drydocking expenses;
|
(b)
|
minus
, to the extent added in computing the consolidated net income of the Guarantor for that accounting period, (i) any non-cash income, non-cash gains and (ii) any extraordinary gains on asset sales not incurred in the ordinary course of business.
|
(a)
|
all Financial Indebtedness; and
|
(a)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance with
IFRS
would be shown on the liability side of a balance sheet),
|
22
|
General Undertakings
|
22.1
|
not during the Facility Period to change the classification society of the Vessels without the prior written consent of the Agent (such consent not to be unreasonably withheld); and
|
22.2
|
to keep proper books of account in respect of the Vessels and the Earnings and as and when required by the Agent to make such books available for inspection on behalf of the Agent; and
|
22.3
|
not during the Facility Period to change the flag of the Vessels without the prior written consent of the Agent, not to be unreasonably withheld; and
|
22.4
|
to comply in relation to the Vessels with the International Ship and Port Facility Security Code adopted by the International Maritime Organisation (as the same may be amended from time to time) (the "ISPS Code") or any replacement of the ISPS Code and in particular, without limitation, to:
|
22.4.1
|
procure that the Vessels and the company responsible for the Vessels' compliance with the ISPS Code comply with the ISPS Code; and
|
22.4.2
|
maintain for the Vessels throughout the Facility Period a valid and current International Ship Security Certificate issued under the ISPS Code ("ISSC") and provide a copy to the Agent; and
|
22.4.3
|
notify the Mortgagee immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
22.5
|
Authorisations
Each Borrower and the Guarantor shall promptly:
|
22.5.1
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
22.5.2
|
supply certified copies to the Agent of,
|
(a)
|
enable any Security Party to perform its obligations under the Finance Documents to which it is a party;
|
(b)
|
ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document; and
|
(c)
|
enable any Security Party to carry on its business where failure to do so has or is reasonably likely to have a Material Adverse Effect.
|
22.6
|
Compliance with laws
|
22.7
|
Environmental compliance
|
22.7.1
|
comply with all Environmental Laws;
|
22.7.2
|
obtain, maintain and ensure compliance with all requisite Environmental Approvals; and
|
22.7.3
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
22.8
|
Environmental Claims
|
22.8.1
|
any Environmental Claim against any of the Security Parties which is current, pending or threatened; and
|
22.8.2
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any of the Security Parties,
|
22.9
|
Taxation
|
22.9.1
|
Each Borrower and the Guarantor shall (and shall procure that each other Security Party shall) 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 20.1 (
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.
|
22.9.2
|
No Borrower nor the Guarantor may (and no other Security Party may) change its residence for Tax purposes.
|
22.10
|
Existence and good standing
Each Borrower and the Guarantor shall procure that each Security Party shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence in good standing under the laws of its jurisdiction of incorporation or formation and each Borrower will from time to time if requested by the Agent provide the Agent with evidence in form and substance satisfactory to the Agent that the Security Parties and all corporate shareholders of any of the Security Parties remain in good standing
|
22.11
|
Pari passu ranking
Each Borrower and the 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.
|
22.12
|
Negative pledge
|
22.12.1
|
no Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) create nor permit to subsist any Encumbrance over any of its assets; and
|
22.12.2
|
no Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will):
|
(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 a Security Party;
|
(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,
|
(e)
|
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.
|
22.12.3
|
Clauses 22.12.1 and 22.12.2 do not apply to any Encumbrance or (as the case may be) Quasi-Security, which is a Permitted Encumbrance.
|
22.13
|
Disposals
|
22.13.1
|
Except as permitted under Clause 22.13.2, no Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) without the prior written consent of the Agent 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.
|
22.13.2
|
Clause 22.13.1 does not apply to any sale, lease, transfer or other disposal which is a Permitted Disposal.
|
22.14
|
Arm's length basis
|
22.14.1
|
Except as permitted under Clause 22.14.2, no Borrower shall (and shall procure that no other Security Party will) enter into any transaction with any person except on arm's length terms and for full market value.
|
22.14.2
|
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 shall not be a breach of this Clause 22.14.
|
22.15
|
Affiliate transactions
None of the Borrowers or the Guarantor shall enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate other than on terms and conditions substantially as favorable to such Borrower or the Guarantor as would be obtainable by it at the time in a comparable arm’s-length transaction with a person other than an Affiliate.
|
22.16
|
Merger
No Borrower shall (and shall procure that no other Security Party will) enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction.
|
22.17
|
Change of business
No Borrower shall (and shall procure that no other Security Party will) make any substantial change to the general nature of its business from that carried on at the date of this Agreement.
|
22.18
|
No other business
No Borrower shall engage in any business other than the ownership, operation, chartering and management of the relevant Vessel.
|
22.19
|
No acquisitions
No Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) 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.
|
22.20
|
No Joint Ventures
No Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will):
|
22.20.1
|
enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or
|
22.20.2
|
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).
|
22.21
|
No borrowings
|
22.21.1
|
No Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) incur or allow to remain outstanding any Financial Indebtedness except for:
|
(a)
|
the Loan; or
|
(b)
|
under any Master Agreement; or
|
(c)
|
any Financial Indebtedness arising in the ordinary course of business in connection with the chartering, operation or repair of a Vessel; or
|
(d)
|
any Financial Indebtedness existing on the Effective Date which has been disclosed to and approved by the Majority Lenders in writing; or
|
(e)
|
subject to Clause 22.22, loans made to a Borrower by an Affiliate, parent or subsidiary.
|
22.21.2
|
None of the Borrowers shall incur unsecured trade credit except in the ordinary course of business.
|
22.22
|
Subordination of loans
Each of the Borrowers and the Guarantor shall cause all loans made to it or to any other Security Party by any Affiliate and all sums and other obligations (financial or otherwise) owed by it to any Affiliate be unsecured and fully subordinated to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Majority Lenders.
|
22.23
|
No substantial liabilities
Except in the ordinary course of business, no Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) incur any liability to any third party which is in the Agent's opinion of a substantial nature.
|
22.24
|
No loans or credit
No Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) be a creditor in respect of any Financial Indebtedness unless it is a loan made in the ordinary course of business in connection with the chartering, operation or repair of the relevant Vessel.
|
22.25
|
No guarantees or indemnities
No Borrower shall (and shall procure that no other Security Party (other than the Guarantor) will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
|
22.26
|
Dividends
|
22.26.1
|
If an Event of Default has occurred and is continuing, or if an Event of Default would result therefrom, or if the Guarantor is not in compliance with any of the covenants in Clause 21 (
Financial covenants
) hereof or any payment of dividends or any form of distribution or return of capital would result in the Guarantor not being in compliance with any of the covenants in Clause 21 (
Financial covenants
), the Guarantor shall not declare or pay any dividends or return any capital to its equity holders or authorize or make any other distribution, payment or delivery of property or cash to its equity holders, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for value, any interest of any class or series of its share capital (or acquire any rights, options or warrants relating thereto but not including convertible debt) now or hereafter outstanding, or repay any subordinated loans to equity holders or set aside any funds for any of the foregoing purposes.
|
22.26.2
|
If an Event of Default has occurred and is continuing, or if an Event of Default would result therefrom, no Borrower shall declare or pay any dividends or return any capital to its equity holders or authorize or make any other distribution, payment or delivery of property or cash to its equity holders, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for value, any interest of any class or series of its share capital (or acquire any rights, options or warrants relating thereto but not including convertible debt) now or hereafter outstanding, or repay any subordinated loans to equity holders or set aside any funds for any of the foregoing purposes.
|
22.27
|
Maintenance and Inspection of records
Each of the Borrowers and the Guarantor shall keep separate and proper books of record and account in which full and materially correct entries shall be made of all financial transactions and the assets and business of each of the Guarantor and the Borrowers in accordance with IFRS, and the Agent shall have the right to inspect the books and records of each of the Guarantor and the Borrowers wherever the same may be kept from time to time as it sees fit, in its sole reasonable discretion, or to cause an examination to be made by a firm of accountants selected by it, provided that any examination shall be done without undue interference with the day to day business operations of the Guarantor or the Borrowers, as the case may be.
|
22.28
|
No change in Relevant Documents
No Borrower nor the Guarantor shall (and shall procure that no other Security Party will) amend, vary, novate, supplement, supersede, waive or terminate any term of, any of the Relevant Documents which are not Finance Documents and excluding the Management Agreement, or any other document delivered to the Agent pursuant to Clause 4.1 (
Initial conditions precedent
) or Clause 4.2 (
Further conditions precedent
) or Clause 4.3 (
Conditions subsequent
).
|
22.29
|
Further assurance
|
22.29.1
|
Each Borrower and the Guarantor shall (and shall procure that each other Security Party shall) 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 Security Party 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.
|
22.29.2
|
Each Borrower and the Guarantor shall (and shall procure that each other Security Party shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Encumbrance conferred or intended to be conferred on the Security Agent or the Finance Parties by or pursuant to the Finance Documents.
|
22.30
|
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 a Master Agreement (other than a Master Agreement Proceeds Assignment), nor enter into any interest rate exchange or hedging agreement with anyone other than a Swap Provider for an amount equal to that Swap Provider's Commitment (in its capacity as a Lender) and
provided that
the Swap Provider has
a minimum credit rating of A3 by Moody's Investor Service Limited or A- by Standard & Poor's Rating Services
. If a Borrower enters into a Master Agreement with a Swap Provider it shall simultaneously enter into a Master Agreement Proceeds Assignment and shall deliver to the Agent such supporting corporate authorisations, legal opinions and other supporting documents reasonably requested by the Agent, and if required by the Agent acting on appropriate legal advice, an amendment to the relevant Mortgage and the Account Security Deed.
|
22.31
|
Permitted Transactions
No Borrower shall maintain outstanding Transactions the aggregate notional amount of which shall exceed the amount of the relevant Tranche from time to time.
|
22.32
|
Employees and ERISA Compliance
No Borrower nor the Guarantor shall employ any individuals, sponsor, maintain or become obligated to contribute to any Plan or any other pension scheme. Each Borrower and the Guarantor shall provide prompt written notice to the Agent in the event that such Borrower or the Guarantor becomes aware that it has incurred or is reasonably likely to incur any liability with respect to any Plan or any other pension scheme, that, individually or in the aggregate with any other such liability would be reasonably expected to have a Material Adverse Effect.
|
22.33
|
Sanctions
Neither the Borrowers or the Guarantor will, directly or indirectly, use the proceeds of the Loan, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or any other person, (i) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person and that would result in a violation of Sanctions, or a Sanctioned Country or (ii) in any other manner that would result in a violation of Sanctions by any person (including any person participating in the Loan, whether as underwriter, advisor, investor, lender, hedge provider, facility or security agent or otherwise).
|
22.34
|
Assignment of Claims
The Guarantor shall not assign any claims that it may have against another Security Party, against a Vessel or in respect of a Relevant Document.
|
22.35
|
NYSE listing
The Guarantor shall maintain its listing on the New York Stock Exchange.
|
22.36
|
Vessel Scrapping
Any decision regarding the scrapping of any Vessel shall take into account the environmental impact of such decision and the Borrowers will explore commercially and technically viable opportunities to lessen such impact, including through utilization of "green" scrap yards.
|
23
|
Events of Default
|
23.1
|
Events of Default
Each of the events or circumstances set out in this Clause 23.1 is an Event of Default.
|
23.1.1
|
Non-payment
A Security Party 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 three Business Days of its due date.
|
23.1.2
|
Other specific obligations
|
(a)
|
Any requirement of Clause 21 (
Financial Covenants
) is not satisfied.
|
(b)
|
A Security Party does not comply with any obligation in a Finance Document relating to the Insurances or with Clause 17.15 (
Additional security
).
|
23.1.3
|
Other obligations
|
(a)
|
A Security Party does not comply with any provision of a Finance Document (other than those referred to in Clause 23.1.1 (
Non-payment
) and Clause 23.1.2 (
Other specific obligations
).
|
(b)
|
No Event of Default under this Clause 23.1.3 will occur if the failure to comply is capable of remedy and is remedied within ten 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.
|
23.1.4
|
Misrepresentation
Any representation or statement made or deemed to be repeated by a Security Party in any Finance Document or any other document delivered by or on behalf of a Security Party under or in connection with any Finance Document is or proves to have been incorrect or misleading when made or deemed to be made.
|
23.1.5
|
Cross default
Any Financial Indebtedness of the Borrowers or the Guarantor:
|
(a)
|
is not paid when due nor within any originally applicable grace period; or
|
(b)
|
is declared to be, or otherwise becomes, due and payable prior to its specified maturity as a result of an event of default (however described); or
|
(c)
|
is capable of being declared by a creditor to be due and payable prior to its specified maturity as a result of such an event.
|
23.1.6
|
Insolvency
|
(a)
|
A Borrower or the Guarantor is unable or admits inability to pay its debts as they fall due, is deemed to, or is declared to, be unable to pay its debts under applicable law, suspends or threatens to suspend making payments on any of its debts, or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b)
|
The value of the assets of a Security Party is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c)
|
A moratorium is declared in respect of any indebtedness of a Security Party. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
23.1.7
|
Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is taken for:
|
(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 a Borrower or the Guarantor;
|
(b)
|
a composition, compromise, assignment or arrangement with any creditor of a Borrower or the Guarantor;
|
(c)
|
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, or trustee or other similar officer in respect of a Borrower or the Guarantor or any of its assets; or
|
(d)
|
enforcement of any Encumbrance over any assets of a Borrower or the Guarantor,
|
23.1.8
|
Creditors' process
Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a Security Party.
|
23.1.9
|
Unlawfulness and invalidity
|
(a)
|
It is or becomes unlawful for a Security Party 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 Security Party 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.
|
23.1.10
|
Cessation of business
A Borrower or the Guarantor ceases, or threatens to cease, to carry on all or a substantial part of its business.
|
23.1.11
|
Expropriation
The authority or ability of a Borrower or the Guarantor 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 a Borrower or the Guarantor or any of its assets.
|
23.1.12
|
Repudiation and rescission of agreements
|
(a)
|
A Security Party 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 23.1.12(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)
|
The Management Agreement
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.
|
23.1.13
|
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.
|
23.1.14
|
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 Security Parties 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.
|
23.1.15
|
Reduction of capital
A Borrower reduces its authorised or issued or subscribed capital.
|
23.1.16
|
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 23.1.16 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 180 days of the occurrence of the casualty giving rise to the Total Loss in question or such longer period as the Agent may in its discretion agree.
|
23.1.17
|
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.
|
23.1.18
|
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 in its discretion considers that, as a result, the security conferred by any of the Security Documents is materially prejudiced.
|
23.1.19
|
Master Agreement termination
A notice is given by a Swap Provider under section 6(a) of a Master Agreement, or by any person under section 6(b)(iv) of a Master Agreement, in either case designating an Early Termination Date for the purpose of the relevant Master Agreement, or a Master Agreement is for any other reason terminated, cancelled, suspended, rescinded, revoked or otherwise ceases to remain in full force and effect.
|
23.1.20
|
Notice of determination
The Guarantor gives notice to the Security Agent to determine any obligations under the Guarantee.
|
23.1.21
|
Litigation
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in relation to the Relevant Documents or the transactions contemplated in the Relevant Documents or against a Security Party or its assets which have or are reasonably likely to have a Material Adverse Effect.
|
23.1.22
|
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.
|
23.1.23
|
Sanctions
|
(a)
|
Any of the Security Parties, any of their Subsidiaries, directors or officers, the Guarantor or any Affiliate, agent or employee of a Security Party becomes a Sanctioned Person or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Sanctioned Person or any of such persons becomes the owner or controller of a Sanctioned Person.
.
|
(b)
|
Any proceeds of the Loan are made available, directly or indirectly, to or for the benefit of a Sanctioned Person or otherwise is, directly or indirectly, applied in a manner or for a purpose prohibited by the applicable Sanctions.
|
(c)
|
Any of the Security Parties, any of their Subsidiaries, directors or officers, the Guarantor or any Affiliate, agent or employee of a Security Party is not in compliance with all applicable Sanctions.
|
23.2
|
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:
|
23.2.1
|
by notice to the Borrowers cancel the Total Commitments, at which time they shall immediately be cancelled;
|
23.2.2
|
by notice to the Borrowers declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents are immediately due and payable, at which time they shall become immediately due and payable;
|
23.2.3
|
by notice to the Borrowers declare that the Loan is 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
|
23.2.4
|
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
Section 9
|
Changes to Parties
|
24
|
Changes to the Lenders
|
24.1
|
Assignments and transfers by the Lenders
Subject to this Clause 24, a Lender (the "
Existing Lender
") may:
|
24.1.1
|
assign any of its rights; or
|
24.1.2
|
transfer by novation any of its rights and obligations,
|
24.2
|
Conditions of assignment or transfer
|
24.2.1
|
An Existing Lender must obtain the prior written consent of the Borrowers prior to making an assignment or transfer in accordance with Clause 24.1 (
Assignments and transfers by the Lenders
) unless the assignment or transfer is:
|
(a)
|
to another Lender or an Affiliate of a Lender; or
|
(b)
|
made at a time when an Event of Default is continuing.
|
24.2.2
|
The consent of the Agent is required for any assignment or transfer to a New Lender which is not a FATCA Exempt Party.
|
24.2.3
|
The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld or delayed (however it shall be deemed reasonable for the Borrowers to withhold their consent in circumstances where the proposed New Lender is a trust, fund or similar entity which is regularly engaged in or established for the purpose of making, purchasing or investing in securities or other financial assets). 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.
|
24.2.4
|
An assignment will only be effective on:
|
(a)
|
receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was 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 which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
24.2.5
|
A transfer will only be effective if the procedure set out in Clause 24.5 (
Procedure for transfer
) is complied with.
|
24.2.6
|
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 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
),
|
24.2.7
|
Each New Lender confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
24.3
|
Assignment or transfer fee
Unless the Agent otherwise agrees and excluding an assignment or transfer (i) to an Affiliate of a Lender or (ii) made in connection with primary syndication of the Loan, 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.
|
24.4
|
Limitation of responsibility of Existing Lenders
|
24.4.1
|
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 Security Party;
|
(c)
|
the performance and observance by any Security Party 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,
|
24.4.2
|
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 Security Party 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 Security Party and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
24.4.3
|
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 24; or
|
(b)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Security Party of its obligations under the Relevant Documents or otherwise.
|
24.5
|
Procedure for transfer
|
24.5.1
|
Subject to the conditions set out in Clause 24.2 (
Conditions of assignment or transfer
) a transfer is effected in accordance with Clause 24.5.3 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 24.2.4(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.
|
24.5.2
|
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.
|
24.5.3
|
Subject to Clause 24.9 (
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 the 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 the 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 the Guarantor and the New Lender have assumed and/or acquired the same in place of that Borrower and the Guarantor
and the Existing Lender;
|
(c)
|
the Agent, the Security Agent, the Arranger, 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, the Arranger, and the Existing Lender shall each be released from further obligations to each other under this Agreement; and
|
(d)
|
the New Lender shall become a Party as a "Lender".
|
24.6
|
Procedure for assignment
|
24.6.1
|
Subject to the conditions set out in Clause 24.2 (
Conditions of assignment or transfer
) an assignment may be effected in accordance with Clause 24.6.3 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 24.6.2, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
24.6.2
|
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 similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
24.6.3
|
Subject to Clause 24.9 (
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.
|
24.6.4
|
Lenders may utilise procedures other than those set out in this Clause 24.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Security Party or unless in accordance with Clause 24.5 (
Procedure for transfer
), to obtain a release by that Security Party from the obligations owed to that Security Party by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that
they comply with the conditions set out in Clause 24.2 (
Conditions of assignment or transfer
).
|
24.7
|
Copy of Transfer Certificate or Assignment Agreement to 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.
|
24.8
|
Security over Lenders' rights
In addition to the other rights provided to Lenders under this Clause 24, each Lender may without consulting with or obtaining consent from any Security Party, 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:
|
24.8.1
|
any charge, assignment or other Encumbrance to secure obligations to a federal reserve or central bank;
|
24.8.2
|
any assignment to any securitisation vehicle, trust or fund for the purpose of a Lender refinancing or hedging its exposure in respect of the Loan; and
|
24.8.3
|
in the case of any Lender which is a fund, 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,
|
(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 a Security Party 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.
|
24.9
|
Pro rata interest settlement
|
24.9.1
|
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 24.5 (
Procedure for transfer
) or any assignment pursuant to Clause 24.6 (
Procedure for assignment
) the Transfer Date of which 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 six monthly intervals 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 to the Existing Lender; and
|
(ii)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
24.9.2
|
In this Clause 24.9 references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
25
|
Changes to the Security Parties
|
25.1
|
No assignment or transfer by Security Parties
No Security Party may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
|
Section 10
|
The Finance Parties
|
26
|
Role of the Agent, the Security Agent and the Arranger
|
26.1
|
Appointment of the Agent and the Security Agent
|
26.1.1
|
Each of the Arranger and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents and each of the Arranger, the Lenders and the Agent appoints the Security Agent to act as its security agent for the purpose of the Security Documents.
|
26.1.2
|
Each of the Arranger and the Lenders authorises the Agent and each of the Arranger and 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.
|
26.1.3
|
Each 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.
|
26.1.4
|
Except in Clause 26.14 (
Replacement of the Agent
) or where the context otherwise requires, references in this Clause 26 to the "
Agent
" shall mean the Agent, the Security Agent individually and collectively and references in this Clause 26 to the "
Finance Documents
" or to any "
Finance Document
" shall not include a Master Agreement.
|
26.2
|
Instructions
|
26.2.1
|
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 26.2.1(a).
|
26.2.2
|
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 discretion and the Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
26.2.3
|
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.
|
26.2.4
|
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.
|
26.2.5
|
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.
|
26.2.6
|
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 26.2.6 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.
|
26.3
|
Duties of the Agent
|
26.3.1
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
26.3.2
|
Subject to Clause 26.3.3, 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.
|
26.3.3
|
Without prejudice to Clause 24.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrowers
), Clause 26.3.1 shall not apply to any Transfer Certificate or any Assignment Agreement.
|
26.3.4
|
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.
|
26.3.5
|
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.
|
26.3.6
|
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, the Arranger or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
26.3.7
|
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).
|
26.4
|
Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.
|
26.5
|
No fiduciary duties
|
26.5.1
|
Subject to Clause 26.12 (
Trust
) which relates to the Security Agent only, nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.
|
26.5.2
|
Neither the Agent nor the Arranger 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.
|
26.6
|
Business with Security Parties
The Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with either Borrower and any other Security Party or its Affiliate.
|
26.7
|
Rights and discretions of the Agent
|
26.7.1
|
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,
|
26.7.2
|
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 23.1 (
Events of Default
));
|
(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 a Drawdown Request) is made on behalf of and with the consent and knowledge of all the Security Parties.
|
26.7.3
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts.
|
26.7.4
|
Without prejudice to the generality of Clause 26.7.3 or Clause 26.7.5, 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.
|
26.7.5
|
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.
|
26.7.6
|
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,
|
26.7.7
|
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.
|
26.7.8
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor an Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
26.7.9
|
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 10.2.2 (
Market Disruption
).
|
26.7.10
|
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.
|
26.8
|
Responsibility for documentation
Neither the Agent nor any Arranger is responsible or liable for:
|
26.8.1
|
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, an Arranger, a Security Party or any other person given in or in connection with any Relevant Document or the transactions contemplated in the Finance Documents; or
|
26.8.2
|
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
|
26.8.3
|
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.
|
26.9
|
No duty to monitor
The Agent shall not be bound to enquire:
|
26.9.1
|
whether or not any Default has occurred;
|
26.9.2
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
26.9.3
|
whether any other event specified in any Finance Document has occurred.
|
26.10
|
Exclusion of liability
|
26.10.1
|
Without limiting Clause 26.10.2 (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;
|
(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 26.10.1(a), 26.10.1(b) and 26.10.1(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,
|
26.10.2
|
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 1.7 (
Third Party Rights
) and the provisions of the Third Parties Act.
|
26.10.3
|
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.
|
26.10.4
|
Nothing in this Agreement shall oblige the Agent or an Arranger to carry out:
|
(a)
|
any "know your customer" or other checks in relation to any person;
|
(b)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,
|
26.10.5
|
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.
|
26.11
|
Lenders' indemnity to the Agent
|
26.11.1
|
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 29.12 (
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 a Security Party pursuant to a Finance Document).
|
26.11.2
|
Subject to Clause 26.11.3, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to Clause 26.11.1.
|
26.11.3
|
Clause 26.11.2 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 a Security Party.
|
26.12
|
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 26.12, the Security Agent holds the Trust Property on trust for the Finance Parties 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 26.12. 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:
|
26.12.1
|
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;
|
26.12.2
|
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;
|
26.12.3
|
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;
|
26.12.4
|
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 Security Party 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 Security Party may have to any asset;
|
26.12.5
|
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 Security Party to retain all such title deeds, Finance Documents and other documents in its possession; and
|
26.12.6
|
save as otherwise provided in the Finance Documents, all moneys which under the trusts therein contained are received by the Security Agent may be invested in the name of or under the control of the Security Agent in any investment for the time being authorised by English law for the investment by trustees of trust money or in any other investments which may be selected by the Security Agent, and the same 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.
|
26.13
|
Resignation of the Agent
|
26.13.1
|
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.
|
26.13.2
|
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.
|
26.13.3
|
If the Majority Lenders have not appointed a successor Agent in accordance with Clause 26.13.2 within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Borrowers) may appoint a successor Agent.
|
26.13.4
|
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 26.13.3, 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 26 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.
|
26.13.5
|
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.
|
26.13.6
|
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.
|
26.13.7
|
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 26.13.5) but shall remain entitled to the benefit of Clause 14.3 (
Indemnity to the Agent
) and this Clause 26. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
26.13.8
|
The Agent shall resign in accordance with Clause 26.13.2 (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to Clause 26.13.3) if on or after the date which is three months 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 12.7 (
FATCA information
) and 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 12.7 (
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;
|
26.14
|
Replacement of the Agent
|
26.14.1
|
After consultation with the Borrowers, the Majority Lenders may, by giving 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority lenders) replace the Agent by appointing a successor Agent.
|
26.14.2
|
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise 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.
|
26.14.3
|
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 26.14.2 but shall remain entitled to the benefit of Clause 14.3 (
Indemnity to the Agent
) and this Clause 26.
|
26.14.4
|
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.
|
26.15
|
Confidentiality
|
26.15.1
|
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.
|
26.15.2
|
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.
|
26.15.3
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor an Arranger is obliged to disclose to any other person (i) any Confidential Information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any laws or a breach of a fiduciary duty.
|
26.16
|
Relationship with the Lenders
|
26.16.1
|
Subject to Clause 24.9 (
Pro rata interest settlement
), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(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,
|
26.16.2
|
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 31.6 (
Electronic communication
)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 31.2 (
Addresses
) and Clause 31.6.1(b) (
Electronic communication
) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
26.17
|
Credit appraisal by the Lenders
Without affecting the responsibility of any Security Party for information supplied by it or on its behalf in connection with any Relevant Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Relevant Document including but not limited to:
|
26.17.1
|
the financial condition, status and nature of each Security Party;
|
26.17.2
|
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;
|
26.17.3
|
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
|
26.17.4
|
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.
|
26.18
|
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.
|
26.19
|
Reference Banks
|
26.20
|
Role of Reference Banks
|
(a)
|
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent but may do so at the Agent's request.
|
(b)
|
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any quotation provided to the Agent.
|
(c)
|
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any quotation provided to the Agent, and any officer, employee or agent of each Reference Bank may rely on this Clause subject to Clause 1.7(
Third party rights
) and the provision of the Third Parties Act.
|
26.21
|
Third party Reference Banks
|
27
|
Conduct of Business by the Finance Parties
|
27.1
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
27.2
|
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
|
27.3
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
28
|
Sharing among the Finance Parties
|
28.1
|
Payments to Finance Parties
If a Finance Party (a "
Recovering Finance Party
") receives or recovers any amount from a Security Party other than in accordance with Clause 29 (
Payment Mechanics
) (a "
Recovered Amount
") and applies that amount to a payment due under the Finance Documents then:
|
28.1.1
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
28.1.2
|
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 29 (
Payment Mechanics
), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
28.1.3
|
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 29.6 (
Partial payments
).
|
28.2
|
Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Security Party and distribute it between the Finance Parties (other than the Recovering Finance Party) (the "
Sharing Finance Parties
") in accordance with Clause 29.6 (
Partial payments
) towards the obligations of that Security Party to the Sharing Finance Parties.
|
28.3
|
Recovering Finance Party's rights
On a distribution by the Agent under Clause 28.2
(
Redistribution of payments
) of a payment received by a Recovering Finance Party from a Security Party, as between the relevant Security Party 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 Security Party.
|
28.4
|
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:
|
28.4.1
|
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
|
28.4.2
|
as between the relevant Security Party and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Security Party.
|
28.5
|
Exceptions
|
28.5.1
|
This Clause 28 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Security Party.
|
28.5.2
|
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.
|
Section 11
|
Administration
|
29
|
Payment Mechanics
|
29.1
|
Payments to the Agent
On each date on which a Security Party or a Lender is required to make a payment under a Finance Document (other than a Master Agreement), that Security Party or that Lender shall make the same available to the Agent 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.
|
29.2
|
Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 29.3 (
Distributions to a Security Party
) and Clause 29.4 (
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.
|
29.3
|
Distributions to a Security Party
The Agent may (with the consent of a Security Party or in accordance with Clause 30 (
Set-Off
)) apply any amount received by it for that Security Party in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Security Party under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
|
29.4
|
Clawback and pre-funding
|
29.4.1
|
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.
|
29.4.2
|
Unless Clause 29.4.3 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.
|
29.4.3
|
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
|
(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.
|
29.5
|
Impaired Agent
|
29.5.1
|
If, at any time, the Agent becomes an Impaired Agent, a Security Party or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 29.1 (
Payments to the Agent
) may instead either:
|
(a)
|
pay that amount direct to the required recipient(s); or
|
(b)
|
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank in relation to which no Insolvency Event has occurred and is continuing, in the name of the Security Party or the Lender making the payment (the "
Paying Party
") and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the "
Recipient Party
" or "
Recipient Parties
").
|
29.5.2
|
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties
pro rata
to their respective entitlements.
|
29.5.3
|
A Party which has made a payment in accordance with this Clause 29.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
29.5.4
|
Promptly upon the appointment of a successor Agent in accordance with Clause 26.14 (
Replacement of the Agent
), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to Clause 29.5.5) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 29.2 (
Distributions by the Agent
).
|
29.5.5
|
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
(a)
|
that it has not given an instruction pursuant to Clause 29.5.4; and
|
(b)
|
that it has been provided with the necessary information by that Recipient Party,
|
29.6
|
Partial payments
|
29.6.1
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by a Security Party under the Finance Documents, the Agent shall apply that payment towards the obligations of that Security Party under the Finance Documents
in the following order:
|
(a)
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent or the Security Agent under the Finance Documents;
|
(b)
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement and any periodic payments then due under a Master Agreement;
|
(c)
|
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement and any termination payment then due under a Master Agreement; and
|
(d)
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents
|
29.6.2
|
The Agent shall, if so directed by the Majority Lenders, vary the order set out in Clauses 29.6.1(b) to 29.6.1(d).
|
29.6.3
|
Clauses 29.6.1 and 29.6.2 will override any appropriation made by a Security Party.
|
29.7
|
No set-off by Security Parties
All payments to be made by a Security Party under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
|
29.8
|
Business Days
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
29.9
|
Currency of account
|
29.9.1
|
Subject to Clauses 29.9.2 to 29.9.5, dollars is the currency of account and payment for any sum due from a Security Party under any Finance Document.
|
29.9.2
|
A repayment or payment of all or part of a Tranche or an Unpaid Sum shall be made in the currency in which that Tranche or Unpaid Sum is denominated on its due date.
|
29.9.3
|
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.
|
29.9.4
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
29.9.5
|
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
29.10
|
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 29.10 and those entries will, in the absence of manifest error, be conclusive and binding.
|
29.11
|
Change of currency
|
29.11.1
|
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).
|
29.11.2
|
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 Interbank Market and otherwise to reflect the change in currency.
|
29.12
|
Disruption to payment systems etc.
If either the Agent determines in its discretion that a Disruption Event has occurred or the Agent is notified by the Borrowers that a Disruption Event has occurred:
|
29.12.1
|
the Agent may, and shall if requested to do so by the Borrower, 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;
|
29.12.2
|
the Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in Clause 29.12.1 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;
|
29.12.3
|
the Agent may consult with the Finance Parties in relation to any changes mentioned in Clause 29.12.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
29.12.4
|
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 35 (
Amendments and Waivers
);
|
29.12.5
|
the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation, for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 29.12; and
|
29.12.6
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to Clause 29.12.4.
|
30
|
Set-Off
|
30.1
|
Set-off
A Finance Party may set off any matured obligation due from a Borrower or any of them or the Guarantor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Borrower or the Guarantor (as the case may be), 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.
|
30.2
|
Master Agreement rights
The rights conferred on the Swap Providers by this Clause 30 shall be in addition to, and without prejudice to or limitation of, the rights of netting and set off conferred on the Swap Providers by any Master Agreement.
|
31
|
Notices
|
31.1
|
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, letter or electronic mail.
|
31.2
|
Addresses
The address, fax number and electronic mail address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
|
31.2.1
|
in the case of each Borrower, that identified with its name below;
|
31.2.2
|
in the case of the Guarantor, that identified with its name below;
|
31.2.3
|
in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party;
|
31.2.4
|
in the case of the Swap Providers, that identified with their names below;
|
31.2.5
|
in the case of an Arranger, that identified with its name below; and
|
31.2.6
|
in the case of the Agent or the Security Agent, that identified with its name below,
|
31.3
|
Delivery
Any communication or document made or delivered by one Party to another under or in connection with the Finance Documents will only be effective:
|
31.3.1
|
if by way of fax, when received in legible form;
|
31.3.2
|
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; or
|
31.3.3
|
if by way of electronic mail, then in accordance with Clause 31.6.2 and Clause 31.6.3,
|
31.4
|
Notification of address and fax number
Promptly upon changing its address, fax number or electronic mail address, the Agent shall notify the other Parties.
|
31.5
|
Communication when Agent is Impaired Agent
If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.
|
31.6
|
Electronic communication
|
31.6.1
|
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 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 and if those two Parties:
|
(a)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(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.
|
31.6.2
|
Any electronic communication made between those two Parties will be effective only when actually received 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.
|
31.6.3
|
Any electronic communication which becomes effective, in accordance with Clause 31.6.2, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
31.7
|
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:
|
31.7.1
|
in English; or
|
31.7.2
|
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.
|
32
|
Calculations and Certificates
|
32.1
|
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 29.10 (
Control account
) are
prima facie
evidence of the matters to which they relate.
|
32.2
|
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.
|
32.3
|
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 Interbank Market differs, in accordance with that market practice.
|
33
|
Partial Invalidity
|
34
|
Remedies and Waivers
|
35
|
Amendments and Waivers
|
35.1
|
Required consents
|
35.1.1
|
Subject to Clause 35.2 (
Exceptions
) any term of the Finance Documents (other than a 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.
|
35.1.2
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 35.
|
35.1.3
|
Without prejudice to the generality of Clauses 26.7.3, 26.7.4 and 26.7.5 (
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.
|
35.2
|
Exceptions
|
35.2.1
|
An amendment, waiver or (in the case of a Security Document) a consent of, or in relation 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)
|
a change in currency of payment of any amount under the Finance Documents;
|
(e)
|
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;
|
(f)
|
any provision which expressly requires the consent of all the Lenders;
|
(g)
|
Clause 2.2 (
Finance Parties' rights and obligations
), Clause 24 (
Changes to the Lenders
), this Clause 35, Clause 40 (
Governing Law
) or Clause 41.1 (
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 the 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;
|
35.2.2
|
An amendment or
waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger (each in their capacity as such) may not be effected without the consent of the Agent, the Security Agent or, as the case may be, the
Arranger.
|
35.3
|
Replacement of Lender
|
35.3.1
|
If:
|
(a)
|
any Lender becomes a Non-Consenting Lender (as defined in Clause 35.3.4); or
|
(b)
|
a Borrower or any other Security Party 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,
|
35.3.2
|
The replacement of a Lender pursuant to this Clause 35.3 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 Business Days after the date on which that Lender is deemed a Non-Consenting Lender;
|
(d)
|
in no event shall the Lender replaced under this Clause 35.3 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 35.3.1 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.
|
35.3.3
|
A Lender shall perform the checks described in Clause 35.3.2(e) as soon as reasonably practicable following delivery of a notice referred to in Clause 35.3.1 and shall notify the Agent and the Borrowers when it is satisfied that it has complied with those checks.
|
35.3.4
|
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;
|
(b)
|
the consent, waiver or amendment in question requires the approval of all the Lenders; and
|
(c)
|
Lenders whose Commitments aggregate more than 66
2
/
3
% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66
2
/
3
% of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment,
|
36
|
Confidentiality
|
36.1
|
Confidential Information
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 36.2 (
Disclosure of Confidential Information
) and Clause 36.3 (
Disclosure to numbering service providers
), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
|
36.2
|
Disclosure of Confidential Information
Any Finance Party may disclose:
|
36.2.1
|
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Clause 36.2.1 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;
|
36.2.2
|
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, 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 Security Parties and to any of that person's Affiliates, Representatives and professional advisers;
|
(c)
|
appointed by any Finance Party or by a person to whom Clause 36.2.2(a) or 36.2.2(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 26.16.2 (
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 36.2.2(a) or 36.2.2(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;
|
(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 24.8 (
Security over Lenders' rights
);
|
(h)
|
who is either an insurance company, a reinsurance company, an insurance broker or a reinsurance broker that in either case is providing or may potentially provide insurance cover either (i) in respect of the assets that are the subject of the Finance Document or (ii) pursuant to and in accordance with the terms of the Finance Documents;
|
(i)
|
who is a Party; or
|
(j)
|
with the consent of the Borrowers;
|
(i)
|
in relation to Clauses 36.2.2(a), 36.2.2(b) and 36.2.2(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 36.2.2(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 36.2.2(e), 36.2.2(f) and 36.2.2(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;
|
36.2.3
|
to any person appointed by that Finance Party or by a person to whom Clause 36.2.2(a) or 36.2.2(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 36.2.3 if the service provider to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking; and
|
36.2.4
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Security Parties if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
36.3
|
Disclosure to numbering service providers
|
36.3.1
|
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 Security Parties the following information:
|
(a)
|
names of Security Parties;
|
(b)
|
country of domicile of Security Parties;
|
(c)
|
place of incorporation of Security Parties;
|
(d)
|
date of this Agreement;
|
(e)
|
Clause 40 (
Governing Law
);
|
(f)
|
the names of the Agent and the Arranger;
|
(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 Security Party,
|
36.3.2
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Loan and/or one or more Security Parties 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.
|
36.3.3
|
Each Borrower represents that none of the information set out in Clauses 36.3.1(a) to 36.3.1(n) is, nor will at any time be, unpublished price-sensitive information.
|
36.3.4
|
The Agent shall notify the Borrowers and the other Finance Parties of:
|
(a)
|
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Loan and/or one or more Security Parties; and
|
(b)
|
the number or, as the case may be, numbers assigned to this Agreement, the Loan and/or one or more Security Parties by such numbering service provider.
|
36.4
|
Entire agreement
This Clause 36 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
|
36.5
|
Inside information
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
|
36.6
|
Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrower:
|
36.6.1
|
of the circumstances of any disclosure of Confidential Information made pursuant to Clause 36.2.2(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
|
36.6.2
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 36.
|
36.7
|
Continuing obligations
The obligations in this Clause 36 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
|
36.7.1
|
the date on which all amounts payable by the Security Parties under or in connection with the Finance Documents have been paid in full and the Loan has been cancelled or otherwise ceases to be available; and
|
36.7.2
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
37
|
Disclosure of Lender Details by Agent
|
37.1
|
Supply of Lender details to Borrowers
The Agent shall provide to the Borrowers within ten 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 the date of that request, 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 sending and receipt 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 and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.
|
37.2
|
Supply of Lender details at Borrowers' direction
|
37.2.1
|
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)
|
Security Party.
|
37.2.2
|
Subject to Clause 37.2.3, the Borrowers shall procure that the recipient of information disclosed pursuant to Clause 37.2.1 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.
|
37.2.3
|
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.
|
37.3
|
Supply of Lender details to other Lenders
|
37.3.1
|
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.
|
37.3.2
|
The Agent shall, if so directed by the Requisite Lenders, request each Lender to indicate to it whether it is a Disclosing Lender.
|
37.4
|
Lender enquiry
If any Lender believes that any entity is, or may be, a Lender and:
|
37.4.1
|
that entity ceases to have an Investment Grade Rating; or
|
37.4.2
|
an Insolvency Event occurs in relation to that entity,
|
37.5
|
Lender details definitions
In this Clause 37:
|
38
|
Counterparts
|
39
|
Joint and Several Liability
|
39.1
|
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:
|
39.1.1
|
any forbearance (whether as to payment or otherwise) or any time or other indulgence granted to any other Borrower or any other Security Party under or in connection with any Finance Document;
|
39.1.2
|
any amendment, variation, novation or replacement of any other Finance Document;
|
39.1.3
|
any failure of any Finance Document to be legal valid binding and enforceable in relation to any other Borrower or any other Security Party for any reason;
|
39.1.4
|
the winding-up or dissolution of any other Borrower or any other Security Party;
|
39.1.5
|
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 Security Party; or
|
39.1.6
|
any other act, omission, thing or circumstance which would or might, but for this provision, operate to discharge, impair or otherwise affect such liability.
|
39.2
|
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 Security Party:
|
39.2.1
|
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
|
39.2.2
|
exercise any right of contribution from any other Borrower or any other Security Party under any Finance Document; or
|
39.2.3
|
exercise any right of set-off or counterclaim against any other Borrower or any other Security Party; or
|
39.2.4
|
receive, claim or have the benefit of any payment, distribution, security or indemnity from any other Borrower or any other Security Party; or
|
39.2.5
|
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 Security Party in competition with any Finance Party
|
Section 12
|
Governing Law and Enforcement
|
40
|
Governing Law
|
41
|
Enforcement
|
41.1
|
Jurisdiction of English courts
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.
|
41.2
|
Waiver of Jury Trial
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MIGHT HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FINANCE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER FINANCE DOCUMENTS BY, AMONGST OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS CLAUSE 41.
|
41.3
|
Service of process
|
41.3.1
|
Without prejudice to any other mode of service allowed under any relevant law, each Borrower and the Guarantor:
|
(a)
|
irrevocably appoints Scorpio UK Limited at its business address currently at 10 Lower Grosvenor Place, London SW1W 0EN, England (Attention: General Counsel) to act as its agent to receive and accept on its behalf service of process in relation to any proceedings before the English courts which are connected with any Finance Document provided that any communication is expressly marked on outside as “[name of the file] File – For the immediate attention of the General Counsel”; and
|
(b)
|
agrees that failure by a process agent to notify that Borrower or the Guarantor (as the case may be) of the process will not invalidate the proceedings concerned.
|
41.3.2
|
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 the 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.
|
42
|
Patriot Act Notice
|
Name of Original Lender
|
Commitment
|
BNP Paribas
|
$59,800,000
|
1
|
Security Parties
|
(a)
|
Constitutional documents
Copies of the constitutional documents of each Borrower and the Guarantor together with such other evidence that each Borrower and the Guarantor are each 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 Borrower and the Guarantor (if such a certificate can be obtained).
|
(c)
|
Board resolutions
A copy of a resolution of the board of directors of the each Borrower and the Guarantor:
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute those Relevant Documents; and
|
(ii)
|
authorising a specified person or persons to execute those Finance Documents (and all documents and notices to be signed and/or dispatched under those documents) on its behalf.
|
(d)
|
Specimen signatures
A specimen of the signature of each person authorised by the resolutions referred to in (c).
|
(e)
|
Officer's certificates
An original certificate of a duly authorised officer of each Borrower and the Guarantor:
|
(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 the directors, officers and shareholders of each Borrower and the Guarantor (as the case may be) 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 Security Party to be exceeded.
|
(f)
|
Powers of attorney
The original notarially attested, and if required by the Agent acting on appropriate legal advice legalised, power of attorney of each of the Borrowers and the Guarantor under which the Relevant Documents to which it is or is to become a party are to be executed or transactions undertaken by each Borrower and the Guarantor.
|
2
|
Security and related documents
|
(a)
|
Vessel documents
Photocopies, certified as true, accurate and complete by a director, the secretary or the legal advisers of the Borrower, of:
|
(i)
|
any Charter;
|
(ii)
|
the Management Agreement together with a confirmation from the parties thereto that the Vessel has been delivered into the Management Agreement;
|
(iii)
|
the Vessel's current Safety Construction, Safety Equipment, Safety Radio and Load Line Certificates;
|
(iv)
|
evidence of the Vessel's current Certificate of Financial Responsibility issued pursuant to the United States Oil Pollution Act 1990;
|
(v)
|
the Vessel's current SMC;
|
(vi)
|
the ISM Company's current DOC;
|
(vii)
|
the Vessel's current ISSC;
|
(viii)
|
the Vessel's current IAPPC;
|
(ix)
|
the Vessel's current Tonnage Certificate;
|
(b)
|
Evidence of Borrower's title
In relation to the Vessel, a certificate of ownership of encumbrance (or equivalent) issued by the Registrar of an Approved Flag confirming that (i) the Vessel is owned by the relevant Borrower under the laws and flag of an Approved Flag and free of registered Encumbrances and (ii) the Mortgage will be capable of being registered against the Vessel with first priority.
|
(c)
|
Evidence of insurance
and insurance report
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 way of a written report from an insurance adviser appointed by the Agent, but at the expense of the Borrower.
|
(d)
|
Confirmation of class
An interim Class Certificate for hull and machinery confirming that the Vessel is classed with the highest class applicable to vessels of her type with an Approved Classification Society.
|
(e)
|
Valuation
Two valuations dated not more than 30 days prior to the Drawdown Date evidencing the FMV of the Vessel, certifying that the amount of the Tranche requested to be advanced pursuant to the Drawdown Request is no greater than the lesser of the relevant Maximum Tranche Amount and 48% of the FMV of the Vessel, such valuations to be obtained by the Agent at the expense of the Borrower.
|
(f)
|
Security Documents
The Security Documents (except the Account Security Deed), 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) all share certificates, certified copy share registers or registers of members, transfer forms, proxy forms, letters of resignation and letters of undertaking.
|
(g)
|
No disputes
The written confirmation of the Borrower that there is no dispute under any of the Relevant Documents as between the parties to any such document.
|
(h)
|
Managers' Undertakings
The Managers' Undertakings.
|
3
|
Legal opinions
|
(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 Watson Farley & Williams LLP (New York) as to Marshall Islands law;
|
(c)
|
a legal opinion of Schellenberg Wittmer as to Swiss Law.
|
4
|
Other documents and evidence
|
(a)
|
Drawdown Request
A duly completed Drawdown Request.
|
(b)
|
Process agent
Evidence that any process agent referred to in Clause 41.3 (
Service of process
) and any process agent appointed under any other Finance Document has accepted its appointment.
|
(c)
|
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.
|
(d)
|
Financial statements
A copy of the Original Financial Statements of the Guarantor.
|
(e)
|
Fees
The Fee Letter and evidence that the fees, costs and expenses then due from the Borrower under Clause 11 (
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the relevant Drawdown Date.
|
(a)
|
"Know your customer" documents
Such documentation and other evidence needed 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.
|
1
|
Evidence of Borrower's title
Certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of an Approved Flag confirming that (a) the Vessel is permanently registered under that flag in the ownership of the Borrower, (b) the Mortgage has been registered with first priority against the Vessel and (c) there are no further Encumbrances registered against the Vessel.
|
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
|
Master's receipt
The master's receipt for the Mortgage.
|
6
|
Fees
Evidence that the upfront fee due from the Borrower pursuant to the Fee Letter has been paid or will be paid by the date specified in the Fee Letter.
|
7
|
Account Security Deed
The Account Security Deed, together with all other documents required by it, including, without limitation, all notices of charge and evidence that those notices will be duly acknowledged by the recipients.
|
8
|
Mandates
Such duly signed forms of mandate, and/or other evidence of the opening of the Accounts, as the Security Agent may require.
|
9
|
Account Holder's confirmation
The written confirmation of the Account Holder that the 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.
|
From:
|
STI Memphis Shipping Company Limited
|
To:
|
BNP Paribas
|
From:
|
STI Memphis Shipping Company Limited, STI Battery Shipping Company Limited, STI Sapphire Shipping Company Limited and STI Emerald Shipping Company Limited $59,800,000 Loan Agreement dated 2 February 2016 as amended and restated on [ ] 2016 (the "Loan Agreement")
|
1
|
We refer to the Agreement. This is the Drawdown Request. Terms defined in the Agreement have the same meaning in this Drawdown Request unless given a different meaning in this Drawdown Request.
|
2
|
We wish to borrow Tranche [C/D] in respect of the Vessel specified below on the following terms:
|
Tranche
|
[C/D]
|
Proposed Drawdown Date:
|
[ ] (or, if that is not a Business Day, the next Business Day)
|
3
|
We confirm that each condition specified in Clause 4.2 (
Further conditions precedent
) is satisfied on the date of this Drawdown Request.
|
4
|
The proceeds of the Tranche should be paid as follows:
|
5
|
This Drawdown Request is irrevocable.
|
From:
|
[
The Existing Lender
] (the "
Existing Lender
") and [
The New Lender
] (the "
New Lender
")
|
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 24.5 (
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 24.5 (
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 31.2 (
Addresses
) are set out in the Schedule.
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in Clause 24.4.1(c) (
Limitation of responsibility of Existing Lenders
).
|
4
|
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.
|
5
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
6
|
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.
|
To:
|
[ ] as Agent, [ ] as Security Agent and [ ] as Borrower, for and on behalf of each Security Party
|
From:
|
[the
Existing Lender
] (the "
Existing Lender
") and [the
New Lender
] (the "
New Lender
")
|
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 24.6 (
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 31.2 (
Addresses
) are set out in the Schedule.
|
6
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in Clause 24.4.3 (
Limitation of responsibility of Existing Lenders
).
|
7
|
This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 24.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrowers
), to the Borrowers (on behalf of each Security Party) of the assignment referred to in this Agreement.
|
8
|
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.
|
9
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10
|
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.
|
1
|
We confirm that we maintain:
|
(a)
|
Cash of $[ ];
|
(b)
|
Cash Equivalents of $[ ];
|
(c)
|
Minimum Liquidity of $[ ], of which [ ]% consists of Cash;
|
(d)
|
Consolidated Tangible Net Worth of $[ ];
|
(e)
|
a ratio of Net Debt to Consolidated Total Capitalisation of [ ]:1.0; and
|
(f)
|
a ratio of Consolidated EBITDA to Consolidated Net Interest Expense of [ ]:1.0.
|
2
|
[We confirm that no Default is continuing.]
*
|
Signed:
|
………………………………………………
|
|
|
Chief Financial Officer
|
|
|
of
|
|
|
Scorpio Tankers Inc.
|
|
STI Memphis Shipping Company Limited
|
|
|
|
By:
|
|
|
|
Address:
|
|
c/o Scorpio Tankers Inc.
|
|
9, Boulevard Charles III
|
|
|
|
MC 98000 Monaco
|
|
Fax: +377 97 77 8346
|
|
Department Officer: General Counsel)
|
|
|
|
|
|
STI Battery Shipping Company Limited
|
|
|
|
By:
|
|
|
|
Address:
|
|
c/o Scorpio Tankers Inc.
|
|
9, Boulevard Charles III
|
|
|
|
MC 98000 Monaco
|
|
Fax: +377 97 77 8346
|
|
Department Officer: General Counsel)
|
|
|
|
|
|
STI Sapphire Shipping Company Limited
|
|
|
|
By:
|
|
|
|
Address:
|
|
c/o Scorpio Tankers Inc.
|
|
9, Boulevard Charles III
|
|
|
|
MC 98000 Monaco
|
|
Fax: +377 97 77 8346
|
|
Department Officer: General Counsel)
|
|
|
|
|
|
|
|
|
|
STI Emerald Shipping Company Limited
|
|
|
|
By:
|
|
|
|
Address:
|
|
c/o Scorpio Tankers Inc.
|
|
9, Boulevard Charles III
|
|
|
|
MC 98000 Monaco
|
|
Fax: +377 97 77 8346
|
|
Department Officer: General Counsel)
|
|
|
|
|
|
The Guarantor
|
|
Scorpio Tankers Inc.
|
|
|
|
By:
|
|
|
|
Address:
|
|
c/o Scorpio Tankers Inc.
|
|
9, Boulevard Charles III
|
|
|
|
MC 98000 Monaco
|
|
Fax: +377 97 77 8346
|
|
Department Officer: General Counsel
|
|
|
|
|
|
The Arranger
|
|
BNP Paribas
|
|
|
|
By:
|
|
|
|
Address:
|
|
16, rue de Hanovre
|
|
75002 Paris
|
|
France
|
|
Fax: +33 (0) 1 42 98 48 17
|
|
E-mail: mouna.felfel@bnpparibas.com
|
|
Copy to: dl.pariscibcbetgmoshipping@
|
|
bnpparibas.com
|
|
Attention: Middle Office Shipping &
|
|
Offshore - Transportation Group
|
|
|
|
|
|
|
|
|
|
|
|
The Agent
|
|
BNP Paribas
|
|
|
|
By:
|
|
|
|
Address:
|
|
16, rue de Hanovre
|
|
75002 Paris
|
|
France
|
|
Fax: +33 (0) 1 42 98 48 17
|
|
E-mail: mouna.felfel@bnpparibas.com
|
|
Copy to: dl.pariscibcbetgmoshipping@
|
|
bnpparibas.com
|
|
Attention: Middle Office Shipping &
|
|
Offshore - Transportation Group
|
|
|
|
|
|
The Security Agent
|
|
BNP Paribas
|
|
|
|
By:
|
|
|
|
Address:
|
|
16, rue de Hanovre
|
|
75002 Paris
|
|
France
|
|
Fax: +33 (0) 1 42 98 48 17
|
|
E-mail: mouna.felfel@bnpparibas.com
|
|
Copy to: dl.pariscibcbetgmoshipping@
|
|
bnpparibas.com
|
|
Attention: Middle Office Shipping &
|
|
Offshore - Transportation Group
|
|
|
|
|
|
The Original Lenders
|
|
BNP Paribas
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Swap Providers
|
|
BNP Paribas
|
|
|
|
By:
|
|
|
|
Address: 787 Seventh Avenue
|
|
10019 New York
|
|
New York
|
|
United States of America
|
|
Fax: + 1 (212) 841-3561
|
|
Attention: CIB Legal– ISDA Documentation
|
|
Team
|
|
|
|
With a copy to:
|
|
|
|
BNP Paribas
|
|
Address: 3, rue Taibout
|
|
75009 Paris
|
|
France
|
|
Fax: +(33) (0) 1 55 77 75 11
|
|
Attention: CIB Legal– ISDA Documentation
|
|
Team
|
|
|
|
The Existing Borrowers
|
|
STI Memphis Shipping Company Limited
|
|
acting by Micha Withoft, Attorney-in-Fact
|
/s/ Micha Withoft
|
the duly authorised
|
|
in the presence of:
|
|
|
|
Witness signature:…
/s/ Andrew Cottrell
|
|
Name: Andrew Cottrell, Legal Intern
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 9800 Monaco
|
|
|
|
STI Battery Shipping Company Limited
|
|
acting by Micha Withoft, Attorney-in-Fact
|
/s/ Micha Withoft
|
the duly authorised
|
|
in the presence of:
|
|
|
|
Witness signature:…
/s/ Andrew Cottrell
|
|
Name: Andrew Cottrell, Legal Intern
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 9800 Monaco
|
|
|
|
The New Borrowers
|
|
|
|
STI Sapphire Shipping Company Limited
|
|
acting by Luca Forgione, Director
|
|
in the presence of:
|
/s/ Luca Forgione
|
|
|
Witness signature:…
/s/ Andrew Cottrell
|
|
Name: Andrew Cottrell, Legal Intern
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 9800 Monaco
|
|
|
|
STI Emerald Shipping Company Limited
|
|
acting by Luca Forgione, Director
|
|
in the presence of:
|
/s/ Luca Forgione
|
|
|
Witness signature:…
/s/ Andrew Cottrell
|
|
Name: Andrew Cottrell, Legal Intern
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 9800 Monaco
|
|
|
|
|
|
The Guarantor
|
|
Scorpio Tankers Inc.
|
|
acting by Luca Forgione, Director
|
/s/ Luca Forgione
|
its duly authorised
|
|
in the presence of:
|
|
|
|
Witness signature:…
/s/ Andrew Cottrell
|
|
Name: Andrew Cottrell, Legal Intern
|
|
Address: “Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
The Original Lenders
|
|
BNP Paribas
|
|
acting by
|
|
the duly authorised
|
/s/ Meimunah Peeroo
|
in the presence of:
|
Name: Meimunah Peeroo
|
|
Title: Attorney-In-Fact
|
Witness signature:……
/s/ Christina Sarrou
……
|
|
Name: Christina Sarrou
|
|
Address: Stephenson Harwood LLP
|
|
1 Finsbury Circus
|
|
London
|
|
EC2M 7SH
|
|
|
|
The Agent
|
|
BNP Paribas
|
|
acting by
|
|
the duly authorised
|
/s/ Meimunah Peeroo
|
in the presence of:
|
Name: Meimunah Peeroo
|
|
Title: Attorney-In-Fact
|
Witness signature:……
/s/ Christina Sarrou
……
|
|
Name: Christina Sarrou
|
|
Address: Stephenson Harwood LLP
|
|
1 Finsbury Circus
|
|
London
|
|
EC2M 7SH
|
|
The Security Agent
|
|
BNP Paribas
|
|
acting by
|
|
the duly authorised
|
/s/ Meimunah Peeroo
|
in the presence of:
|
Name: Meimunah Peeroo
|
|
Title: Attorney-In-Fact
|
Witness signature:……
/s/ Christina Sarrou
……
|
|
Name: Christina Sarrou
|
|
Address: Stephenson Harwood LLP
|
|
1 Finsbury Circus
|
|
London
|
|
EC2M 7SH
|
|
|
|
The Swap Provider
|
|
BNP Paribas
|
|
acting by
|
|
the duly authorised
|
/s/ Meimunah Peeroo
|
in the presence of:
|
Name: Meimunah Peeroo
|
|
Title: Attorney-In-Fact
|
Witness signature:……
/s/ Christina Sarrou
……
|
|
Name: Christina Sarrou
|
|
Address: Stephenson Harwood LLP
|
|
1 Finsbury Circus
|
|
London
|
|
EC2M 7SH
|
|
1
|
Interpretation
|
2
|
Guarantee
|
3
|
Liability as Principal and Independent Debtor
|
4
|
Expenses
|
5
|
Adjustment of Transactions
|
6
|
Payments
|
7
|
Interest
|
8
|
Subordination
|
9
|
Enforcement
|
10
|
Representations and Warranties
|
11
|
Financial Covenants
|
12
|
Undertakings
|
13
|
Judgments and Currency Indemnity
|
14
|
Set-Off
|
15
|
Supplemental
|
16
|
Assignment
|
17
|
Notices
|
18
|
Invalidity of Loan Agreement or master agreements
|
19
|
Governing Law and Jurisdiction
|
Execution Page
|
(1)
|
SCORPIO TANKERS INC.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "
Guarantor
")
|
(2)
|
SCOTIABANK EUROPE PLC
, acting through its office at 201 Bishopsgate, 6
th
Floor, London, England EC2M 3NS (the "
Security Trustee
", which expression includes its successors and assigns)
|
(A)
|
By a loan agreement dated 2 June 2016 and made between (i) STI Rose Shipping Company Limited as Borrower, (ii) the Lenders, (iii) the Agent and (iv) the Security Trustee, it was agreed that the Lenders would make available to the Borrower a facility of up to US$36,000,000.
|
(B)
|
In relation to each Swap Bank and pursuant to Master Agreements each to be made between (i) the Borrower and (ii) a Swap Bank, the Borrower and a Swap Bank may enter into Designated Transactions for the purpose of hedging the Borrower's exposure under the Loan Agreement to interest rate fluctuations and currency exposure.
|
(C)
|
By the Agency and Trust Deed entered into pursuant to the Loan Agreement, it was agreed that the Security Trustee would hold the Trust Property (including the benefit of this Guarantee) on trust for the Lenders and the Swap Banks.
|
(D)
|
The execution and delivery to the Security Trustee of this Guarantee is one of the conditions precedent to the availability of the facility under the said Loan Agreement.
|
(a)
|
freely withdrawable on demand;
|
(b)
|
not subject to any Security Interest (other than pursuant to the Finance Documents);
|
(c)
|
denominated and payable in freely transferable and freely convertible currency; and
|
(d)
|
capable of being remitted to the Guarantor or such subsidiary of the Guarantor.
|
(a)
|
unencumbered securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognised standing organised under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and
|
(c)
|
such other securities or instruments as the Agent shall, with the authorisation of all the Lenders, agree in writing,
|
(a)
|
plus
, to the extent deducted in computing the net income of the Guarantor for that Accounting Period, the sum, without duplication, of:
|
(i)
|
all federal, state, local and foreign income taxes and tax distributions;
|
(ii)
|
Consolidated Net Interest Expense;
|
(iii)
|
depreciation, depletion, amortisation of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortisation of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey (including any underwater survey done in lieu thereof) of a Fleet Vessel during such period; and
|
(v)
|
any drydocking expenses;
|
(b)
|
minus
, to the extent added in computing the consolidated net income of the Guarantor for that Accounting Period:
|
(i)
|
any non-cash income or non-cash gains; and
|
(ii)
|
any extraordinary gains on asset sales not received in the ordinary course of business.
|
(a)
|
all Financial Indebtedness; and
|
(b)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance with IFRS would be shown on the liability side of a balance sheet),
|
(a)
|
commitment fees;
|
(b)
|
interest income received; and
|
(c)
|
amortisation of deferred charges and arrangement fees, determined on a consolidated basis in accordance with IFRS and as shown in the consolidated statements of income for the Guarantor.
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.
|
GUARANTOR
|
|
|
|
SIGNED
by Brian M. Lee
|
/s/ Brian M. Lee
|
For and on behalf of
|
|
SCORPIO TANKERS INC.
|
|
In the presence of:
|
|
/s/ Vikram Hiranandani
|
|
|
|
SECURITY TRUSTEE
|
|
|
|
SIGNED
by
|
/s/ Philippos Arcoumanis
|
For and on behalf of
|
Name: Philippos Arcoumanis
|
SCOTIABANK EUROPE PLC
|
Title: Attorney-in-Fact
|
In the presence of:
|
/s/ Tanpreet Rooprai
|
|
Name: Tanpreet Rooprai
|
|
Title: Trainee Solicitor
|
|
15 Appold Street
|
|
London EC2A 2HB
|
1
|
INTERPRETATION
|
2
|
GUARANTEE
|
3
|
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
4
|
EXPENSES
|
5
|
ADJUSTMENT OF TRANSACTIONS
|
6
|
PAYMENTS
|
7
|
INTEREST
|
8
|
SUBORDINATION
|
9
|
ENFORCEMENT
|
10
|
REPRESENTATIONS AND WARRANTIES
|
11
|
UNDERTAKINGS
|
12
|
FINANCIAL COVENANTS
|
13
|
JUDGMENTS AND CURRENT INDEMNITY
|
14
|
SET-OFF
|
15
|
SUPPLEMENTAL
|
16
|
ASSIGNMENT
|
17
|
NOTICES
|
18
|
INVALIDITY OF LOAN AGREEMENT
|
19
|
GOVERNING LAW AND JURISDICTION
|
EXECUTION PAGE
|
|
SCHEDULE 1 FORM OF COMPLIANCE CERTIFICATE
|
(1)
|
SCORPIO TANKERS INC.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the “
Guarantor
”); and
|
(2)
|
NIBC BANK N.V.
, a company incorporated in The Netherlands, acting through its office at Carnegieplein 41, 2517 KJ, The Hague, The Netherlands (the “
Security Trustee
”, which expression includes its successors and assigns).
|
(A)
|
By a loan agreement dated 30 June 2016 and made between, amongst others, (i) STI Fontvieille Shipping Company Limited and STI Ville Shipping Company Limited as joint and several Borrowers, (ii) the Lenders, (iii) the Agent and (iv) the Security Trustee, it was agreed that the Lenders would make available to the Borrowers a facility of up to US$44,000,000.
|
(B)
|
By master agreements each entered or to be entered into at the Borrower’s option between a Borrower and a Swap Bank, the Swap Banks may provide the Borrowers with interest rate hedging facilities in relation to each Borrower’s obligations under the Loan Agreement (the said master agreements (including their schedules) and all Designated Transactions from time to time entered into and all Confirmations from time to time exchanged pursuant thereto hereinafter referred to as the "
Master Agreements
").
|
(C)
|
By the Agency and Trust Deed entered into pursuant to the Loan Agreement, it was agreed that the Security Trustee would hold the Trust Property on trust for the Lenders and the Swap Banks.
|
(D)
|
The execution and delivery to the Security Trustee of this Guarantee is one of the conditions precedent to the availability of the facility under the said Loan Agreement.
|
1
|
INTERPRETATION
|
1.1
|
Defined expressions
. Words and expressions defined in the Loan Agreement shall have the same meanings when used in this Guarantee unless the context otherwise requires.
|
(b)
|
not subject to any Security Interest (other than pursuant to the Finance Documents);
|
(a)
|
unencumbered securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);
|
(b)
|
time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognised standing organised under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and
|
(c)
|
such other securities or instruments as the Agent shall, with the authorisation of all the Lenders, agree in writing,
|
(a)
|
plus
, to the extent deducted in computing the net income of the Guarantor for that Accounting Period, the sum, without duplication, of:
|
(iii)
|
depreciation, depletion, amortisation of intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortisation of debt discounts) and any extraordinary losses not incurred in the ordinary course of business;
|
(iv)
|
expenses incurred in connection with a special or intermediate survey (including any underwater survey done in lieu thereof) of a Fleet Vessel during such period; and
|
(b)
|
minus
, to the extent added in computing the consolidated net income of the Guarantor for that Accounting Period:
|
(ii)
|
any extraordinary gains on asset sales not received in the ordinary course of business.
|
(b)
|
all obligations to pay a specific purchase price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance with IFRS would be shown on the liability side of a balance sheet),
|
(a)
|
commitment fees;
|
(b)
|
interest income received; and
|
(c)
|
amortisation of deferred charges and arrangement fees, determined on a consolidated basis in accordance with IFRS and as shown in the consolidated statements of income for the Guarantor.
|
(a)
|
any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and
|
(b)
|
all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.
|
1.3
|
Application of construction and interpretation provisions of Loan Agreement.
Clauses 1.1 to 1.6 (inclusive) of the Loan Agreement apply, with any necessary modifications, to this Guarantee.
|
1.4
|
Inconsistency between Loan Agreement provisions and this Guarantee
. This Guarantee shall be read together with the Loan Agreement, but in case of any conflict between the Loan Agreement and this Guarantee, unless expressly provided to the contrary in this Guarantee, the provisions of the Loan Agreement shall prevail.
|
2
|
GUARANTEE
|
(a)
|
guarantees the due payment of all amounts payable by the Borrowers under or in connection with the Loan Agreement, the Master Agreements and every other Finance Document;
|
(b)
|
undertakes to pay within three (3) Business Days after the Security Trustee’s written demand, any such amount which is not paid by the Borrowers when payable; and
|
(c)
|
fully indemnifies the Security Trustee and each other Creditor Party on the Security Trustee’s demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the Security Trustee or the other Creditor Party concerned as a result of or in connection with any obligation or liability guaranteed by the Guarantor being or becoming unenforceable, invalid, void or illegal; and the amount recoverable under this indemnity shall be equal to the amount which the Security Trustee or the other Creditor Party concerned would otherwise have been entitled to recover.
|
2.2
|
No limit on number of demands.
The Security Trustee may serve more than one demand under Clause 2.1.
|
3
|
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3.1
|
Principal and independent debtor.
The Guarantor shall be liable under this Guarantee as a principal and independent debtor and accordingly it shall not have, as regards this Guarantee, any of the rights or defences of a surety.
|
3.2
|
Waiver of rights and defences.
Without limiting the generality of Clause 3.1, the Guarantor shall neither be discharged by, nor have any claim against any Creditor Party in respect of:
|
(a)
|
any amendment or supplement being made to the Finance Documents or the Master Agreements;
|
(b)
|
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Finance Documents or the Master Agreements;
|
(c)
|
any release or loss (even though negligent) of any right or Security Interest created by the Finance Documents or the Master Agreements;
|
(d)
|
any failure (even though negligent) promptly or properly to exercise or enforce any such right or Security Interest, including a failure to realise for its full market value an asset covered by such a Security Interest; or
|
(e)
|
any other Finance Document or any Master Agreement or any Security Interest now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to register it.
|
4
|
EXPENSES
|
4.1
|
Costs of preservation of rights, enforcement etc.
The Guarantor shall pay to the Security Trustee within three (3) Business Days of the Security Trustee’s written demand the amount of all expenses incurred by the Security Trustee or any other Creditor Party in connection with any matter arising out of this Guarantee or any Security Interest connected with it, including any advice, claim or proceedings relating to this Guarantee or such a Security Interest.
|
4.2
|
Fees and expenses payable under Loan Agreement.
Clause 4.1 is without prejudice to the Guarantor’s liabilities in respect of the Borrower’s obligations under clause 20 of the Loan Agreement (
fees and expenses
) and under similar provisions of other Finance Documents and the Master Agreements.
|
5
|
ADJUSTMENT OF TRANSACTIONS
|
5.1
|
Reinstatement of obligation to pay.
The Guarantor shall pay to the Security Trustee on its demand any amount which any Creditor Party is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of either Borrower or of another Security Party (or similar person) on the ground that the Loan Agreement, a Master Agreement or a payment by either Borrower or of another Security Party, was invalid or on any similar ground.
|
6
|
PAYMENTS
|
(a)
|
in immediately available funds;
|
(b)
|
to such account as the Security Trustee may from time to time notify to the Guarantor;
|
(c)
|
without any form of set‑off, cross‑claim or condition; and
|
(d)
|
free and clear of any tax deduction except a tax deduction which the Guarantor is required by law to make.
|
6.2
|
Grossing-up for taxes.
If the Guarantor is required by law to make a tax deduction, the amount due to the Security Trustee shall be increased by the amount necessary to ensure that the Security Trustee and (if the payment is not due to the Security Trustee for its own account) the Creditor Party beneficially interested in the payment receives and retains a net amount which, after the tax deduction, is equal to the full amount that it would otherwise have received.
|
7
|
INTEREST
|
7.1
|
Accrual of interest.
Any amount due under this Guarantee shall carry interest after the date on which the Security Trustee demands payment of it until it is actually paid, unless interest on that same amount also accrues under the Loan Agreement.
|
7.2
|
Calculation of interest.
Interest under this Guarantee shall be calculated and accrue in the same way as interest under clause 7 (
default interest
) of the Loan Agreement.
|
7.3
|
Guarantee extends to interest payable under Loan Agreement.
For the avoidance of doubt, it is confirmed that this Guarantee covers all interest payable under the Loan Agreement, including that payable under clause 7 (
default interest
) of the Loan Agreement.
|
8
|
SUBORDINATION
|
8.1
|
Subordination of rights of Guarantor.
All rights which the Guarantor at any time has (whether in respect of this Guarantee or any other transaction) against either Borrower, any other Security Party or their respective assets shall be fully subordinated to the rights of the Creditor Parties under the Finance Documents and the Master Agreements; and in particular the Guarantor shall not:
|
(a)
|
claim, or in a bankruptcy of either Borrower or any other Security Party prove for, any amount payable to the Guarantor by either Borrower or any other Security Party, whether in respect of this Guarantee or any other transaction;
|
(b)
|
take or enforce any Security Interest for any such amount;
|
(c)
|
claim to set-off any such amount against any amount payable by the Guarantor to either Borrower or any other Security Party; or
|
(d)
|
claim any subrogation or other right in respect of any Finance Document or any Master Agreement or any sum received or recovered by any Creditor Party under a Finance Document or any Master Agreement.
|
9
|
ENFORCEMENT
|
9.1
|
No requirement to commence proceedings against Borrowers.
Neither the Security Trustee nor any other Creditor Party will need to commence any proceedings under, or enforce any Security Interest created by, the Loan Agreement or any other Finance Document or any Master Agreement before claiming or commencing proceedings under this Guarantee.
|
(a)
|
any judgment or order of a court in England, the Principality of Monaco, the United States of America, the Republic of the Marshall Islands or The Netherlands in connection with the Loan Agreement or any Master Agreement; and
|
(b)
|
any statement or admission of either Borrower in connection with the Loan Agreement or any Master Agreement,
|
9.3
|
Suspense account.
The Security Trustee and any Creditor Party may, for the purpose of claiming or proving in a bankruptcy of either Borrower or any other Security Party, place any sum received or recovered under or by virtue of this Guarantee or any Security Interest connected with it on a separate suspense or other nominal account without applying it in satisfaction of the Borrower’s obligations under the Loan Agreement or the Master Agreements.
|
10
|
REPRESENTATIONS AND WARRANTIES
|
10.2
|
Status.
The Guarantor is duly incorporated and validly existing and in good standing under the laws of the Republic of the Marshall Islands.
|
10.3
|
Ownership of the Borrowers.
The Guarantor is the direct legal and beneficial owner of all the issued share capital and voting rights in respect of each Borrower free of Security Interests save for the Security Interests created pursuant to the Finance Documents
and the Existing Facility which, in the case of the Security Interests created pursuant to the Existing Facility shall be fully discharged in the case of Borrower A no later than the first Drawdown Date and, in the case of Borrower B, no later than the second Drawdown Date
.
|
10.4
|
Corporate power.
The Guarantor has the corporate capacity, and has taken all corporate action and obtained all Authorisations necessary for it:
|
(a)
|
to execute the Finance Documents to which the Guarantor is a party; and
|
(b)
|
to make all the payments contemplated by, and to comply with, this Guarantee and the Finance Documents to which the Guarantor is a party.
|
10.5
|
Consents in force.
All the Authorisations referred to in Clause 10.4 remain in force and nothing has occurred which makes any of them liable to revocation.
|
10.6
|
Legal validity and effective Security Interests.
This Guarantee and each of the other Finance Documents to which the Guarantor is a party:
|
(a)
|
constitute the Guarantor’s legal, valid and binding obligations enforceable against the Guarantor in accordance with their respective terms; and
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
|
10.7
|
No third party Security Interests.
Without limiting the generality of Clause 10.6, at the time of the execution and delivery of each Finance Document to which the Guarantor is a party:
|
(a)
|
the Guarantor will have the right to create all the Security Interests which that Finance Document purports to create; and
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
10.8
|
No conflicts.
The execution by the Guarantor of this Guarantee and each of the other Finance Documents to which the Guarantor is a party and its compliance with this Guarantee and each of the other Finance Documents to which the Guarantor is a party will not involve or lead to a contravention of:
|
(a)
|
any law or regulation; or
|
(b)
|
the constitutional documents of the Guarantor; or
|
(c)
|
any contractual or other obligation or restriction which is binding on the Guarantor or any of its assets.
|
10.9
|
No withholding taxes.
All payments which the Guarantor is liable to make under this Guarantee or any other Finance Document to which the Guarantor is a party may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
|
10.10
|
No default.
To the knowledge of the Guarantor, no Event of Default or Latent Event of Default has occurred.
|
10.11
|
Information.
All information which has been provided in writing by or on behalf of the Guarantor to the Security Trustee or any other Creditor Party in connection with any Finance Document satisfied the requirements of Clause 11.2; all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.7; and there has been no material adverse change in the financial position or state of affairs of the Guarantor from that disclosed in the latest of those accounts.
|
10.12
|
No litigation.
No legal or administrative action involving the Guarantor has been commenced or taken or, to the Guarantor’s knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect or which would prevent the Guarantor from meeting its obligations under the Finance Documents to which it is a party.
|
10.13
|
Taxes paid
. The Guarantor has paid all taxes applicable to, or imposed on or in relation to it and its business.
|
10.14
|
No money laundering
. In relation to the performance and discharge by the Guarantor of its obligations and liabilities under the Finance Documents, and the transactions and other arrangements affected or contemplated by the Finance Documents to which the Guarantor is a party, the Guarantor confirms (i) that it is acting for its own account; and (ii) that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council).
|
10.15
|
No immunity
. The Guarantor is not and no assets of the Guarantor are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceedings (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
(a)
|
to enable the Guarantor lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
|
(b)
|
to make the Finance Documents to which the Guarantor is a party admissible in evidence in its Pertinent Jurisdictions,
|
(a)
|
The choice of governing law of each Finance Document to which the Guarantor is a party will be recognised and enforced in its Pertinent Jurisdictions.
|
(b)
|
Any judgment obtained in relation to a Finance Document to which the Guarantor is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Pertinent Jurisdictions.
|
10.20
|
Insolvency.
No corporate action, legal proceeding, creditors' process or other procedure or step described in paragraph (g) and (h) of clause 19.1 of the Loan Agreement has been taken or, to its knowledge, threatened in relation to the Guarantor, either Borrower and any other Security Party.
|
10.21
|
No breach of law.
The Guarantor has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
|
10.22
|
Anti-terrorism compliance.
The Guarantor, each Borrower and each other Security Party is in compliance with any and all anti-terrorism law applicable to it.
|
10.23
|
Good title to assets.
The Guarantor has good, title to its assets.
|
11
|
UNDERTAKINGS
|
11.1
|
General.
The Guarantor undertakes with the Security Trustee to comply with the following provisions of this Clause 11 at all times during the Security Period, except as the Security Trustee may, with the authority of the Majority Lenders, otherwise permit.
|
(a)
|
own directly and maintain ownership of the entire legal and beneficial interest in the entire issued share capital of each Borrower free from all Security Interests and other interests and rights of every kind except for (i) those created by the Finance Documents
and (ii) any Security Interests created pursuant to the Existing Facility which such Security Interests shall be discharged in full in the case of the share capital of Borrower A no later than the first Drawdown Date and, in the case of the share capital of Borrower B, no later than the second Drawdown Date
;
|
(b)
|
procure that each Borrower will:
|
(i)
|
hold the legal title to, and own the entire beneficial interest in the Ship owned by it, the Insurances and Earnings relating to that Ship and the Earnings Account in its name, free from all Security Interests and other interests and rights of every kind, except for (i) those created by the Finance Documents and the effect of assignments contained in the Finance Documents, (ii) Permitted Security Interests and (iii) any Security Interests created pursuant to the Existing Facility which such Security Interests shall be discharged in full in the case of Ship A no later than the first Drawdown Date and, in the case of Ship B, no later than the second Drawdown Date; and
|
(ii)
|
not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future; and
|
(iii)
|
procure that its liabilities under the Finance Documents to which it is a party do and will rank at least
pari passu
with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law.
|
11.3
|
No disposal of assets.
The Guarantor will procure that no Borrower will transfer, lease or otherwise dispose of:
|
(a)
|
all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or
|
(b)
|
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation except for demurrage claims and otherwise in the ordinary course of conducting its business as a ship owner; or
|
(c)
|
make any substantial change to the nature of its business from that existing at the date of this Guarantee,
|
11.4
|
No other liabilities or obligations to be incurred.
The Guarantor will procure that no Borrower will, incur any liability or obligation (including, without limitation, any contingent liability) except liabilities and obligations:
|
(a)
|
under the Finance Documents to which it is a party;
|
(b)
|
reasonably incurred in the ordinary course of operating, upgrading, maintaining and chartering its Ship; and
|
(c)
|
in respect of Intercompany Loans made to the relevant Borrower provided these comply with the requirements of Clause 11.18,
|
11.5
|
Information provided to be accurate.
All financial and other information which is provided in writing by or on behalf of a Borrower, the Guarantor or any other Security Party under or in connection with this Guarantee and each Finance Document will be true, complete and not misleading and will not omit any material fact or consideration.
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of the Guarantor, the audited consolidated accounts of the Guarantor and its subsidiaries;
|
(b)
|
as soon as possible, but in no event later than 60 days after the end of the first three Accounting Periods, unaudited consolidated accounts of the Guarantor and its subsidiaries which are certified as to their correctness by the chief financial officer of the Guarantor;
|
(c)
|
as soon as possible, but in no event later than 60 days after the commencement of each financial year of the Guarantor, the annual budget (including consolidated profit & loss, balance sheet and cash flow forecast for the Guarantor and its subsidiaries) for that financial year;
|
(d)
|
a Compliance Certificate together with the quarterly reports that the Guarantor delivers in (b) above each certified by the chief financial officer of the Guarantor; and
|
(e)
|
any other information and financial statements as the Agent may request regarding the financial condition, assets and operations of the Guarantor.
|
11.7
|
Form of financial statements.
All accounts (audited and unaudited) delivered under Clause 11.6 will:
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
(b)
|
fairly represent the financial condition of the Guarantor and its subsidiaries at the date of those accounts and of its profit for the period to which those accounts relate; and
|
(c)
|
fully disclose or provide for all significant liabilities of the Guarantor and its subsidiaries.
|
11.8
|
Shareholder and creditor notices.
The Guarantor will send the Security Trustee, at the same time as they are despatched, copies of all communications which are despatched to the Guarantor’s shareholders or creditors or any class of them provided that the Guarantor shall be deemed compliant with this Clause 11.8 if the Guarantor releases that information in accordance with the disclosure procedure applicable to New York listed companies in compliance with the United States securities laws and regulations.
|
11.9
|
Authorisations.
The Guarantor will and will procure that each Borrower will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Security Trustee of, all Authorisations required:
|
(a)
|
for it to perform its obligations under any Finance Document to which it is a party; and
|
(b)
|
for the validity or enforceability of any Finance Document to which it is a party,
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and
|
(b)
|
without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which may be or become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.11
|
Notification of litigation.
The Guarantor will provide the Security Trustee with details of any legal or administrative action involving the Guarantor, the Borrowers (or either of them), any other Security Party, either Ship, its Earnings or its Insurances as soon as such action is instituted or it becomes apparent to the Guarantor that it is likely to be instituted, unless it is clear that the legal or administrative action cannot be considered material in the context of any Finance Document.
|
11.12
|
Chief Executive Office.
The Guarantor will maintain its chief executive office in the Principality of Monaco.
|
11.13
|
Notification of default.
The Guarantor will notify the Security Trustee as soon as the Guarantor becomes aware of:
|
(a)
|
the occurrence of an Event of Default or a Latent Event of Default; or
|
(b)
|
any matter which indicates that an Event of Default may have occurred,
|
(a)
|
the financial condition, business and operations of the Guarantor and each Borrower;
|
(b)
|
the Ship owned by a Borrower, its Earnings or its Insurances; or
|
(c)
|
any other matter relevant to, or to any provision of, a Finance Document to which it is a party;
|
(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 Guarantee;
|
(b)
|
any change in the status of the Guarantor, either Borrower or any other Security Party after the date of this Guarantee; 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,
|
11.17
|
Taxes
. The Guarantor shall prepare and timely file all tax returns required to be filed by it and pay and discharge all taxes imposed upon it or in respect of any of its property and assets before the same shall become in default.
|
(a)
|
procure that any Intercompany Loan it provides shall be made directly to a Borrower and shall:
|
(i)
|
be fully subordinated to any and all obligations of the Borrowers and the rights of the Creditor Parties under the Finance Documents;
|
(ii)
|
not require the payment of interest prior to expiry of the Maturity Date;
|
(iii)
|
mature at least 1 year after the Maturity Date; and
|
(iv)
|
not be secured by any asset which is already, or is to be, the subject of a Security Interest created by either Borrower, the Guarantor or any other Security Party pursuant to any Finance Document,
|
(b)
|
furnish promptly to the Agent a true and complete copy of any instrument evidencing any Intercompany Loan, all other documents related thereto and a true and complete copy of each material amendment or other modification thereof; and
|
(c)
|
in respect of any such Intercompany Loan, execute and deliver to the Agent an Intercompany Loan Assignment and deliver to the Agent such other documents equivalent to those referred to in paragraphs 4, 5 and 6 of Part A of Schedule 4 of the Loan Agreement as the Agent may require.
|
(a)
|
maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Marshall Islands;
|
(b)
|
remain listed on the New York Stock Exchange; and
|
(c)
|
procure that each Borrower shall maintain its separate corporate existence and remain in goodstanding under the laws of the Republic of the Marshall Islands.
|
(a)
|
change its name, its type of organisation or the nature of its business; or
|
(b)
|
change its Fiscal Year.
|
11.22
|
Dividends.
The Guarantor may pay a dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital provided that:
|
(a)
|
no Event of Default has occurred and is continuing at the time of the payment of such dividends or the making of such distributions, redemptions, purchase or return or will result from the payment of such dividend or the making of such distribution, redemption, purchase or return; and/or
|
(b)
|
any payment of such dividend or the making of such distribution, redemption, purchase or return , shall not result in a breach of the financial covenants set out in Clauses 12.1 to 12.5.
|
11.23
|
Green scrapping
. Guarantor shall maintain a policy that provides that any ships owned by any member of the STI Group and which are due to be scrapped shall be scrapped in compliance with (i) the International Maritime Organization's convention for the Safe and Environmentally Sound Recycling of ships to the extent that are issued and in force at the time of such scrapping and (ii) the guidelines to be issued by the International Maritime Organization in connection with such convention.
|
12
|
FINANCIAL COVENANTS
|
12.1
|
General.
The Guarantor also undertakes with the Security Trustee to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Security Trustee may, with the authority of the Majority Lenders, otherwise permit.
|
12.2
|
Minimum liquidity
. The Guarantor shall, at all times, maintain Cash and Cash Equivalents equal to or greater than (i) $25,000,000 and (ii) $500,000 per Fleet Vessel plus $250,000 per vessel time chartered to a member of the STI Group (the “
Minimum Liquidity
”), provided that:
|
(a)
|
for the purpose of this Clause 12.2, “
Cash
” and "
Cash Equivalents
" shall include unutilised and freely available amounts under any revolving credit facility made available to the Guarantor (where no default or termination event has occurred and is continuing and no restriction on borrowing exists under any such facility) which has a maturity date in excess of 12 months after the date of the then most recent financial statements delivered by the Guarantor; and
|
(b)
|
50 per cent. of the Minimum Liquidity shall at all times consist of Cash.
|
12.3
|
Minimum Consolidated Tangible Net Worth
. The Guarantor shall, at all times, maintain a Consolidated Tangible Net Worth of not less than $1,000,000,000 plus:
|
(a)
|
25 per cent. of the Guarantor 's cumulative, positive consolidated net income for each Accounting Period commencing on or after 1 January 2016; and
|
(b)
|
50 per cent. of the Equity Proceeds realised from any issuance of Equity Interests in the Guarantor occurring on or after 1 January 2016.
|
12.4
|
Maximum leverage
. The Guarantor shall maintain a ratio of Net Debt to Consolidated Total Capitalisation of not more than 0.60 to 1.00, to be tested on the last day of each Accounting Period.
|
12.5
|
Minimum interest coverage
. The Guarantor shall maintain a ratio of Consolidated EBITDA to Consolidated Net Interest Expense greater than 2.50:1.00. Such ratio shall be calculated on the last day of each Accounting Period on a trailing four quarter basis.
|
12.6
|
Material Changes in IFRS requirements
. If, at any time after the date of this Guarantee, the IFRS requirements materially change so as to impact the financial covenants set out in this Clause 12 the Guarantor shall notify the Agent and, if agreed between the Guarantor and the Agent, this Guarantee shall be amended and/or supplemented to reflect these changes.
|
13
|
JUDGMENTS AND CURRENCY INDEMNITY
|
13.1
|
Judgments relating to Loan Agreement and the Master Agreements.
This Guarantee shall cover any amount payable by the Borrowers under or in connection with any judgment relating to the Loan Agreement or the Master Agreements.
|
13.2
|
Currency indemnity.
In addition, clause 21.4 (currency indemnity) of the Loan Agreement shall apply, with any necessary adaptations, in relation to this Guarantee.
|
14
|
SET‑OFF
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of the Guarantor at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Guarantor to that Creditor Party under this any of the Finance Documents; and
|
(b)
|
for that purpose:
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of the Guarantor;
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
|
14.2
|
Existing rights unaffected.
No Creditor Party shall be obliged to exercise any of its rights under Clause 14.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
|
14.3
|
Sums deemed due to a Lender.
For the purposes of this Clause 14, a sum payable by the Guarantor to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender’s proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to that Lender.
|
15
|
SUPPLEMENTAL
|
15.1
|
Continuing guarantee.
This Guarantee shall remain in force as a continuing security at all times during the Security Period.
|
15.2
|
Rights cumulative, non-exclusive.
The Security Trustee’s rights under and in connection with this Guarantee are cumulative, may be exercised as often as appears expedient and shall not be taken to exclude or limit any right or remedy conferred by law.
|
15.3
|
No impairment of rights under Guarantee.
If the Security Trustee omits to exercise, delays in exercising or invalidly exercises any of its rights under this Guarantee, that shall not impair that or any other right of the Security Trustee under this Guarantee.
|
15.4
|
Severability of provisions.
If any provision of this Guarantee is or subsequently becomes void, illegal, unenforceable or otherwise invalid, that shall not affect the validity, legality or enforceability of its other provisions.
|
15.5
|
Guarantee not affected by other security.
This Guarantee shall not impair, nor be impaired by, any other guarantee, any Security Interest or any right of set-off or netting or to combine accounts which the Security Trustee or any other Creditor Party may now or later hold in connection with the Loan Agreement or any Master Agreement.
|
15.6
|
Guarantor bound by Loan Agreement, Master Agreements.
The Guarantor agrees with the Security Trustee to be bound by all provisions of the Loan Agreement and the Master Agreements which are applicable to the Security Parties in the same way as if those provisions had been set out (with any necessary modifications) in this Guarantee.
|
15.7
|
Applicability of provisions of Guarantee to other Security Interests.
Any Security Interest which the Guarantor creates (whether at the time at which it signs this Guarantee or at any later time) to secure any liability under this Guarantee shall be a principal and independent security, and Clauses 3 and 18 shall, with any necessary modifications, apply to it, notwithstanding that the document creating the Security Interest neither describes it as a principal or independent security nor includes provisions similar to Clauses 3 and 18.
|
15.8
|
Applicability of provisions of Guarantee to other rights.
Clauses 3 and 18 shall also apply to any right of set-off or netting or to combine accounts which the Guarantor creates by an agreement entered into at the time of this Guarantee or at any later time (notwithstanding that the agreement does not include provisions similar to Clauses 3 and 18), being an agreement referring to this Guarantee.
|
15.9
|
Third party rights.
A person (other than a Creditor Party) who is not a party to this Guarantee has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Guarantee.
|
16
|
ASSIGNMENT
|
16.1
|
Assignment by Security Trustee.
The Security Trustee may transfer and assign its rights under and in connection with this Guarantee to the same extent as it may transfer and assign its rights under the Loan Agreement.
|
17
|
NOTICES
|
17.1
|
Notices to Guarantor.
Any notice or demand to the Guarantor under or in connection with this Guarantee shall be given by letter or fax at:
|
17.2
|
Application of certain provisions of Loan Agreement.
Clauses 28.3, 28.4 and 28.5 of the Loan Agreement apply to any notice or demand under or in connection with this Guarantee.
|
17.3
|
Validity of demands.
A demand under this Guarantee shall be valid notwithstanding that it is served:
|
(a)
|
on the date on which the amount to which it relates is payable by either Borrower under the Loan Agreement or a Master Agreement;
|
(b)
|
at the same time as the service of a notice under clause 19.2 (events of default) of the Loan Agreement or a Master Agreement;
|
17.4
|
Notices to Security Trustee.
Any notice to the Security Trustee under or in connection with this Guarantee shall be sent to the same address and in the same manner as notices to the Security Trustee under the Loan Agreement.
|
18
|
INVALIDITY OF LOAN AGREEMENT
|
(a)
|
the Loan Agreement now being or later becoming, with immediate or retrospective effect, void, illegal, unenforceable or otherwise invalid for any other reason whatsoever, whether of a similar kind or not; or
|
(b)
|
without limiting the scope of paragraph (a), a bankruptcy of either Borrower, the introduction of any law or any other matter resulting in either Borrower being discharged from liability under the Loan Agreement, or the Loan Agreement ceasing to operate (for example, by interest ceasing to accrue),
|
18.2
|
Invalidity of Finance Documents or the Master Agreements.
Clause 18.1 also applies to each of the other Finance Documents to which either Borrower is a party and the Master Agreements.
|
19
|
GOVERNING LAW AND JURISDICTION
|
19.1
|
English law.
This Guarantee and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
|
19.2
|
Exclusive English jurisdiction.
Subject to Clause 19.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.
|
19.3
|
Choice of forum for the exclusive benefit of the Security Trustee.
Clause 19.2 is for the exclusive benefit of the Security Trustee, which reserves the rights:
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
19.4
|
Process agent.
The Guarantor irrevocably appoints Scorpio UK Limited of 10 Lower Grosvenor Place, London, SW1W 0EN, England (such communication to be marked preferably and if possible on the paper envelope (not any courier exterior) with “STNG Transaction” for the urgent attention of General Counsel) to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.
|
19.5
|
Creditor Parties’ rights unaffected.
Nothing in this Clause 19 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
19.6
|
Meaning of “proceedings”.
In this Clause 19, “
proceedings
” means proceedings of any kind, including an application for a provisional or protective measure and a “
Dispute
” means any dispute arising out of or in connection with this Guarantee (including a dispute relating to the existence, validity or termination of this Guarantee) or any non-contractual obligation arising out of or in connection with this Guarantee.
|
GUARANTOR
|
|
|
|
SIGNED
by
|
|
Name: Francesca Gianfranchi
|
/s/ Francesca Gianfranchi
|
for and on behalf of
|
|
SCORPIO TANKERS INC.
|
|
in the presence of:
|
|
Name: Micha Withoft
|
/s/ Micha Withoft
|
|
|
|
|
SECURITY TRUSTEE
|
|
|
|
SIGNED
by
|
/s/ Cameron Johnstone-Browne
|
for and on behalf of
|
Name: Cameron Johnstone-Browne
|
|
Attorney-in-Fact
|
NIBC BANK N.V.
|
|
in the presence of:
|
/s/ Rohan Inamdar
|
|
Name: Roham Inamdar
|
|
Trainee Solicitor
|
|
London EC2A 2HB
|
(a)
|
a loan agreement dated [
l
] 2016 (the "
Loan Agreement
") made between (i) STI Fontvieille Shipping Company Limited and STI Ville Shipping Company Limited as joint and several borrowers (the "
Borrowers
"), (2) the Lenders named therein, (3) the Swap Banks named therein, (4) yourselves as Mandated Lead Arrangers and (5) yourselves as Agent and Security Trustee; and
|
(b)
|
a guarantee dated [
l
] 2016 (the "
Guarantee
") made between us as guarantor and yourselves as Security Trustee whereby we agreed, amongst other things, to guarantee the Borrowers' obligations under the Loan Agreement.
|
(a)
|
the Minimum Liquidity is $[
l
], $[
l
] of which consists of Cash;
|
(b)
|
the Consolidated Tangible Net Worth is $[
l
];
|
(c)
|
the ratio of Net Debt to Consolidated Total Capitalisation is [
l
] to [
l
]; and
|
(d)
|
the ratio of Consolidated EBITDA to Consolidated Net Interest Expense is [
l
] to [
l
].
|
(1)
|
SCORPIO TANKERS INC.
a
Marshall Islands corporation whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (“
STNG
”) on its own account and as agent for and on behalf of each of its existing wholly owned subsidiaries as well as any future wholly owned subsidiaries of STNG as the context requires (together, the “
STNG SPVs
”);
|
(2)
|
SCORPIO SERVICES HOLDING LIMITED,
a
Marshall Islands corporation whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (“
SSH”
);
|
(3)
|
SCORPIO COMMERCIAL MANAGEMENT S.A.M.
, a company incorporated under the laws of Monaco and having its registered office at 9 Boulevard Charles III, Monaco 98000 (“
SCM
”); and
|
(4)
|
SCORPIO SHIP MANAGEMENT S.A.M.
, a company incorporated under the laws of Monaco and having its registered office at 9 Rue du Gabian, Monaco 98000 (“
SSM
”),
|
1.
|
Defined terms shall have the meaning ascribed to them in either the Master Agreement or the Administrative Agreement as the context requires, unless otherwise indicated herein.
|
2.
|
With effect from the date of this Deed of Amendment:
|
(a)
|
The Administrative Agreement is amended so that SSH shall not be entitled to receive and STNG shall not be obliged to pay the Sale and Purchase Fee with respect to the Services provided on
|
(b)
|
Except in the case of (i) a Change of Control (as defined in Schedule A hereto) of STNG or (ii) any termination by any STNG SPV, SCM or SSM (as applicable) under Section 21 of each of the Standard Commercial Management Terms or the Standard Technical Management Terms, the Master Agreement is amended such that any termination provisions and termination fees payable by the relevant STNG SPV to SCM and/or SSM (as applicable) pursuant to the terms of the Master Agreement on or following the date of this Deed of Amendment, are amended to be a termination upon the expiration of a period of three months from the date upon which such notice of termination is received and a fee equal to three months of management fees will be payable by STNG SPV to SCM and/or SSM (as applicable) upon termination;
provided that
, with respect to any event covered by (i) or (ii) in this clause 2(b) the amendments in this clause 2(b) will not apply and the existing terms of the Master Agreement will remain in full force and effect.
|
3.
|
Except as expressly set forth herein, both the Master Agreement and the Administrative Agreement are ratified and confirmed in all respects and shall remain in full force and effect in accordance with their terms.
|
4.
|
If the respective provisions of either of the Master Agreement or the Administrative Agreement and this Deed of Amendment conflict, then the terms of this Deed of Amendment shall prevail;
provided that
, the Master Agreement, as amended, shall be amended and restated in its entirety within two months from the date hereof to reflect the agreement of the parties hereto.
|
5.
|
Upon demand by any Party or Parties (each a “
Requesting Party
”), any or all of the other Parties will at their own expense, execute and register all further documents and do all acts and things as any Requesting Party shall deem reasonably necessary to enable the Requesting Party to obtain the full benefit of the Deed of Agreement for the purposes contemplated by the Parties.
|
6.
|
This Deed of Amendment and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and interpreted in accordance with the law of England and Wales and be subject to arbitration in London pursuant to the terms of the Master Agreement.
|
7.
|
The Parties shall pay their own costs and expenses incurred in connection with this Deed of Amendment.
|
8.
|
The Parties do not intend that any term of this Deed of Amendment should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to this Deed of Amendment.
|
9.
|
This Deed of Amendment may be executed in any number of counterparts (including by facsimile or electronic mail), with the same effect as if all Parties had signed the same document. All such
|
|
|
|
|
(1)
|
SCORPIO TANKERS INC.
, a company incorporated under the laws of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (“
STNG
”) on its own account and as agent for and on behalf of each of its existing wholly owned subsidiaries (as set out in
Schedule 1
) (“
SPVs
”) and certain of its future wholly-owned subsidiaries (“
Future SPVs
”) (the SPVs and Future SPVs jointly referred to as the “
STNG SPVs
”);
|
(2)
|
SCORPIO COMMERCIAL MANAGEMENT S.A.M.
, a company incorporated under the laws of Monaco and having its registered office at 9 Boulevard Charles III, Monaco 98000 (“
SCM
”); and
|
(3)
|
SCORPIO SHIP MANAGEMENT S.A.M.
, a company incorporated under the laws of Monaco and having its registered office at 9 Rue du Gabian, Monaco 98000 (“
SSM
”);
|
(1)
|
The Original Master governs the terms upon which SSM and SCM provide technical and commercial services (respectively) to the STNG SPVs. Pursuant to the terms of the Original Master the Vessels (as therein defined) are managed pursuant to standard technical management terms (the “
Technical Management Terms
”) and/or standard commercial management terms (the “
Commercial Management Terms
”
)
, which are set forth in the Original Master, each as amended and supplemented by the applicable confirmation a form of which is included in
Schedule 2
of the Original Master (the “
Confirmation
”, together with the Technical Management Terms and the Commercial Management Terms, the “
Management Agreements
”). The Original Master was amended by the
Deed of Amendment dated 29 September 2016 (the “
DoA
”).
|
(2)
|
Pursuant to the DoA the Parties have agreed to amend certain termination and other provisions contained in the Original Master, including the Management Agreements, as set forth in this Deed of Amendment and Restatement.
|
1.
|
The Original Master, including the Management Agreements contained therein, shall with effect from the Amendment Date be amended and restated to fully effectuate the intent of the DoA and shall include the amended and restated commercial management terms (the “
New Commercial Management Terms
”) and the amended and restated technical
|
2.
|
The Management Agreements relating to the STNG SPVs that own vessels listed in
Schedule 2 Section A – Owned Vessels
(the “
Owned Vessel Management Agreements
”) will with effect from the Amendment Date, be replaced with the New Management Agreements. An addendum to each of the Owned Vessel Management Agreements confirming certain changes shall be issued in the form attached hereto at
Schedule 3 Section A and B
(as applicable). STNG agrees to cause all subsidiaries of STNG that own Vessels on or after the Amendment Date to enter into and be bound by the Amended Master including for the avoidance of doubt, entering into a confirmation.
.
|
3.
|
The Management Agreements relating to the time chartered in vessels set out at
Schedule 2 Section B – Time chartered in Vessels
shall remain unchanged by this Deed of Amendment and Restatement. The Parties agree to cause all vessels that are time-chartered into STNG’s fleet on or after the Amendment Date to enter into and be bound by the Amended Master, including for the avoidance of doubt, entering into a confirmation.
|
4.
|
STNG, in its capacity as guarantor, hereby confirms that the guarantees effective 31 December 2014 issued pursuant to the Original Master remain in full force and effect notwithstanding this Deed of Amendment and Restatement.
|
5.
|
This Deed of Amendment and Restatement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
|
6.
|
This Deed of Amendment and Restatement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Deed of Amendment and Restatement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Terms current at the time when the arbitration proceedings are commenced.
|
7.
|
No provision of this Deed of Amendment and Restatement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Deed of Amendment and Restatement.
|
Executed as a deed by
|
Name: Luca Forgione
|
/s/ Luca Forgione
|
For and on behalf of
|
Title: General Counsel
|
|
Scorpio Tankers Inc.
|
|
|
|
|
|
in the presence of
|
Name: Andrew Cottrell
|
/s/ Andrew Cottrell
|
Signature of Witness
|
Title: Legal Intern
|
|
|
|
|
Name, address and occupation of witness
|
|
|
“Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
|
|
Executed as a deed by
|
Name: Luca Forgione
|
/s/ Luca Forgione
|
For and on behalf of
|
Title: General Counsel
|
|
Scorpio Tankers Inc.
|
|
|
As agent for and on behalf of each of the STNG SPVs:
|
|
|
|
|
in the presence of
|
Name: Andrew Cottrell
|
/s/ Andrew Cottrell
|
Signature of Witness
|
Title: Legal Intern
|
|
Name, address and occupation of witness
|
|
|
“Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
Executed as a deed by
|
Name: Aldo Poma
|
/s/ Aldo Puma
|
For and on behalf of
|
Title: Administrateur Délégué
|
|
Scorpio Commercial Management S.A.M.:
|
|
|
|
|
|
in the presence of
|
Name: Andrew Cottrell
|
/s/ Andrew Cottrell
|
Signature of Witness
|
Title: Legal Intern
|
|
|
|
|
Name, address and occupation of witness
|
|
|
“Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
Executed as a deed by
|
Name: Francesco Bellusci
|
/s/ Francesco Bellusci
|
For and on behalf of
|
Title: Administrateur Délégué
|
|
Scorpio Ship Management S.A.M.:
|
|
|
|
|
|
in the presence of
|
Name: Andrew Cottrell
|
/s/ Andrew Cottrell
|
Signature of Witness
|
Title: Legal Intern
|
|
Name, address and occupation of witness
|
|
|
“Le Millenium” 9 Boulevard Charles III, MC 98000 Monaco
|
|
|
|
|
|
|
|
|
1.
|
SBI Parejo Shipping Company Limited
|
2.
|
SBI Tuscamina Shipping Company Limited
|
3.
|
STI Acton Shipping Company Limited
|
4.
|
STI Alexis Shipping Company Limited
|
5.
|
STI Amber Shipping Company Limited
|
6.
|
STI Aqua Shipping Company Limited
|
7.
|
STI Battersea Shipping Company Limited
|
8.
|
STI Battery Shipping Company Limited
|
9.
|
STI Bayonne Shipping Company Limited
|
10.
|
STI Benicia Shipping Company Limited
|
11.
|
STI Beryl Shipping Company Limited
|
12.
|
STI Black Hawk Shipping Company Limited
|
13.
|
STI Botafogo Shipping Company Limited
|
14.
|
STI Brixton Shipping Company Limited
|
15.
|
STI Broadway Shipping Company Limited
|
16.
|
STI Bromley Shipping Company Limited
|
17.
|
STI Bronx Shipping Company Limited
|
18.
|
STI Brooklyn Shipping Company Limited
|
19.
|
STI Camden Shipping Company Limited
|
20.
|
STI Carnaby Shipping Company Limited
|
21.
|
STI Cartaret Shipping Company Limited
|
22.
|
STI Chartering and Trading Ltd
|
23.
|
STI Clapham Shipping Company Limited
|
24.
|
STI Comandante Shipping Company Limited
|
25.
|
STI Condotti Shipping Company Limited
|
26.
|
STI Connaught Shipping Company Limited
|
27.
|
STI Croydon Shipping Company Limited
|
28.
|
STI Dama Shipping Company Limited
|
29.
|
STI Duchessa Shipping Company Limited
|
30.
|
STI Ealing Shipping Company Limited
|
31.
|
STI Elysees Shipping Company Limited
|
32.
|
STI Emerald Shipping Company Limited
|
33.
|
STI Esles II Shipping Company Limited
|
34.
|
STI Finchley Shipping Company Limited
|
35.
|
STI Fontvieille Shipping Company Limited
|
36.
|
STI Fulham Shipping Company Limited
|
37.
|
STI Galata Shipping Company Limited
|
38.
|
STI Garnet Shipping Company Limited
|
39.
|
STI Gavia Shipping Company Limited
|
40.
|
STI Grace Shipping Company Limited (formerly SBI Macanudo Shipping Company Limited)
|
41.
|
STI Gramercy Shipping Company Limited
|
42.
|
STI Hackney Shipping Company Limited
|
43.
|
STI Hammersmith Shipping Company Limited
|
44.
|
STI Hounslow Shipping Company Limited
|
45.
|
STI Ipanema Shipping Company Limited
|
46.
|
STI Jardins Shipping Company Limited
|
47.
|
STI Jasper Shipping Company Limited
|
48.
|
STI Jermyn Shipping Company Limited (formerly SBI Cuaba Shipping Company Limited)
|
49.
|
STI Jurere Shipping Company Limited
|
50.
|
STI Kingsway Shipping Company Limited
|
51.
|
STI La Boca Shipping Company Limited
|
52.
|
STI Larvotto Shipping Company Limited
|
53.
|
STI Lauren Shipping Company Limited
|
54.
|
STI Le Rocher Shipping Company Limited
|
55.
|
STI Leblon Shipping Company Limited
|
56.
|
STI Lombard Shipping Company Limited
|
57.
|
STI Madison Shipping Company Limited
|
58.
|
STI Manhattan Shipping Company Limited
|
59.
|
STI Marianne Shipping Company Limited
|
60.
|
STI Mayfair Shipping Company Limited
|
61.
|
STI Memphis Shipping Company Limited
|
62.
|
STI Meraux Shipping Company Limited
|
63.
|
STI Millenium Shipping Company Limited
|
64.
|
STI Milwaukee Shipping Company Limited
|
65.
|
STI Notting Hill Shipping Company Limited
|
66.
|
STI Onyx Shipping Company Limited
|
67.
|
STI Opera Shipping Company Limited
|
68.
|
STI Orchard Shipping Company Limited
|
69.
|
STI Osceola Shipping Company Limited
|
70.
|
STI Oxford Shipping Company Limited
|
71.
|
STI Park Shipping Company Limited
|
72.
|
STI Pimlico Shipping Company Limited
|
73.
|
STI Pontiac Shipping Company Limited
|
74.
|
STI Poplar Shipping Company Limited
|
75.
|
STI Queens Shipping Company Limited
|
76.
|
STI Rambla Shipping Company Limited
|
77.
|
STI Recoleta Shipping Company Limited
|
78.
|
STI Regina Shipping Company Limited
|
79.
|
STI Rose Shipping Company Limited
|
80.
|
STI Rotherhithe Shipping Company Limited
|
81.
|
STI Ruby Shipping Company Limited
|
82.
|
STI San Antonio Shipping Company Limited
|
83.
|
STI San Telmo Shipping Company Limited
|
84.
|
STI Sapphire Shipping Company Limited
|
85.
|
STI Savile Row Shipping Company Limited
|
86.
|
STI Seneca Shipping Company Limited
|
87.
|
STI Sloane Shipping Company Limited
|
88.
|
STI Soho Shipping Company Limited
|
89.
|
STI Spiga Shipping Company Limited
|
90.
|
STI St. Charles Shipping Company Limited
|
91.
|
STI Stamford Shipping Company Limited
|
92.
|
STI Susana Shipping Company Limited
|
93.
|
STI Taksim Shipping Company Limited
|
94.
|
STI Texas City Shipping Company Limited
|
95.
|
STI Topaz Shipping Company Limited
|
96.
|
STI Tribeca Shipping Company Limited
|
97.
|
STI Venere Shipping Company Limited
|
98.
|
STI Veneto Shipping Company Limited
|
99.
|
STI Ville Shipping Company Limited
|
100.
|
STI Virtus Shipping Company Limited
|
101.
|
STI Wembley Shipping Company Limited
|
102.
|
STI Westminster Shipping Company Limited
|
103.
|
STI Winnie Shipping Company Limited
|
104.
|
STI Yorkville Shipping Company Limited
|
105.
|
Yellowjacket I Limited
|
106.
|
Yellowjacket II Limited
|
107.
|
Yellowjacket III Limited
|
108.
|
Yellowjacket IV Limited
|
109.
|
Yellowjacket V Limited
|
110.
|
Yellowjacket VI Limited
|
1.
|
STI ACTON 25-Aug-14
|
2.
|
STI AMBER 24-Jan-13
|
3.
|
STI AQUA 02-Jul-14
|
4.
|
STI BATTERSEA 13-Oct-14
|
5.
|
STI BATTERY 11-Nov-14
|
6.
|
STI BENICIA 02-Jul-14
|
7.
|
STI BERYL 24-Jan-14
|
8.
|
STI BRIXTON 11-Jun-14
|
9.
|
STI BROADWAY 04-Nov-14
|
10.
|
STI CAMDEN 15-Sep-14
|
11.
|
STI CLAPHAM 11-Nov-14
|
12.
|
STI COMANDANTE 22-May-14
|
13.
|
STI CONDOTTI 11-Nov-14
|
14.
|
STI DAMA 02-Jul-14
|
15.
|
STI DUCHESSA 24-Jan-13
|
16.
|
STI ELYSEES 02-Jul-14
|
17.
|
STI EMERALD 24-Jan-13
|
18.
|
STI FINCHLEY 11-Nov-14
|
19.
|
STI FONTVIEILLE 17-Jun-13
|
20.
|
STI FULHAM 15-Sep-14
|
21.
|
STI GARNET 24-Jan-13
|
22.
|
STI HACKNEY 02-Jul-14
|
23.
|
STI LARVOTTO 17-Jun-13
|
24.
|
STI LE ROCHER 17-Jun-13
|
25.
|
STI MADISON 25-Aug-14
|
26.
|
STI MAYFAIR 03-Sep-14
|
27.
|
STI MERAUX 30-Apr-13
|
28.
|
STI MILWAUKEE 04-Nov-14
|
29.
|
STI ONYX 24-Jan-14
|
30.
|
STI OPERA 24-Jan-13
|
31.
|
STI ORCHARD 25-Aug-14
|
32.
|
STI PARK 15-Sep-14
|
33.
|
STI PIMLICO 02-Jul-14
|
34.
|
STI POPLAR 11-Nov-14
|
35.
|
STI REGINA 25-Aug-14
|
36.
|
STI RUBY 24-Jan-14
|
37.
|
STI SAN ANTONIO 22-May-14
|
38.
|
STI SAPPHIRE 24-Jan-13
|
39.
|
STI SLOANE 13-Oct-14
|
40.
|
STI SOHO 21-Nov-14
|
41.
|
STI ST CHARLES 15-Sep-14
|
42.
|
STI TEXAS CITY 19-Mar-14
|
43.
|
STI TOPAZ 24-Jan-13
|
44.
|
STI VENERE 11-Jun-14
|
45.
|
STI VILLE 17-Jun-13
|
46.
|
STI VIRTUS 11-Jun-14
|
47.
|
STI WEMBLEY 13-Oct-14
|
48.
|
STI YORKVILLE 13-Oct-14
|
49.
|
STI MEMPHIS 11-Dec-15
|
50.
|
STI VENETO 15-Jan-15
|
51.
|
STI CONNAUGHT 09-Mar-15
|
52.
|
STI OXFORD 22-Jan-15
|
53.
|
STI GRAMERCY 06-Jan-15
|
54.
|
STI TRIBECA 21-Nov-14
|
55.
|
STI LOMBARD 06-Apr-16
|
56.
|
STI LAUREN 09-Mar-15
|
57.
|
STI WINNIE 09-Mar-15
|
58.
|
STI CARNABY 28-Jul-15
|
59.
|
STI KINGSWAY 28-Jul-15
|
60.
|
STI SPIGA 20-May-15
|
61.
|
STI SAVILE ROW 20-May-15
|
62.
|
STI ROTHERHITHE 16-Dec-14
|
63.
|
STI HAMMERSMITH 21-Nov-14
|
64.
|
STI MANHATTAN 09-Mar-15
|
65.
|
STI WESTMINSTER 08-Jun-15
|
66.
|
STI ROSE 16-Dec-14
|
67.
|
STI OSCEOLA 09-Mar-15
|
68.
|
STI SENECA 20-May-15
|
69.
|
STI BROOKLYN 08-Jun-15
|
70.
|
STI ALEXIS 15-Jan-15
|
71.
|
STI NOTTING HILL 09-Mar-15
|
72.
|
STI QUEENS 09-Mar-15
|
73.
|
STI BLACK HAWK 10-Aug-15
|
74.
|
STI GRACE 01-Mar-16
|
75.
|
STI JERMYN 25-Apr-16
|
76.
|
STI BRONX 15-Jan-15
|
77.
|
STI PONTIAC 09-Mar-15.
|
1.
|
DENSA ALLIGATOR 17-Sep-2013
|
2.
|
GAN TRUST 31-Jan-2013
|
3.
|
HELLESPONT PROGRESS 14-Mar-2014
|
4.
|
KRASLAVA 24-Jan-2013
|
5.
|
KRISJANIS VALDEMARS 24-Jan-2013
|
6.
|
TARGALE 24-Jan-2013
|
7.
|
DENSA CROCODILE 07-Feb-2015
|
8.
|
VUKOVAR 01-May-2015
|
9.
|
MISS MARIAROSARIA 26-May-2015
|
10.
|
SINGLE 24-Mar-2016
|
11.
|
SILENT 21-Mar-2016
|
12.
|
STAR I 27-Mar-2016
|
13.
|
ZEFYROS 08-Jul-2016
|
14.
|
CPO AUSTRALIA 01-Sep-2016
|
15.
|
CPO NEW ZEALAND 12-Sep-2016
|
16.
|
ANCE 13-Sep-2016
|
(i)
|
SCORPIO COMMERCIAL MANAGEMENT S.A.M
, a company incorporated under the laws of Monaco and having its registered office at 9 Boulevard Charles III, Monaco MC 98000 (“
SCM
”);
|
(ii)
|
[*],
a company incorporated under the laws of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (“
STNG SPV
”); and
|
(iii)
|
SCORPIO TANKERS INC.
, a company incorporated under the laws of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (“
STNG
”)
|
(1)
|
SCM and STNG SPV have previously entered into a standard form commercial management agreement including the confirmation dated [*] (the “
Confirmation
”) and addendum number one dated effective as of 31 December 2014 (being together, the “
CMA
”) pursuant to the terms of the master agreement dated 24 January 2013 as amended by an addendum number 1 effective 1 June 2013 as amended and restated by a deed of amendment and restatement effective as of 31 December 2014 (together, the “
Original Master
”) and as amended by the deed of amendment dated 29 September 2016 (the “
DoA
”) entered into by or on behalf of each of the Parties; and
|
(2)
|
To fully effectuate the intent of the DoA, the Parties have amended the terms of the Original Master pursuant to a deed of amendment and restatement effective 29 September 2016 (the “
Amended Master
”) and the commercial management terms included therein (the “
New Standard Form CMA
”). This Addendum confirms the changes effective to the terms of the CMA.
|
(a)
|
With effect from 29 September 2016 the CMA will be amended and restated and replaced by the New Standard Form CMA;
|
(b)
|
The Confirmation as amended by addendum number one shall continue to apply as is except that: (i) any reference to “
Clause 22 (g) and (h)
” in the Confirmation shall be changed to “
Clause 22
” and (ii) where a Vessel is entered into a Scorpio Handymax Tanker Pool, Scorpio LR2 Pool or Scorpio Aframax Pool the following wording from the Confirmation
|
(c)
|
STNG confirms its guarantee of the performance of the STNG SPV remains in full force and effect notwithstanding the New Standard Form CMA and this Addendum.
|
(d)
|
This Addendum may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
|
(e)
|
The law and dispute resolution clause at clause 23 of the New Standard Form CMA shall apply to this Addendum.
|
(f)
|
No provision of this Addendum shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Addendum.
|
(i)
|
SCORPIO SHIP MANAGEMENT S.A.M
, a company incorporated under the laws of Monaco and having its registered office at 9 Rue du Gabian, Monaco MC 98000 (“
SSM
”);
|
(ii)
|
[*],
a company incorporated under the laws of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (“
STNG SPV
”); and
|
(iii)
|
SCORPIO TANKERS INC.
, a company incorporated under the laws of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (“
STNG
”)
|
(1)
|
SSM and STNG SPV have previously entered into a standard form technical management agreement including the confirmation dated [*] (the “
Confirmation
”) and addendum number one dated effective as of 31 December 2014 (being together, the “
TMA
”) pursuant to the terms of the master agreement dated 24 January 2013 as amended by an addendum number 1 effective 1 June 2013 as amended and restated by a deed of amendment and restatement effective as of 31 December 2014 (together, the “
Original Master
”) and as amended by the deed of amendment dated 29 September 2016 (the “
DoA
”) entered into by or on behalf of each of the Parties; and
|
(2)
|
To fully effectuate the intent of the DoA, the Parties have amended the terms of the Original Master pursuant to a deed of amendment and restatement effective 29 September 2016 (the “
Amended Master
”) and the technical management terms included therein (the “
New Standard Form TMA
”). This Addendum confirms the changes effective to the terms of the TMA.
|
(a)
|
With effect from 29 September 2016, the TMA will be amended and restated and replaced by the New Standard Form TMA.
|
(b)
|
The Confirmation shall continue to apply as is.
|
(c)
|
STNG confirms its guarantee of the performance of the STNG SPV remains in full force and effect notwithstanding the New Standard Form TMA and this Addendum.
|
(d)
|
This Addendum may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
|
(e)
|
The law and dispute resolution clause at clause 23 of the New Standard Form TMA shall apply to this Addendum.
|
(f)
|
No provision of this Addendum shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Addendum.
|
(1)
|
SCORPIO TANKERS INC.
, a company incorporated under the laws of The Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (“
STNG
”) on its own account and as agent for and on behalf of each of its existing wholly owned subsidiaries (as set out in
Schedule 1
) (“
SPVs
”) and certain of its future wholly-owned subsidiaries (“
Future SPVs
”) (the SPVs and Future SPVs jointly referred to as the “
STNG SPVs
”);
|
(2)
|
SCORPIO COMMERCIAL MANAGEMENT S.A.M.
, a company incorporated under the laws of Monaco and having its registered office at 9 Boulevard Charles III, Monaco 98000 (“
SCM
”); and
|
(3)
|
SCORPIO SHIP MANAGEMENT S.A.M.
, a company incorporated under the laws of Monaco and having its registered office at 9 Rue Du Gabian, Monaco 98000 (“
SSM
”);
|
(1)
|
the Parties have previously entered into a master agreement with an effective date of 24 January 2013 as amended by addendum number one dated 1 June 2013, amended and restated by a deed of amendment and restatement effective as of 31 December 2014, amended by a deed of amendment dated 29 September 2016 (the “
DoA
”) and amended and restated by a deed of amendment and restatement effective as of 29 September 2016 (the “
Deed of Amendment and Restatement
”).
|
(2)
|
The STNG SPVs: (i) control a number of vessels already on the water; (ii) will control vessels to be delivered from various shipyards; and (iii) may in the future control vessels purchased or chartered in from third parties (together the “
Vessels
”). References to “control” or “controlled” herein means owned or chartered.
|
(5)
|
The Parties agreed to amend certain termination provisions contained in the Original Management Agreements by entering into the DoA and the Deed of Amendment and Restatement.
|
(6)
|
The revised standard set of terms for the commercial management of the Vessels is hereby attached as
Annex I
(the “
Standard Commercial Management Terms
”) and the revised standard set of terms for the technical management of the Vessels is hereby attached as
Annex II
(the “
Standard Technical Management Terms
”). Both the Standard Commercial Management Terms and the Standard Technical Management Terms (together, the
“
Standard Management Terms
”) form an integral part of this Master.
|
(1)
|
the Standard Management Terms contain the terms and conditions concerning the commercial and/or technical management provided by SCM and SSM respectively, to each Vessel controlled by the STNG SPVs.
|
(2)
|
STNG will procure all future Vessels (being any Vessels in respect of which a Confirmation has as of the Amendment Date not yet been issued), to be governed by the Standard Commercial Management Terms and/or Standard Technical Management Terms, in each case as amended by the terms detailed in a Confirmation (as defined below), (each a “
Management Agreement
” and together the “
Management Agreements
”). The entry by a Vessel under management by SCM and/or SSM and any amendments to those terms, will be evidenced by a written confirmation (substantially in the form set out in
Schedule 2
) executed by and between STNG SPV (or alternatively, STNG as agent for and on behalf of the relevant STNG SPV), STNG as guarantor and SCM and/or SSM (the “
Confirmation
”). The entry of a time chartered Vessel into management by SCM and/or SSM and any amendments to the Standard Management Terms, will be evidenced by a written confirmation (substantially in the form set out at
Schedule 3
) executed by and between STNG SPV (or alternatively, STNG as agent for and on behalf of the relevant STNG SPV), STNG as guarantor and SSM and/or SCM (as applicable) (the “
TC Confirmation
”).
|
(3)
|
the Deed of Amendment and Restatement sets out the amendments (if any) to the Original Management Agreements for all existing Vessels managed by SSM and/or SCM prior to the Amendment Date.
|
(4)
|
The management by SCM and/or SSM pursuant to the Standard Management Terms (as applicable) as amended by the terms detailed in the Confirmation shall be effective as of the date prescribed in the Confirmation or TC Confirmation, as applicable (the “
Effective Date
”).
|
(5)
|
It is hereby agreed that in each and any of the following circumstances:
|
a.
|
any termination or actual or purported withdrawal by STNG or applicable STNG SPV of a Confirmation and/or Management Agreement prior to the relevant Effective Date;
|
b.
|
a Vessel not being delivered into the respective Management Agreement within 100 days of the respective Effective Date for any reason whatsoever, other than: (i) the insolvency of the yard where the Vessel is being built provided that the insolvency prevents and not merely delays construction and delivery of the Vessel; or (ii) the total loss (actual constructive or compromised) of the vessel whilst
under construction at the yard (the aforementioned (5)(b)(i) and (ii) being together “ Extraordinary Events ”); or |
c.
|
on or prior to the Effective Date (as applicable) the respective Confirmation and/or Management Agreement being declared void or ineffective for any other reason whatsoever,
|
(i)
|
References to management fees shall be the flat management fees and Commissions (as defined therein) payable pursuant to clause 12 of each Management Agreement; and
|
(ii)
|
For the purpose of calculating the early termination fee relating only to the Standard Commercial Management Terms:
|
(6)
|
STNG agrees to guarantee and indemnify each of SCM and SSM in respect of the performance by each of the STNG SPVs of its respective obligations under this Master and each of the Management Agreements and has issued in favour of each of SCM and SSM guarantees effective as of 31 December 2014, copies of which are attached at
Annex III
hereto.
|
(7)
|
The Parties hereby acknowledge and agree that in the event of any inconsistency between the provisions of this Master and any of the Management Agreements: (i) prior to the applicable Effective Date, the provisions of the Master shall prevail; and (ii) on and after the applicable Effective Date the provisions of the relevant Management Agreement shall prevail.
|
(8)
|
This Master may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
|
(9)
|
If any provision or part-provision of this Master is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Master.
|
(10)
|
The governing law and dispute resolution provisions in Clause 23 of the Standard Management Terms shall apply to this Master.
|
(11)
|
No provision of this Master shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Master.
|
1.
|
SBI Parejo Shipping Company Limited
|
2.
|
SBI Tuscamina Shipping Company Limited
|
3.
|
STI Acton Shipping Company Limited
|
4.
|
STI Alexis Shipping Company Limited
|
5.
|
STI Amber Shipping Company Limited
|
6.
|
STI Aqua Shipping Company Limited
|
7.
|
STI Battersea Shipping Company Limited
|
8.
|
STI Battery Shipping Company Limited
|
9.
|
STI Bayonne Shipping Company Limited
|
10.
|
STI Benicia Shipping Company Limited
|
11.
|
STI Beryl Shipping Company Limited
|
12.
|
STI Black Hawk Shipping Company Limited
|
13.
|
STI Botafogo Shipping Company Limited
|
14.
|
STI Brixton Shipping Company Limited
|
15.
|
STI Broadway Shipping Company Limited
|
16.
|
STI Bromley Shipping Company Limited
|
17.
|
STI Bronx Shipping Company Limited
|
18.
|
STI Brooklyn Shipping Company Limited
|
19.
|
STI Camden Shipping Company Limited
|
20.
|
STI Carnaby Shipping Company Limited
|
21.
|
STI Cartaret Shipping Company Limited
|
22.
|
STI Chartering and Trading Ltd
|
23.
|
STI Clapham Shipping Company Limited
|
24.
|
STI Comandante Shipping Company Limited
|
25.
|
STI Condotti Shipping Company Limited
|
26.
|
STI Connaught Shipping Company Limited
|
27.
|
STI Croydon Shipping Company Limited
|
28.
|
STI Dama Shipping Company Limited
|
29.
|
STI Duchessa Shipping Company Limited
|
30.
|
STI Ealing Shipping Company Limited
|
31.
|
STI Elysees Shipping Company Limited
|
32.
|
STI Emerald Shipping Company Limited
|
33.
|
STI Esles II Shipping Company Limited
|
34.
|
STI Finchley Shipping Company Limited
|
35.
|
STI Fontvieille Shipping Company Limited
|
36.
|
STI Fulham Shipping Company Limited
|
37.
|
STI Galata Shipping Company Limited
|
38.
|
STI Garnet Shipping Company Limited
|
39.
|
STI Gavia Shipping Company Limited
|
40.
|
STI Grace Shipping Company Limited (formerly SBI Macanudo Shipping Company Limited)
|
41.
|
STI Gramercy Shipping Company Limited
|
42.
|
STI Hackney Shipping Company Limited
|
43.
|
STI Hammersmith Shipping Company Limited
|
44.
|
STI Hounslow Shipping Company Limited
|
45.
|
STI Ipanema Shipping Company Limited
|
46.
|
STI Jardins Shipping Company Limited
|
47.
|
STI Jasper Shipping Company Limited
|
48.
|
STI Jermyn Shipping Company Limited (formerly SBI Cuaba Shipping Company Limited)
|
49.
|
STI Jurere Shipping Company Limited
|
50.
|
STI Kingsway Shipping Company Limited
|
51.
|
STI La Boca Shipping Company Limited
|
52.
|
STI Larvotto Shipping Company Limited
|
53.
|
STI Lauren Shipping Company Limited
|
54.
|
STI Le Rocher Shipping Company Limited
|
55.
|
STI Leblon Shipping Company Limited
|
56.
|
STI Lombard Shipping Company Limited
|
57.
|
STI Madison Shipping Company Limited
|
58.
|
STI Manhattan Shipping Company Limited
|
59.
|
STI Marianne Shipping Company Limited
|
60.
|
STI Mayfair Shipping Company Limited
|
61.
|
STI Memphis Shipping Company Limited
|
62.
|
STI Meraux Shipping Company Limited
|
63.
|
STI Millenium Shipping Company Limited
|
64.
|
STI Milwaukee Shipping Company Limited
|
65.
|
STI Notting Hill Shipping Company Limited
|
66.
|
STI Onyx Shipping Company Limited
|
67.
|
STI Opera Shipping Company Limited
|
68.
|
STI Orchard Shipping Company Limited
|
69.
|
STI Osceola Shipping Company Limited
|
70.
|
STI Oxford Shipping Company Limited
|
71.
|
STI Park Shipping Company Limited
|
72.
|
STI Pimlico Shipping Company Limited
|
73.
|
STI Pontiac Shipping Company Limited
|
74.
|
STI Poplar Shipping Company Limited
|
75.
|
STI Queens Shipping Company Limited
|
76.
|
STI Rambla Shipping Company Limited
|
77.
|
STI Recoleta Shipping Company Limited
|
78.
|
STI Regina Shipping Company Limited
|
79.
|
STI Rose Shipping Company Limited
|
80.
|
STI Rotherhithe Shipping Company Limited
|
81.
|
STI Ruby Shipping Company Limited
|
82.
|
STI San Antonio Shipping Company Limited
|
83.
|
STI San Telmo Shipping Company Limited
|
84.
|
STI Sapphire Shipping Company Limited
|
85.
|
STI Savile Row Shipping Company Limited
|
86.
|
STI Seneca Shipping Company Limited
|
87.
|
STI Sloane Shipping Company Limited
|
88.
|
STI Soho Shipping Company Limited
|
89.
|
STI Spiga Shipping Company Limited
|
90.
|
STI St. Charles Shipping Company Limited
|
91.
|
STI Stamford Shipping Company Limited
|
92.
|
STI Susana Shipping Company Limited
|
93.
|
STI Taksim Shipping Company Limited
|
94.
|
STI Texas City Shipping Company Limited
|
95.
|
STI Topaz Shipping Company Limited
|
96.
|
STI Tribeca Shipping Company Limited
|
97.
|
STI Venere Shipping Company Limited
|
98.
|
STI Veneto Shipping Company Limited
|
99.
|
STI Ville Shipping Company Limited
|
100.
|
STI Virtus Shipping Company Limited
|
101.
|
STI Wembley Shipping Company Limited
|
102.
|
STI Westminster Shipping Company Limited
|
103.
|
STI Winnie Shipping Company Limited
|
104.
|
STI Yorkville Shipping Company Limited
|
105.
|
Yellowjacket I Limited
|
106.
|
Yellowjacket II Limited
|
107.
|
Yellowjacket III Limited
|
108.
|
Yellowjacket IV Limited
|
109.
|
Yellowjacket V Limited
|
110.
|
Yellowjacket VI Limited
|
VESSEL NAME
|
VESSEL DETAILS
|
REGISTERED OWNER
|
DATE OF ENTRY INTO STNG FLEET
|
DATE OF ENTRY INTO MANAGEMENT BY [SCM AND/OR SSM] PURSUANT TO WHICH THE STNG SPV AND [SCM AND/OR SSM] AGREE TO BE BOUND BY THE [STANDARD COMMERCIAL MANAGEMENT TERMS AND STANDARD TECHNICAL MANAGEMENT TERMS (RESPECTIVELY)] (the “Effective Date”)
|
NOTES / AMENDMENTS TO STANDARD MANAGEMENT TERMS
|
|
|
|
|
[Drafting note: If this is a newbuilding then delivery date as per SBC should be inserted here - actual date NOT on or around]
|
•
In respect of the Standard Technical Management Terms, see the attached Annexes.
•
Notices Address (Box 22, Part I of the Standard Technical Management Terms and Standard Commercial Management Terms) for the Owners is as follows:
[●]
C/O 9 Boulevard Charles III, 98000 Monaco MC
Tel +377 97985850
Email: management@scorpiogroup.net
•
In respect of the Standard Commercial Management Terms, the flat management fees payable as per clause 12(a)(i): US$[●] per day pro rata.
The Standard Commercial Management Terms are amended with the addition of the following text in clause 12:
1.
Applicable for Scorpio original form pool agreement:
“From the period commencing as of the date that [●] becomes a Pool Participant (as defined in the Scorpio [●] Pool Agreement) and the Vessel becomes a Pool Vessel (as defined
in the Scorpio [●] Pool Agreement) until the date that [●] ceases to be a Pool Participant and the Vessel ceases to be a Pool Vessel the Managers shall be remunerated in accordance with the terms of the Scorpio [●] Pool Agreement (and for the avoidance of doubt shall not be remunerated in accordance with the terms of this Agreement), except, in the event of the application of clause 9.3.A of the Scorpio [●] Pool Agreement the Manager shall receive a flat daily management fee of US$[●] throughout the duration of the Vessel’s Off Pool Time Charter period (as defined in the Scorpio [●] Pool Agreement) which shall be payable monthly in advance against an invoice. Provided always that the applicable termination fees payable by Owners pursuant to Clause 22 of this Agreement shall be calculated by using the management fee set out under Clause 12(a)(i) and 12(a) (ii) and the Vessel shall not be deemed to be a Pool Vessel (as defined in the applicable pool agreement)”.or
2.
Applicable for new Scorpio form pool agreement:
From the period commencing as of the date that Owners become a Pool Participant (as defined in the Scorpio [●] Pool Agreement (“
Pool Agreement
”)) and the Vessel becomes a Pool Vessel (as defined in the Pool Agreement) until the date that Owners cease to be a Pool Participant and the Vessel ceases to be a Pool Vessel the Managers shall be remunerated in accordance with the terms of the Pool Agreement (and for the avoidance of doubt shall not be remunerated in accordance with the terms of this
Agreement) unless the Vessel is in an Off Pool Time Charter (as defined in the Pool Agreement) in which case the Manager shall receive a flat daily management fee of US [●]payable monthly in advance against an invoice, throughout the duration of the Vessel’s Off Pool Time Charter. Provided always that the applicable termination fees payable by Owners pursuant to Clause 22 of this Agreement shall be calculated by using the management fee set out under Clause 12(a)(i) and 12(a) (ii) and the Vessel shall not be deemed to be a Pool Vessel (as defined in the applicable pool agreement)”. |
VESSEL NAME
|
VESSEL DETAILS
|
DISPONENT OWNER
|
DATE OF ENTRY INTO SALT FLEET
|
DATE OF ENTRY INTO MANAGEMENT BY [SCM AND/OR SSM] PURSUANT TO WHICH THE STNG SPV AND [SCM AND/OR SSM] AGREE TO BE BOUND BY THE [STANDARD COMMERCIAL MANAGEMENT TERMS AND STANDARD TECHNICAL MANAGEMENT TERMS (RESPECTIVELY)] (the “Effective Date”)
|
NOTES / AMENDMENTS TO STANDARD MANAGEMENT TERMS
|
|
|
|
|
|
Only Standard Commercial Management Terms are amended as follows:
Both Standard Commercial and/or Technical Management Terms are amended as follows:
Clause 1 “Time Charter”: definition of time charter to be added.
[Clause 12 to be amended on an individual basis depending on the relevant pool agreement terms to address payment of the management fee during the period where the Vessel is considered a pool vessel]
Clause 21(a): delete and replace with
“This Agreement shall come into effect at the date stated in Box 2 and shall continue until terminated by either party giving notice to the other; in which event this Agreement shall terminate on the date on which the Vessel is re-delivered under the Time Charter unless terminated earlier in accordance with Clause 22 (“Termination”)
Clause 22 (all sub-para): delete all references to ET1, ET2, ET3 and ET4.
Clause 22(g)(i) delete “an ET2 event, or for” and “or an ET1, ET3 or ET4 event,”
Clause 22(g) sub clauses (ii) - (vi) inclusive delete
|
Signature(s) (Owners)
|
Signature(s) (Managers)
|
Signature(s) (Guarantor)
|
|
“SMS” means the Safety Management System (as defined by the ISM Code).
|
29
|
“STCW 95” means the International Convention on Standards of Training, Certification and Watchkeeping
|
30
|
for Seafarers, 1978, as amended in 1995 and any amendment thereto or substitution therefor.
|
31
|
(iii)
ensuring that all Crew have passed a medical examination with a qualified doctor certifying that they are
75
|
|
fit for the duties for which they are engaged and are in possession of valid medical certificates issued in
|
76
|
accordance with appropriate Flag State requirements or such higher standard of medical examination
|
77
|
as may be agreed with the Owners. In the absence of applicable Flag State requirements the medical
|
78
|
certificate shall be valid at the time when the respective Crew member arrives on board the Vessel and
|
79
|
;
|
80
|
(iv)
ensuring that the Crew shall have a common working language and a command of the English language
81
|
|
;
|
82
|
(v)
arranging transportation of the Crew, including repatriation;
|
83
|
(vi)
training of the Crew;
|
84
|
related to the commercial operation of the Vessel in accordance with
Clause 11
(Income Collected and
|
130
|
Expenses Paid on Behalf of Owners);
|
131
|
If any of the services under Sub-
clauses 6(a)
,
6(b)
and
6(c)
are to be excluded from the Management Fee, remuneration
|
132
|
for these services must be stated in Annex E (Fee Schedule). See Sub-
clause 12(e)
.
|
133
|
(d)
issuing voyage instructions
including, but not limited to, authorising the Master to release cargoagainst relevant letter(s) of indemnity
;
|
134
|
(e)
appointing agents;
|
135
|
(f)
appointing stevedores; and
|
136
|
(g)
arranging surveys associated with the commercial operation of the Vessel.
|
137
|
7. Insurance Arrangements
|
138
|
(only applicable if agreed according to
Box 11
).
|
139
|
The Managers shall arrange insurances in accordance with
Clause 10
(Insurance Policies), on such terms as
|
140
|
the Owners shall have instructed or agreed, in particular regarding conditions, insured values, deductibles,
|
141
|
franchises and limits of liability.
|
142
|
(ii)
agree with the Managers prior to any change of flag of the Vessel and pay whatever additional costs
|
190
|
may properly be incurred by the Managers as a consequence of such change. If agreement cannot be
|
191
|
reached then either party may terminate this Agreement in accordance with Sub-
clause 22(e)
; and
|
192
|
(iii)
provide, at no cost to the Managers, in accordance with the requirements of the law of the Flag State,
|
193
or higher standard, as mutually agreed, adequate Crew accommodation and living standards.
194
|
10. Insurance Policies
|
198
|
199
|
|
or otherwise,
that throughout the period of this Agreement:
|
200
|
(a)
at the Owners’ expense, the Vessel is insured for not less than its sound market value or entered for its
|
201
|
full gross tonnage, as the case may be for:
|
202
|
(i)
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
203
|
(ii)
protection and indemnity risks (including but not limited to pollution risks, diversion expenses and,
|
204
|
except to the extent insured separately by the Managers in accordance with Sub
-
clause 5(b)(i)
, Crew
|
205
|
;
|
206
|
NOTE: If the Managers are not providing crew management services under Sub
-
clause 5(a)
(Crew
|
207
|
Management) or have agreed not to provide Crew Insurances separately in accordance with Sub-clause
|
208
|
5
(b)(i)
, t
hen such insurances must be included in the protection and indemnity risks cover for the Vessel (see
|
209
|
Sub
-
clause 10(a)(ii)
a
bove).
|
210
|
(iii)
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew
|
211
|
risks); and
|
212
|
(iv)
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and
|
213
|
FD & D) (see
Box 12
)
|
214
|
215
|
|
of a similar type to the Vessel, with sound and reputable insurance companies, underwriters or associations
|
216
|
(“the Owners’ Insurances”);
|
217
|
(b)
all premiums and calls on the Owners’ Insurances are paid by their due date;
|
218
|
(c)
the Owners’ Insurances name the Managers and, subject to underwriters’ agreement, any third party
|
219
|
designated by the Managers as a
joint assured
co-assured (mis-direct arrow)
, with full cover.
It is understood that in
|
220
|
protection and indemnity, the normal terms for such cover may impose on the Managers and any such third
|
221
|
party a liability in respect of premiums or calls arising in connection with the Owners’ Insurances .
|
222
|
If obtainable at no additional cost, however, the Owners shall procure such insurances on terms such that
|
223
|
neither the Managers nor any such third party shall be under any liability in respect of premiums or calls arising
|
224
|
in connection with the Owners’ Insurances. In any event, on termination of this Agreement in accordance
|
225
|
with
Cl
ause 21
(Du
ration of the Agreement) and
Cl
ause 22
(
Termination), the Owners shall procure that the
|
226
|
Managers and any third party designated by the Managers as
joint assured
co-assured
shall cease to be
joint
|
227
|
and, if reasonably achievable, that they shall be released from any and all liability for premiums and calls
|
228
|
that may arise in relation to the period of this Agreement; and
|
229
|
(d)
written evidence is provided, to the reasonable satisfaction of the Managers, of the Owners’ compliance
|
230
|
with their obligations under this
Cl
ause 10
w
ithin a reasonable time of the commencement of the Agreement,
|
231
|
and of each renewal date and, if specifically requested, of each payment date of the Owners’ Insurances.
|
232
|
10.1 The Owners may, from time to time, require the Managers to arrange, in the name and for the account of
|
|
the Owners, operational insurance as envisaged in clause 10(a)(iv).
|
|
11. Income Collected and Expenses Paid on Behalf of Owners
|
233
|
(a)
Except as provided in Sub
-
clause 11(c)
a
ll monies collected by the Managers under the terms of this
|
234
|
Agreement (other than monies payable by the Owners to the Managers)
(if any)
and any interest thereon shall be
|
235
|
held to the credit of the Owners in a separate bank account.
|
236
|
(b)
All expenses incurred by the Managers under the terms of this Agreement on behalf of the Owners
|
237
|
13. Budgets and Management of Funds
|
266
(a)
The Managers’ initial budget is set out in Annex “C” hereto. Subsequent budgets shall be for twelve
267
month periods and shall be prepared by the Managers and presented to the Owners not less than three
268
months before the end of the budget year.
269
|
estimate of the working capital requirement for the Vessel and shall each month request the Owners in writing
|
275
|
to pay the funds required to run the Vessel for the ensuing month, including the payment of any occasional or
|
276
|
extraordinary item of expenditure, such as emergency repair costs, additional insurance premiums, bunkers
|
277
|
or provisions. Such funds shall be received by the Managers within ten running days after the receipt by the
|
278
|
Owners of the Managers’ written request and shall be held to the credit of the Owners in a separate bank
|
279
|
account.
|
280
|
(d)
The Managers shall at all times maintain and keep true and correct accounts in respect of the Management
|
281
|
Services in accordance with the relevant International Financial Reporting Standards or such other standard
|
282
|
as the parties may agree, including records of all costs and expenditure incurred, and produce a comparison
|
283
|
between budgeted and actual income and expenditure of the Vessel in such form and at such intervals as
|
284
|
shall be mutually agreed.
|
285
|
The Managers shall make such accounts available for inspection and auditing by the Owners and/or their
|
286
|
representatives in the Managers’ offices or by electronic means, provided reasonable notice is given by the
|
287
|
Owners.
|
288
|
(e)
Notwithstanding anything contained herein, the Managers shall in no circumstances be required to use
|
289
|
or commit their own funds to finance the provision of the Management Services.
|
290
|
SECTION 5 – Legal, General and Duration of Agreement
|
|
14. Trading Restrictions
|
291
|
If the Managers are providing crew management services in accordance with Sub-
clause 5(a)
(Crew
|
292
|
Management), the Owners and the Managers will, prior to the commencement of this Agreement, agree on any
|
293
|
trading restrictions to the Vessel that may result from the terms and conditions of the Crew’s employment.
|
294
|
15. Replacement
|
295
|
If the Managers are providing crew management services in accordance with Sub-
clause 5(a)
(Crew
|
296
|
Management), the Owners may require the replacement, at their own expense, at the next reasonable
|
297
|
opportunity, of any member of the Crew found on reasonable grounds to be unsuitable for service. If the
|
298
|
Managers have failed to fulfil their obligations in providing suitable qualified Crew within the meaning of Sub-
|
299
|
clause 5(a)
(Crew Management), then such replacement shall be at the Managers’ expense .
|
300
|
16. Managers’ Right to Sub-Contract
|
301
|
Save as provided herein,
T
t
he Managers shall not subcontract any of their obligations hereunder without the prior
|
302
|
written consent of
the Owners which shall not be unreasonably withheld.
The Owners consent to the subcontract of (a) the chartering
|
303
|
;
|
|
Management (India) Pvt Ltd.
In the event of such a sub-contract the Managers
|
|
shall remain fully liable for the due performance of their obligations under this Agreement.
|
304
|
17. Responsibilities
|
305
|
(a)
Force Majeure
|
306
|
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events
|
307
|
and/or conditions to the extent that the party invoking force majeure is prevented or hindered from
|
308
|
performing any or all of their obligations under this Agreement, provided they have made all
|
309
|
reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
310
|
(i)
acts of God;
|
311
|
(ii)
any Government requisition, control, intervention, requirement or interference;
|
312
|
(iii)
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism,
|
313
|
sabotage or piracy, or the consequences thereof;
|
314
|
(iv)
riots, civil commotion, blockades or embargoes;
|
315
|
(v)
epidemics;
|
316
|
(vi)
earthquakes, landslides, floods or other extraordinary weather conditions;
|
317
|
(vii)
strikes, lockouts or other industrial action, unless limited to the employees (which shall not include the
|
318
|
Crew) of the party seeking to invoke force majeure;
|
319
|
(viii)
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure;
|
320
|
and
|
321
|
(ii)
Acts or omissions of the Crew
- Notwithstanding anything that may appear to the contrary in this
|
335
|
Agreement, the Managers shall not be liable for any acts or omissions of the Crew, even if such acts
|
336
|
or omissions are negligent, grossly negligent or wilful
, except only to the extent that they are shown to
|
337
|
have resulted from a failure by the Managers to discharge their obligations under
Clause 5(a)
(Crew
|
338
|
Management), in which case their liability shall be limited in accordance with the terms of this Clause
|
339
|
17
(Responsibilities).
|
340
|
Owners, requiring them to remedy it as soon as practically possible. In the event that the Owners fail to
|
416
|
remedy it within a reasonable time to the satisfaction of the Managers, the Managers shall be entitled
|
417
|
to terminate the Agreement with immediate effect by notice.
|
418
|
(iii)
If either party fails to meet their respective obligations under Sub-
clause 5(b)
(Crew Insurances) and
|
419
|
Clause 10
(Insurance Policies), the other party may give notice to the party in default requiring them to
|
420
|
remedy it within ten (10) days, failing which the other party may terminate this Agreement with immediate
|
421
|
effect by giving notice to the party in default.
|
422
|
(iv) If the Managers are convicted of, or admit guilt for, a crime, then the Owners shall be entitled to terminate
|
|
this Agreement with immediate effect by notice in writing.
|
|
(c)
Extraordinary Termination
|
423
|
This Agreement shall be
:
(i) terminated in the case of a sale of the Vessel (“ET1”), and the date upon which the Vessel is to be treated as
|
424
|
having been sold or otherwise disposed of shall be the date on which the Vessel’s owners cease to be the
|
|
registered owners of the Vessel;
|
|
(ii) deemed to be terminated if the Vessel becomes a total loss or is declared as a constructive or
|
|
23. BIMCO Dispute Resolution Clause
|
464
(a)
This Agreement shall be governed by and construed in accordance with English law and any dispute 465 arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with 466 the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary 467 to give effect to the provisions of this Clause. 468
|
of such illegality, invalidity or unenforceability, and the remaining provisions shall continue in full force and
|
555
|
effect and shall not in any way be affected or impaired thereby.
|
556
|
28. Interpretation
|
557
|
In this Agreement:
|
558
|
(a)
Singular/Plural
|
559
|
The singular includes the plural and vice versa as the context admits or requires.
|
560
|
(b)
Headings
|
561
|
The index and headings to the clauses and appendices to this Agreement are for convenience only and shall not affect
|
562
|
its construction or interpretation.
|
563
|
(c)
Day
|
564
|
“Day” means a calendar day unless expressly stated to the contrary.
|
565
|
Any additional clauses attached hereto together with the Confirmation, any subsequent addenda, schedules,
|
|
Signature(s) (Owners)
|
Signature(s) (Managers)
Francesco Bellusci Administrateur Delegue
|
Signature(s) (Guarantor)
|
|
In this
Shipman 2009 form (together with the Confirmation, any additional clauses of even date herewith and
|
2
any Annexes hereto (the “
Agreement
”)
save where the context otherwise requires, the following words and expressions shall have
|
2. Commencement and Appointment
|
33
|
With effect from the date stated in
Box 2
for the commencement of the Management Services and continuing
|
34
|
unless and until terminated as provided herein, the Owners hereby appoint the Managers and the Managers
|
35
|
hereby agree to act as the Managers of the Vessel in respect of the Management Services.
|
36
|
3. Authority of the Managers
|
37
|
Subject to the terms and conditions herein provided, during the period of this Agreement the Managers shall
|
38
|
carry out the Management Services in respect of the Vessel as agents for and on behalf of the Owners. The
|
39
|
Managers shall have authority to take such actions as they may from time to time in their absolute discretion
|
40
|
consider to be necessary to enable them to perform the Management Services in accordance with sound
|
41
|
ship management practice, including but not limited to compliance with all relevant rules and regulations.
|
42
|
4. Technical Management
|
43
|
(
only applicable if agreed according to
Box 6
).
|
44
|
The Managers shall provide technical management which includes, but is not limited to, the following
|
45
|
services:
|
46
|
;
|
74
|
(iii)
ensuring that all Crew have passed a medical examination with a qualified doctor certifying that they are
|
75
|
fit for the duties for which they are engaged and are in possession of valid medical certificates issued in
|
76
|
accordance with appropriate Flag State requirements or such higher standard of medical examination
|
77
|
as may be agreed with the Owners. In the absence of applicable Flag State requirements the medical
|
78
|
certificate shall be valid at the time when the respective Crew member arrives on board the Vessel and
|
79
|
;
|
80
|
(iv)
ensuring that the Crew shall have a common working language and a command of the English language
|
81
|
;
|
82
|
(v)
arranging transportation of the Crew, including repatriation;
|
83
|
(vi)
training of the Crew;
|
84
|
Expenses Paid on Behalf of Owners);
|
131
|
I
f any of the services under Sub-
clauses 6(a)
,
6(b)
and
6(c)
are to be excluded from the Management Fee, remuneration
|
132
|
for these services must be stated in Annex E (Fee Schedule). See Sub-
clause 12(e)
.
|
133
|
(d)
issuing voyage instructions;
|
134
|
(e)
appointing agents;
|
135
|
(f)
appointing stevedores; and
|
136
|
(g)
arranging surveys associated with the commercial operation of the Vessel.
|
137
|
7. Insurance Arrangements
|
138
|
(only applicable if agreed according to
Box 11
).
|
139
|
The Managers shall arrange insurances in accordance with
Clause 10
(Insurance Policies), on such terms as
|
140
|
the Owners shall have instructed or agreed, in particular regarding conditions, insured values, deductibles,
|
141
|
franchises and limits of liability.
|
142
|
(ii)
agree with the Managers prior to any change of flag of the Vessel and pay whatever additional costs
|
190
|
may properly be incurred by the Managers as a consequence of such change
;
.
If agreement cannot be
|
191
|
reached then either party may terminate this Agreement in accordance with Sub-
clause 22(e)
;
and
|
192
|
(iii)
|
provide, at no cost to the Managers, in accordance with the requirements of the law of the Flag State, 193 or higher standard, as mutually agreed, adequate Crew accommodation and living standards. 194
|
10. Insurance Policies
|
198
|
The Owners shall procure, whether by instructing the Managers under
C
lause 7
(
Insurance Arrangements)
|
199
|
or otherwise, that throughout the period of this Agreement:
|
200
|
(a)
at the Owners’ expense, the Vessel is insured for not less than its sound market value or entered for its
|
201
|
full gross tonnage, as the case may be for:
|
202
|
(i)
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
203
|
(ii)
protection and indemnity risks (including but not limited to pollution risks, diversion expenses and,
|
204
|
except to the extent insured separately by the Managers in accordance with Sub
-
clause 5(b)(i)
, Crew
|
205
|
;
|
206
|
NOTE: If the Managers are not providing crew management services under Sub
-
clause 5(a)
(Crew
|
207
|
Management) or have agreed not to provide Crew Insurances separately in accordance with Sub-clause
|
208
|
5(b)(i)
, t
hen such insurances must be included in the protection and indemnity risks cover for the Vessel (see
|
209
|
Sub
-
clause 10(a)(ii)
a
bove).
|
210
|
(iii)
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew
|
211
|
risks); and
|
212
|
(iv)
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD &
|
213
|
D) (see
B
ox 12
)
|
214
|
Sub
-
clauses 10(a)(i)
t
hrough
10(a)(iv)
a
ll in accordance with the best practice of prudent owners of vessels
|
215
|
of a similar type to the Vessel, with sound and reputable insurance companies, underwriters or associations
|
216
|
(“the Owners’ Insurances”);
|
217
|
(b)
all premiums and calls on the Owners’ Insurances are paid by their due date;
|
218
|
(c)
the Owners’ Insurances name the Managers and, subject to underwriters’ agreement, any third party
|
219
|
designated by the Managers as a joint assured
(or co-assured, as the case may be)
, with full cover. It is understood
|
220
|
protection and indemnity, the normal terms for such cover may impose on the Managers and any such third
|
221
|
party a liability in respect of premiums or calls arising in connection with the Owners’ Insurances.
|
222
|
If obtainable at no additional cost, however, the Owners shall procure such insurances on terms such that
|
223
|
neither the Managers nor any such third party shall be under any liability in respect of premiums or calls arising
|
224
|
in connection with the Owners’ Insurances. In any event, on termination of this Agreement in accordance
|
225
|
with
Cl
ause 21
(Du
ration of the Agreement) and
Cl
ause 22
(
Termination), the Owners shall procure that the
|
226
|
Managers and any third party designated by the Managers as joint assured
(or co-assured, as the case may be)
shall cease to be joint assured
(or co-assured, as the case may be)
|
227
|
and,
if reasonably achievable,
that they shall be released from any and all liability for premiums and calls
|
228
|
that may arise in relation to the period of this Agreement; and
|
229
|
(d)
written evidence is provided, to the reasonable satisfaction of the Managers, of the Owners’ compliance
|
230
|
with their obligations under this
Cl
ause 10
w
ithin a reasonable time of the commencement of the Agreement,
|
231
|
and of each renewal date and, if specifically requested, of each payment date of the Owners’ Insurances.
|
232
|
11. Income Collected and Expenses Paid on Behalf of Owners
|
233
|
(a)
Except as provided in Sub
-
clause 11(c)
a
ll monies collected by the Managers under the terms of this
|
234
|
Agreement (other than monies payable by the Owners to the Managers) and any interest thereon shall be
|
235
|
held to the credit of the Owners in a separate bank account.
|
236
|
(b)
All expenses incurred by the Managers under the terms of this Agreement on behalf of the Owners
|
237
|
(including expenses as provided in
Cl
ause 12(c)
)
may be debited against the Owners in the account referred to
|
238
|
under Sub
-
clause 11(a)
b
ut shall in any event remain payable by the Owners to the Managers on demand.
|
239
|
240
|
12. Management Fee and Expenses
|
242
|
(a)
The Owners shall pay to the Managers an annual management fee as stated in
B
ox 14
f
or their services
|
243
|
as Managers under this Agreement, which shall be payable in equal monthly instalments in advance, the first
|
244
|
instalment (pro rata if appropriate) being payable on the commencement of this Agreement (see
C
lause 2
|
245
|
(Commencement and Appointment) and
B
ox 2
)
and subsequent instalments being payable at the beginning
|
246
|
of every calendar month. The management fee shall be payable to the Managers’ nominated account stated
|
247
|
in
B
ox 15
.
|
248
|
(b)
The management fee shall be subject to an annual review and the proposed fee shall be presented in
|
249
|
the annual budget in accordance with Sub
-
clause 13
(
a).
|
250
|
(c)
The Managers shall, at no extra cost to the Owners, provide their own office accommodation, office staff,
|
251
|
facilities and stationery. Without limiting the generality of this
Cl
ause 12
(
Management Fee and Expenses) the
|
252
|
Owners shall reimburse the Managers for postage and communication expenses, travelling expenses, and
|
253
|
other out of pocket expenses properly incurred by the Managers in pursuance of the Management Services.
|
254
|
Any days used by the Managers’ personnel travelling to or from or attending on the Vessel or otherwise used
|
255
|
in connection with the Management Services in excess of those agreed in the budget shall be charged at
|
256
|
the daily rate stated in
B
ox 16
.
|
257
|
(d)
If the Owners decide to layup the Vessel and such layup lasts for more than the number of months
|
258
|
stated in
B
ox 17
, a
n appropriate reduction of the Management Fee for the period exceeding such period
|
259
|
until one month before the Vessel is again put into service shall be mutually agreed between the parties. If
|
260
|
the Managers are providing crew management services in accordance with Sub
-
clause 5(a)
, c
onsequential
|
261
|
costs of reduction and reinstatement of the Crew shall be for the Owners’ account.
If agreement cannot be
|
262
|
reached then either party may terminate this Agreement in accordance with Sub-
clause 22(e)
.
|
263
|
(e)
Save as otherwise provided in this Agreement, all discounts and commissions obtained by the Managers
|
264
|
in the course of the performance of the Management Services shall be credited to the Owners.
|
265
|
(f) Payment of the Management Fee and Expenses set out under this Clause 12(a) is fully guaranteed by the
|
|
Services, the Managers will provide to the Owners, are due consideration for the giving of this
|
|
guarantee.
|
|
13. Budgets and Management of Funds
|
266
|
(a)
The Managers’ initial budget is set out in Annex “C” hereto. Subsequent budgets shall be for twelve
|
267
|
month periods and shall be prepared by the Managers and presented to the Owners not less than
one
three
|
268
|
month
s
before the end of the budget year.
|
269
|
(b)
The Owners shall state to the Managers in a timely manner, but in any event within one month of
|
270
|
presentation, whether or not they agree to each proposed annual budget.
If the Owners do not respond within one month of presentation, the proposed annual budget shall be deemed to be accepted.
The parties shal
l
|
271
|
negotiate in good
|
|
faith and if they fail to agree on the annual budget, including the management fee, either party may terminate
|
272
|
this Agreement in accordance with Sub-
clause 22(e)
.
|
273
|
(c)
Following the agreement of the budget, the Managers shall prepare and present to the Owners their
|
274
|
estimate of the working capital requirement for the Vessel
and
and shall each month request the Owners in writing
|
275
|
to pay the
funds required to run the Vessel
for the ensuing month,
including the payment of any
unbudgeted, contingency and
occasional or
|
276
|
extraordinary item of expenditure, such as emergency repair costs, additional insurance premiums, bunkers
|
277
|
or provisions.
Such funds shall be received by the Managers within ten running days after the receipt by the
|
278
|
Owners of the Managers’ written request and shall be held to the credit of the Owners in a separate bank
|
279
|
account.
|
280
|
(d)
The Managers shall at all times maintain and keep true and correct accounts in respect of the Management
|
281
|
Services in accordance with the relevant International Financial Reporting Standards or such other standard
|
282
|
as the parties may agree, including records of all costs and expenditure incurred, and produce a comparison
|
283
|
between budgeted and actual income and expenditure of the Vessel in such form and at such intervals as
|
284
|
shall be mutually agreed.
|
285
|
The Managers shall make such accounts available for inspection and auditing by the Owners and/or their
|
286
|
representatives in the Managers’ offices or by electronic means, provided reasonable notice is given by the
|
287
|
Owners.
|
288
|
(e)
Notwithstanding anything contained herein, the Managers shall in no circumstances be required to use
|
289
|
or commit their own funds to finance the provision of the Management Services.
|
290
|
14. Trading Restrictions
|
291
|
If the Managers are providing crew management services in accordance with Sub-
clause 5(a)
(Crew
|
292
|
Management), the Owners
will use reasonable efforts to honour any requirement and trading restriction as per
|
293
|
17. Responsibilities
|
305
|
(a)
Force Majeure
- Neither party shall be liable for any loss, damage or delay due to any of the following
|
306
|
force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or
|
307
|
hindered from performing any or all of their obligations under this Agreement, provided they have made all
|
308
|
reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
309
|
contraband, blockade running, or in an unlawful trade, or on a voyage which in the reasonable opinion
|
411
|
of the Managers is unduly hazardous or improper, the Managers may give notice of the default to the
|
412
|
Owners, requiring them to remedy it as soon as practically possible. In the event that the Owners fail to
|
413
|
remedy it within a reasonable time to the satisfaction of the Managers, the Managers shall be entitled
|
414
|
to terminate the Agreement with immediate effect by notice.
|
415
|
(iii)
If either party fails to meet their respective obligations under Sub-
clause 5(b)
(Crew Insurances) and
|
416
|
Clause 10
(Insurance Policies), the other party may give notice to the party in default requiring them to
|
417
|
remedy it within ten (10) days, failing which the other party may terminate this Agreement with immediate
|
418
|
effect by giving notice to the party in default.
|
419
|
(iv) If the Managers are convicted of, or admit guilt for, a crime, then the Owners shall be entitled to
|
|
(ii)
|
the Vessel shall be deemed to be lost either when it has become an actual total loss or agreement has 428 been reached with the Vessel’s underwriters in respect of its constructive total loss or if such agreement 429 with the Vessel’s underwriters is not reached it is adjudged by a competent tribunal that a constructive 430 loss of the Vessel has occurred; and 431
|
(iii)
|
the date upon which the Vessel is to be treated as declared missing shall be ten (10) days after the Vessel 432 was last reported or when the Vessel is recorded as missing by the Vessel’s underwriters, whichever 433 occurs first. A missing vessel shall be deemed lost in accordance with the provisions of Sub-
clause 22(d)
434
(ii)
. 435
|
(viii)
The mediation process shall be without prejudice and confidential and no information or documents
|
518
|
disclosed during it shall be revealed to the Tribunal except to the extent that they are disclosable under
|
519
|
the law and procedure governing the arbitration.
|
520
|
(Note: The parties should be aware that the mediation process may not necessarily interrupt time limits.)
|
521
|
(e)
If
Box 21
in Part I is not appropriately filled in, Sub-
clause 23(a)
of this Clause shall apply.
|
522
|
Note: Sub-
clauses 23(a)
,
23(b)
and
23(c)
are alternatives; indicate alternative agreed in
Box 21
. Sub-clause
|
523
|
23(d)
shall apply in all cases.
|
524
|
24. Notices
|
525
|
(a)
All notices given by either party or their agents to the other party or their agents in accordance with the
|
526
|
provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to
|
527
|
the contrary, be sent to the address for that other party as set out in
Boxes 22
and
23
or as appropriate or
|
528
|
to such other address as the other party may designate in writing.
|
529
|
A notice may be sent by registered or recorded mail, facsimile, electronically or delivered by hand in accordance
|
530
|
with this Sub-
clause 24(a)
.
|
531
|
(b)
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed
|
532
|
to have been received:
|
533
|
(i)
if posted, on the seventh (7th) day after posting;
|
534
|
(ii)
if sent by facsimile or electronically, on the day of transmission; and
|
535
|
(iii)
if delivered by hand, on the day of delivery.
|
536
|
And in each case proof of posting, handing in or transmission shall be proof that notice has been given,
|
537
|
unless proven to the contrary.
|
538
|
25. Entire Agreement
see additional clauses.
|
539
|
Any additional clauses attached hereto together with the Confirmation, any subsequent addenda, schedules,
|
|
appendices or otherwise, shall be construed as an integral part of this Agreement and shall be interpreted
|
|
accordingly.
|
|
This Agreement constitutes the entire agreement between the parties and no promise, undertaking,
|
540
|
representation, warranty or statement by either party prior to the date stated in
Box 2
shall affect this
|
541
|
Agreement. Any modification of this Agreement shall not be of any effect unless in writing signed by or on
|
542
|
behalf of the parties
.
|
543
|
26. Third Party Rights
|
544
|
Except to the extent provided in Sub-
clauses 17(c)
(Indemnity)
and
17(d)
(Himalaya)
and see additional clauses
|
545
|
, no third parties may
|
|
enforce any term of this Agreement.
|
546
|
27. Partial Validity
|
547
|
If any provision of this Agreement is or becomes or is held by any arbitrator or other competent body to be
|
548
|
illegal, invalid or unenforceable in any respect under any law or jurisdiction, the provision shall be deemed
|
549
|
to be amended to the extent necessary to avoid such illegality, invalidity or unenforceability, or, if such
|
550
|
amendment is not possible, the provision shall be deemed to be deleted from this Agreement to the extent
|
551
|
of such illegality, invalidity or unenforceability, and the remaining provisions shall continue in full force and
|
552
|
effect and shall not in any way be affected or impaired thereby.
|
553
|
28. Interpretation
|
554
|
In this Agreement:
|
555
|
(a)
Singular/Plural
|
556
|
The singular includes the plural and vice versa as the context admits or requires.
|
557
|
(b)
Headings
|
558
|
The index and headings to the clauses and appendices to this Agreement are for convenience only and shall not affect
|
559
|
its construction or interpretation.
|
560
|
(c)
Day
|
561
|
“Day” means a calendar day unless expressly stated to the contrary.
|
562
|
29.
|
OPA
|
29.1
|
The Managers will:-
|
(i)
|
arrange for the preparation, filing and updating of a contingency Vessel Response Plan in accordance with the requirements of OPA and instruct the Crew in all aspects of the operation of such plan;
|
(ii)
|
identify and ensure the availability by contract or otherwise of a Qualified Individual, a Spill Management Team, an Oil Spill Removal Organisation, resources having salvage, fire fighting, lightering and, if applicable, dispersant capabilities, and public relations/media personnel to assist the Owners to deal with the media in the event of discharges of oil.
|
29.2
|
The Managers are expressly authorised as agents for the Owners to enter into such arrangements by contract or otherwise as are required to ensure the availability of the services outlined in Clause 29.1. The Managers are further expressly authorised as agents for the Owners to enter into such other arrangements as may from time to time be necessary to satisfy the requirements of OPA or other US Federal or State laws.
|
29.3
|
The Owners will pay the fees due to third parties providing the services described above. The third party fees will be included in the Vessel's running costs.
|
29.4
|
On termination of this Agreement, the Vessel Response Plan and all documentation will be returned to the Managers at the expense of the Owners.
|
30.
|
IT Services
|
30.1
|
The Managers will, subject to the remaining provisions of this Clause 30, provide the Vessel with the Management System Software.
|
30.2
|
The main features of the Management System Software at the date of this Agreement are:
|
(i)
|
comprehensive management software providing single point of entry to the Vessel incorporating crew management, defect and deficiency reporting and performance monitoring;
|
(ii)
|
a ship to shore and shore to ship e-mail package providing cost efficient communications available to both Managers and their charterers; and
|
(iii)
|
a computerised maintenance system including inventory control and automated purchase order handling.
|
30.3
|
The costs for the Management System Software are included in the Vessel's operating costs, as follows:
|
(i)
|
the annual maintenance fee;
|
(ii)
|
maintenance and upgrades;
|
(iii)
|
24 hour support;
|
(iv)
|
provision of anti-virus software and regular upgrades;
|
(v)
|
operational manuals and regular updates;
|
(vi)
|
annual audit on board the Vessel providing a system health check;
|
(vii)
|
user manuals and training of the Crew in the use of the Management System Software; and
|
(viii)
|
e-mail on board the Vessel.
|
30.4
|
Such costs do not include the costs of appropriate hardware, licence fee and installation/set-up on board the Vessel
which will be included in the taking over cost.
|
30.5
|
Installation and set-up of the Information System Software will be undertaken on a date agreed between the Managers and the Owners having regard to the Vessel's schedule and the availability of the Managers' personnel.
|
30.6
|
The Management System Software is protected by applicable copyright and patent laws.
|
30.7
|
The Managers do not warrant that the use or operation of the Information System Software will be uninterrupted or error free.
|
31.1
|
Without prejudice to the generality of clause 12 (Management Fee), it is agreed that the remuneration provided for by that clause shall be deemed to cover the Manager's administrative and general expenses and any other expenses which are not directly and exclusively applicable to the operation or conduct of the business of the Vessel and shall include:
|
31.2
|
In addition to the remuneration payable to the Managers under the provision of clause 12 and this clause, the Owners shall reimburse the Managers for, inter alia, the amount of such necessary travelling expenses (outside Monaco), seafarers interviewing costs, costs of telephone calls, communication, vessel's postage, freight and forwarding, warehousing, agency services and fees which are not included in budget and will be treated as contingency costs. For estimation purpose only and without guarantee, contingencies could amount to a 5% of annual total budget.
|
32.
|
Dry docking
|
34.1
|
To the extent already paid for by the Managers using funds specifically provided by the Owners for such a purpose, title to any goods, materials or supplies purchased by the Managers for use in the performance of this Agreement shall belong to the Owners.
|
34.2
|
Upon termination of this Agreement all such goods, materials or supplies in the hands of the Managers shall be delivered to the Vessel or if requested by the Owners the Managers shall sell or dispose of such goods, materials or supplies at such price, terms and conditions as may be approved by the Owners and remit the proceeds thereof less any expenses incurred in selling or disposing of such goods to an account of the Owners, to be advised separately in writing to the Managers.
|
36.
|
Slop and any other disposal ashore
|
37.
|
ISPS Code
|
37.1
|
The Manager shall comply with the requirements of the International Code for the Security of Ships and of Port Facilities and the relevant amendments to Chapter XI of SOLAS (ISPS Code) relating to the Vessel and “the Company” (as defined by the ISPS Code). If trading to or from the United States or passing through United States waters, in addition to ensure that the Vessel has been issued with a COFR, the Manager shall also comply with the requirements of the US Maritime
|
37.2
|
Where sub-chartering, the Owner shall ensure that the contact details of all sub-charterers are provided to the Managers and the Master. Furthermore, the Owners shall ensure that all charter parties entered into during the period of this Agreement contain the following provision:
|
37.3
|
Notwithstanding anything else contained in this Agreement all costs or expenses whatsoever arising out of or related to security regulations or measures required by the port facility or any relevant authority in accordance with the ISPS Code and/or the MTSA including, but not limited to, security guards, launch services, vessel escorts, security fees, waiting costs and associated expenses, taxes and inspections, shall be out of budget. All measures required by the Manager to comply with the Ship Security Plan shall be for the Manager’s account excluding costs associated with calls at non ISPS compliant port, facilities, installations, vessels or port, facilities, installations, vessels included in any relevant authority warning list (i.e. USCG Port Security Advisory) as applicable in which case Owners shall provide Managers with such additional funds as may be required.
|
38.
|
Additional Costs
|
39.
|
Provision of Information
|
40.
|
HSQEEn blanket approval clause
|
41.
|
Cabotage, storage and STS
|
42.
|
Payments
|
43.
|
Third Party Rights
|
43.1
|
Any person (other than parties to this Agreement) who is given any rights or benefits under Clauses 17(c) or 17(d) (a "Third Party") shall be entitled to enforce those rights or benefits against the parties in accordance with the Contracts (Rights of Third Parties) Act 1999.
|
43.2
|
Save as provided in Clause 43.1 above the operation of the Contracts (Rights of Third Parties) Act 1999 is hereby excluded.
|
43.3
|
The parties may amend vary or terminate this Agreement in such a way as may affect any rights or benefits of any Third Party which are directly enforceable against the parties under the Contracts (Rights of Third Parties) Act 1999 without the consent of any such Third Party.
|
43.4
|
Any Third Party entitled pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any rights or benefits conferred on it by this Agreement may not veto any amendment, variation or termination of this Agreement which is proposed by the parties and which may affect the rights or benefits of any such Third Party.
|
44.
|
Bunker Quality
|
44.1
|
The Owners or its agent shall provide that bunkers supplied comply with ISO 8217:2010 RMG 380, where available, or alternatively ISO 8217:2005(E) for heavy fuel and DMA for distillate, and comply with Marpol Annex VI reg 14 and 18 as amended. Where these standards are not available, the Owners or its agent shall submit to the Managers the specifications of the available fuels in order for the Managers to recommend an alternative course of action.
|
44.2
|
At the time of delivery of the Vessel the Owners or its agent shall place at the disposal of the Managers, the bunker delivery note(s) and any samples relating to the fuels existing on board. During the currency of the contract, the Owner or its agent shall ensure that bunker delivery notes are presented to the Vessel on the delivery of fuel(s) and that during bunkering representative samples of the fuel(s) supplied shall be taken at the Vessel's bunkering manifold and sealed in the presence of competent representatives of the fuel supplier and the Vessel as foreseen by Marpol.
|
44.3
|
Without prejudice to anything else contained in this contract, the Owners or its agent shall provide that fuel supplied is of such specifications and grades to permit the Vessel, at all times, to comply with any requirements (i.e. the maximum sulphur content) of any emission control zone when the Vessel is ordered to trade within that zone.
|
44.4
|
The Owners or its agent also warrant that any bunker suppliers, bunker craft operators and bunker surveyors used by the Owners or its agent to supply such fuels shall comply with Regulations 14 and 18 of MARPOL Annex VI as applicable, including the Guidelines in respect of sampling and the provision of bunker delivery notes.
|
44.5
|
Owners or its agent to provide that the quantity of the bunker kept on board is sufficient for the intended voyage plus a 20% margin. If the next voyage is less than 10 days, the minimum extra margin of bunker fuel is at least for 2 days of navigation. For vessel with a single boiler system, minimum 30 tons of distillate to be always kept on board. Commingling of bunker is not recommended. Managers not to be held responsible for any consequence of commingling.
|
44.6
|
In the event of a dispute with bunkers suppliers regarding the bunker's quality, the Managers will advise the Owners for their consideration/decision.
|
45.
|
War, war risk areas trading.
|
45.1
|
Managers will, upon the request of either the Owner or his agents, provide an assessment on the occasion the Vessel may be ordered to trade in any war, warlike area as defined by JWC, and any cost directly or indirectly incurred as a consequence of such an order will be out of budget and debited to the Owners as ‘contingency cost’.
|
45.2
|
For the purpose of this clause, the words war risk shall include any actual, threatened or reported war; act of war; civil war; hostilities; revolution; rebellion; civil commotion; warlike operations; laying of mines; acts of piracy; acts of terrorists; acts of hostility or malicious damage; blockades (whether imposed against all vessels or imposed selectively against vessels of certain flags or ownership, or against certain cargoes or crews or otherwise howsoever); by any person, body, terrorist or political group, or the Government of any state whatsoever, which, in the reasonable judgment of the Managers, may be dangerous or are likely to be or to become dangerous to the Vessel, her cargo, crew or other persons on board the Vessel.
|
46.
|
Ice trading.
|
47.
|
Sub-let.
|
48.
|
Entire Agreement
|
48.1
|
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement; and (in relation to such subject matter) supersedes all prior
|
48.2
|
Each of the parties acknowledges that it is not relying on any statements, warranties, representations or understandings (whether negligently or innocently made) given or made by or on behalf of the other in relation to the subject matter hereof and that it shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement. The only remedy available shall be for breach of contract under the terms of this Agreement. Nothing in this Clause shall, however, operate to limit or exclude any liability or fraud.
|
49.
|
Managers compliance with governing laws
|
For the Owners:
|
For the Managers:
|
(A)
|
Background:
|
(1)
|
The STNG SPVs being each of the existing wholly owned STNG subsidiaries (as set out in
Schedule 1
) (“
SPVs
”) as well as any future vessel owning subsidiaries wholly owned by STNG (“
Future SPVs
”) (the SPVs and Future SPVs jointly referred to as the “
STNG SPVs
”)
(i) control a number of vessels already on the water; (ii) will control vessels to be delivered from Hyundai Mipo Dockyard of South Korea or other shipyards; and (iii) may in the future control vessels purchased or chartered in from third parties (together the “
Vessels
”). References to “control” or “controlled” herein means owned or chartered.
|
(2)
|
A Master Agreement dated 24 January 2013 as amended by addendum number one effective 1 June 2013 and amended and restated effective as of 31 December 2014 has been entered into amongst others, ourselves, Scorpio Tankers Inc., Scorpio Tankers Inc., for and on behalf of existing and future wholly owned subsidiaries, Scorpio Ship Management S.A.M (“
SSM
”) and the Beneficiary, to govern the relationship of the aforementioned parties prior to delivery of any of the Vessels and the Management Agreements, as defined below, becoming effective (the “
Master
”).
|
(3)
|
The Vessels will following delivery be technically and commercially managed by SSM and the Beneficiary (respectively).
|
(B)
|
OPERATIVE PROVISIONS
|
1.
|
Payment Guarantee
|
2.
|
Liability Unconditional:
|
3.
|
Continuing guarantee
|
4.
|
Other security
|
5.
|
No set-off or counterclaim
|
6.
|
Assignment
|
7.
|
Notices and demands
|
8.
|
Law and Disputes
|
(A)
|
Background:
|
(1)
|
The STNG SPVs being each of the existing wholly owned STNG subsidiaries (as set out in
Schedule 1
) (“
SPVs
”) as well as any future vessel owning subsidiaries wholly owned by STNG (“
Future SPVs
”) (the SPVs and Future SPVs jointly referred to as the “
STNG SPVs
”)
(i) control a number of vessels already on the water; (ii) will control vessels to be delivered from Hyundai Mipo Dockyard of South Korea or other shipyards; and (iii) may in the future control vessels purchased or chartered in from third parties (together the “
Vessels
”). References to “control” or “controlled” herein means owned or chartered.
|
(2)
|
A Master Agreement dated 24 January 2013 as amended by addendum number one effective 1 June 2013 and amended and restated effective as of 31 December 2014 has been entered into amongst others, ourselves, Scorpio Tankers Inc., Scorpio Tankers Inc., for and on behalf of existing and future wholly owned subsidiaries, the Beneficiary and Scorpio Commercial Management S.A.M. (“
SCM
”), to govern the relationship of the aforementioned parties prior to delivery of any of the Vessels and the Management Agreements, as defined below, becoming effective (the “
Master
”).
|
(3)
|
The Vessels will following delivery be technically and commercially managed by the Beneficiary and SCM (respectively).
|
(B)
|
OPERATIVE PROVISIONS
|
1.
|
Payment Guarantee
|
2.
|
Liability Unconditional:
|
3.
|
Continuing guarantee
|
4.
|
Other security
|
5.
|
No set-off or counterclaim
|
6.
|
Assignment
|
7.
|
Notices and demands
|
8.
|
Law and Disputes
|
STI Wembley Shipping Company Limited
|
The Republic of The Marshall Islands
|
STI Westminster Shipping Company Limited
|
The Republic of The Marshall Islands
|
STI Winnie Shipping Company Limited
|
The Republic of The Marshall Islands
|
STI Yorkville Shipping Company Limited
|
The Republic of The Marshall Islands
|
Sting LLC
|
State of Delaware, United States of America
|
STNGR Singapore (Pte) Ltd
|
The Republic of Singapore
|
Date: March 16, 2017
|
|
/s/ Emanuele Lauro
|
|
Emanuele Lauro
|
Chief Executive Officer (Principal Executive Officer)
|
Date: March 16, 2017
|
|
/s/ Brian Lee
|
Brian Lee
|
Chief Financial Officer (Principal Financial Officer)
|
(1)
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
(2)
|
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the company.
|
Date: March 16, 2017
|
|
/s/ Emanuele Lauro
|
Emanuele Lauro
|
Chief Executive Officer (Principal Executive Officer)
|
(1)
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
(2)
|
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the company.
|
Date: March 16, 2017
|
|
/s/ Brian Lee
|
Brian Lee
|
Chief Financial Officer (Principal Financial Officer)
|
/s/ PricewaterhouseCoopers Audit
|
|
PricewaterhouseCoopers Audit
|
Monaco, Principality of Monaco
|
March 16, 2017
|