Exhibit 4.33
Execution
Dated 1 March 2024
UP TO $83,000,000 (AS MAY BE INCREASED BY UP TO $30,000,000)
REVOLVING FACILITIES
GRINDROD SHIPPING PTE. LTD.
as Borrower
GRINDROD SHIPPING HOLDINGS LTD.
as Corporate Guarantor
THE ENTITIES
listed in Schedule 1, Part A
as Existing Collateral Guarantors
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part B
as Lenders
and
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part B
as Hedge Counterparties
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL), SINGAPORE BRANCH
and others listed in Schedule 1, Part C
as Mandated Lead Arrangers
NORDEA BANK ABP, FILIAL I NORGE
as Bookrunner
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL), SINGAPORE BRANCH
and others listed in Schedule 1, Part D
as Coordinators
NORDEA BANK ABP, FILIAL I NORGE
as Facility Agent
and
NORDEA BANK ABP, FILIAL I NORGE
as Security Agent
FACILITIES AGREEMENT
relating to revolving credit facilities of up to $83,000,000
(as may be increased up to $30,000,000)
Index
Clause |
|
Page |
|
|
|
Section 1 Interpretation |
3 |
1 |
Definitions and Interpretation |
3 |
Section 2 The Facilities |
35 |
2 |
The Facilities |
35 |
3 |
Purpose |
36 |
4 |
Conditions of Utilisation |
36 |
Section 3 Utilisation |
39 |
5 |
Utilisation |
39 |
6 |
Establishment of Accordion Facility |
41 |
Section 4 Repayment, Prepayment and Cancellation |
48 |
7 |
Repayment |
48 |
8 |
Prepayment and Cancellation |
51 |
Section 5 Costs of Utilisation |
56 |
9 |
Interest |
56 |
10 |
Interest Periods |
59 |
11 |
Changes to the Calculation of Interest |
60 |
12 |
Fees |
63 |
Section 6 Additional Payment Obligations |
64 |
13 |
Tax Gross Up and Indemnities |
64 |
14 |
Increased Costs |
68 |
15 |
Other Indemnities |
70 |
16 |
Mitigation by the Finance Parties |
73 |
17 |
Costs and Expenses |
73 |
Section 7 Guarantee |
75 |
18 |
Guarantee and Indemnity |
75 |
Section 8 Representations, Undertakings and Events of Default |
79 |
19 |
Representations |
79 |
20 |
Information Undertakings |
86 |
21 |
Financial Covenants |
90 |
22 |
General Undertakings |
91 |
23 |
Insurance Undertakings |
98 |
24 |
General Ship Undertakings |
103 |
25 |
Anti-Boycott Regulations |
109 |
26 |
Security Cover |
109 |
27 |
Earnings Account and application of Earnings |
111 |
28 |
Events of Default |
111 |
Section 9 Changes to Parties |
116 |
29 |
Changes to the Lenders and Hedge Counterparties |
116 |
30 |
Changes to the Transaction Obligors |
121 |
Section 10 The Finance Parties |
126 |
31 |
The Facility Agent and the Arrangers |
126 |
32 |
The Security Agent |
136 |
33 |
Conduct of Business by the Finance Parties |
152 |
34 |
Sharing among the Finance Parties |
152 |
Section 11 Administration |
154 |
35 |
Payment Mechanics |
154 |
36 |
Set-Off |
158 |
37 |
Bail-In |
158 |
38 |
Notices |
159 |
39 |
Calculations and Certificates |
161 |
40 |
Partial Invalidity |
161 |
41 |
Remedies and Waivers |
162 |
42 |
Entire Agreement |
162 |
43 |
Settlement or Discharge Conditional |
162 |
44 |
Irrevocable Payment |
162 |
45 |
Amendments and Waivers |
162 |
46 |
Confidential Information |
167 |
47 |
Confidentiality of Funding Rates |
172 |
48 |
Counterparts |
173 |
49 |
The Subordinated Creditor and Subordinated Liabilities |
173 |
Section 12 Governing Law and Enforcement |
176 |
50 |
Governing Law |
176 |
51 |
Enforcement |
176 |
Schedules
Schedule 1 The Parties |
177 |
|
Part A The Obligors |
177 |
|
Part B The Lenders and Hedge Counterparties |
180 |
|
Part C The Arrangers |
182 |
|
Part D The Coordinators |
183 |
|
Part E The Servicing Parties |
184 |
Schedule 2 Conditions Precedent |
185 |
|
Part A Conditions Precedent to Initial Utilisation Request |
185 |
|
Part B Conditions Precedent to Utilisation |
187 |
|
Part C Conditions Subsequent |
190 |
Schedule 3 Utilisation Request |
192 |
Schedule 4 Form of Accession Deed |
193 |
Schedule 5 Form of Transfer Certificate |
196 |
Schedule 6 Form of Assignment Agreement |
198 |
Schedule 7 Form of Hedge Counterparty Accession Letter |
201 |
Schedule 8 Form of Compliance Certificate |
202 |
Schedule 9 Timetables |
203 |
Schedule 10 Form of Accordion Facility Notice |
204 |
Schedule 11 Existing Collateral Ships |
208 |
Schedule 12 Compounded Rate Terms |
209 |
Schedule 13 Daily Non-Cumulative Compounded RFR Rate |
212 |
Schedule 14 Cumulative Compounded RFR Rate |
214 |
Execution
Execution
THIS AGREEMENTis made on 1 March 2024
PARTIES
|
(1) |
GRINDROD SHIPPING PTE. LTD. (UEN 200407212K), a company incorporated in the Republic of Singapore whose registered office address is at 1 Temasek Avenue #10-02 Millenia Tower Singapore (039192) as borrower (the "Borrower"); |
|
(2) |
GRINDROD SHIPPING HOLDINGS LTD. (UEN 201731497H), a company incorporated in the Republic of Singapore whose registered office address is at 1 Temasek Avenue #10-02 Millenia Tower Singapore (039192) as guarantor (the "Corporate Guarantor"); |
|
(3) |
THE ENTITIES listed in Part A of Schedule 1 (The Parties), each a company incorporated in the Republic of Singapore whose registered office address is at 1 Temasek Avenue #10-02 Millenia Tower Singapore (039192) as existing collateral guarantors (the "Existing Collateral Guarantors"); |
|
(4) |
SKANDINAVISKA ENSKILDA BANKEN (AB) PUBL, SINGAPORE BRANCH and others listed in Schedule 1 (The Parties), Part C as mandated lead arrangers (the "Arrangers"); |
|
(5) |
NORDEA BANK ABP, FILIAL I NORGE, as bookrunner (the "Bookrunner"); |
|
(6) |
SKANDINAVISKA ENSKILDA BANKEN (AB) PUBL, SINGAPORE BRANCH and others listed in Schedule 1 (The Parties), Part D as coordinators (the "Coordinators"); |
|
(7) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the "Original Lenders"); |
|
(8) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as hedge counterparties (the "Original Hedge Counterparties"); |
|
(9) |
NORDEA BANK ABP, FILIAL I NORGE, acting in such capacity through its office at Essendropsgate 7, 0368 Oslo, Norway as agent for the other Finance Parties (the "Facility Agent"); and |
|
(10) |
NORDEA BANK ABP, FILIAL I NORGE, acting in such capacity through its office at Essendropsgate 7, 0368 Oslo, Norway as agent for the other Finance Parties (the "Security Agent"). |
BACKGROUND
|
(A) |
The Lenders have agreed to make available to the Borrower: |
|
(i) |
a reducing revolving credit facility in a principal amount not exceeding $83,000,000; and |
|
(ii) |
an optional reducing revolving accordion credit facility in a principal amount not exceeding $30,000,000 and which, when aggregated with the reducing revolving credit facility referred to in sub-paragraph (i) above, shall not exceed $113,000,000, |
in the case of the first Advance:
|
(i) |
to enable the Borrower to acquire 100% of the shares of the Existing Collateral Guarantors from IVS Bulk (the "Shares Acquisition"); |
in the case of each subsequent Advance (not being a Rollover Advance):
|
(ii) |
for the purpose of settling any balance purchase price payable by the Borrower in respect to the Shares Acquisition; |
|
(iii) |
for the purposes of financing or refinancing (including the provision of intercompany loans to direct wholly owned Subsidiaries of the Borrower who are or who become Collateral Guarantors) the purchase of the Existing Collateral Ships and/or the Additional Ships; |
|
(iv) |
to enable the Borrower to acquire 100% of the shares of any company who owns or will own an Additional Ship and who will become a Collateral Guarantor; and/or |
|
(v) |
general and working capital purposes. |
|
(B) |
The Hedge Counterparties may enter into interest rate swap transactions with the Borrower from time to time for the purpose of hedging the Borrower's exposure under this Agreement to interest rate fluctuations. |
OPERATIVE PROVISIONS
SECTION 1 INTERPRETATION
|
1 |
Definitions and Interpretation |
In this Agreement:
"2002 ISDA Master Agreement" means the 2002 Master Agreement as published by the International Swaps and Derivatives Association, Inc.
"Accession Deed" means a document substantially in the form set out in Schedule 4 (Form of Accession Deed).
"Accordion Facility" means any revolving facility that may be established and made available under this Agreement as described in Clause 6.1 (Establishment of Accordion Facility) and if more than one Accordion Facility Dates occurs such term shall mean the single reconstituted revolving facility referred to at paragraph (a) of Clause 7.3 (Reduction of the Accordion Facility).
"Accordion Facility Commitments" means in relation to a Lender which is an Accordion Facility Lender, the dollar amount set opposite its name under the heading "Accordion Facility Commitment" in the each Accordion Facility Notice, to the extent not cancelled, reduced or transferred by it under this Agreement.
"Accordion Facility Date" means, in relation to an Accordion Facility, the later of:
|
(a) |
the proposed Accordion Facility Date specified in the relevant Accordion Facility Notice; and |
|
(b) |
the date on which the Facility Agent executes the relevant Accordion Facility Notice. |
"Accordion Facility Finance Documents" means:
|
(a) |
each Accordion Facility Notice; |
|
(b) |
any Security Document; |
|
(c) |
any other document reasonably required by the Facility Agent (acting on the instructions of the Lenders) as a condition to the occurrence of any Accordion Facility Date; and |
|
(d) |
any other document designated as such by the Facility Agent and the Borrower. |
"Accordion Facility Lender" means any entity which is listed as such in the relevant Accordion Facility Notice.
"Accordion Facility Notice" means a notice substantially in the form set out in Schedule 10 (Form of Accordion Facility Notice).
"Accordion Reduction Date" means each date by which the Accordion Facility must be reduced set out in paragraph (a) of Clause 7.3 (Reduction of the Accordion Facility).
"Accordion Reduction Instalment" means each instalment for reduction of the Total Accordion Facility Commitments under the Accordion Facility referred to in paragraph (a) of Clause 7.3 (Reduction of the Accordion Facility) (as may be varied in accordance with Paragraph (b) of Clause 7.3 (Reduction of the Accordion Facility)).
"Accordion Ship" means an Additional Ship which may become subject to Security for an Advance under the Accordion Facility pursuant to this Agreement in accordance with Clause 30.4 (Additional Ships).
"Account Bank" means:
|
(a) |
Joh. Berenberg, Gossler & Co. KG, acting through its office at Neuer Jungfernstieg 20, 20354 Hamburg, Germany; or |
|
(b) |
any replacement bank or other financial institution as may be approved by the Facility Agent acting with the authorisation of the Majority Lenders. |
"Account Security" means a document creating Security over the Earnings Account in agreed form (and as amended and supplemented from time to time).
"Additional Business Day" means any day specified as such in the Compounded Rate Terms.
"Additional Hedge Counterparty" means a bank or financial institution which becomes a Hedge Counterparty in accordance with Clause 29.8 (Additional Hedge Counterparties).
"Additional Ship" has the meaning given to that term in Clause 30.4 (Additional Ships).
"Advance" means any Utilisation of a Reducing Revolving Facility or the Accordion Facility, in each case under this Agreement.
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
"Annex VI" means Annex VI of the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
"Approved Brokers" means any firm or firms of insurance brokers approved in writing by the Facility Agent, acting with the authorisation of the Majority Lenders.
"Approved Classification" means the classification in relation to that Ship approved in writing by the Facility Agent (acting with the authorisation of the Majority Lenders) with the relevant Approved Classification Society or the equivalent classification with another Approved Classification Society.
"Approved Classification Society" means, in relation to a Ship, DNV, Lloyds Register, American Bureau of Shipping, Bureau Veritas and Nippon Kaiji Kyokai or any other classification society approved in writing by the Facility Agent (acting with the authorisation of the Majority Lenders).
"Approved Commercial Manager" means the Borrower or any of its Affiliates or any other person approved in writing by the Facility Agent (acting with the authorisation of the Majority Lenders) as the commercial manager of a Ship.
"Approved Flag" means in relation to a Ship, the flag of (i) Hong Kong, (ii) the Isle of Man, (iii) Singapore, (iv) Panama, (v) Bermuda, (vi) the Marshall Islands, (vii) Cyprus, (viii) the United Kingdom or (ix) Liberia, or such other flag approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
"Approved Manager" means, in relation to a Ship, the relevant Approved Commercial Manager or the relevant Approved Technical Manager of that Ship.
"Approved Technical Manager" means Island View Shipping Services a division of Island View Ship Management Pte. Ltd., or any other person approved in writing by the Facility Agent (acting with the authorisation of the Majority Lenders) as the technical manager of a Ship.
"Approved Valuer" means Clarkson plc, Fearnleys AS, Hartland Shipping Services, Braemar Shipping Services plc, Simpson Spence & Young, Howe Robinson and Arrow Valuations Ltd (or any Affiliate of such person through which valuations are commonly issued) and any other firm or firms of independent sale and purchase shipbrokers approved in writing by the Facility Agent, acting with the authorisation of the Majority Lenders.
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
"Assignment Agreement" means an agreement substantially in the form set out in Schedule 6 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.
"Assumed Accordion Facility Commitment" has the meaning given to it in Clause 6.7 (Establishment of Accordion Facility).
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, legalisation or registration.
"Availability Period" means, in respect of a Facility, the period from and including the Closing Date or the first Accordion Facility Date (as the case may be) until the date which is one (1) Month prior to the Termination Date.
"Available Commitment" means, in relation to a Facility, at any relevant time, a Lender's Commitment under that Facility minus:
|
(a) |
the amount of its participation in the outstanding Advances under that Facility; and |
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any other Advance that is due to be made under that Facility on or before the proposed Utilisation Date. |
For the purposes of calculating a Lender's Available Commitment, that Lender's participation in any Advance that is due to be repaid or prepaid on or before the proposed Utilisation Date shall not be deducted from that Lender's Commitment.
"Available Facility" means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means:
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
|
(b) |
in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation; and |
|
(c) |
in relation to the United Kingdom, the UK Bail-In Legislation. |
"Break Costs" means:
(a) In respect of any Term Rate Loan, the amount (if any) by which:
|
(i) |
the interest (other than 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 that 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; |
exceeds
|
(ii) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period; and |
|
(b) |
in respect of any Compounded Rate Loan, any amount specified as such in the Compounded Rate Terms. |
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Oslo, New York, London, Stockholm and Singapore and, in relation to:
|
(a) |
the fixing of an interest rate in respect of a Term Rate Loan; |
|
(b) |
any date for payment or purchase of an amount relating to a Compounded Rate Loan; or |
|
(c) |
the determination of the first day or the last day of an Interest Period for a Compounded Rate Loan or otherwise in relation to the determination of the length of such an Interest Period, |
which is an Additional Business Day relating to that Term Rate Loan or Compounded Rate Loan (as the case may be).
"Central Bank Rate" has the meaning given to that term in the Compounded Rate Terms.
"Central Bank Rate Adjustment" has the meaning given to that term in the Compounded Rate Terms.
"Central Bank Rate Spread" has the meaning given to that term in the Compounded Rate Terms.
"Change of Control Event" means:
|
(a) |
if any person or group of persons acting in concert (other than TMI or any of its Subsidiaries) own or gain control, directly or indirectly, of more than 25 per cent. of the issued or allotted ordinary share capital or the voting rights in the Corporate Guarantor, unless such person or group of persons is acceptable to the Majority Lenders; and/or |
|
(b) |
TMI ceases to own and control, directly or indirectly, at least 75 per cent. of the issued or allotted ordinary share capital or voting rights in the Corporate Guarantor: and/or |
and, for the purpose of paragraph (a) of this definition:
"acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Corporate Guarantor by any of them, either directly or indirectly, to obtain or consolidate control of the Corporate Guarantor.
"Charter" means, in relation to a Ship, any charter relating to that Ship, or other contract for its employment, whether or not already in existence.
"Closing Date" means the date of this Agreement.
"Code" means the US Internal Revenue Code of 1986.
"Collateral Guarantors" means:
|
(a) |
the Existing Collateral Guarantors, each a wholly-owned (indirect) Subsidiary of the Corporate Guarantor (and to be a direct wholly-owned Subsidiary of the Borrower as at the First Utilisation Date) owning the Existing Collateral Ship set out against its name in Schedule 11 (Existing Collateral Ships); and |
|
(b) |
any wholly-owned (indirect) Subsidiary of the Corporate Guarantor (and to be a direct wholly-owned Subsidiary of the Borrower) which owns a Ship and which may become a Collateral Guarantor in accordance with Clause 30 (Changes to the Transaction Obligors), |
and "Collateral Guarantor" means any one of them.
"Commercial Management Agreement" means each commercial management agreement of a Ship entered into with an Approved Commercial Manager.
"Commitment" means a Reducing Revolving Commitment or an Accordion Facility Commitment.
"Compliance Certificate" means a certificate in the form set out in Schedule 8 (Form of Compliance Certificate) or in any other form agreed between the Borrower and the Facility Agent.
"Compounded Rate Interest Payment" means the aggregate amount of interest that:
|
(a) |
is, or is scheduled to become, payable under any Finance Document; and |
|
(b) |
relates to a Compounded Rate Loan. |
"Compounded Rate Loan" means the Loan, any part of the Loan or, if applicable, Unpaid Sum which is, or becomes, a "Compounded Rate Loan" pursuant to Clause 11.1 (Unavailability of Term SOFR).
"Compounded Rate Supplement" means a document which:
|
(a) |
is agreed in writing by the Borrower and the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions of the Lenders); |
|
(b) |
specifies the relevant terms which are expressed in this Agreement to be determined by reference to the Compounded Rate Terms; and |
|
(c) |
has been made available to the Borrower and each Finance Party. |
"Compounded Rate Terms" means the terms set out in Schedule 12 (Compounded Rate Terms) or in any Compounded Rate Supplement.
"Compounded Reference Rate" means, in relation to any RFR Banking Day during the Interest Period of a Compounded Rate Loan, the percentage rate per annum which is the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day.
"Compounding Methodology Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which:
|
(a) |
is agreed in writing by the Borrower, the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions of Lenders); |
|
(b) |
specifies a calculation methodology for that rate; and |
|
(c) |
has been made available to the Borrower and each Finance Party. |
"Confidential Information" means all information relating to any Transaction Obligor, any Approved Manager, the Group, the Finance Documents or all or any part of a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or all or any part of a Facility from either:
|
(a) |
any member of the Group or any of its advisers; or |
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, |
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:
|
(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 |
"Confidentiality Undertaking" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from time to time or in any other form agreed between the Borrower and the Facility Agent.
"Corresponding Debt" means any amount, other than any Parallel Debt, which an Obligor owes to a Secured Party under or in connection with the Finance Documents.
"Cumulative Compounded RFR Rate" means, in relation to an Interest Period for a Compounded Rate Loan, the percentage rate per annum determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent) in accordance with the methodology set out in Schedule 14 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.
"Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for a Compounded Rate Loan, the percentage rate per annum determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent) in accordance with the methodology set out in Schedule 13 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.
"Daily Rate" means the rate specified as such in the Compounded Rate Terms.
"Deed of Covenants" means, in relation to a Ship and, if applicable, for the Approved Flag of that Ship, the deed of covenants collateral to the Mortgage over that Ship and creating Security over that Ship, in agreed form.
"Default" means an Event of Default or a Potential Event of Default.
"Defaulting Lender" means any Lender:
|
(a) |
which has failed to make its participation in an Advance available (or has notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in an Advance available) by the Utilisation Date of that Advance in accordance with Clause 5.4 (Lenders' participation); |
|
(b) |
which has otherwise rescinded or repudiated a Finance Document; or |
|
(c) |
with respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by:
|
(A) |
administrative or technical error; or |
|
(B) |
a Disruption Event; and |
payment is made within 5 Business Days of its due date; or
|
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question. |
"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
"Disruption Event" means either or both of:
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (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 Transaction 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 Transaction Obligor preventing that, or any other, Party or, if applicable, any Transaction Obligor: |
|
(i) |
from performing its payment obligations under the Finance Documents; or |
|
(ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents, |
and which (in either such case) is not caused by, and is beyond the control of, the Party or, if applicable, any Transaction Obligor whose operations are disrupted.
"Document of Compliance" has the meaning given to it in the ISM Code.
"dollars" and "$" mean the lawful currency, for the time being, of the United States of America.
"Earnings" means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Collateral Guarantor or the Security Agent and which arise out of or in connection with or relate to the use or operation of that Ship, including (but not limited to):
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled or shared with any other person: |
|
(i) |
all freight, hire and passage moneys; |
|
(ii) |
the proceeds of the exercise of any lien on sub-freights; |
|
(iii) |
compensation payable to a Collateral Guarantor 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 Collateral Guarantor 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 person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship. |
"Earnings Account" means:
|
(a) |
account number 5-02658-008 in the name of the Borrower with the Account Bank; |
|
(b) |
any other account in the name of the 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. |
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Environmental Approval" means any present or future permit, ruling, variance or other Authorisation required under Environmental Law.
"Environmental Claim" means any claim by any governmental, judicial or regulatory authority or any other person which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim" includes a claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
"Environmental Incident" means:
|
(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, water, 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, water, land or soils (including the seabed) or surface water from a vessel other than any Ship and which involves a collision between any Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or |
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, 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 Transaction 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. |
"Environmental Law" means any present or future law relating to pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material.
"Environmentally Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"EU Bail-In Legislation Schedule" means the document described as such and published by the LMA from time to time.
"EU Blocking Regulation" means Council Regulation (EC) No 2271/1996 of 22 November 1996.
"EU Ship Recycling Regulation" means Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC.
"Event of Default" means any event or circumstance specified as such in Clause 28 (Events of Default).
"Existing Collateral Ships" means each of the ships set out in Schedule 11 (Existing Collateral Ships) and any Additional or Replacement Ship relating to the Reducing Revolving Facility.
"Existing Facility Agreement" means the facility agreement dated 10 February 2020 and made between, amongst others, (i) IVS Bulk and the Corporate Guarantor as joint and several Borrowers. (ii) the Existing Collateral Guarantors and others as joint and several guarantors, (iii) Credit Agricole Corporate and Investment Bank and Hamburg Commercial Bank AG as mandated lead arrangers and (iv) Credit Agricole Corporate and Investment Bank as facility agent, as amended, supplement, varied and restated from time to time including, without limitation, by an amending and restating agreement dated 10 September 2021 between, amongst others, the aforementioned parties and a further amending and restating agreement signed during June 2023 between, amongst others, the aforementioned parties.
"Existing Indebtedness" means, at any date, the outstanding Financial Indebtedness of the relevant Obligors (and any other person providing Security or acting as borrower in respect of or under the Existing Facility Agreement) on that date under the Existing Facility Agreement.
"Existing Security" means any Security created to secure the Existing Indebtedness.
"Facility" means the Reducing Revolving Facility or the Accordion Facility.
"Facility Office" means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
"Fallback Interest Period" means one Month.
"FATCA" means:
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations; |
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in 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. |
"FATCA Application Date" means:
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or |
|
(b) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA. |
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee Letters" any letter or letters dated on or about the date of this Agreement between the Agent and the Borrowers setting out any of the fees payable by the Borrower to any Finance Party in respect of the Facilities.
"Finance Document" means:
|
(c) |
each Utilisation Request; |
|
(d) |
any Compounded Rate Supplement; |
|
(e) |
any Compounding Methodology Supplement; |
|
(f) |
any Security Document; |
|
(g) |
any Accordion Facility Finance Documents; |
|
(h) |
any Hedging Agreement; |
|
(i) |
any Manager's Undertaking; |
|
(j) |
any Subordination Agreement; |
|
(k) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or |
|
(l) |
any other document designated as such by the Facility Agent and the Borrower. |
"Finance Party" means the Facility Agent, the Security Agent, the Bookrunner, the Coordinators, an Arranger, a Lender or a Hedge Counterparty.
"Financial Indebtedness" means any indebtedness for or in relation to:
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with IFRS, be treated as a balance sheet liability; |
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing; |
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account); |
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and |
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above. |
"First Utilisation Date" means the first Utilisation Date in respect of the Reducing Revolving Facility, such date to occur no later than 31 March 2024 or such later date approved in writing by the Facility Agent (acting with the authorisation of the Lenders).
"Funding Rate" means any individual rate notified by a Lender to the Facility Agent pursuant to sub-paragraph (ii) of paragraph (a) of Clause 11.3 (Cost of funds).
"General Assignment" means, in relation to a Ship, the general assignment creating Security over that Ship's Earnings, its Insurances, any Charter for that Ship with a contract term exceeding 36 Months (including any option periods if exercised) and any Requisition Compensation in relation to that Ship, in agreed form (and as amended and supplemented from time to time).
"Group" means the Corporate Guarantor and its Subsidiaries for the time being.
"Guarantor" means the Corporate Guarantor and each Collateral Guarantor.
"Hedge Counterparty" means any Original Hedge Counterparty or any Additional Hedge Counterparty.
"Hedge Counterparty Accession Letter" means a document substantially in the form set out in Schedule 7 (Form of Hedge Counterparty Accession Letter).
"Hedging Agreement" means any ISDA Master Agreement, confirmation, transaction, schedule or other agreement in agreed form entered into or to be entered into by the Borrower with a Hedge Counterparty for the purpose of hedging interest payable under this Agreement.
"Hedging Agreement Security" means, in relation to a Hedging Agreement, a document creating a Security over the Borrower's rights and benefits under that Hedging Agreement in agreed form.
"Holding Company" means, in relation to a person, any other person in relation to which it is a Subsidiary.
"IFRS" means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
"Indemnified Person" has the meaning given to it in Clause 15.2 (Other indemnities).
"Insolvency Event" in relation to an entity means that the entity:
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
|
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official; |
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and: |
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or |
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; |
|
(f) |
has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009; |
|
(g) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
|
(h) |
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 paragraph (d) above); |
|
(i) |
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; |
|
(j) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or |
|
(k) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. |
"Insurances" means, in relation to a Ship:
|
(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. |
"Interest Payment Date" has the meaning given to it in paragraph (a) of Clause 9.3 (Payment of interest).
"Interest Period" means, in relation to the Loan or any part of the Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.4 (Default interest).
"Interpolated Term SOFR" means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:
|
(i) |
the applicable Term SOFR (as of the Specified Time) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Term Rate Loan; or |
|
(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of that Term Rate Loan, the RFR for the day which is two Additional Business Days before the Quotation Day; and |
|
(b) |
the applicable Term SOFR (as of the Specified Time) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Term Rate Loan. |
"Inventory of Hazardous Material" means a statement of compliance issued by the relevant classification society/shipyard which includes a list of any and all materials known to be potentially hazardous utilised in the construction of that Ship.
"ISDA Master Agreement" means a 2002 ISDA Master Agreement.
"ISM Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (including the guidelines on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to time.
"ISPS Code" means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organization's (IMO) Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"ISSC" means an International Ship Security Certificate issued under the ISPS Code.
"IVS Bulk" means IVS Bulk Pte. Ltd., a company incorporated in the Republic of Singapore with UEN 2011143067 whose registered office address is at 1 Temasek Avenue #10-02 Millenia Tower Singapore (039192).
"Legal Reservations" means:
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors; |
|
(b) |
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim; |
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction; and |
|
(d) |
any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation). |
"Lender" means:
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender" in accordance with Clause 6 (Establishment of Accordion Facility) or Clause 29 (Changes to the Lenders and Hedge Counterparties), |
which in each case has not ceased to be a Party as such in accordance with this Agreement.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
"LMA" means the Loan Market Association or any successor organisation.
"Loan" means the aggregate amount of Advances to be made available under the Facilities or the aggregate principal amount outstanding for the time being of the borrowings under the Facilities and a "part of the Loan" means an Advance or any other part of the Loan as the context may require.
"Lookback Period" means the number of days specified as such in the Compounded Rate Terms.
"Major Casualty" means, in relation to a Ship, any casualty to that Ship in relation to which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $1,500,000 or the equivalent in any other currency.
"Majority Lenders" means:
|
(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 (i) participations in the Loan and (ii) each Available Commitment aggregate more than 66⅔ per cent. of the aggregate amount of (i) the Loan then outstanding and (ii) each Available Facility or, if the Loan has been repaid or prepaid in full and there is no Available Facility, a Lender or Lenders whose (i) participations in the Loan and (ii) each Available Commitment immediately before repayment or prepayment in full of the Loan (or, if later, the cancellation of all Commitments) aggregate more than 66⅔ per cent. of the aggregate amount of (i) the Loan and (ii) each Available Facility immediately before such repayment or prepayment (or, if later, such cancellation). |
"Management Agreement" means each Technical Management Agreement or each Commercial Management Agreement.
"Manager's Undertaking" means, in relation to a Ship, the letter of undertaking from its Approved Technical Manager and the letter of undertaking from its Approved Commercial Manager subordinating the rights of such Approved Technical Manager and such Approved Commercial Manager respectively against that Ship and each relevant Obligor to the rights of the Finance Parties, in agreed form.
"Margin" means 2.65 per cent. per annum.
"Market Disruption Rate" means:
|
(a) |
in relation to any Term Rate Loan, the Term SOFR Reference Rate; and |
|
(b) |
in relation to any Compounded Rate Loan, the rate specified as such in the Compounded Rate Terms. |
"Market Value" means, in relation to a Ship or any other vessel, at any date, the market value of that Ship shown by the arithmetic average of 2 valuations each prepared:
|
(a) |
by an Approved Valuer appointed by the Borrower; |
|
(b) |
with or without physical inspection of that Ship or vessel (as the Facility Agent may require); and |
|
(c) |
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. |
"Material Adverse Effect" means in the reasonable opinion of the Majority Lenders a material adverse effect on:
|
(a) |
the business, operations, property or financial condition of any member of the Group or the Group as a whole; or |
|
(b) |
the ability of any Obligor to perform its payment 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. |
"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
|
(a) |
Other than where paragraph (b) applies: |
|
(i) |
(subject to sub-paragraph (iii) 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; |
|
(ii) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; |
|
(iii) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end; and |
|
(b) |
in relation to an Interest Period for any Compounded Rate Loan (or any other period for the accrual of commission or fees while interest is calculated on the basis of the Compounded Reference Rate) for which there are rules specified as "Business Day Conventions" in the Compounded Rate Terms, those rules shall apply. |
The above rules will only apply to the last Month of any period.
"Mortgage" means, in relation to a Ship:
|
(a) |
a first priority mortgage on that Ship together with a collateral Deed of Covenants; or |
|
(b) |
a first preferred ship mortgage on that Ship, |
in each case in agreed form.
"Obligor" means the Borrower, a Collateral Guarantor or the Corporate Guarantor.
"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement.
"Other Group Member" means each member of the Group excluding each Obligor.
"Outgoing Ship" has the meaning given to it in Clause 30.5 (Replacement Ships).
"Overseas Regulations" means the Overseas Companies Regulations 2009 (SI 2009/1801).
"Parallel Debt" means any amount which an Obligor owes to the Security Agent under Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) or under that clause as incorporated by reference or in full in any other Finance Document.
"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
"Party" means a party to this Agreement.
"Perfection Requirements" means the making or procuring of filings, stampings, registrations, notarisations, endorsements, translations and/or notifications of any Finance Document (and/or any Security created under it) necessary for the validity, enforceability (as against the relevant Obligor or any relevant third party) and/or perfection of that Finance Document.
"Permitted Charter" means, in relation to a Ship, a Charter:
|
(a) |
which is a time, voyage or consecutive voyage charter; |
|
(b) |
the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 36 months plus a redelivery allowance of not more than 30 days; |
|
(c) |
which is entered into on bona fide arm's length terms at the time at which that Ship is fixed; and |
|
(d) |
in relation to which not more than two months' hire is payable in advance, |
and any other Charter which is approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
"Permitted Financial Indebtedness" means:
|
(a) |
any Financial Indebtedness incurred under the Finance Documents; |
|
(b) |
until the First Utilisation Date, the Existing Indebtedness; and |
|
(c) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents pursuant to this Agreement or a Subordination Agreement. |
"Permitted Security" means:
|
(a) |
Security created by the Finance Documents; |
|
(b) |
until the First Utilisation Date, the Existing Security; |
|
(c) |
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice and not being enforced through arrest; |
|
(e) |
liens for master's disbursements incurred in the ordinary course of trading in accordance with first class ship ownership and management practice and not being enforced through arrest; and |
|
(f) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship: |
|
(i) |
not as a result of any default or omission by any Obligor; |
|
(ii) |
not being enforced through arrest; and |
|
(iii) |
subject, in the case of liens for repair or maintenance, to Clause 24.16 (Restrictions on chartering, appointment of managers etc.), |
provided such lien does not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps and for the payment of which adequate reserves are held and provided further that such proceedings do not give rise to a material risk of the relevant Ship or any interest in it being seized, sold, forfeited or lost).
"Poseidon Principles" means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
"Potential Event of Default" means any event or circumstance specified in Clause 28 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
"Protected Party" has the meaning given to it in Clause 13.1 (Definitions).
"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two Additional Business Days before the first day of that period unless market practice differs in the relevant syndicated loan market in which case the Quotation Day will be determined by the Facility Agent in accordance with that market practice (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).
"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Security Assets.
"Reducing Revolving Commitment" means:
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Reducing Revolving Commitment" in Part B of Schedule 1 (The Parties) and the amount of any other Reducing Revolving Commitment transferred to it under this Agreement; and |
|
(b) |
in relation to any other Lender, the amount of any Reducing Revolving Commitment transferred to it under this Agreement, |
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Reducing Revolving Facility" means the reducing revolving credit facility made available under this Agreement and as described in Clause 2 (The Facilities).
"Reducing Revolving Reduction Date" means each date by which the Reducing Revolving Facility must be reduced set out in paragraph (a) of Clause 7.2 (Reduction of the Reducing Revolving Facility).
"Reducing Revolving Reduction Instalment" means each instalment for reduction of the Advances under the Reducing Revolving Facility referred to in paragraph (a) of Clause 7.2 (Reduction of the Reducing Revolving Facility).
"Reduction Date" means an Accordion Reduction Date or a Reducing Revolving Reduction Date.
"Reduction Instalment" means an Accordion Reduction Instalment or a Reducing Revolving Reduction Instalment.
"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
"Release Ship Notice" means any notice served by the Borrower on the Facility Agent under paragraph (a)(i) of Clause 30.6 (Release of a Ship and Collateral Guarantor).
"Release Ship" means a Ship the subject of a Release Ship Notice.
"Relevant Jurisdiction" means, in relation to a Transaction Obligor:
|
(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. |
"Relevant Market" means the market for overnight cash borrowing collateralised by US Government securities.
"Repeating Representation" means each of the representations set out in Clause 19 (Representations) except Clause 19.11 (No filing or stamp taxes), Clause 19.12 (Deduction of Tax), Clause 19.29 (Good title to assets), Clause 19.30 (Ownership), Clause 19.31 (Centre of main interests and establishments) and Clause 19.37 (No immunity) and any representation of any Transaction Obligor made in any other Finance Document that is expressed to be a "Repeating Representation" or is otherwise expressed to be repeated.
"Replacement Ship" has the meaning given to that term in Clause 30.5 (Replacement Ships).
"Reporting Day" means the day specified as such in the Compounded Rate Terms.
"Reporting Time" means the relevant time (if any) specified as such in the Compounded Rate Terms.
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Requisition" means, in relation to a Ship:
|
(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. |
"Requisition Compensation" includes all compensation or other moneys payable to a Collateral Guarantor by reason of any Requisition or any arrest or detention of a Ship in the exercise or purported exercise of any lien or claim.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"Restricted Party" means a person that is:
|
(a) |
listed on any Sanctions List or otherwise the target of any sanctions administered or enforced by a Sanctions Authority (whether designated by name or by reason of being included in a class of persons or entities); |
|
(b) |
domiciled, incorporated, located, organised or resident in a country or territory that is the target of Sanctions that broadly prohibit dealings with that country or territory (currently including without limitation, at the date of this Agreement, Cuba, Iran, North Korea, Syria, Crimea and the Donetsk, Luhansk, Zaporizhzhia and Kherson regions of Ukraine); or |
|
(c) |
directly or indirectly owned or controlled by, or acting on behalf of, at the direction or for the benefit of (all as interpreted under any relevant Sanctions) a person referred to in (a) or (b). |
"RFR" means the rate specified as such in the Compounded Rate Terms.
"RFR Banking Day" means any day specified as such in the Compounded Rate Terms.
"Rollover Advance" means one or more Advances under a Facility:
|
(a) |
made or to be made on the same day that a maturing Advance under that Facility is due to be repaid; |
|
(b) |
the aggregate amount of which is equal to or less than the amount of the maturing Advance under that Facility; and |
|
(c) |
made or to be made for the purpose of refinancing that maturing Advance under the that Facility. |
"Safety Management Certificate" has the meaning given to it in the ISM Code.
"Safety Management System" has the meaning given to it in the ISM Code.
"Sanctions" means the economic or financial sanctions enacted, administered or enforced by any Sanctions Authority.
"Sanctions Authority" means the European Union, the Norwegian State, the Kingdom of Sweden, the United Nations, the United States of America, the United Kingdom, the States of Guernsey, the Monetary Authority of Singapore and the Hong Kong Monetary Authority and any authority, official institution or agency acting on behalf of any of them in connection with Sanctions.
"Sanctions Event" means:
|
(a) |
a breach by a Sanctions Relevant Person of any obligations under Clauses 24.9 (Compliance with laws), 24.11 (Sanctions and Ship trading) and 24.12 (Use of Proceeds); |
|
(b) |
a breach by a Sanctions Relevant Person of any representations under Clause 19.34 (Sanctions); or |
|
(c) |
any Sanctions Relevant Person is or becomes a Restricted Party. |
"Sanctions List" means:
|
(a) |
any list of Sanctions designations and/or targets maintained by any Sanctions Authority; and/or |
|
(b) |
any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, |
in all cases, as amended, supplemented or replaced from time to time.
"Sanctions Relevant Person" means:
|
(a) |
the Transaction Obligors, any Subsidiary of a Transaction Obligor and any other member of the TMI Group; |
|
(b) |
the Approved Managers; |
|
(d) |
each (in (a) and (b) above) of their respective directors, officers, employees, joint ventures, affiliates, agents and representatives. |
"Secured Liabilities" means all present and future obligations and liabilities, (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) of each Transaction Obligor to any Secured Party under or in connection with each Finance Document.
"Secured Party" means each Finance Party from time to time party to this Agreement, a Receiver and any Delegate.
"Security" means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.
"Security Assets" means all of the assets of the Transaction Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Security Document" means:
|
(c) |
any General Assignment; |
|
(d) |
any Account Security; |
|
(e) |
any Hedging Agreement Security; |
|
(f) |
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or |
|
(g) |
any other document designated as such by the Facility Agent and the Borrower. |
"Security Period" means the period starting on the date of this Agreement and ending on the date on which the Facility Agent is satisfied that there is no outstanding Commitment in force and that the Secured Liabilities have been irrevocably and unconditionally paid and discharged in full.
"Security Property" means:
|
(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 a Transaction 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 a Transaction 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, |
except:
|
(i) |
rights intended for the sole benefit of the Security Agent; and |
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement. |
"Separate Advance" has the meaning given to it in paragraph (d) of Clause 7.1 (Repayment of Advances under a Facility).
"Servicing Party" means the Facility Agent or the Security Agent.
"Shares Security" means, in relation to a Collateral Guarantor, a document creating Security over the shares in that Collateral Guarantor in agreed form.
"Ship Criteria" means, in respect of any Additional Ship or Replacement Ship, that that Additional Ship or Replacement Ship:
|
(a) |
is registered in the ownership of the relevant Collateral Guarantor on an Approved Flag and classed with an Approved Classification Society; |
|
(b) |
is a drybulk ship between 28,000 and 65,000 dwt; and |
|
(c) |
is not older than 13 years of age and, in case of a Replacement Ship, is not older than the Outgoing Ship. |
"Ships" means:
|
(a) |
the Existing Collateral Ships; |
|
(b) |
any Additional Ship; and |
|
(c) |
any Replacement Ship, |
and "Ship" means any one of them.
"Specified Time" means a day or time determined in accordance with Schedule 9 (Timetables).
"Statement of Compliance" means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
"Subordinated Creditor" means any person who becomes a Subordinated Creditor in accordance with this Agreement.
"Subordinated Finance Document" means:
|
(a) |
a Subordinated Loan Agreement; and |
|
(b) |
any other document relating to or evidencing Subordinated Liabilities. |
"Subordinated Liabilities" means all indebtedness owed or expressed to be owed by (i) any Collateral Guarantor to a Subordinated Creditor or another Obligor or (ii) the Borrower or the Corporate Guarantor to any Collateral Guarantor whether under the Subordinated Finance Documents or otherwise.
"Subordinated Loan Agreement" means any loan agreement made or to be made between (i) an Obligor and another Obligor or (ii) a Collateral Guarantor and a Subordinated Creditor.
"Subordination Agreement" means a subordination agreement entered into or to be entered into by a Subordinated Creditor, a Collateral Guarantor and the Security Agent in agreed form.
"Subsidiary" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Tax Credit" has the meaning given to it in Clause 13.1 (Definitions).
"Tax Deduction" has the meaning given to it in Clause 13.1 (Definitions).
"Tax Payment" has the meaning given to it in Clause 13.1 (Definitions).
"Technical Management Agreement" means each technical management agreement of a Ship entered into with an Approved Technical Manager.
"Termination Date" means the earlier of (i) 31 March 2027 and (ii) the date falling thirty six (36) Months after the First Utilisation Date.
"Term Rate Loan" means the Loan, part of the Loan or, if applicable, Unpaid Sum to the extent that it is not, or has not become, a "Compounded Rate Loan" for its then current interest Period pursuant to Clause 11.1 (Unavailability of Term SOFR).
"Term SOFR" means the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).
"Term SOFR Reference Rate" means, in relation to a Term Rate Loan:
|
(a) |
the applicable Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of that Term Rate Loan; or |
|
(b) |
as otherwise determined pursuant to paragraph (a) or (b) of Clause 11.1 (Unavailability of Term SOFR), |
and if, in either case, that rate is less than zero, the Term SOFR Reference Rate shall be deemed to be zero.
"Third Parties Act" has the meaning given to it in Clause 1.5 (Third party rights).
"TMI" means Taylor Maritime Investments, a company incorporated in Guernsey with registered number 69031 whose registered office is at Sarnia House, Le Truchot, St Peter Port, Guernsey GY1 1GR.
"TMI Group" means TMI and its Subsidiaries for the time being.
"Total Accordion Facility Commitments" means the aggregate of the Accordion Facility Commitments, being $0 at the date of this Agreement which may be increased to $30,000,000 pursuant to the terms of this Agreement.
"Total Commitments" means the aggregate of the Total Reducing Revolving Commitments and the Total Accordion Facility Commitments, being $83,000,000 at the date of this Agreement and which may be increased to $113,000,000 pursuant to the terms of this Agreement.
"Total Reducing Revolving Commitments" means the aggregate of the Reducing Revolving Commitments, being $83,000,000 at the Closing Date.
"Total Loss" means, in relation to a Ship:
|
(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 Collateral Guarantor within 30 days of such Requisition. |
"Total Loss Date" means, in relation to the Total Loss of a 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 earlier of: |
|
(i) |
the date on which a notice of abandonment is given (or deemed or agreed to be given) to the insurers; and |
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Collateral Guarantor 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. |
"Transaction Document" means:
|
(b) |
a Subordinated Finance Document; |
|
(c) |
any other document designated as such by the Facility Agent and the Borrower. |
"Transaction Obligor" means an Obligor, any Approved Manager who is a member of the Group or any other member of the Group who executes a Transaction Document.
"Transaction Security" means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Borrower.
"Transfer Date" means, in relation to an assignment or a transfer, the later of:
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and |
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate. |
"UK Bail-In Legislation" means Part 1 of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
"UK Establishment" means a UK establishment as defined in the Overseas Regulations.
"Unpaid Sum" means any sum due and payable but unpaid by a Transaction Obligor under the Finance Documents.
"US" means the United States of America.
"US Tax Obligor" means:
|
(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. |
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Advance is to be made.
"Utilisation Request" means a notice substantially in the form set out in Schedule 3 (Utilisation Request).
"VAT" means:
|
(a) |
any value added tax imposed by the Value Added Tax Act 1994; |
|
(b) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and |
|
(c) |
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. |
"Write-down and Conversion Powers" means:
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
|
(b) |
in relation to any other applicable Bail-In Legislation other than the UK 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; and |
|
(c) |
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers. |
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to: |
|
(i) |
the "Account Bank", the "Arrangers", the "Facility Agent", the "Coordinators", the "Bookrunner", any "Finance Party", any "Hedge Counterparty", any "Lender", any "Obligor", any "Party", any "Secured 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, fax, email 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 Lender's "cost of funds" in relation to its participation in the Loan or any part of the Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in the Loan or that part of the Loan for a period equal in length to the Interest Period of the Loan or that part of the Loan; |
|
(vii) |
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, replaced, novated, supplemented, extended or restated; |
|
(viii) |
a "group of Lenders" includes all the Lenders; |
|
(ix) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
|
(x) |
"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; |
|
(xi) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure; |
|
(xii) |
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); |
|
(xiii) |
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; |
|
(xiv) |
a provision of law is a reference to that provision as amended or re-enacted from time to time; |
|
(xv) |
a time of day is a reference to Oslo time; |
|
(xvi) |
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; |
|
(xvii) |
words denoting the singular number shall include the plural and vice versa; and |
|
(xviii) |
"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) |
Any Compounded Rate Supplement overrides anything in: |
|
(i) |
Schedule 12 (Compounded Rate Terms); or |
|
(ii) |
any earlier Compounded Rate Supplement. |
|
(f) |
A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in: |
|
(i) |
Schedule 13 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 14 (Cumulative Compounded RFR Rate), as the case may be; or |
|
(ii) |
any earlier Compounding Methodology Supplement. |
|
(g) |
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived. |
|
1.3 |
Construction of insurance terms |
In this Agreement:
"approved" means, for the purposes of Clause 23 (Insurance Undertakings), approved in writing by the Facility Agent.
"excess risks" means, in respect of a Ship, the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of that Ship in consequence of its insured value being less than the value at which that Ship is assessed for the purpose of such claims.
"obligatory insurances" means all insurances effected, or which any Collateral Guarantor is obliged to effect, under Clause 23 (Insurance Undertakings) or any other provision of this Agreement or of another Finance Document.
"policy" includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms.
"protection and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 6 of the International Hull Clauses (1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision.
"war risks" includes the risk of mines and all risks excluded by clauses 29, 30 or 31 of the International Hull Clauses (1/11/02), clauses 29 or 30 of the International Hull Clauses (1/11/03), clauses 24, 25 or 26 of the Institute Time Clauses (Hulls) (1/11/95) or clauses 23, 24 or 25 of the Institute Time Clauses (Hulls) (1/10/83) or any equivalent provision.
|
1.4 |
Agreed forms of Finance Documents |
References in Clause 1.1 (Definitions) to any Finance Document being in "agreed form" are to that Finance Document:
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by 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 authorisation of the Majority Lenders or, where Clause 45.2 (All Lender matters) applies, all the Lenders. |
|
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement. |
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
|
(c) |
Any Receiver, Delegate, Affiliate or any other person described in paragraph (d) of Clause 15.2 (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. |
SECTION 2 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available to the Borrower:
|
(a) |
a reducing dollar revolving credit facility in an aggregate amount not exceeding the Total Reducing Revolving Commitments; and |
|
(b) |
up to two optional reducing dollar accordion revolving credit facilities in an aggregate amount not exceeding the Total Accordion Facility Commitments. |
|
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 specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents. |
|
(a) |
The Corporate Guarantor and the Existing Collateral Guarantors by its execution of this Agreement and each Collateral Guarantor (not including the Existing Collateral Guarantors) by its execution of an Accession Deed irrevocably appoints the Borrower to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises: |
|
(i) |
the Borrower on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Guarantor notwithstanding that they may affect that Guarantor, without further reference to or the consent of that l Guarantor; and |
|
(ii) |
each Finance Party to give any notice, demand or other communication to that Guarantor pursuant to the Finance Documents to the Borrower, |
and in each case each Guarantor shall be bound as though that Guarantor itself had given the notices and instructions or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
|
(b) |
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Borrower or given to the Borrower under any Finance Document on behalf of a Guarantor or in connection with any Finance Document (whether or not known to any Guarantor) shall be binding for all purposes on that Guarantor as if that Guarantor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Borrower and any Guarantor, those of the Borrower shall prevail. |
Subject to the terms of this Agreement, before the end of the Availability Period in respect of an Accordion Facility, the Borrower may utilise the Available Commitment in respect of that Accordion Facility provided that:
|
(a) |
the Borrower has complied with Clause 6 (Establishment of an Accordion Facility) in respect to that Accordion Facility; |
|
(b) |
the relevant Collateral Guarantor accedes to this Agreement in accordance with Clause 30.3 (Collateral Guarantors); |
|
(c) |
the Accordion Ship owned by that Collateral Guarantor satisfies the Ship Criteria in respect of an Additional Ship and becomes an Additional Ship in accordance with Clause 30.4 (Additional Ships) or, if relevant, Clause 30.5 (Replacement Ships); |
|
(d) |
no Default has occurred and is continuing; and |
|
(e) |
the relevant conditions precedent referred to in Clause 4.2 (Further conditions precedent) in relation to that Collateral Guarantor and that Accordion Ship have been satisfied. |
The Borrower shall apply all amounts borrowed by it under the Facilities only for the relevant purposes stated in paragraph (A) of the preamble (Background) to this Agreement.
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
|
4 |
CONDITIONS OF UTILISATION |
|
4.1 |
Initial conditions precedent |
The Borrower may not deliver a Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part A of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent.
|
4.2 |
Further conditions precedent |
The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if:
|
(a) |
on the date of each Utilisation Request (except in relation to a Rollover Advance) and on the proposed Utilisation Date and before the Advance is made available: |
|
(i) |
in the case of a Rollover Advance, no Event of Default is continuing or would result from the proposed Advance, and in the case of any other Advance, no Default is continuing or would result from the proposed Advance; |
|
(ii) |
the Repeating Representations to be made by each Obligor are true in all material respects; |
|
(iii) |
no Sanctions Event is continuing or would result from the proposed Advance; |
|
(iv) |
the Group is in compliance with Clause 21 (Financial Covenants) determined by reference to the most recent financial statements delivered to the Facility Agent pursuant to Clause 20.2 (Financial statements); |
|
(v) |
other than in case of a Rollover Advance, no Change of Control Event has occurred; |
|
(vi) |
since the Borrower's date of incorporation, no circumstance shall have occurred (and neither the Facility Agent nor any of the Lenders shall have become aware of any condition or circumstance not previously known to them) in respect of the Borrower which either the Facility Agent or the Lenders determine has, or is reasonably likely to have, a Material Adverse Effect; and |
|
(vii) |
other than in case of a Rollover Advance, no Ship in respect of which such Advance is to be made has either been sold or become a Total Loss; and |
|
(b) |
in the case of the first Advance and each subsequent Advance under a Facility (not being a Rollover Advance), 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) applicable to that Advance (including, without limitation, relevant to the applicable Ship or Ships and Collateral Guarantor or Collateral Guarantors) 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 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 |
If the Majority Lenders, at their discretion, permit an Advance to be borrowed before any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) or Clause 4.2 (Further conditions precedent) has been satisfied, the Borrower shall ensure that that condition is satisfied within five Business Days after the relevant Utilisation Date or such later date as the Facility Agent, acting with the authorisation of the Majority Lenders, may agree in writing with the Borrower.
|
4.5 |
Conditions subsequent |
In the case of the first Advance and each subsequent Advance under a Facility (not being a Rollover Advance) or following the implementation of any action contemplated by Clause 30.3 (Collateral Guarantors), Clause 30.4 (Additional Ships) and Clause 30.5 (Replacement Ships), the Borrower undertakes to deliver or cause to be delivered to the Facility Agent within the time limits set out in Part C of Schedule 2 (Conditions Precedent) the additional documents and other evidence listed therein applicable to that Advance or action (including, without limitation, relevant to the applicable Ship or Ships and Collateral Guarantor or Collateral Guarantors) in form and substance satisfactory to the Facility Agent.
SECTION 3 UTILISATION
|
5.1 |
Delivery of a Utilisation Request |
|
(a) |
Subject to Paragraph (d) below, the Borrower may utilise the Facilities by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time. |
|
(b) |
The first Advance must be on or before 31 March 2024. |
|
(c) |
The Borrower may not deliver a Utilisation Request if, as a result of the proposed Utilisation, more than eight (8) Advances in aggregate with different Interest Periods in total would have been made under the Reducing Revolving Facility and the Accordion Facility and still be outstanding. |
|
(d) |
No Utilisation Request is required for a Rollover Advance. Subject to the Facility Agent not receiving contrary instructions from the Borrower no later than five (5) Business Days before the end of the Interest Period of an Advance being refinanced by a Rollover Advance and without prejudice to the terms of Clause 4.2 (Further conditions precedent), that Rollover Advance will be automatically made available on the terms set out in paragraph (c) of Clause 7.1 (Repayment of Advances under a Facility) in the amount of the maturing Advance (or if less the amount of the relevant Available Facility). |
|
5.2 |
Completion of a Utilisation Request |
|
(a) |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
|
(i) |
it identifies the Facility to be utilised; |
|
(ii) |
the proposed Utilisation Date is a Business Day within the relevant Availability Period; |
|
(iii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); |
|
(iv) |
all applicable deductible items have been completed; and |
|
(v) |
the proposed Interest Period complies with Clause 10 (Interest Periods). |
|
(b) |
Only one Advance may be requested in each Utilisation Request. |
|
(a) |
The currency specified in a Utilisation Request must be dollars. |
|
(b) |
the proposed Utilisation (not being a Rollover Advance) must be an amount which does not result in the amount outstanding under the relevant Facility being more than |
|
(i) |
in the case of the Reducing Revolving Facility, an amount which on the proposed Utilisation Date does not exceed the lesser of: |
|
(A) |
$83,000,000 (or the available amount under the Reducing Revolving Facility as reduced from time to time); and |
|
(B) |
50 per cent. of the sum of: |
|
(1) |
the aggregate Market Value of the Existing Collateral Ships that will be subject to a Mortgage upon the making of the Advance; and |
|
(2) |
the net realisable value of any additional Security previously provided under Clause 26 (Security Cover). |
|
(ii) |
in the case of the Accordion Facility, an amount which on the proposed Utilisation Date does not exceed the lesser of: |
|
(A) |
$30,000,000 (or the aggregate available amount under each Accordion Facility as reduced from time to time); and |
|
(B) |
50 per cent. of the sum of: |
|
(1) |
the aggregate Market Value of the Accordion Ships that will be subject to a Mortgage upon the making of the Advance; and |
|
(2) |
the net realisable value of any additional Security previously provided under Clause 26 (Security Cover). |
|
(c) |
Subject to paragraph (d) below, the amount of the proposed Advance under a Facility must be a minimum of $10,000,000 or such lower amount as approved by the Facility Agent. |
|
(d) |
The amount of the proposed Advance must be an amount which is not more than the relevant Available Facility. |
|
(e) |
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 Loan if the ratio set out in Clause 26 (Security Cover) were applied and notice was given by the Facility Agent under Clause 26.1 (Minimum required security cover) immediately after the Advance was made. |
|
5.4 |
Lenders' participation |
|
(a) |
If the conditions set out in this Agreement have been met, and subject to Clause 7.1 (Repayment of Advances under a Facility) 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 relevant Available Facility 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 under a Facility, if different, the amount of that participation to be made available in accordance with Clause 35 (Payment Mechanics) in each case by the Specified Time. |
|
5.5 |
Cancellation of Commitments |
Any Commitments in a Facility which are unutilised at the end of the Availability Period for that Facility shall then be automatically cancelled.
|
5.6 |
Retentions and payment to third parties |
The Borrower irrevocably authorises the Facility Agent on the Utilisation Date of the first Advance, to pay a sum equal to the Existing Indebtedness under the Existing Facility Agreement, to an account of Credit Agricole Corporate and Investment Bank notified by the Borrower in the relevant Utilisation Request (such payment constituting part payment of the Purchase Price to IVS Bulk for the Shares Acquisition) and the balance of such Advance to such account as the Borrower specifies in the relevant Utilisation Request.
|
5.7 |
Disbursement of Advance to third party |
Payment by the Facility Agent under Clause 5.6 (Retentions and payment to third parties) to a person other than the Borrower shall constitute the making of the relevant 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 participation in that Advance.
|
5.8 |
Prepositioning of funds |
If, in respect any proposed Advance under a Facility, the Facility Agent, at the request of the Borrower and on the basis of a closing procedure on terms acceptable to all the Lenders and in their absolute discretion (the "Closing Procedure"), preposition funds with any bank, the Borrower:
|
(a) |
agrees that the preposition date shall be the Utilisation Date of the Advance despite the Advance being subject to a control mechanism in favour of the Facility Agent pursuant to the Closing Procedure; |
|
(b) |
agrees to pay interest as and from the relevant Utilisation Date on the amount of the funds so prepositioned at the rates and on the basis described in this Agreement; |
|
(c) |
agrees that the Facility Agent shall not be obliged to release the prepositioned funds pursuant to the Closing Procedure unless it receives all of the documents and other evidence referred to in Clause 4.2 (Further conditions precedent) for the Advance or is satisfied that it will receive the same on the date of release; |
|
(d) |
agrees that if the prepositioned funds are returned to the Facility Agent pursuant to the terms of the Closing Procedure, after consultation with the Borrower, the Facility Agent and the Lenders may treat such return as a prepayment of the relevant Advance; and |
|
(e) |
shall, without duplication, indemnify each Finance Party against any costs, loss or liability it may incur in connection with such arrangement. |
|
6 |
ESTABLISHMENT OF ACCORDION FACILITY |
|
6.1 |
Selection of Accordion Facility Lenders |
|
(a) |
Definitions: In this Clause 6 (Establishment of Accordion Facility): |
"Accordion Facility Proportion" means, in relation to the Proposed Facility Size, the proportion borne from time to time by a Participating Lender's proposed Accordion Facility Commitment to the Proposed Facility Size.
"Accordion Facility Proposal" means a notice from the Borrower addressed to each Lender which:
|
(a) |
invites each Lender to participate in a proposed Accordion Facility; and |
|
(b) |
sets out the proposed accordion facility terms applicable to the proposed Accordion Facility (the "Accordion Facility Terms") and any fee or commission proposed to be payable to lenders under the proposed Accordion Facility. |
"Accordion Facility Shortfall" means, in relation to the Proposed Facility Size, any amount by which the Proposed Facility Size exceeds the aggregate of the proposed Accordion Facility Commitments offered by the Participating Lenders pursuant to paragraph (c) below.
"Accordion Facility Solicitation Period" means, in relation to the Accordion Facility Proposal, the period of time starting on the date of the Accordion Facility Proposal and ending on the date which falls 15 Business Days (or such longer period as the Borrower and the Facility Agent may agree) after the date of the Accordion Facility Proposal.
"Participating Lender" means, in relation to the Accordion Facility Proposal, any Lender which makes an offer in respect of the Accordion Facility proposed in the Accordion Facility Proposal pursuant to paragraph (c) below.
"Proposed Facility Size" means, in relation to the Accordion Facility Proposal, the proposed Total Accordion Facility Commitments set out in the Accordion Facility Proposal.
|
(b) |
Right of first refusal and invitation to all Lenders: The Borrower shall invite all Lenders in writing to become an Accordion Facility Lender by delivery of the Accordion Facility Proposal to the Facility Agent and each Lender. |
|
(c) |
Lender's offer: Any Lender which wishes to become an Accordion Facility Lender in respect of an Accordion Facility proposed in an Accordion Facility Proposal shall notify the Borrower and the Facility Agent of the proposed Accordion Facility Commitment that it unconditionally offers to make available in respect of the proposed Accordion Facility no later than 5:00 p.m. on the last day of the Accordion Facility Solicitation Period relating to the Accordion Facility Proposal. |
|
(d) |
Expiry of Lender's offer: Each Participating Lender's offer under paragraph (c) above (as adjusted, if applicable, pursuant to paragraphs (e) or (f) below) in respect of the Accordion Facility proposed in the Accordion Facility Proposal shall, unless otherwise agreed by all the Participating Lenders under the Accordion Facility Proposal, expire on the earlier of: |
|
(i) |
the day falling 30 Business Days after the last day of the Accordion Facility Solicitation Period relating to the Accordion Facility Proposal; and |
|
(ii) |
the day falling 10 Business Days after the Accordion Facility Date in respect of the proposed Accordion Facility. |
|
(e) |
Scaleback of Lenders' offers: If the aggregate amount of the proposed Accordion Facility Commitments offered by the Participating Lenders pursuant to paragraph (c) above in respect of the Accordion Facility proposed in the Accordion Facility Proposal exceeds the Proposed Facility Size set out in the Accordion Facility Proposal, those proposed Accordion Facility Commitments shall be reduced pro rata to the extent necessary, provided that each Participating Lender shall have a right of first refusal to be allocated such Participating Lender's Accordion Facility Proportion relating to the Proposed Facility Size not greater than the proportion borne by the aggregate of such Participating Lender's Commitments to the aggregate of the Commitments of all of the Lenders. |
|
(f) |
Invitation to Participating Lenders if shortfall: If there is an Accordion Facility Shortfall relating to the Proposed Facility Size set out in the Accordion Facility Proposal, the Borrower shall invite each Participating Lender under the Accordion Facility Proposal to increase the proposed Accordion Facility Commitment offered by it in respect of the Accordion Facility proposed in the Accordion Facility Proposal by an amount no greater than that Accordion Facility Shortfall. |
|
(g) |
Deadline for Participating Lenders to offer increase: Each Participating Lender under the Accordion Facility Proposal shall notify the Borrower and the Facility Agent of its offer of an increased proposed Accordion Facility Commitment (if any) pursuant to paragraph (f) above no later than 5:00 p.m. on the day falling 10 Business Days after the last day of the Accordion Facility Solicitation Period relating to the Accordion Facility Proposal. |
|
(h) |
Participating Lender's Accordion Facility Commitment: Each Participating Lender's Accordion Facility Commitment specified in the Accordion Facility Notice delivered in respect of the Accordion Facility proposed in the Accordion Facility Proposal shall, unless that Participating Lender agrees to be allocated an Accordion Facility Commitment in a lower amount, be in an amount equal to the amount of the proposed Accordion Facility Commitment offered by that Participating Lender in response to the Accordion Facility Proposal (as adjusted, if applicable, pursuant to paragraphs (e) or (f) above). |
|
(i) |
Accordion Facility Terms: The Accordion Facility Terms specified in the Accordion Facility Notice delivered in respect of the Accordion Facility and any fee or commission payable to the Accordion Facility Lenders under the Accordion Facility shall be the same as those set out in the Accordion Facility Proposal relating to the Accordion Facility. |
|
(j) |
Amendment and withdrawal: The Borrower shall not amend the Accordion Facility Proposal but may withdraw the Accordion Facility Proposal at any time. |
|
(k) |
Effect of withdrawal: Withdrawal of the Accordion Facility Proposal shall terminate the process set out in this Clause 6 (Establishment of Accordion Facility) in respect of the Accordion Facility proposed in the Accordion Facility Proposal and the Accordion Facility shall not be established. Any withdrawal of an Accordion Facility Proposal shall not prohibit the Borrower from delivering one or more new Accordion Facility Proposals at a later date. |
|
6.2 |
Accordion Facility Commitment |
The Accordion Facility Commitments specified in the Accordion Facility Notice:
|
(a) |
must be in an aggregate amount of not less than $15,000,000 unless the Lenders agree otherwise; |
|
(b) |
must be in an amount that, when aggregated with all other Accordion Facility Commitments included in any earlier Accordion Facility Notice, does not exceed $30,000,000; and |
|
(c) |
must be in an amount that, when aggregated with all other Accordion Facility Commitments and Reducing Revolving Commitments, does not exceed the Total Commitments at that time. |
|
6.3 |
Delivery of the Accordion Facility Notice |
|
(a) |
On completion of the solicitation process set out in Clause 6.1 (Selection of Accordion Facility Lenders), the Borrower and each relevant Accordion Facility Lender may request the establishment of an Accordion Facility by the Borrower delivering to the Facility Agent the duly completed Accordion Facility Notice not later than 10 Business Days (or such shorter period as the Facility Agent may agree) prior to the proposed Accordion Facility Date specified in the Accordion Facility Notice. |
|
(b) |
The Accordion Facility Notice may not be delivered on or before the First Utilisation Date or later than three Months before the Termination Date or at a time when there are Available Commitments under the Reducing Revolving Commitments in excess of the aggregate amount of the Accordion Facility Commitments to be set out in the Accordion Facility Notice. |
|
6.4 |
Completion of the Accordion Facility Notice |
|
(a) |
The Accordion Facility Notice is irrevocable and will not be regarded as having been duly completed unless: |
|
(i) |
it sets out the Accordion Facility Terms applicable to the Accordion Facility; |
|
(ii) |
the Accordion Facility Terms applicable to the Accordion Facility comply with Clause 6.5 (Restrictions on Accordion Facility Terms and fees); and |
|
(iii) |
the Accordion Facility Lenders and the relevant Accordion Facility Commitments set out in the Accordion Facility Notice have been selected and allocated in accordance with Clause 6.1 (Selection of Accordion Facility Lenders). |
|
(b) |
No more than two Accordion Facilities may be requested. |
|
6.5 |
Restrictions on Accordion Facility Terms and fees |
|
(a) |
Currency: An Accordion Facility shall be denominated in dollars. |
|
(b) |
Commitment fee: The percentage rate per annum according to which the fee payable under Clause 12.1 (Commitment fee) in respect of an Accordion Facility is computed shall not exceed 40 per cent. per annum of the Margin and such commitment fee for that Accordion Facility shall commence accruing on the relevant Accordion Facility Date. |
|
(c) |
Borrower: An Accordion Facility shall be available only to the Borrower. |
|
(d) |
Purpose: An Accordion Facility shall only be used for the purpose set out in Clause 3 (Purpose). |
|
(e) |
Availability: An Accordion Facility shall only be available during the Availability Period for that Accordion Facility. |
|
6.6 |
Conditions to establishment |
|
(a) |
The establishment of an Accordion Facility will only be effected in accordance with Clause 6.7 (Establishment of Accordion Facility) if: |
|
(i) |
on the date of the relevant Accordion Facility Notice and on the relevant Accordion Facility Date:
|
|
(A) |
no Default is continuing or would result from the establishment of the proposed Accordion Facility; and |
|
(B) |
the Repeating Representations to be made by each Obligor are true in all material respects; |
|
(ii) |
the Facility Agent has received in form and substance satisfactory to it: |
|
(A) |
the originals of any relevant Accordion Facility Finance Documents (and of any documents required to be delivered by them) save for any relevant Security Document which can only be provided in connection with a Utilisation under the Accordion Facility; and |
|
(B) |
such documents (if any) as are reasonably necessary as a result of the establishment of that Accordion Facility to maintain the effectiveness of the Finance Documents and the Security Interests created thereunder including, but not limited to, any addenda or supplements to the Mortgages; and |
|
(C) |
such legal opinions as the Facility Agent may require in connection with the documents referred to in this paragraph (A). |
|
(b) |
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied under sub-paragraph (ii) of paragraph (a) above. |
|
(c) |
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 (b) 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. |
|
6.7 |
Establishment of Accordion Facility |
|
(a) |
If the conditions set out in this Agreement have been met the establishment of the relevant Accordion Facility is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Accordion Facility Notice for that Accordion Facility. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of the relevant duly completed Accordion Facility Notice appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Accordion Facility Notice. |
|
(b) |
The Facility Agent shall only be obliged to execute an Accordion Facility Notice delivered to it by the Borrower 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 establishment of the relevant Accordion Facility. |
|
(c) |
On the Accordion Facility Date for an Accordion Facility: |
|
(i) |
subject to the terms of this Agreement the relevant Accordion Facility Lenders make available a reducing dollar revolving facility in an aggregate amount equal to the Accordion Facility Commitments specified in the relevant Accordion Facility Notice which will be available to the Borrower; |
|
(ii) |
each relevant Accordion Facility Lender shall assume all the obligations of a Lender corresponding to the Accordion Facility Commitment (the "Assumed Accordion Facility Commitment") specified opposite its name in the relevant Accordion Facility Notice as if it had been an Original Lender in respect of the Accordion Facility Commitment; |
|
(iii) |
each of the Obligors and each relevant Accordion Facility Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and that Accordion Facility Lender would have assumed and/or acquired had that Accordion Facility Lender been an Original Lender in respect of the Assumed Accordion Facility Commitment; |
|
(iv) |
each relevant Accordion Facility Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Accordion Facility Lender and those Finance Parties would have assumed and/or acquired had the Accordion Facility Lender been an Original Lender in respect of the Assumed Accordion Facility Commitment; and |
|
(v) |
each relevant Accordion Facility Lender shall become a Party as a "Lender". |
|
6.8 |
Notification of establishment |
The Facility Agent shall, as soon as reasonably practicable after the establishment of an Accordion Facility notify the Borrower and the Lenders of that establishment and the Accordion Facility Date of that Accordion Facility.
|
6.9 |
Accordion Facility costs and expenses |
The Borrower shall within seven Business Days of demand pay the Facility Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with the establishment of an Accordion Facility under this Clause 6 (Establishment of Accordion Facility).
|
6.10 |
Prior amendments binding |
Each Accordion Facility Lender, by executing an Accordion Facility Notice, confirms for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the establishment of the Accordion Facility requested in the Accordion Facility Notice became effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.
|
6.11 |
Limitation of responsibility |
Clause 29.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 6 (Establishment of Accordion Facility) in relation to any Accordion Facility Lender as if references in that Clause to:
|
(a) |
an "Existing Lender" were references to all the Lenders immediately prior to the relevant Accordion Facility Date; |
|
(b) |
the "New Lender" were references to an "Accordion Facility Lender"; and |
|
(c) |
a "re-transfer" and "re-assignment" were references respectively to a "transfer" and "assignment". |
SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION
|
7.1 |
Repayment of Advances under a Facility |
|
(a) |
Subject to paragraphs (b) and (c) below, the Borrower shall repay each Advance under a Facility on the Termination Date. |
|
(b) |
Subject to paragraph (c) below, the Borrower shall repay each Advance under a Facility on the last day of its Interest Period. |
|
(c) |
Without prejudice to the Borrower's obligation under paragraphs (a) and (b) above, if: |
|
(i) |
an Advance under a Facility is to be made available: |
|
(A) |
on the same day that a maturing Advance under that Facility is due to be repaid; and |
|
(B) |
in whole or in part for the purpose of refinancing the maturing Advance under that Facility; and |
|
(ii) |
the proportion borne by each Lender's participation in the maturing Advance under that Facility to the amount of that maturing Advance under that Facility is the same as the proportion borne by that Lender's participation in the new Advance under that Facility to the amount of the new Advance under that Facility, |
the amount of the new Advance under that Facility shall, unless the Borrower notifies the Facility Agent to the contrary, be treated as if applied in or towards repayment of the maturing Advance under that Facility so that:
|
(A) |
if the amount of the maturing Advance under that Facility exceeds the amount of the new Advance under that Facility: |
|
(1) |
the Borrower will only be required to make a payment under Clause 35.1 (Payments to the Facility Agent) in respect of that maturing Advance in an amount equal to that excess; and |
|
(2) |
each Lender's participation in the new Advance under that Facility shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Advance under that Facility and that Lender will not be required to make a payment under Clause 35.1 (Payments to the Facility Agent) in respect of its participation in the new Advance under that Facility; and |
|
(B) |
if the amount of the maturing Advance under that Facility is equal to or less than the amount of the new Advance under that Facility: |
|
(1) |
the Borrower will not be required to make a payment under Clause 35.1 (Payments to the Facility Agent) in respect of that maturing Advance; and |
|
(2) |
each Lender will be required to make a payment under Clause 35.1 (Payments to the Facility Agent) in respect of its participation in the new Advance under that Facility only to the extent that its participation in the new Advance under that Facility exceeds that Lender's participation in the maturing Advance under that Facility and the remainder of that Lender's participation in the new Advance under that Facility shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Advance under that Facility. |
|
(d) |
At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in each Advance then outstanding will be automatically extended to the Termination Date and will be treated as separate Advances under the relevant Facility (the "Separate Advances"). |
|
(e) |
If the Borrower makes a prepayment of an Advance under a Facility pursuant to Clause 8.4 (Voluntary prepayment of Advances under a Facility), the Borrower may prepay a Separate Advance under the relevant Facility by giving not less than 5 Business Days' prior notice to the Facility Agent. The proportion borne by the amount of the prepayment of the Separate Advance in a Facility to the amount of the Separate Advances in that Facility shall not exceed the proportion borne by the amount of the prepayment of Utilisation for that Facility to all the Utilisations for that Facility. The Facility Agent will forward a copy of a prepayment notice received in accordance with this paragraph (e) to the Defaulting Lender concerned as soon as practicable on receipt. |
|
(f) |
Interest in respect of a Separate Advance will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Facility Agent (acting reasonably) and will be payable by the Borrower to the Facility Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Advance. |
|
(g) |
The terms of this Agreement relating to Advances under a Facility generally shall continue to apply to Separate Advances other than to the extent inconsistent with paragraphs (d) to (f) above, in which case those paragraphs shall prevail in respect of any Separate Advance. |
|
7.2 |
Reduction of the Reducing Revolving Facility |
|
(a) |
Subject to paragraph (b), the Total Reducing Revolving Commitments shall be reduced and cancelled by equal instalments, each in an amount equal to $2,161,146, representing a repayment profile whereby the Reducing Revolving Facility would be repaid to zero once each of the Existing Collateral Ships (as set out in Schedule 11 (Existing Collateral Ships)) on average reaches 18 years of age (each such instalment shall be a "Reducing Revolving Reduction Instalment"), the first such reduction and cancellation to commence on the date falling three (3) months after the First Utilisation Date in respect of the Reducing Revolving Facility and thereafter at consecutive quarterly intervals, with the last reduction and cancellation to occur on the Termination Date (each a "Reducing Revolving Reduction Date"). |
|
(b) |
the remaining Reducing Revolving Reduction Instalments may be amended by agreement in writing between the Borrower and the Facility Agent (acting on the instructions of all the Lenders) to reflect any difference in the age or other appropriate characteristics due to including an Additional Ship in respect of the Reducing Revolving Facility or between a Replacement Ship relating to the Reducing Revolving Facility and the Existing Collateral Ship that it replaces. |
|
(c) |
The Borrower shall ensure that sufficient Advances under the Reducing Revolving Facility are repaid or prepaid on a Reducing Revolving Reduction Date to the extent necessary so that the aggregate of the outstanding Advances under the Reducing Revolving Facility (after that repayment) is equal to or less than the reduced amount of the Total Reducing Revolving Commitments. |
|
(d) |
Any reduction of the Total Reducing Revolving Commitments in accordance with this Clause 7.2 shall reduce rateably the Reducing Revolving Commitment of each Lender. |
|
7.3 |
Reduction of the Accordion Facility |
|
(a) |
The Total Accordion Facility Commitments for the first Accordion Facility shall be reduced and cancelled by instalments based on an age adjusted repayment profile whereby each Advance under that Accordion Facility would be repaid to zero once each of the Accordion Ships reaches 18 years of age (each such instalment shall be an "Accordion Reduction Instalment"), the first such reduction and cancellation to commence on the date falling three (3) months after the first Utilisation Date in respect of that Accordion Facility and thereafter at consecutive quarterly intervals, with the last reduction and cancellation to occur on the Termination Date (each an "Accordion Reduction Date"). |
|
(b) |
If a second Accordion Facility is established under this Agreement on the Accordion Facility Date for that Accordion Facility, each Accordion Facility shall be reconstituted to form a single Accordion Facility and the remaining Accordion Reduction Dates relative to the first Accordion Facility shall apply to such single Accordion Facility and the remaining Accordion Reduction Instalments shall be amended by the Facility Agent (in consultation with the Accordion Facility Lenders and the Borrower) to take into account the amount of the Total Accordion Facility Commitments as at the Accordion Facility Date for the second Accordion Facility and to reflect any difference in the age or other appropriate characteristics due to the inclusion of the Accordion Ships relevant to the second Accordion Facility. |
|
(c) |
The Borrower shall ensure that sufficient Advances under the Accordion Facility are repaid or prepaid on an Accordion Reduction Date to the extent necessary so that the aggregate of the outstanding Advances under the Accordion Facility (after that repayment) is equal to or less than the reduced amount of the Total Accordion Facility Commitments. |
|
(d) |
Any reduction of the Total Accordion Facility Commitments in accordance with this Clause 7.3 shall reduce rateably the Commitment of each Lender. |
On the Termination Date, the Borrower shall additionally pay to the Facility Agent for the account of the Finance Parties all other sums then accrued and owing under the Finance Documents.
Unless a contrary indication appears in this Agreement, any part of a Facility which is repaid may be reborrowed in accordance with the terms of this Agreement.
|
7.7 |
Effect of cancellation and prepayment on scheduled repayments and reductions |
|
(a) |
If the Borrower cancels the whole or any part of any Available Commitment in accordance with Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender) or if an Available Commitment of any Lender is cancelled under Clause 8.1 (Illegality) then, in the case of the Reducing Revolving Commitments and the Accordion Facility Commitments, the amount of the relevant Reduction Instalment for each applicable Reduction Date falling after that cancellation will reduce pro rata by the amount of the Reducing Revolving Commitments or Accordion Facility Commitments (as the case may be) so cancelled. |
|
(b) |
If the Borrower cancels the whole or any part of any Available Commitment in accordance with Clause 8.3 (Voluntary cancellation) or if the whole or part of any Commitment is cancelled pursuant to Clause 5.5 (Cancellation of Commitments) then, in the case of the Reducing Revolving Commitments and the Accordion Facility Commitments, the amount of the relevant Reduction Instalment for each applicable Reduction Date falling after that cancellation will reduce pro rata by the amount of the Reducing Revolving Commitments or Accordion Facility Commitments (as the case may be) so cancelled. |
|
(c) |
If any Advance under the Reducing Revolving Facility or the Accordion Facility is repaid or prepaid in accordance with Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender) or Clause 8.1 (Illegality) then, in the case of Advances under the Reducing Revolving Commitments and the Accordion Facility Commitments, the amount of the relevant Reduction Instalment for each applicable Reduction Date falling after that repayment or prepayment will reduce pro rata by the amount of those Advances repaid or prepaid. For the avoidance of doubt, there will be no double counting in the reduction of Reduction Instalments under paragraph (c) of this Clause 7.7 and paragraph (a) of this Clause 7.7. |
|
(d) |
If any part of any Advance under the Reducing Revolving Facility or the Accordion Facility is cancelled in accordance with Clause 8.5 (Mandatory prepayment on sale or Total Loss etc) then, in the case of the Reducing Revolving Commitments and the Accordion Facility Commitments, the amount of the relevant Reduction Instalment for each applicable Reduction Date falling after that cancellation will reduce pro rata by the amount of the Reducing Revolving Commitments or Accordion Facility Commitments (as the case may be) so cancelled. |
|
8 |
PREPAYMENT AND CANCELLATION |
If a Sanctions Event occurs or 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 to determine or charge interest rates based upon Term SOFR, or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:
|
(a) |
that Lender may, at its discretion, at any time notify the Facility Agent upon becoming aware of that event; |
|
(b) |
upon the Facility 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 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 five Business Days before the last day of any applicable grace period permitted by law, including any general license or other exception to Sanctions) and that Lender's corresponding Commitment in a Facility shall be immediately cancelled in the amount of the participation in that Facility prepaid. |
|
(a) |
If a Change of Control Event occurs without the Majority Lenders' prior written consent: |
|
(i) |
the Borrower shall promptly notify the Facility Agent upon becoming aware of that event; and |
|
(ii) |
if the Majority Lenders so require, the Facility Agent shall, by not less than 45 days' notice to the Borrower, cancel the Facilities and declare the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facilities will be cancelled and the Loan and all such outstanding interest and other amounts will become immediately due and payable. |
|
8.3 |
Voluntary cancellation |
The Borrower may, if it gives the Facility Agent not less than:
|
(a) |
in the case of a Term Rate Loan, 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice; or |
|
(b) |
in the case of a Compounded Rate Loan, 10 RFR Banking Days' (or such shorter period as the Majority Lenders may agree) prior notice, |
cancel the whole or any part (being a minimum amount of $5,000,000) of an Available Facility. Any cancellation under this Clause 8.3 (Voluntary and automatic cancellation) shall reduce the Commitments of the Lenders rateably under that Facility. The Borrower may (if applicable) select which Facility it cancels.
|
8.4 |
Voluntary prepayment of Advances under a Facility |
|
(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 an Advance under a Facility (but, if in part, being an amount that reduces the amount of the relevant Advance by a minimum amount of $2,500,000). |
|
(b) |
There may be no more than four voluntary prepayments in part of the Loan made in each 12-month period beginning on the First Utilisation Date. |
|
(c) |
The Borrower may select which Advance it prepays. |
|
8.5 |
Mandatory prepayment on sale or Total Loss etc |
|
(a) |
If an Existing Collateral Ship is sold (without prejudice to paragraph (a) of Clause 22.12 (Disposals)) or becomes a Total Loss or becomes a Release Ship: |
|
(i) |
the Borrower shall on the Relevant Date cancel and/or prepay the Relevant Percentage of the Reducing Revolving Facility (the Available Facility in the Reducing Revolving Facility shall be cancelled prior to any required prepayments of Advances in the Reducing Revolving Facility); and |
|
(ii) |
the Reducing Revolving Commitments of the Lenders shall be permanently reduced pro rata by an amount equal to the Relevant Percentage. |
|
(b) |
If an Accordion Ship is sold (without prejudice to paragraph (a) of Clause 22.12 (Disposals)) or becomes a Total Loss or a Release Ship: |
|
(i) |
the Borrower shall on the Relevant Date cancel and/or prepay the Relevant Percentage of the Accordion Facility (the Available Facility in the Accordion Facility shall be cancelled prior to any required prepayments of Advance in the Accordion Facility); and |
|
(ii) |
the Accordion Facility Commitments of the Lenders shall be permanently reduced pro rata by an amount equal to the Relevant Percentage. |
|
(c) |
On any Relevant Date, the Borrower 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 prepayments referred to in paragraphs (a) and (b) above. Any such prepayment under this paragraph (c) shall be applied on a pro rata basis towards each Advance. |
|
(d) |
In the case of a sale or a Total Loss, provided that no Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship after the prepayments referred to in paragraphs (a), (b) and (c) above have been made together with all other amounts that are payable on any such prepayment pursuant to the Finance Documents shall be paid to the relevant Collateral Guarantor that owned that Existing Collateral Ship or Accordion Ship (as the case may be). |
|
(e) |
In this Clause 8.5 (Mandatory prepayment on sale or Total Loss etc): |
"Index Amount" means, in relation to each Existing Collateral Ship or each Accordion Ship (as the case may be), as at the Relevant Date, the amount of the Market Value for that Existing Collateral Ship or that Accordion Ship as shown in the then most recent valuation of that Existing Collateral Ship or that Accordion Ship provided to the Facility Agent pursuant to this Agreement.
"Relevant Date" means:
|
(a) |
in the case of a sale of any Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; |
|
(b) |
in the case of a Total Loss of a Ship, on the earlier of: |
|
(i) |
the date falling 90 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; and |
|
(c) |
in the case of a Release Ship, the date five (5) Business Days after the date of the relevant Release Ship Notice. |
"Relevant Percentage" means an amount calculated by reference to the following formula:
|
Relevant Percentage |
= |
A x 100 |
|
|
|
B 1 |
Where:
|
A |
= the Index Amount of the Existing Collateral Ship or the Accordion Ship (as the case may be) to be sold or which becomes a Total Loss or a Release Ship; and |
|
B |
= the aggregate amount of the Index Amounts of all of the Existing Collateral Ships or the Accordion Ships (as the case may be) (excluding any Existing Collateral Ship or Accordion Ship already sold or which has already become a Total Loss or a Release Ship in respect of which a cancellation/prepayment has been made under this Clause 8.5 (Mandatory prepayment on sale or Total Loss etc) before the Relevant Date). |
|
8.6 |
Right of replacement or repayment and cancellation in relation to a single Lender |
|
(i) |
any sum payable to any Lender (except for Nordea Bank Abp, Filial i Norge) by an Obligor is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up) or under that clause as incorporated by reference or in full in any other Finance Document; or |
|
(ii) |
any Lender claims indemnification from the Borrower under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs) for amounts materially in excess of amounts charged by other lenders; or |
|
(iii) |
the Facility Agent receives notification from a Lender under Clause 11.2 (Market disruption), |
the Borrower may whilst in the case of sub-paragraphs (i) and (ii) above the circumstance giving rise to the requirement for that increase or indemnification continues give the Facility Agent notice of cancellation of the Commitments of that Lender and its intention to procure the repayment of that Lender's participations in the Loan or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.
|
(b) |
On receipt of a notice of cancellation referred to in paragraph (a) above, any Available Commitment of that Lender shall immediately be reduced to zero. |
|
(c) |
On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in the relevant Advances and that Lender's corresponding Commitment in the relevant Facility shall be immediately cancelled in the amount of the participation in that Facility prepaid. |
|
(d) |
The Borrower may, in the circumstances set out in paragraph (a) above, on 30 Business Days' prior notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders and Hedge Counterparties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Borrower which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 29 (Changes to the Lenders and Hedge Counterparties) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender's participation in the Loan and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 29.10 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. |
|
(e) |
The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions: |
|
(i) |
the Borrower shall have no right to replace a Lender acting in its capacity as a Servicing Party; |
|
(ii) |
neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender; |
|
(iii) |
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and |
|
(iv) |
the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer. |
|
(f) |
A Lender shall perform the checks described in sub-paragraph (iv) of paragraph (e) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Facility Agent and the Borrower when it is satisfied that it has complied with those checks. |
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 8 (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 any Break Costs, without premium or penalty. |
|
(c) |
Unless a contrary indication appears in this Agreement, any part of a Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement. |
|
(d) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. |
|
(e) |
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 8 (Prepayment and Cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lenders and/or Hedge Counterparties, as appropriate. |
|
(g) |
A Release Ship Notice is irrevocable. |
|
8.8 |
Application of prepayments |
Any prepayment of any part of the Loan (other than a prepayment pursuant to Clause 8.1 (Illegality) or Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender)) shall be applied pro rata to each Lender's participation in that part of the Loan.
SECTION 5 COSTS OF UTILISATION
|
9.1 |
Calculation of interest – Term Rate Loans |
The rate of interest on each Term Rate Loan for an Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
(b) |
Term SOFR Reference Rate. |
|
9.2 |
Calculation of interest – Compounded Rate Loans |
|
(a) |
The rate of interest on each Compounded Rate Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable: |
|
(ii) |
Compounded Reference Rate for that day. |
|
(b) |
If any day during an Interest Period for a Compounded Rate Loan is not a RFR Banking Day, the rate of interest on that Compounded Rate Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day. |
|
(a) |
The Borrower shall pay accrued interest on the Loan or any part of the Loan on the last day of each relevant 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. |
|
(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 two 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 the relevant 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 9.4 (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 a Term Rate Loan which became due on a day which was not the last day of an Interest Period relating to that Term Rate Loan: |
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or that part of the Loan; and |
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be two per cent. 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. |
|
9.5 |
Notifications of rates of interest |
|
(a) |
The Facility Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest relating to a Term Rate Loan. |
|
(b) |
The Facility Agent shall promptly upon a Compounded Rate Interest Payment being determinable, notify: |
|
(i) |
the Borrower of that Compounded Rate Interest Payment; |
|
(ii) |
each Lender of the proportion of that Compounded Rate Interest Payment which relates to that Lender's participation in the relevant Compounded Rate Loan; and |
|
(iii) |
the Lenders and the Borrower of: |
|
(A) |
each applicable rate of interest relating to the determination of that Compounded Rate Interest Payment; and |
|
(B) |
to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Compounded Rate Loan. |
This paragraph (b) shall not apply to any Compounded Rate Interest Payment determined pursuant to Clause 11.3 (Cost of funds).
|
(c) |
The Facility Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan or any part of the Loan. |
|
(d) |
The Facility Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest relating to a Compounded Rate Loan to which Clause 11.3 (Cost of funds) applies. |
|
(e) |
This Clause 9.5 (Notifications of rates of interest) shall not require the Facility Agent to make any notification to any Party on a day which is not a Business Day. |
|
(a) |
The Borrower may enter into Hedging Agreements and shall after that date maintain such Hedging Agreements in accordance with this Clause 9.6 (Hedging). No Hedge Counterparty is obliged to enter into a Hedging Agreement or any transaction thereunder. Each Hedge Counterparty shall, following the Borrower's request to hedge the interest payable under this Agreement, have a first right of refusal (subject to the pricing available to the Borrower across the participating Hedge Counterparties being substantially the same) to undertake such hedging, in the proportions contemplated by paragraph (d) below. |
|
(b) |
Each Hedging Agreement shall: |
|
(i) |
be with a Hedge Counterparty and each Hedge Counterparty shall also be a Lender (or an Affiliate or other branch of the same legal entity); |
|
(ii) |
be for a term ending no later than the Termination Date; |
|
(iii) |
be based on an ISDA Master Agreement and otherwise in form and substance satisfactory to the Facility Agent; |
|
(iv) |
provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars; and |
|
(v) |
shall only involve transactions in respect hedging the interest payable under this Agreement. |
|
(c) |
The Borrower must comply with the terms of that Hedging Agreement. |
|
(d) |
The proportion of the aggregate notional amount of the transactions in respect of the Hedging Agreement entered into by a Hedge Counterparty shall be equal to the proportion borne by its Commitments in its capacity as a Lender to the Total Commitments or such other amount as agreed between the Borrower, that Lender and the other Lenders. |
|
(e) |
If, at any time, the aggregate notional amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment or cancellation under this Agreement, will exceed the Loan at that time and the Available Commitments, the Borrower must promptly notify the Facility Agent and must, at the request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed the Loan and the Available Commitments then or that will be outstanding or available. |
|
(f) |
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (e) above will be apportioned as between those transactions pro rata unless as a result of a cancellation or prepayment under Clause 8.1 (Illegality) or Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender), where the reductions will only be apportioned as between the transactions of the relevant Hedge Counterparty. |
|
(g) |
Paragraph (e) above shall not apply to any transactions in respect of any Hedging Agreement under which the Borrower has no actual or contingent indebtedness. |
|
(h) |
The Facility Agent must make a request under paragraph (e) above if so required by a Hedge Counterparty. |
|
(i) |
Neither a Hedge Counterparty nor the Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except: |
|
(i) |
in accordance with paragraphs (e) to (h) above; |
|
(ii) |
on the occurrence of an Illegality, Force Majeure, Tax Event or Insolvency (as such expressions are defined in the relevant Hedging Agreement); |
|
(iii) |
in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent serves notice under sub-paragraph (ii) of paragraph (a) of Clause 28.20 (Acceleration) or, having served notice under sub-paragraph (iii) of paragraph (a) of Clause 28.20 (Acceleration), makes a demand; |
|
(iv) |
in the case of any other termination or closing out by a Hedge Counterparty or the Borrower, with the consent of the Facility Agent; |
|
(v) |
with the consent of the Facility Agent (acting on the instructions of all Lenders); |
|
(vi) |
if the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full; or |
|
(vii) |
if the Hedge Counterparty ceases to be a Lender following a replacement pursuant to Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender). |
|
(j) |
If a Hedge Counterparty or the Borrower terminates or closes out a transaction in respect of a Hedging Agreement (in whole or in part) in accordance with sub-paragraphs (ii) or (in the case of a Hedge Counterparty only) (iii) or (iv) of paragraph (i) above, it shall promptly notify the Facility Agent of that termination or close out. |
|
(k) |
If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under sub-paragraph (iii) of paragraph (i) above, such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent. |
|
(l) |
The Borrower shall not assign any of its rights or transfer any of its rights or obligations under any Hedging Agreement. |
|
(m) |
On request by the Facility Agent, the Borrower shall provide the Facility Agent with a copy of such Hedging Agreement and each Hedge Counterparty agrees to such disclosure. |
|
(n) |
The Hedging Agreements shall be secured by the Security Documents. |
|
10.1 |
Selection of Interest Periods |
|
(a) |
The Borrower may select the Interest Period for each Advance under a Facility in the Utilisation Request for that Advance. An Advance under a Facility has one Interest Period only which shall start on its Utilisation Date. |
|
(b) |
If the Borrower fails to select an Interest Period in the relevant Utilisation Request the relevant Interest Period will be three Months. |
|
(c) |
The Borrower may select an Interest Period of one or three Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders). In addition, in relation to the Reducing Revolving Facility and the Accordion Facility, the Borrower may select an Interest Period of a period of less than one Month, if necessary, to ensure that (when aggregated with the Available Facility for the Reducing Revolving Facility and/or the Accordion Facility) there are sufficient Advances under the Reducing Revolving Facility and/or the Accordion Facility (with an aggregate amount equal to or greater than the Reduction Instalment) which have an Interest Period ending on the relevant Reduction Date for the scheduled reduction to occur. |
|
(d) |
An Interest Period in respect of an Advance under a Facility shall not extend beyond the Termination Date. |
|
(e) |
No Interest Period for a Compounded Rate Loan shall be longer than three Months. |
|
(f) |
Subject to paragraphs (d) and (e) above, unless the Borrower instructs the Agent otherwise no later than five (5) Business Days before the end of the Interest Period for an Advance being refinanced by a Rollover Advance, that Rollover Advance shall be of the same length as the aforesaid maturing Advance. |
|
(a) |
Other than where paragraph (b) below applies, 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). |
|
(b) |
In respect of any Compounded Rate Loan, if there are rules specified as "Business Day Conventions" in the Compounded Rate Terms, those rules shall apply to each Interest Period for that Compounded Rate Loan. |
|
11 |
CHANGES TO THE CALCULATION OF INTEREST |
|
11.1 |
Unavailability of Term SOFR |
|
(a) |
Interpolated Term SOFR: If no Term SOFR is available for the Interest Period of the Loan or any part of the Loan, the applicable Term SOFR Reference Rate shall be the Interpolated Term SOFR for a period equal in length to the Interest Period of the Loan or any part of the Loan. |
|
(b) |
Shortened Interest Period: If no Term SOFR is available for the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Term SOFR, the Interest Period of the Loan or any part of the Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Term SOFR Reference Rate for that shortened Interest Period shall be determined pursuant to the definition of "Term SOFR Reference Rate". |
|
(c) |
Compounded Rate Loan: if the Interest Period of the Loan or any part of the Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Term SOFR is available for the Interest Period of the Loan or that part of the Loan and it is not possible to calculate the Interpolated Term SOFR, then: |
|
(i) |
there shall be no Term SOFR Reference Rate for the Loan or that part of the Loan (as applicable) and Clause 9.1 (Calculation of interest –Term Rate Loans) will not apply for that Interest Period for the Loan or that part of the Loan; |
|
(ii) |
the Loan or that part of the Loan shall be a "Compounded Rate Loan" for that Interest Period and Clause 9.2 (Calculation of interest – Compounded Rate Loans) shall apply to the Loan or that part of the Loan (as applicable). |
|
(d) |
Cost of funds: If paragraph (c) above applies but there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for the Loan or the relevant part of the Loan, then Clause 11.3 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest Period. |
|
(a) |
In the case of a Term Rate Loan, if before close of business in London on the Business Day immediately following the Quotation Day for the relevant Interest Period, the Facility Agent receives notification from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan exceed 37.5 per cent. of the Loan or the relevant part of the Loan as appropriate) that its cost of funds relating to its participation in the Loan or that part of the Loan would be in excess of the applicable Market Disruption Rate then Clause 11.3 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period. |
|
(b) |
In the case of a Compounded Rate Loan, if: |
|
(i) |
a Market Disruption Rate is specified in the Compounded Rate Terms; and |
|
(ii) |
before the Reporting Time for the Loan or any part of the Loan, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan exceed 37.5 per cent. of the Loan or the relevant part of the Loan as appropriate) that its cost of funds relating to its participation in the Loan or that part of the Loan would be in excess of that Market Disruption Rate, |
then Clause 11.3 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
|
(a) |
If this Clause 11.3 (Cost of funds) applies to the Loan or part of the Loan for an Interest Period, neither Clause 9.1 (Calculation of interest - Term Rate Loans) nor Clause 9.2 (Calculation of interest - Compounded Rate Loans) shall apply to the Loan or that part of the Loan for that Interest Period and the rate of interest on each Lender's share of the Loan or that part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of: |
|
(ii) |
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event: |
|
(A) |
in relation to a Term Rate Loan, before interest is due to be paid in respect of that Interest Period; or |
|
(B) |
in relation to a Compounded Rate Loan, by the Reporting Time for that Compounded Rate Loan, |
to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in the Loan or that part of the Loan.
|
(b) |
If this Clause 11.3 (Cost of funds) applies and the Facility Agent or the Borrower so require, 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. |
|
(c) |
Subject to Clause 45.4 (Changes to reference rates), 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. |
|
(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 11.3 (Cost of funds) applies pursuant to Clause 11.2 (Market disruption) and: |
|
(i) |
in relation to a Term Rate Loan: |
|
(A) |
a Lender's Funding Rate is less than the relevant Market Disruption Rate; or |
|
(B) |
a Lender does not notify a rate to the Facility Agent by the time specified in sub-paragraph (ii) of paragraph (a) above, |
that Lender's cost of funds relating to its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of sub-paragraph (ii) of paragraph (a) above, to be the relevant Market Disruption Rate.
(ii) in relation to a Compounded Rate Loan:
(A) a Lender's Funding Rate is less than the relevant Market Disruption Rate; or
|
(B) |
a Lender does not notify a rate to the Facility Agent by the time specified in sub-paragraph (ii) of paragraph (a) above, |
that Lender's cost of funds relating to its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of sub-paragraph (ii) of paragraph (a) above, to be the Market Disruption Rate for that Compounded Rate Loan.
|
(f) |
If this clause 11.3 (Cost of funds) applies, the Facility Agent shall, as soon as practicable, notify the Borrower. |
|
(a) |
Subject to paragraph (b) below, the Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day before the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum. |
|
(b) |
Paragraph (a) above shall apply in respect of a Compounded Rate Loan if an amount is specified as Break Costs in the Compounded Rate Terms. |
|
(c) |
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 respect of which they become, or may become, payable. |
|
(a) |
The Borrower shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 40 per cent. per annum of the Margin on that Lender's undrawn and uncancelled Reducing Revolving Commitment from time to time for the Availability Period applicable to that Facility. |
|
(b) |
The Borrower shall pay to the Facility Agent (for the account of each Accordion Lender) a fee computed at the per annum rate set out in the relevant Accordion Facility Notice on that Lender's undrawn and uncancelled Accordion Facility Commitment from time to time for the Availability Period applicable to that Facility. |
|
(c) |
The accrued commitment fee on an Available Commitment is payable on the last day of each successive fiscal quarter which ends during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective. |
The Borrower shall pay to the Facility Agent (for the account of the Lenders) a non-refundable arrangement fee in the amount and at the times agreed in a Fee Letter.
The Borrower shall pay to the Facility Agent (for the account of the relevant Finance Parties) non-refundable fees in the amount and at the times agreed in a Fee Letter.
SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS
|
13 |
TAX GROSS UP AND INDEMNITIES |
"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity).
|
(b) |
Unless a contrary indication appears, in this Clause 13 (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 13 (Tax Gross Up and Indemnities) shall not apply to any Hedging Agreement. |
|
(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. |
|
(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. |
|
(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, |
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
(ii) |
to the extent a loss, liability or cost: |
|
(A) |
is compensated for by an increased payment under Clause 13.2 (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 13.3 (Tax indemnity), notify the Facility Agent. |
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and |
|
(b) |
that Finance Party has obtained and utilised that Tax Credit, |
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
The Obligors shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, losses or liability which that Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
(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 13.6 (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 or equivalent provisions imposed elsewhere) 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. |
|
(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. |
|
(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. |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 13 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities.
|
(a) |
Subject to Clause 14.3 (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, |
in each case after the date of this Agreement; or
|
(iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV. |
|
(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". |
|
(A) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012, as amended by Regulation (EU) 2019/876; |
|
(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, as amended by Directive (EU) 2019/878; and |
|
(C) |
any other law or regulation which implements Basel III. |
|
(iii) |
"Increased Costs" means: |
|
(A) |
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital; |
|
(B) |
an additional or increased cost; or |
|
(C) |
a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
|
14.2 |
Increased cost claims |
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 14.1 (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. |
Clause 14.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor; |
|
(b) |
attributable to a FATCA Deduction required to be made by a Party; |
|
(c) |
compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied); |
|
(d) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; |
|
(e) |
incurred by a Hedge Counterparty in its capacity as such; or |
|
(f) |
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 Closing Date (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). |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 14 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities.
|
(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, |
that Obligor shall, as an independent obligation, on demand, indemnify each Secured Party to which that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. |
|
(c) |
This Clause 15.1 (Currency indemnity) does not apply to any sum due to a Hedge Counterparty in its capacity as such. |
|
(a) |
Each Obligor shall, on demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of: |
|
(i) |
the occurrence of any Default and/or Sanctions Event; |
|
(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 34 (Sharing among the Finance Parties); |
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Secured 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 15.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) 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 Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, any Ship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person. |
|
(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) |
The Obligors shall, on demand, indemnify each Secured Party against any cost, loss or liability (including legal costs and fees) incurred by that Secured Party as a result of the investigation or occurrence of a Sanctions Event. |
|
(e) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 15.2 (Other indemnities) subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act. |
|
15.3 |
Indemnity to the Facility Agent |
Each Obligor shall, on demand, indemnify the Facility Agent against:
|
(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 a Sanctions Event; 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 Finance Documents; and |
|
(b) |
any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) 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 35.11 (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. |
|
15.4 |
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 (including, without limitation, for negligence or any other category of liability whatsoever) 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 17 (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 15.4 (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. |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 15 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities.
|
16 |
MITIGATION BY THE FINANCE PARTIES |
|
(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 8.1 (Illegality), Clause 13 (Tax Gross Up and Indemnities), Clause 14 (Increased Costs) or 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 Transaction Obligor under the Finance Documents. |
|
(c) |
Paragraph (a) above does not in apply to Nordea Bank Abp, Filial i Norge in respect to any actual or potential payments under Clause 13.2 (Tax Gross-up). In this regard, any mitigation steps by Nordea Bank Abp, Filial i Norge shall be at its absolute discretion. |
|
16.2 |
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 16.1 (Mitigation). |
|
(b) |
A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if: |
|
(i) |
a Default has occurred and is continuing; |
|
(ii) |
in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it; or |
|
(iii) |
a Finance Party determines in its absolute discretion that to do so in case of a Sanctions Event constitutes or is reasonably likely to constitute a breach of Sanctions. |
|
17.1 |
Transaction expenses |
The Obligors shall, within seven Business Days of demand, pay the Facility Agent, the Security Agent and the Arrangers the amount of all costs and expenses (including legal fees) reasonably incurred by any Secured Party in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
|
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and |
|
(b) |
any other Finance Documents executed after the date of this Agreement. |
If:
|
(a) |
an Obligor requests an amendment, waiver or consent; or |
|
(b) |
an amendment is required either pursuant to Clause 35.9 (Change of currency) or as contemplated in Clause 45.4 (Changes to reference rates); or |
|
(c) |
an Obligor requests, and the Security Agent agrees to, the release of all or any part of the Security Assets from the Transaction Security, |
the Obligors shall, within seven Business Days of demand, reimburse each of the Facility Agent and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by each Secured Party in responding to, evaluating, negotiating or complying with that request or requirement.
|
17.3 |
Enforcement and preservation costs |
The Obligors shall, on demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document or the Transaction Security and with any proceedings instituted by or against that Secured Party as a consequence of it entering into a Finance Document, taking or holding the Transaction Security, or enforcing those rights.
SECTION 7 GUARANTEE
|
18 |
GUARANTEE AND INDEMNITY |
|
18.1 |
Guarantee and indemnity |
Each Guarantor irrevocably and unconditionally jointly and severally:
|
(a) |
guarantees to each Finance Party punctual performance by each other Obligor of all such other Obligor's obligations under the Finance Documents; |
|
(b) |
undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand by the Facility Agent 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 by the Facility Agent against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 18 (Guarantee and Indemnity) 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 Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 18 (Guarantee and Indemnity) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of each Guarantor under this Clause 18 (Guarantee and Indemnity) and in respect of any Transaction Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 18.4 (Waiver of defences), would reduce, release or prejudice any of its obligations under this Clause 18 (Guarantee and Indemnity) or in respect of any Transaction Security (without limitation and whether or not known to it or any Secured Party) including:
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person; |
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
|
(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. |
|
(a) |
Each Guarantor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 18 (Guarantee and Indemnity). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. |
|
(b) |
Each Guarantor acknowledges the right of the Facility Agent pursuant to Clause 28.20 (Acceleration) to enforce or direct the Security Agent to enforce or exercise any or all of its rights, remedies powers or discretions under any guarantee or indemnity contained in this Agreement. |
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Secured Party (or any trustee or agent on its behalf) may:
|
(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 Guarantor shall be entitled to the benefit of the same; and |
|
(b) |
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 18 (Guarantee and Indemnity). |
|
18.7 |
Deferral of Guarantors' rights |
All rights which any Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against the Borrower, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the end of the Security Period and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have (whether in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 18 (Guarantee and Indemnity):
|
(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 Guarantor has given a guarantee, undertaking or indemnity under Clause 18.1 (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. |
If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 35 (Payment Mechanics).
This guarantee and any other Security given by a Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice, any other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to combine accounts in connection with the Finance Documents.
|
18.9 |
Applicability of provisions of Guarantee to other Security |
Clause 18.2 (Continuing guarantee), 18.3 (Reinstatement), 18.4 (Waiver of defences), 18.5 (Immediate recourse), 18.6 (Appropriations), 18.7 (Deferral of Guarantors' rights) and 18.8 (Additional security) shall apply, with any necessary modifications, to any Security which a Guarantor creates (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
Without prejudice to the generality of Clauses 1.2 (Construction) and 18.4 (Waiver of defences), each Guarantor expressly confirms that it intends that any guarantee contained in this Agreement or any other Finance Document to which it is a party and any Security created by any Finance Document to which it is a party 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 (including, without limitation, any Accordion Facility or any extension of any Facility); and any fees, costs and/or expenses associated with any of the foregoing.
Each Guarantor agrees that on date the Facility Agent enters into any Accession Deed under Clause 30.3 (Collateral Guarantors), the relevant Subsidiary the subject of that Accession Deed shall be bound by all of the obligations of a Collateral Guarantor under this Agreement as if it were an Existing Collateral Guarantor (including, without limitation, being a joint and several guarantor (together with the other Guarantors) to each Finance Party of each other Obligors obligations under the Finance Documents on the terms set out under this Clause 18 (Guarantee and Indemnity)).
|
18.12 |
Security confirmation |
Each Guarantor acknowledges Clause 30.2 (Release of security), Clause 30.5 (Replacement Ships) and Clause 30.6 (Release of Ship and Collateral Guarantor) and without prejudice to the generality of Clauses 1.2 (Construction) and 18.4 (Waiver of defences), each Guarantor confirms that all of its obligations under this Clause 18 (Guarantee and Indemnity) or any Security created by any Finance Document to which it is a party shall remain in full force and effect, despite the release of any other Guarantor (a "Released Guarantor") or any Security Document to which a Released Guarantor is a party or any Shares Security in respect of a Released Guarantor in connection with the aforementioned Clauses.
SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
Each Obligor makes the representations and warranties set out in this Clause 19 (Representations) to each Finance Party on the date of this Agreement.
|
(a) |
The Corporate Guarantor is a company, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction. |
|
(b) |
The Borrower is a company, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction. |
|
(c) |
In the case of each Collateral Guarantor, it is a company, duly formed and validly existing in good standing under the law of its jurisdiction of incorporation. |
|
(d) |
The Corporate Guarantor and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted. |
|
19.3 |
Share capital and ownership |
|
(a) |
The legal title to and beneficial interest in the shares in the Borrower is held by the Corporate Guarantor free of any Security or any other claim. |
|
(b) |
As of the date of this Agreement, the legal title to and beneficial interest in the shares in each Collateral Guarantor is held directly by IVS Bulk free of any Security (except for Permitted Security) or any other claim and, as of the relevant Utilisation Date (or in case the relevant Advance has been prepositioned in accordance with this Agreement, the release date of that Advance) the legal title to and beneficial interest in the shares in each Collateral Guarantor is held directly by the Borrower free of any Security (except for Permitted Security) or any other claim |
|
(c) |
None of the shares in the Borrower or any Collateral Guarantors is subject to any option to purchase (save from IVS Bulk to the Borrower), pre-emption rights or similar rights. |
Subject to the Legal Reservations, the obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable obligations.
|
19.5 |
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, subject to the Legal Reservations and the Perfection Requirements, 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) |
Subject to the Legal Reservations and the Perfection Requirements, 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 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 authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security. |
|
19.6 |
Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and will not conflict with:
|
(a) |
any law or regulation applicable to it; |
|
(b) |
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. |
|
(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 Collateral Guarantor, its registration of the Ship 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. |
|
19.8 |
Validity and admissibility in evidence |
All Authorisations required or desirable:
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and |
|
(b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions, |
have been obtained or effected and are in full force and effect or will be obtained or effected and be in full force and effect within the time periods required by Part C of Schedule 2 (Conditions Precedent).
|
19.9 |
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. |
No:
|
(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), |
has been taken or, to its knowledge, threatened in relation to an Obligor; and none of the circumstances described in Clause 28.7 (Insolvency) applies to an Obligor.
|
19.11 |
No filing or stamp taxes |
Under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be registered, filed, recorded, notarised or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated by those Finance Documents except for the recordation, registration or filing of each Mortgage with the relevant flag state of each Ship and any other filing, recording or enrolling or any tax or fee payable which is referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) (including, without limitation, (i) registration of the prescribed particulars of each applicable Security Document with the Accounting and Corporate Regulatory Authority of Singapore and payment of associated fees and (ii) stamping of the each Shares Security with the Inland Revenue Authority of Singapore and payment of the associated stamp duty) and which will be made or paid promptly after the date of the relevant Finance Document and otherwise no later than the relevant dates set out at Part C of Schedule 2 (Conditions Precedent).
It is not required to make any Tax Deduction from any payment it may make under any Finance Document to which it is a party provided, in respect to Lenders whose Facility Office is not Singapore, the Borrower submits a self-declaration form for withholding tax exemption on interest and related payments under the "Maritime Sector Incentive" (the "WHT Exemption") within the timeline required by the WHT Exemption and such WHT Exemption is granted.
|
(a) |
No Event of Default is continuing or is reasonably 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 any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect. |
|
19.14 |
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. |
|
19.15 |
Financial Statements |
|
(a) |
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, in the case of the Corporate Guarantor) since its date of incorporation. |
|
(b) |
Its most recent financial statements delivered pursuant to Clause 20.2 (Financial statements): |
|
(i) |
have been prepared in accordance with Clause 20.4 (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 financial year and operations during the relevant financial year. |
|
(c) |
Since the date of the most recent financial statements delivered pursuant to Clause 20.2 (Financial statements) there has been no material adverse change in its business, assets or financial condition (or the business or financial condition of the Group taken as a whole). |
Its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
|
19.17 |
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, are reasonably likely to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against any 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 are reasonably likely to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against any Obligor. |
There is no agreement or understanding to allow or pay any rebate, premium, inducement, commission, discount or other benefit or payment (however described) to any Obligor or a third party in connection with the purchase by a Collateral Guarantor of a Ship, other than as disclosed to the Facility Agent in writing on or before the date of this Agreement.
|
(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. |
It has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
No Ship is subject to any Charter other than a Permitted Charter.
|
19.22 |
Compliance with Environmental Laws |
All Environmental Laws relating to the ownership, operation and management of each Ship and the business of each member of the Group (as now conducted and as reasonably anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied with.
|
19.23 |
No Environmental Claim |
No Environmental Claim has been made or (to the best of its knowledge and belief) threatened against any member of the Group or any Ship where that claim has or is reasonably likely, if determined against that member of the Group, to have a Material Adverse Effect.
|
19.24 |
No Environmental Incident |
Except as disclosed by the Borrower to the Facility Agent prior to the date of this Agreement, no Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
|
19.25 |
ISM and ISPS Code compliance |
All requirements of the ISM Code and the ISPS Code as they relate to each Collateral Guarantor, each Approved Manager and each Ship have been complied with.
|
(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. |
|
19.27 |
Financial Indebtedness |
No Collateral Guarantor has any Financial Indebtedness outstanding other than Permitted Financial Indebtedness or as otherwise permitted by this Agreement.
No Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Facility Agent sufficient details to enable an accurate search against it to be undertaken by the Lenders at the Companies Registry.
|
19.29 |
Good title to assets |
It has good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.
|
(a) |
On each Utilisation Date or, in case an Advance has been prepositioned in accordance with this Agreement, from the date of release of such Advance, the relevant Collateral Guarantor will be the sole legal and beneficial owner of its Ship, 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 Collateral Guarantors on creation or enforcement of the security conferred by the Security Documents. |
|
19.31 |
Centre of main interests and establishments |
For the purposes of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings (the "Regulation"), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated, in case of the Corporate Guarantor, each Collateral Guarantor and the Borrower, Singapore and it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
No Obligor has a place of business in any country other than that of its Original Jurisdiction.
|
19.33 |
No employee or pension arrangements |
|
(a) |
No Obligor, except for the Corporate Guarantor and the Borrower, has any employees. |
|
(b) |
No Obligor has any liabilities under any pension scheme. |
No Sanctions Relevant Person, nor to the best of the knowledge of that Sanctions Relevant Person, any director, officer, employee, agent or Affiliate of that Sanctions Relevant Person (and to the best knowledge of that director, officer, employee, agent or Affiliate):
|
(i) |
is a Restricted Party; |
|
(ii) |
is engaged in any transaction, activity or conduct that could reasonably be expected to result in it being designated as a Restricted Party; |
|
(iii) |
is in breach of Sanctions; |
|
(iv) |
is subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory or enforcement authority or third party concerning any Sanctions; |
|
(v) |
is majority owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Restricted Party and none of such persons owns or controls a Restricted Party; or |
|
(vi) |
has taken or is taking any action which constitutes or would constitute a violation by any Finance Party or any Restricted Party of Sanctions. |
No Obligor is a US Tax Obligor.
Each member of the Group has conducted its businesses in compliance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
In any proceedings taken in its jurisdiction of incorporation in relation to the Finance Documents to which it is a party, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.
|
19.38 |
Private and commercial acts |
Its execution of the Finance Documents to which it is a party constitutes, and its exercise of its rights and performance of its obligations thereunder will constitute, private and commercial acts done and performed for private and commercial purposes.
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of each Utilisation Request and the first day of each Interest Period.
|
20 |
INFORMATION UNDERTAKINGS |
The undertakings in this Clause 20 (Information Undertakings) remain in force throughout the Security Period unless the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders), may otherwise permit.
|
20.2 |
Financial statements |
The Borrower shall supply to the Facility Agent in sufficient copies for all the Lenders:
|
(a) |
as soon as the same become available, but in any event within 180 days after the end of each of its financial years, the audited financial statements of the Corporate Guarantor and the Borrower; |
|
(b) |
as soon as the same become available, but in any event within 90 days after the end of each half of each of its financial years, the unaudited semi-annual financial statements of the Corporate Guarantor and the Borrower; |
|
(c) |
by no later than 31 January each year, a two year budget and consolidated cash flow projections of the Group in a format reasonably acceptable to the Facility Agent. |
|
20.3 |
Compliance Certificate |
|
(a) |
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a) and (b) of Clause 20.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial Covenants) as at the date to which those financial statements were drawn up. |
|
(b) |
Each Compliance Certificate shall be signed by two directors of the Corporate Guarantor or the Chief Financial Officer of the Group. |
|
(c) |
The financial covenants set out in Clause 21 (Financial Covenants) shall be calculated and determined on a consolidated basis in accordance with IFRS, consistently applied, and tested semi-annually by reference to the latest consolidated financial statements and/or management accounts of the Group delivered to the Agent pursuant to this Agreement |
|
20.4 |
Requirements as to financial statements |
|
(a) |
Each set of financial statements delivered by the Borrower pursuant to Clause 20.2 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at the date as at which those financial statements were drawn up. |
|
(b) |
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 20.2 (Financial statements) is prepared using IFRS unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in IFRS and its auditors deliver to the Facility Agent: |
|
(i) |
a description of any change necessary for those financial statements to reflect the IFRS; 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 21 (Financial Covenants) has been complied with. |
|
(a) |
In this Clause 20.5 (DAC6), "DAC6" means the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU or any replacement legislation applicable in the United Kingdom. |
|
(b) |
The Borrower shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests): |
|
(i) |
promptly upon the making of such analysis or the obtaining of such advice, any analysis made or advice obtained on whether any transaction contemplated by the Transaction Documents or any transaction carried out (or to be carried out) in connection with any transaction contemplated by the Transaction Documents contains a hallmark as set out in Annex IV of DAC6; and |
|
(ii) |
promptly upon the making of such reporting and to the extent permitted by applicable law and regulation, any reporting made to any governmental or taxation authority by or on behalf of any member of the Group or by any adviser to such member of the Group in relation to DAC6 or any law or regulation which implements DAC6 and any unique identification number issued by any governmental or taxation authority to which any such report has been made (if available). |
|
20.6 |
Information: miscellaneous |
|
(a) |
Subject to paragraph (b) below, each Obligor shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests): |
|
(i) |
all material documents dispatched by it to its shareholders (or any class of them) generally or all documents dispatched by it to its creditors generally at the same time as they are dispatched; |
|
(ii) |
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, if adversely determined, are reasonably likely to have a Material Adverse Effect; |
|
(iii) |
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal body or agency which is made against any member of the Group and which might have a Material Adverse Effect; |
|
(iv) |
promptly, its constitutional documents where these have been amended or varied; |
|
(v) |
promptly, such further information and/or documents regarding: |
|
(A) |
each Ship, goods transported on each Ship, its Earnings and its Insurances; |
|
(C) |
compliance of the Obligors with the terms of the Finance Documents; |
|
(D) |
the financial condition, business and operations of any member of the Group, |
as any Finance Party (through the Facility Agent) may reasonably request; and
|
(vi) |
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. |
|
(b) |
No Obligor shall be obliged to provide information in relation to the Corporate Guarantor if in doing so it is likely to breach confidentiality or insider rule obligations applicable to that Obligor or other member of the Group and if an Obligor does provide such information the Facility Agent and the Lenders hereby agree to be bound by confidentiality and all insider rules and regulations that may be applicable to that information. |
|
20.7 |
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 Obligor 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). |
|
20.8 |
Notification of Sanctions Event |
Without prejudice to Clause 20.7 (Notification of Default), each Obligor shall notify the Facility Agent of any Sanctions Event (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).
|
(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 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. |
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Facility Agent shall notify the Obligors accordingly and each Obligor shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event each Obligor shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
|
(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. |
If an Obligor notifies the Facility Agent under sub-paragraph (i) or (v) of paragraph (c) above, all information to be provided by the Obligors under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
|
(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. |
|
20.10 |
"Know your customer" checks |
|
(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 (or of a Holding Company of an Obligor) including, without limitation, a change of ownership of an Obligor or of a Holding Company 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; or |
|
(iv) |
any Finance Parties" internal compliance policies related to "know your customer" or "client acceptance" checks, |
obliges a Finance Party (or, in the case of sub-paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of any Finance Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by a Servicing Party (for itself or on behalf of any other Finance Party) or any Lender (for itself or, in the case of the event described in sub-paragraph (iii) above, on behalf of any prospective new Lender) in order for such Finance Party or, in the case of the event described in sub-paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
(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. |
The Group shall at all times during the Security Period on a consolidated basis maintain:
|
(a) |
Minimum Adjusted Equity: an Adjusted Equity of no less than the higher of (i) 40% of the sum of the liabilities of the Group (as stated in the most recent consolidated financial statements and/or management accounts of the Group provided in accordance with Clause 20.2 (Financial statements) and determined in accordance with IFRS) and Adjusted Equity and (ii) $175,000,000. |
|
(b) |
Minimum Liquidity: Cash and Cash Equivalents of no less than the higher of (i) $500,000 per Fleet Vessel and (ii) an amount equal to 5% of interest bearing debt of the Group. |
|
(c) |
Positive Work Capital: current assets higher than its current liabilities. |
In this Clause 21 (Financial Covenants):
"Adjusted Equity" means the total equity presented in the Group's most recent consolidated financial statements and/or management accounts delivered to the Facility Agent pursuant to Clause 20.2 (Financial statements) by adjusting the vessels' book values to their current market values obtained through Approved Valuers (as defined in such financial statements or, as applicable, management accounts);
"Cash and Cash Equivalents" means, at any relevant time:
|
(a) |
cash in hand or held with banks or financial institutions of the Group in dollars or another currency freely convertible in dollars, which is free of any Security (except for Permitted Security and/or where such funds are otherwise freely available); |
|
(b) |
any cash equivalent of the Group; and |
|
(c) |
any marketable securities of the Group which are free of any Security (which are free of Permitted Security), |
as stated in the Group's most recent consolidated financial statements and/or management accounts provided in accordance with Clause 20.2 (Financial statements) and determined in accordance with IFRS.
"Fleet Vessel" means, at any relevant time, each vessel owned or bareboat chartered in by any member of the Group.
The undertakings in this Clause 22 (General Undertakings) remain in force throughout the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
Each Obligor shall promptly:
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and |
|
(b) |
supply certified copies to the Facility Agent of, |
any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of the Approved Flag at any time of each Ship to enable it to:
|
(i) |
perform its obligations under the Transaction Documents to which it is a party; |
|
(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 Collateral Guarantors). |
|
22.3 |
Compliance with laws |
Each Obligor shall comply in all respects with all laws and regulations to which it may be subject, if failure so to comply has or is reasonably likely to have a Material Adverse Effect.
|
22.4 |
Environmental compliance |
Each Obligor shall, and shall procure that each other Transaction Obligor, will:
|
(a) |
comply with all Environmental Laws; |
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals; |
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law, |
where failure to do so has or is reasonably likely to have a Material Adverse Effect.
|
22.5 |
Environmental Claims |
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor, will (through the Borrower) promptly upon becoming aware of the same, inform the Facility Agent in writing of: |
|
(i) |
any Environmental Claim against any member of the Group which is current, pending or threatened; and |
|
(ii) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group, |
where the claim, if determined against that member of the Group, has or is reasonably likely to have a Material Adverse Effect.
|
(b) |
No Obligor or Transaction Obligor shall be obliged to provide information in relation to Guarantor if in doing so it is likely to breach confidentiality or insider rule obligations applicable to that Obligor or Transaction Obligor or other member of the Group and if an Obligor does provide such information the Facility Agent and the Lenders hereby agree to be bound by confidentiality and all insider rules and regulations that may be applicable to that information. |
|
(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 20.2 (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. |
Each Obligor shall promptly inform the Facility Agent if it delivers to the Registrar particulars required under the Overseas Regulations of any UK Establishment and it shall comply with any directions given to it by the Facility Agent regarding the recording of any Transaction Security on the register which it is required to maintain under The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.
|
22.8 |
No change to centre of main interests |
No Obligor shall change the location of its centre of main interest (as that term is used in Article 3(1) of the Regulation) from that stated in relation to it in Clause 19.31 (Centre of main interests and establishments) and it will create no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
Each Obligor 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.
|
(a) |
From the Utilisation Date of an Advance under a Facility or, in case an Advance has been prepositioned in accordance with this Agreement, from the date of release of such Advance, each relevant Collateral Guarantor shall hold the legal title to, and own the entire beneficial interest in its 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. |
|
(a) |
No Transaction Obligor shall create or permit to subsist any Security over any of its assets which are the subject of the Security created or intended to be created by the Finance Documents. |
|
(b) |
No Collateral Guarantor 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; |
|
(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, |
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
|
(c) |
Paragraphs (a) and (b) above do not apply to any Permitted Security and paragraph (b) above does not apply to: |
|
(i) |
any sale or a disposal of a Ship where the provisions of Clause 8.5 (Mandatory prepayment on sale or Total Loss etc) are complied with; and |
|
(ii) |
any release of a Collateral Guarantor from its obligations under the Finance Documents to which it is a party in accordance with this Agreement. |
|
(a) |
No Collateral Guarantor 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 24.16 (Restrictions on chartering, appointment of managers etc.); |
|
(ii) |
any sale or a disposal of a Ship where the provisions of Clause 8.5 (Mandatory prepayment on sale or Total Loss etc) are complied with; and |
|
(iii) |
any release of a Collateral Guarantor from its obligations under the Finance Documents to which it is a party in accordance with this Agreement. |
|
(a) |
No Obligor shall enter into any amalgamation, demerger, merger, migration or continuation, consolidation or corporate reconstruction other than a merger involving (a) the Corporate Guarantor, provided the Corporate Guarantor is the surviving entity in such merger or (b) the Borrower, provided that the Borrower is the surviving entity in such merger and the other party in such merger is a wholly owned Subsidiary of the Borrower, and in either case such merger does not trigger a Change of Control Event. |
|
(b) |
Paragraph (a) above does not apply to any Other Group Member provided that, in the case of amalgamation, demerger, merger or consolidation, the same is not with an Obligor. |
|
(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 Collateral Guarantor shall engage in any business other than the ownership and operation of its Ship. |
|
22.15 |
Financial Indebtedness |
No Collateral Guarantor shall incur or permit to be outstanding any Financial Indebtedness except Permitted Financial Indebtedness.
No Collateral Guarantor shall incur any expenditure, except for expenditure reasonably incurred in the ordinary course of acquiring, owning, operating, maintaining and repairing its Ship and the ordinary general and administration expenses of that Collateral Guarantor.
No Collateral Guarantor shall:
|
(a) |
purchase, cancel or redeem any of its shares or share capital save as permitted by Clause 22.18 (Dividends); |
|
(b) |
increase or reduce its authorised shares or share capital; |
|
(c) |
issue any further shares except to its sole shareholder and provided such new shares are made subject to the terms of the Shares Security applicable to that Collateral Guarantor immediately upon the issue of such new shares in a manner satisfactory to the Security Agent and the terms of that Shares Security are complied with; |
|
(d) |
appoint any further director, officer or secretary of that Collateral Guarantor (unless the provisions of the Shares Security applicable to a Collateral Guarantor are complied with). |
The Obligors may:
|
(a) |
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital); |
|
(b) |
repay or distribute any dividend or share premium reserve; or |
|
(c) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so, |
provided always that, in the case of the Corporate Guarantor:
|
(i) |
no Event of Default is continuing at the time of any of the actions referred to in paragraphs (a) – (c) above or would result from any of those actions; |
|
(ii) |
no breach of Clause 21 (Financial Covenants) has occurred which has not been remedied at the time of any of the actions referred int paragraphs (a) – (c) above or would result from any of those actions; |
|
(iii) |
no breach of Clause 26 (Security Cover) has occurred which has not been remedied at the time of any of the actions referred to in paragraphs (a) – (c) above; |
|
(iv) |
if the Corporate Guarantor is not wholly legal and beneficially owned as a private company by Good Falkirk (MI) Limited the Group at the time of any of the actions referred to in paragraphs (a) – (b) above, the Group, on a consolidated basis, shall maintain Cash and Cash Equivalents of no less than 7.5% of interest bearing debt of the Group immediately after any of the actions referred to at (a) – (b) above. |
No Collateral Guarantor shall:
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted Financial Indebtedness; |
|
(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 Obligor assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents or in respect of the Existing Facility Agreement. |
|
(c) |
enter into any material agreement other than: |
|
(i) |
the Transaction Documents; |
|
(ii) |
any other agreement expressly allowed under any other term of this Agreement; and |
|
(d) |
enter into any transaction on terms which are, in any respect, less favourable to that Collateral Guarantor than those which it could obtain in a bargain made at arms' length. |
|
22.20 |
Unlawfulness, invalidity and ranking; Security imperilled |
No Obligor shall, and the Borrower shall ensure that no other member of the Group will, do (or fail to do) or cause or permit another person to do (or omit to do) anything which is likely to:
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents; |
|
(b) |
cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable if that cessation individually or together with any other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents; |
|
(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. |
|
(a) |
Each Obligor shall, and the Borrower shall procure that each Transaction Obligor will, 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 Transaction 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, and the Borrower 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 Secured 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 pursuant to this Clause 22.21 (Further assurance), that Obligor shall deliver to the Security Agent a certificate signed by two of that Obligor's directors or officers which shall: |
|
(i) |
set out the text of a resolution of that Obligor's directors specifically authorising the execution of the document specified by the Security Agent; and |
|
(ii) |
state that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors or officers and is valid under that Obligor's articles of association or other constitutional documents. |
|
(a) |
No Obligor shall, and the Borrower shall procure that no other member of the Group will, directly or indirectly use the proceeds of the Facilities for any purpose which would breach applicable anti-corruption laws. |
|
(b) |
Each Obligor shall, and the Borrower shall ensure that each other member of the Group, will: |
|
(i) |
conduct its businesses in compliance with applicable anti-corruption laws; and |
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws. |
|
23 |
INSURANCE UNDERTAKINGS |
The undertakings in this Clause 23 (Insurance Undertakings) remain in force from the First Utilisation Date and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
|
23.2 |
Maintenance of obligatory insurances |
Each Collateral Guarantor shall keep the Ship owned by it insured at its expense against:
|
(a) |
fire and usual marine risks (including hull and machinery, increased value and excess risks); |
|
(b) |
war risks (including blocking and trapping); |
|
(c) |
protection and indemnity risks; and |
|
(d) |
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 a Collateral Guarantor to insure and which are specified by the Facility Agent by notice to a Collateral Guarantor. |
|
23.3 |
Terms of obligatory insurances |
Each Collateral Guarantor shall effect such insurances:
|
(b) |
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of: |
|
(i) |
when aggregated with the insured values of the other Ships then subject to a Mortgage, 120 per cent. of the outstanding Loan and each Available Facility; 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; |
|
(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. |
|
23.4 |
Further protections for the Finance Parties |
In addition to the terms set out in Clause 23.3 (Terms of obligatory insurances), each Collateral Guarantor shall procure that the obligatory insurances effected by it shall:
|
(a) |
subject always to paragraph (b), name that Collateral Guarantor 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; |
and every other named insured has undertaken in writing to the Security Agent (in such form as it requires) that any deductible shall be apportioned between that Collateral Guarantor and every other named insured in proportion to the gross claims made or paid by each of them and that it shall do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances;
|
(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 Collateral Guarantor fails to do so. |
|
23.5 |
Renewal of obligatory insurances |
Each Collateral Guarantor shall:
|
(a) |
at least 21 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 seven 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. |
|
23.6 |
Copies of policies; letters of undertaking |
Each Collateral Guarantor shall ensure that the Approved Brokers provide the Security Agent with:
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and |
|
(b) |
a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Brokers that: |
|
(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 23.4 (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 promptly 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 Collateral 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 Ship owned by that Collateral 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 |
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Ship owned by that Collateral Guarantor forthwith upon being so requested by the Facility Agent. |
|
23.7 |
Copies of certificates of entry |
Each Collateral Guarantor shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provide the Security Agent with:
|
(a) |
a certified copy of the certificate of entry for that Ship; |
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and |
|
(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. |
|
23.8 |
Deposit of original policies |
Each Collateral 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.
Each Collateral 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 Facility Agent or the Security Agent.
Each Collateral 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.
|
23.11 |
Compliance with terms of insurances |
|
(a) |
No Obligor 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 Collateral 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 23.6 (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 (and, upon request, 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 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 |
|
(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. |
|
23.12 |
Alteration to terms of insurances |
No Obligor shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
|
23.13 |
Settlement of claims |
Each Collateral Guarantor shall:
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; 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. |
|
23.14 |
Provision of copies of communications |
Each Collateral Guarantor shall, upon request, provide the Security Agent, at the time of each such communication, with copies of all written communications between that Collateral Guarantor and:
|
(a) |
the Approved Brokers; |
|
(b) |
the approved protection and indemnity and/or war risks associations; and |
|
(c) |
the approved insurance companies and/or underwriters, |
which relate directly or indirectly to:
|
(i) |
that Collateral 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 Collateral 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. |
|
23.15 |
Provision of information |
Each Collateral Guarantor shall promptly provide the Facility Agent (or any persons which it may designate) with any information which the Facility Agent (or any such designated person) reasonably 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 23.16 (Mortgagee's interest and additional perils insurances) or dealing with or considering any matters relating to any such insurances, |
and the Obligors shall, forthwith upon demand, indemnify the Security Agent in respect of all fees and other expenses incurred by or for the account of the Security Agent in connection with any such report as is referred to in paragraph (a) above.
|
23.16 |
Mortgagee's interest and additional perils insurances |
|
(a) |
The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils insurance in an amount of 110% of the outstanding Loan and on such other 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. |
|
24 |
GENERAL SHIP UNDERTAKINGS |
The undertakings in this Clause 24 (General Ship Undertakings) remain in force on and from the date of the First Utilisation Date and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
|
24.2 |
Ships' names and registration |
Each Collateral Guarantor shall, in respect of the Ship owned by it:
|
(a) |
keep that Ship 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 imperilled; |
|
(c) |
not enter into any dual flagging arrangement in respect of that Ship; and |
|
(d) |
not change the name of that Ship, |
provided that any change of flag of a Ship shall be subject to:
|
(i) |
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 covenants collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage on that Ship and, if applicable, related Deed of Covenants 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; |
|
(ii) |
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; and |
|
(iii) |
the provision of all relevant corporate authority documents and legal opinions as the Facility Agent, acting with the authorisation of the Lenders, shall approve or require. |
|
24.3 |
Repair and classification |
Each Collateral 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; and |
|
(b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions affecting that Ship's class. |
No Collateral Guarantor shall make any modification or repairs to, or replacement of, any Ship or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value.
|
24.5 |
Removal and installation of parts |
|
(a) |
Subject to paragraph (b) below, no Collateral Guarantor 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 Collateral Guarantor and subject to the security constituted by the Mortgage on that Ship and, if applicable, the related Deed of Covenants. |
|
(b) |
A Collateral 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 that Collateral Guarantor. |
Each Collateral Guarantor shall submit the Ship owned by it regularly to all periodic or other surveys which may be required for classification purposes and, if so required by the Facility Agent acting on the instructions of the Majority Lenders, provide the Facility Agent, with copies of all survey reports.
Each Collateral Guarantor shall permit the Security Agent (acting through surveyors or other persons appointed by it for that purpose) to board the Ship owned by it at all reasonable times to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections.
|
24.8 |
Prevention of and release from arrest |
|
(a) |
Each Collateral Guarantor shall, in respect of the Ship 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 Ship, its Earnings or its Insurances; |
|
(ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and |
|
(iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances. |
|
(b) |
Each Collateral Guarantor shall immediately upon receiving notice of the arrest of the Ship owned by it or of its detention in exercise or purported exercise of any lien or claim, take all steps necessary to procure its release by providing bail or otherwise as the circumstances may require. |
|
24.9 |
Compliance with laws etc. |
Each Collateral Guarantor shall:
|
(a) |
comply, or procure compliance with all laws or regulations: |
|
(i) |
relating to its business generally; and |
|
(ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration, |
including, but not limited to, the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws of the Approved Flag;
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental 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 any law or regulation 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 binding on each Transaction Obligor). |
Without limiting paragraph (a) of Clause 24.9 (Compliance with laws etc.), each Collateral Guarantor shall:
|
(a) |
procure that the Ship owned by it and the company or corporation 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. |
|
24.11 |
Sanctions and Ship trading |
Without limiting Clause 24.9 (Compliance with laws etc.), each Collateral Guarantor shall procure:
|
(a) |
that the Ship owned by it shall not be used by or for the benefit of a Restricted Party or otherwise in any activities or business with a Restricted Party, except to the extent permissible for a person required to comply with the relevant Sanctions; |
|
(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 binding on each Sanctions Relevant Person) or which could reasonably be expected to result any party to any Finance Document or any Sanctions Relevant Person becoming a Restricted 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; |
|
(d) |
that each charterparty in respect of that Ship shall contain, for the benefit of that Collateral Guarantor, language which gives effect to the provisions of paragraph (c) of Clause 24.9 (Compliance with laws etc.) as regards Sanctions and of this Clause 24.11 (Sanctions and Ship trading) and which permits refusal of employment or voyage orders if compliance would result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were binding on each Transaction Obligor); and |
|
(e) |
that no Ship shall, without the prior written consent of all the Lenders, enter (except to the extent necessary, for safety reasons, for transiting or in an emergency) any territorial waters or area that is a target of or subject to any Sanctions. |
No Obligor will, directly or indirectly, use the proceeds of a Facility: (i) to fund any activities or business with a Restricted Party, except to the extent permissible for a person required to comply with the relevant Sanctions, or (ii) in any manner that would result in a violation of any applicable Sanctions by, or could result in the imposition of sanctions against, any party to any Finance Document.
|
24.13 |
Trading in war zones or excluded areas |
No Collateral Guarantor shall cause or permit any Ship to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers or which is otherwise excluded from the scope of coverage of the obligatory insurances unless that Collateral Guarantor 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.
|
24.14 |
Provision of information |
Without prejudice to Clause 20.6 (Information: miscellaneous) each Collateral Guarantor shall, in respect of the Ship owned by it, promptly provide the Facility Agent with any information which it requests regarding:
|
(a) |
that Ship, its employment, position and engagements; |
|
(b) |
the Earnings and payments and amounts due to its master and crew; |
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship; |
|
(d) |
any towages and salvages; and |
|
(e) |
its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code, |
and, upon the Facility Agent's request, promptly provide copies of any current Charter relating to that Ship, of any current guarantee of any such Charter, the Ship's Safety Management Certificate and any relevant Document of Compliance.
|
24.15 |
Notification of certain events |
Each Collateral Guarantor shall, in respect of the Ship owned by it, immediately notify the Facility Agent by fax, confirmed forthwith by letter, of:
|
(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; |
|
(f) |
any intended dry docking of that Ship; |
|
(g) |
any Environmental Claim made against that Collateral Guarantor or in connection with that Ship, or any Environmental Incident; |
|
(h) |
any claim for breach of the ISM Code or the ISPS Code being made against that Collateral Guarantor, an Approved Manager or otherwise in connection with that Ship; or |
|
(i) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with, |
and each Collateral Guarantor shall keep the Facility Agent advised in writing on a regular basis and in such detail as the Facility Agent shall require as to that Collateral Guarantor's, any such Approved Manager's or any other person's response to any of those events or matters.
|
24.16 |
Restrictions on chartering, appointment of managers etc. |
No Collateral Guarantor shall, in relation to the Ship owned by it:
|
(a) |
let that Ship on demise charter for any period; |
|
(b) |
enter into any pool arrangement, time, voyage or consecutive voyage charter in respect of that Ship other than a Permitted Charter; |
|
(c) |
appoint a manager of that Ship other than an Approved Commercial Manager and an Approved Technical Manager or agree to any material alteration to the terms of an Approved Manager's appointment under the relevant Management Agreement; |
|
(d) |
de activate or lay up that Ship; or |
|
(e) |
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 $1,250,000 (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. |
Each Collateral Guarantor shall keep the relevant Mortgage registered against the Ship owned by it as a valid first priority or preferred mortgage, and if required or customary in the jurisdiction of the relevant Approved Flag, carry on board that Ship a certified copy of the relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of that Ship a framed printed notice stating that that Ship is mortgaged by that Collateral Guarantor to the Security Agent.
|
24.18 |
Sharing of Earnings |
No Collateral Guarantor shall enter into any agreement or arrangement for the sharing of any Earnings other than pursuant to a Permitted Charter or for the purposes of this Agreement.
|
24.19 |
Poseidon Principles |
Each Collateral Guarantor shall, upon the request of any Lender and, on or before 31 July in each calendar year, supply or procure the supply by the Approved Classification Society (or as otherwise specified by the relevant Lender) to such Lender of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI and any Statement of Compliance, in each case relating to the Ship owned by it for the preceding calendar year provided always that, for the avoidance of doubt, such information shall be "Confidential Information" for the purposes of Clause 46 (Confidential Information) but the Collateral Guarantors acknowledge that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender's portfolio climate alignment. Should the relevant Collateral Guarantor incur additional costs caused by specific requirements from a Lender with regard to how such information is to be provided, the relevant Lender shall reimburse the relevant Collateral Guarantor for any such reasonably incurred and documented costs.
|
24.20 |
Sustainable and socially responsible dismantling of Ships |
The Borrower and each Collateral Guarantor confirms that as long as it is in a lending relationship with the Lenders, it will ensure that any Ship controlled by it or sold to an intermediary with the intention of being scrapped, is recycled at a recycling yard which conducts its recycling business in a socially and environmentally responsible manner, in accordance with the provisions of The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 and/or EU Ship Recycling Regulation.
|
24.21 |
Inventory of Hazardous Materials |
Each Collateral Guarantor shall procure that the Ship owned by it has obtained or will obtain by the time of the next special survey for such Ship, an Inventory of Hazardous Material, in respect of said Ship which shall be maintained until the Loan has been fully repaid.
|
24.22 |
Notification of compliance |
Each Collateral Guarantor shall promptly provide the Facility Agent from time to time with evidence (in such form as the Facility Agent requires) that it is complying with this Clause 24 (General Ship Undertakings).
|
25 |
ANTI-BOYCOTT REGULATIONS |
|
25.1 |
Anti-Boycott Regulations (Lender) |
The representations, undertakings and Events of Default relating to Sanctions shall not apply in favour of or for the benefit of any Lender that informs the Facility Agent that it is subject to the EU Blocking Regulation or a similar applicable anti-boycott law or regulation of any applicable jurisdiction (together with the EU Blocking Regulation and any similar successor EU law, the "Anti-Boycott Regulations"), to the extent that compliance with those provisions would violate some or all of the Anti-Boycott Regulations.
|
(a) |
In connection with any amendment, waiver, determination or direction relating to any part of the representations, undertakings or Events of Default relating to Sanctions of which a Lender does not have the benefit because such benefit would result in a violation by the Lender of any Anti-Boycott Regulations (for the purpose of this paragraph (a), each a "Restricted Lender"), that Restricted Lender will, subject to paragraph (b) below, be excluded for the purpose of determining whether the consent of all Lenders or the Majority Lenders (whichever is required) has been obtained or whether the amendment, waiver, determination or direction by all the Lenders or the Majority Lenders (whichever is required) has been made or given. |
|
(b) |
The Facility Agent is only permitted to exclude the relevant Lender pursuant to paragraph (a), above for the purpose of determining whether the consent of all the Lenders or the Majority Lenders (whichever is required) has been obtained or whether the amendment, waiver, determination or direction by all the Lenders or the Majority Lenders (whichever is required) has been made or given, if following the Facility Agent's request for such consent, amendment, waiver, determination or direction by all the Lenders or the Majority Lenders (whichever is required) the respective Lender notifies the Facility Agent that it is a Restricted Lender for such purpose. |
|
26.1 |
Minimum required security cover |
Clause 26.2 (Provision of additional security; prepayment) applies if the Facility Agent notifies the Borrower that:
|
(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), |
is below 135 per cent. of the Loan outstanding.
|
26.2 |
Provision of additional security; prepayment |
|
(a) |
If the Facility Agent serves a notice on the Borrower under Clause 26.1 (Minimum required security cover), the Borrower shall, on or before the date falling 45 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 realisable value at least equal to the shortfall; and |
|
(ii) |
is documented in such terms as the Facility Agent may reasonably approve or require, |
before the Prepayment Date; and conditional upon such security being provided in such manner, it shall satisfy such prepayment obligation.
|
26.3 |
Value of additional vessel security |
The net realisable value of any additional security which is provided under Clause 26.2 (Provision of additional security; prepayment) and which consists of Security over a vessel shall be the Market Value of the vessel concerned.
Any valuation under this Clause 26 (Security Cover) shall be binding and conclusive as regards the Borrower.
|
26.5 |
Provision of information |
|
(a) |
Each Obligor shall promptly provide the Facility Agent and any shipbroker acting under this Clause 26 (Security Cover) with any information which the Facility Agent or the shipbroker may request for the purposes of the valuation. |
|
(b) |
If an Obligor 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 shipbroker or the Facility Agent considers prudent. |
|
26.6 |
Prepayment mechanism |
Any prepayment pursuant to paragraph (a) of Clause 26.2 (Provision of additional security; prepayment) shall be applied on a pro rata basis towards each Advance.
|
26.7 |
Provision of valuations |
Each Obligor shall provide the Facility Agent with valuations of the Ship owned by it or that will be owned by it on the relevant Utilisation Date and any other vessel over which additional Security has been created in accordance with Clause 26.3 (Value of additional vessel security), from two Approved Valuers, addressed to the Corporate Guarantor (or the Borrower) and the Facility Agent, to enable the Facility Agent to determine the Market Value of that Ship (i) on or not more than 30 days before the Utilisation Date (except in relation to the First Utilisation Date when valuations may be prepared as at a date previously agreed with the Facility Agent) and (ii) within 30 days after 31 March, 30 June, 30 September and 31 December each year.
|
27 |
EARNINGS ACCOUNT AND APPLICATION OF EARNINGS |
|
27.1 |
Collateral Guarantor bank accounts |
No Collateral Guarantor may, without the prior consent of the Facility Agent, maintain any bank account.
Each Collateral Guarantor shall ensure that, as and from the First Utilisation Date, subject only to the provisions of the General Assignment to which it is a party, all the Earnings in respect of the Ship owned by it are paid into the Earnings Account.
|
27.3 |
Location of Earnings Account |
The Borrower shall promptly:
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of the Earnings Account; 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) the Earnings Account. |
Each of the events or circumstances set out in this Clause 28 (Events of Default) is an Event of Default except for Clause 28.20 (Acceleration) and Clause 28.21 (Enforcement of security).
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:
|
(a) |
its failure to pay is caused by: |
|
(i) |
administrative or technical error; or |
|
(ii) |
a Disruption Event; and |
|
(b) |
payment is made within three Business Days of its due date. |
|
28.3 |
Specific obligations |
A breach occurs of Clause 4.4 (Waiver of conditions precedent), Clause 4.5 (Conditions subsequent), Clause 22.10 (Title), Clause 22.11 (Negative pledge), Clause 22.20 (Unlawfulness, invalidity and ranking; Security imperilled), Clause 21.1 (Financial Covenants), Clause 23.2 (Maintenance of obligatory insurances), Clause 23.3 (Terms of obligatory insurances), Clause 23.5 (Renewal of obligatory insurances) or, save to the extent such breach is a failure to pay and therefore subject to Clause 28.2 (Non-payment), Clause 26 (Security Cover).
|
(a) |
A Transaction 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) and Clause 24.12 (Use of Proceeds)). |
|
(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 Borrower or (if earlier) any Transaction Obligor becoming aware of the failure to comply. |
Except for any representation or statement made pursuant to Clause 19.34 (Sanctions), any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
|
(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 $5,000,000 (or its equivalent in any other currency). |
|
(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 but excluding in the case of any Collateral Guarantor or the Borrower, liabilities owed to other members of the Group, in the case of a Collateral Guarantor, provided the same are Permitted Indebtedness). |
|
(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, judicial management, liquidation or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor; |
|
(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. Judicial manager or other similar officer in respect of any Obligor or any of its assets; |
|
(iv) |
enforcement of any Security over any assets of any Obligor (other than an arrest or detention of a Ship referred to in Clause 28.14 (Arrest), |
or any analogous procedure or step is taken in any jurisdiction.
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement. |
Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of an Obligor having an aggregate value of $5,000,000 (other than an arrest or detention of a Ship referred to in Clause 28.14 (Arrest)) and is not discharged within 30 days of commencement.
|
28.10 |
Ownership of the Obligors |
|
(a) |
An Obligor (other than the Corporate Guarantor) is not or ceases to be a 100% directly or indirectly owned Subsidiary of the Corporate Guarantor. |
|
(b) |
A Collateral Guarantor is not or ceases to be a 100% directly owned Subsidiary of the Borrower. |
|
(c) |
Paragraph (b) above shall only apply to a Collateral Guarantor as and from the relevant Utilisation Date (being the First Utilisation Date for the Existing Collateral Guarantors) (or in case the relevant Advance has been prepositioned in accordance with this Agreement, the release date of that Advance). |
|
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 (subject to the Legal Reservations) or ceases to be legal, valid, binding or enforceable if that cessation individually or together with any other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents. |
|
(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 (except for Permitted Security). |
|
28.12 |
Security imperilled |
Any Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy.
|
28.13 |
Cessation of business |
Any Obligor suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.
Any arrest of a Ship or its detention in the exercise or the purported exercise of any lien or claim unless it is redelivered to the full control of the relevant Collateral Guarantor within 30 days of such arrest or detention.
The authority or ability of any member of the Group to conduct its business is limited or wholly or substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other person in relation to any member of the Group or any of its assets other than:
|
(a) |
an arrest or detention of a Ship referred to in Clause 28.14 (Arrest); or |
|
28.16 |
Repudiation and rescission of agreements |
A Transaction Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Transaction Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Transaction Document or any Transaction Security.
Any litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency are started or threatened, or any judgment or order of a court, arbitral body or agency is made, in relation to any of the Transaction Documents or the transactions contemplated in any of the Transaction Documents or against any member of the Group or its assets which has or is reasonably likely to have a Material Adverse Effect.
|
28.18 |
Material adverse change |
Any event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.
|
(a) |
An Early Termination Date (as defined in any Master Agreement) is designated by a Hedge Counterparty under any Hedging Agreement under section (6)(a) of the relevant ISDA Master Agreement. |
|
(b) |
No Event of Default shall occur under paragraph (a) above at any time when any Secured Liabilities are owed to a Lender. |
On and at any time after the occurrence of an Event of Default which is continuing the Facility Agent may, and shall if so directed by the Majority Lenders:
|
(a) |
by notice to the Borrower: |
|
(i) |
cancel the Available Commitment of each Lender, whereupon they shall immediately be cancelled; |
|
(ii) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents (not including any Hedging Agreements) be immediately due and payable, whereupon it shall become immediately due and payable; and/or |
|
(iii) |
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 |
|
(b) |
pursuant to sub-paragraph (iii) of paragraph (i) and paragraph (j) of Clause 9.6 (Hedging), instruct the Hedge Counterparties to terminate or close out a transaction under a Hedging Agreement; |
|
(c) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents (except for the Hedging Agreements), |
and the Facility Agent may serve notices under sub-paragraphs (i), (ii) and (iii) of paragraph (a) above simultaneously or on different dates and any Servicing Party may take any action referred to in paragraph (b) above or Clause 28.21 (Enforcement of security) if no such notice is served or simultaneously with or at any time after the service of any of such notice.
|
28.21 |
Enforcement of security |
On and at any time after the occurrence of an Event of Default which is continuing the Security Agent may, and shall if so directed by the Majority Lenders, take any action which, as a result of the Event of Default or any notice served under Clause 28.20 (Acceleration), the Security Agent is entitled to take under any Finance Document or any applicable law or regulation.
SECTION 9
CHANGES TO PARTIES
|
29 |
CHANGES TO THE LENDERS AND HEDGE COUNTERPARTIES |
|
29.1 |
Assignments and transfers by the Lenders |
Subject to this Clause 29 (Changes to the Lenders and Hedge Counterparties), a Lender (the "Existing Lender") may:
|
(a) |
assign any of its rights; or |
|
(b) |
transfer by novation any of its rights and obligations, |
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender").
|
29.2 |
Conditions of assignment or transfer |
|
(a) |
The consent of the Borrower 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) |
if the Existing Lender is a fund, to a fund which is a Related Fund; or |
|
(iii) |
made at a time when an Event of Default is continuing or a Sanctions Event has occurred, |
in which case an assignment or transfer by an Existing Lender may be done without the Borrower's consent.
|
(b) |
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five (5) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time. |
|
(c) |
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 had been 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. |
|
(d) |
Each Obligor on behalf of itself and each Transaction 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 Borrower or any other Transaction Obligor had against the Existing Lender. |
|
(e) |
A transfer will only be effective if the procedure set out in Clause 29.5 (Procedure for transfer) is complied with. |
|
(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 13 (Tax Gross Up and Indemnities) or under that clause as incorporated by reference or in full in any other Finance Document or Clause 14 (Increased Costs), |
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. This paragraph (f) shall not apply in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Facilities.
|
(g) |
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 |
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $10,000.
|
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 Transaction Obligor; |
|
(iii) |
the performance and observance by any Transaction 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, |
and any representations or warranties implied by law are excluded.
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(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 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 Transaction 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 29 (Changes to the Lenders and Hedge Counterparties); 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 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 29.10 (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 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 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 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. |
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(c) |
Subject to Clause 29.10 (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. |
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(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 Transaction Obligor or unless in accordance with Clause 29.5 (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 29.2 (Conditions of assignment or transfer). |
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29.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower |
The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Borrower a copy of that Transfer Certificate or Assignment Agreement.
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29.8 |
Additional Hedge Counterparties |
|
(a) |
The Borrower or a Lender may request that a Lender or an Affiliate of a 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 Borrower, by delivering to the Facility Agent a duly executed Hedge Counterparty Accession Letter. |
|
(b) |
The relevant Lender or Affiliate will become an Additional Hedge Counterparty from the date when the Facility Agent enters into the relevant Hedge Counterparty Accession Letter and shall from that date be bound by all of the obligations of a Hedge Counterparty under this Agreement as if it were an Original Hedge Counterparty and shall have all rights, benefits and entitlements of a Hedge Counterparty as if it were an Original Hedge Counterparty. |
|
(c) |
The Facility Agent shall only be obliged to execute a Hedge Counterparty Accession Letter delivered to it once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations. |
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29.9 |
Security over Lenders' rights |
In addition to the other rights provided to Lenders under this Clause 29 (Changes to the Lenders and Hedge Counterparties), each Lender may without consulting with or obtaining consent from any Transaction Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and |
|
(b) |
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, |
except that no such charge, assignment or Security shall:
|
(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 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. |
|
29.10 |
Pro rata interest settlement |
|
(a) |
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 29.5 (Procedure for transfer) or any assignment pursuant to Clause 29.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period): |
|
(i) |
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 |
|
(ii) |
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: |
|
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and |
|
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 29.10 (Pro rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts. |
|
(b) |
In this Clause 29.10 (Pro rata interest settlement) references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees. |
|
(c) |
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 29.10 (Pro rata interest settlement) but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents. |
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29.11 |
No cost to the Borrower |
Except for any assignment or transfer of a Lender's rights and/or obligations under the Finance Documents completed at any time when an Event of Default is continuing or as a result of the Borrower exercising their rights under Clause 8.6 (Right of replacement or repayment and cancellation to a single lender), the Borrower shall not be responsible for any cost or expense incurred by any Finance Party in relation to documenting any assignment or transfer of a Lender's rights and/or obligations under the Finance Document.
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30 |
CHANGES TO THE TRANSACTION OBLIGORS |
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31.1 |
Assignment or transfer by Transaction Obligors |
No Transaction Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
|
(a) |
If a disposal or release of any asset subject to security created by a Security Document is made in the following circumstances: |
|
(i) |
the disposal or release is permitted by the terms of any Finance Document; |
|
(ii) |
all the Lenders agree to the disposal or release; |
|
(iii) |
the disposal or release 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 or release is being effected by enforcement of a Security Document, |
the Security Agent may release the asset(s) being disposed of from any security over those assets created by a Security Document. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).
|
(b) |
If the Security Agent is satisfied that a release is allowed under this Clause 30.2 (Release of security), Clause 30.5 (Replacement Ships), Clause 30.6 (Release of a Ship and Collateral Guarantor) or Clause 8.5 (Mandatory prepayment on sale or Total Loss etc) (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 and the release of the relevant Collateral Guarantor from its obligations under the Finance Documents to which it is a party and any Shares Security in respect of that Collateral Guarantor. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. |
|
30.3 |
Collateral Guarantors |
|
(a) |
Subject to compliance with the provisions of Clause 20.10 ("Know your customer" checks), a wholly and directly owned Subsidiary of the Borrower may become a Collateral Guarantor. That Subsidiary shall become a Collateral Guarantor if: |
|
(i) |
it is incorporated in the same jurisdiction as the Borrower or another jurisdiction acceptable to the Lenders. For the avoidance of doubt, the jurisdictions of the Approved Flag is acceptable to the Lenders; |
|
(ii) |
it owns a Ship or Ships which is (or will be) subject to Security pursuant to this Agreement; |
|
(iii) |
it delivers to the Facility Agent a duly completed and executed Accession Deed to which ; and |
|
(iv) |
the Borrower confirms that no Default is continuing or would occur as a result of that Subsidiary becoming a Collateral Guarantor; and |
|
(v) |
the Facility Agent has received all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in relation to that Collateral Guarantor (or such equivalent corporate and constitutional documents or other documents as may be required in relation to any legal opinions or otherwise on the basis of the jurisdiction of incorporation of the Collateral Guarantor), each in form and substance satisfactory to the Facility Agent provided that references in Part B of Schedule 2 (Conditions Precedent) to "the Collateral Guarantor" or to any Ship or document relating to that Collateral Guarantor shall be deemed to relate solely to the Collateral Guarantor or Collateral Guarantors named in the relevant Accession Deed, |
and the Facility Agent enters into the Accession Deed.
|
(b) |
Delivery of an Accession Deed pursuant to paragraph (a) above constitutes confirmation by the relevant Collateral Guarantor that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing. |
|
(c) |
The Facility Agent shall only be obliged to execute an Accession Deed delivered to it once it is satisfied that the conditions set out in paragraph (a) above have been or will be satisfied. |
|
(d) |
From that date the Facility Agent enters into the Accession Deed, the relevant Subsidiary shall be bound by all of the obligations of a Collateral Guarantor under this Agreement as if it were an Existing Collateral Guarantor (including, without limitation, being a joint and several guarantor to each Finance Party of each other Obligors obligations under the Finance Documents on the terms set out under Clause 18 (Guarantee and Indemnity)). |
|
(a) |
Subject to the terms of this Agreement, the Borrower may (but shall not be obliged to unless required in connection with a first Utilisation under an Accordion Facility) provide Security over an additional ship or ships (an "Additional Ship") and any such Additional Ship will constitute an Additional Ship for the purposes of this Agreement during the Security Period, provided that: |
|
(i) |
the Borrower has given written notice to the Facility Agent at least 10 Business Days (or such shorter period as the Facility Agent shall approve) before the proposed date that the Security over that Additional Ship is to be taken, attaching a copy of the valuations to be provided pursuant to Part B of Schedule 2 (Conditions Precedent) in respect of the Additional Ship; |
|
(ii) |
the relevant Collateral Guarantor accedes to this Agreement in accordance with Clause 30.3 (Collateral Guarantors); |
|
(iii) |
that Additional Ship meets and satisfies in all respects the relevant Ship Criteria; |
|
(iv) |
the relevant conditions precedent referred to in Clause 4.1 (Initial conditions precedent) have been satisfied and the Facility Agent has received in respect of the Additional Ship the Security Documents and other documents or evidence relating to it pursuant to Part B of Schedule 2 (Conditions Precedent) (or such equivalent corporate and constitutional documents or other documents as may be required under any legal opinions), provided that references in Part B of Schedule 2 (Conditions Precedent) to "the Ship" or to any person or document relating to a Ship shall be deemed to relate solely to the Additional Ship; and |
|
(v) |
the Borrower identifies whether or not the Additional Ship is being provided in accordance with Clause 2.4 (Accordion Ships) and is an Accordion Ship or an Existing Collateral Ship. |
|
(a) |
Subject to the terms of this Agreement, the Borrower may (but shall not be obliged to) replace a Ship (a "Replacement Ship") and any such replacement ship will constitute a Replacement Ship for the purposes of this Agreement during the Security Period, provided that: |
|
(i) |
the Borrower has given written notice to the Facility Agent at least 10 Business Days (or such shorter period as the Facility Agent shall approve) before the relevant replacement date specifying the following details in respect of the proposed Replacement Ship and attaching a copy of the valuations to be provided pursuant to Part B of Schedule 2 (Conditions Precedent)in respect of the Replacement Ship: |
|
(A) |
the name, age and ownership details of such Replacement Ship; |
|
(B) |
the name of the Ship which is to be replaced (the "Outgoing Ship"); |
|
(ii) |
the relevant Collateral Guarantor accedes to this Agreement in accordance with Clause 30.3 (Collateral Guarantors); |
|
(iii) |
that Replacement Ship meets and satisfies in all respects the relevant Ship Criteria; |
|
(iv) |
the relevant conditions precedent referred to in Clause 4.1 (Initial conditions precedent) have been satisfied and the Facility Agent has received in respect of the Replacement Ship the Security Documents and other documents or evidence relating to it pursuant to Part B of Schedule 2 (Conditions Precedent) (or such equivalent corporate and constitutional documents or other documents as may be required and anything else required under any legal opinions), provided that references in Part B of Schedule 2 (Conditions Precedent) to "the Ship" or to any person or document relating to a Ship shall be deemed to relate solely to the Replacement Ship; |
|
(v) |
the aggregate Market Value of the Ships subject to Security immediately following the replacement of the Outgoing Ship with the Replacement Ship is equal to or in excess of the aggregate Market Value of the Ships immediately prior to the replacement of the Outgoing Ship; and |
|
(vi) |
the Replacement Ship shall constitute an Existing Collateral Ship if the Outgoing Ship is an Existing Collateral Ship or an Accordion Ship if the Outgoing Ship in an Accordion Ship. |
|
(b) |
Subject to paragraph (a) above no Default then continuing, the Security Agent shall release the Collateral Guarantor owning the Outgoing Ship from its obligations under any of the Finance Documents to which it is a party, the Shares Security in respect of that Collateral Guarantor and any Security in respect of the relevant Ship in accordance with Clause 30.2 (Release of security). |
|
30.6 |
Release of a Ship and Collateral Guarantor |
|
(a) |
The Borrower may at any time with effect from the Closing Date request that a Ship and the relevant Collateral Guarantor owning that Ship is released from the Finance Documents provided that: |
|
(i) |
the Borrower has given written notice to the Facility Agent of the relevant Collateral Guarantor and the Ship to be released at least 10 Business Days (or such shorter period as the Facility Agent shall approve) before that Collateral Guarantor and Ship is to be released; and |
|
(ii) |
the Borrower makes the cancellation and prepayment required by the terms of Clause 8.5 (Mandatory prepayment on sale or Total Loss etc). |
|
(b) |
Subject to paragraph (a) above and no Default then continuing, the Security Agent shall release the relevant Collateral Guarantor from its obligations under any of the Finance Documents to which it is a party, the Shares Security in respect of that Collateral Guarantor and any Security in respect of the relevant Ship in accordance with Clause 30.2 (Release of security). |
|
30.7 |
Additional Subordinated Creditors |
|
(a) |
The Borrower may request that any person becomes a Subordinated Creditor, with the prior approval of the Facility Agent (acting on the instructions of the Majority Lenders), by delivering to the Facility Agent: |
|
(i) |
a duly executed Subordination Agreement; and |
|
(ii) |
such constitutional documents, corporate authorisations and other documents and matters as the Facility Agent may reasonably require, in form and substance satisfactory to the Facility Agent, to verify that the person's obligations are legally binding, valid and enforceable and to satisfy any applicable legal and regulatory requirements. |
|
(b) |
A person referred to in paragraph (a) above will become a Subordinated Creditor on the date the Security Agent enters into the Subordination Agreement. |
|
31 |
THE FACILITY AGENT AND THE ARRANGERS |
|
31.1 |
Appointment of the Facility Agent |
|
(a) |
Each of the Arrangers, the Lenders, the Bookrunner, the Coordinators 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 Arrangers, the Lenders, the Bookrunner, the Coordinators 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. |
|
(c) |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 31 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities. |
|
(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 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 Arrangers |
Except as specifically provided in the Finance Documents, the Arrangers, the Coordinators and the Bookrunner have no obligations of any kind to any other Party under or in connection with any Finance Document.
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or the Arrangers as a trustee or fiduciary of any other person. |
|
(b) |
Neither the Facility Agent nor the Arrangers 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 |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Facility Agent receives or recovers in its capacity as Facility Agent shall be applied by the Facility Agent in accordance with Clause 35.5 (Application of receipts; partial payments).
|
31.7 |
Business with the Group |
The Facility Agent and the Arrangers may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of 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; |
|
(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, |
as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
|
(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 the Borrower (other than a Utilisation Request) 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, |
unless such error or such loss was directly caused by the Facility Agent's gross negligence or wilful misconduct.
|
(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 of the Arrangers 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 |
Neither the Facility Agent nor any of the Arrangers is responsible or liable for:
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arrangers, 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 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. |
The Facility Agent shall not be bound to enquire:
|
(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. |
|
31.11 |
Exclusion of liability |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 35.11 (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 (including, without limitation, for negligence or any other category of liability whatsoever) for: |
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any 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, |
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
|
(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 paragraph (b) 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 the Arrangers 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, |
on behalf of any Finance Party and each Finance Party confirms to the Facility Agent and the Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Arrangers.
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability (including, without limitation, for negligence or any other category of liability whatsoever) 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 (including, without limitation, for negligence or any other category of liability whatsoever) 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 35.11 (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. |
|
31.13 |
Resignation of the Facility Agent |
|
(a) |
The Facility 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 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 (after consultation with the Borrower) 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 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, 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 15.3 (Indemnity to the Facility Agent) and this Clause 31 (The Facility Agent and the 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 Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent. |
|
(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 13.7 (FATCA Information) and the Borrower or 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 13.7 (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 Borrower 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; |
and (in each case) the Borrower or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Borrower or that Lender, by notice to the Facility Agent, requires it to resign.
|
(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 of the Arrangers 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 29.10 (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, |
unless it has received not less than five Business Days' prior notice from that Lender or Hedge Counterparty to the contrary in accordance with the terms of this Agreement.
|
(b) |
Each 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 38.5 (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 38.2 (Addresses) and sub-paragraph (ii) of paragraph (a) of Clause 38.5 (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 |
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Transaction Document, each Finance Party confirms to the Facility Agent and the Arrangers 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 Transaction Document including but not limited to:
|
(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. |
|
31.17 |
Facility Agent's management time |
Any amount payable to the Facility Agent under Clause 15.3 (Indemnity to the Facility Agent), Clause 17 (Costs and Expenses) and Clause 31.12 (Lenders' indemnity to the Facility Agent) shall, following the occurrence of an Event of Default which is continuing, include the cost of utilising 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 12 (Fees).
|
31.18 |
Deduction from amounts payable by the Facility Agent |
If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
|
31.19 |
Reliance and engagement letters |
Each Secured Party confirms that each of the Arrangers and the Facility Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arrangers or the Facility Agent) the terms of any reliance letter or engagement letters or any reports or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
|
3.20 |
Full freedom to enter into transactions |
Without prejudice to Clause 31.7 (Business with the Group) or any other provision of a Finance Document and notwithstanding any rule of law or equity to the contrary, the Facility Agent shall be absolutely entitled:
|
(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 any Obligor or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, the Facility Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
(a) |
The Security Agent declares that it holds the Security Property 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. |
|
(c) |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 32 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities. |
|
32.2 |
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 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 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, |
and the Corresponding Debt of an Obligor shall be decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged,
in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding Debt.
|
(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 35.5 (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 |
The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority or discretion arising under the Security Documents except through the Security Agent.
|
(a) |
The Security Agent shall: |
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by: |
|
(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 32.28 (Application of receipts); |
|
(B) |
Clause 32.29 (Permitted Deductions); and |
|
(C) |
Clause 32.30 (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, |
the Security Agent shall do so having regard to the interests of all the Secured Parties.
|
(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). |
|
(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 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 |
The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
|
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; |
|
(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, |
as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
|
(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 the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Transaction 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, |
unless such error or such loss was directly caused by the Security Agent's gross negligence or wilful misconduct.
|
(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 |
None of the Security Agent, any Receiver or Delegate is responsible or liable for:
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arrangers, 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 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. |
The Security Agent shall not be bound to enquire:
|
(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. |
|
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 (including, without limitation, for negligence or any other category of liability whatsoever) for: |
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any 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, |
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
|
(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 paragraph (b) 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, |
on behalf of any Finance Party and each Finance Party confirms to the Security Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Security Agent.
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver, any liability (including, without limitation, for negligence or any other category of liability whatsoever) of the Security Agent or 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. |
|
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 (including, without limitation, for negligence or any other category of liability whatsoever) 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 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. |
|
32.13 |
Resignation of the Security Agent |
|
(a) |
The Security 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 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 (after consultation with the Borrower) 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. |
|
(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 32.25 (Winding up of trust) and paragraph (d) above) but shall remain entitled to the benefit of Clause 15.4 (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 Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent. |
|
(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 |
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Transaction Document, each Finance Party confirms to the Security Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under, or in connection with, any Transaction Document including but not limited to:
|
(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 |
Security Agent's management time |
|
(a) |
Any amount payable to the Security Agent under Clause 15.4 (Indemnity to the Security Agent), Clause 17 (Costs and Expenses) and Clause 32.12 (Lenders' indemnity to the Security Agent) shall, following the occurrence of an Event of Default which is continuing, include the cost of utilising 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 12 (Fees). |
|
(b) |
Without prejudice to paragraph (a) above, in the event of: |
|
(i) |
the Security Agent being requested by a Transaction Obligor or 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 |
|
(ii) |
the Security Agent and the Borrower agreeing that it is otherwise appropriate in the circumstances, |
the Borrower shall pay to the Security Agent any additional remuneration (together with any applicable VAT) that may be agreed between them or determined pursuant to paragraph (c) below.
|
(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 or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (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. |
|
32.17 |
Reliance and engagement letters |
Each Secured Party confirms that the Security Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Security Agent) the terms of any reliance letter or engagement letters or any reports or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
|
32.18 |
No responsibility to perfect Transaction Security |
The Security Agent shall not be liable for any failure to:
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the 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 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 Finance Document. |
|
32.19 |
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, |
and the Security Agent shall not be liable for any damages, costs or losses to any person as a result of the lack of, or inadequacy of, any such insurance.
|
(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. |
|
32.20 |
Custodians and nominees |
The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any asset of the trust as the Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Agent shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.
|
32.21 |
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 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. |
|
32.22 |
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 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, |
and the Security Agent shall give prior notice to the Borrower and the Finance Parties of that appointment.
|
(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. |
|
32.23 |
Acceptance of title |
The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any Transaction Obligor may have to any of the Security Assets and shall not be liable for or bound to require any Transaction Obligor to remedy any defect in its right or title.
Upon a disposal of any of the Security Assets pursuant to the enforcement of the Transaction Security by a Receiver, a Delegate or the Security Agent, the Security Agent is irrevocably authorised (at the cost of the Obligors and without any consent, sanction, authority or further confirmation from any other Secured Party) to release, without recourse or warranty, that property from the Transaction Security and to execute any release of the Transaction Security or other claim over that asset and to issue any certificates of non-crystallisation of floating charges that may be required or desirable.
|
32.25 |
Winding up of trust |
If the Security Agent, with the approval of the Facility Agent determines that:
|
(a) |
all of the Secured Liabilities and all other obligations secured by the 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 Transaction Obligor pursuant to the Finance Documents, |
then
|
(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. |
|
32.26 |
Powers supplemental to Trustee Acts |
The rights, powers, authorities and discretions given to the Security Agent under or in connection with the Finance Documents shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Agent by law or regulation or otherwise.
|
32.27 |
Disapplication of Trustee Acts |
Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the other Finance Documents. Where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement and any other Finance Document, the provisions of this Agreement and any other Finance Document shall, to the extent permitted by law and regulation, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement and any other Finance Document shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.
|
32.28 |
Application of receipts |
All amounts from time to time received or recovered by the Security Agent pursuant to the terms of any Finance Document, under Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) or in connection with the realisation or enforcement of all or any part of the Security Property (for the purposes of this Clause 32 (The Security Agent), the "Recoveries") shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the remaining provisions of this Clause 32 (The Security Agent)), in the following order of priority:
|
(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 Transaction Obligor under any of the Finance Documents in accordance with Clause 35.5 (Application of receipts; partial payments); |
|
(c) |
if none of the Transaction 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 Transaction Obligor; and |
|
(d) |
the balance, if any, in payment or distribution to the relevant Transaction Obligor. |
|
32.29 |
Permitted Deductions |
The Security Agent may, in its discretion:
|
(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). |
|
32.30 |
Prospective liabilities |
Following enforcement of any of the Transaction Security, the Security Agent may, in its discretion, or at the request of the Facility Agent, hold any Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) for later payment to the Facility Agent for application in accordance with Clause 32.28 (Application of receipts) in respect of:
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and |
|
(b) |
any part of the Secured Liabilities, |
that the Security Agent or, in the case of paragraph (b) only, the Facility Agent, reasonably considers, in each case, might become due or owing at any time in the future.
|
32.31 |
Investment of proceeds |
Prior to the payment of the proceeds of the Recoveries to the Facility Agent for application in accordance with Clause 32.28 (Application of receipts) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security Agent's discretion in accordance with the provisions of Clause 32.28 (Application of receipts).
|
32.32 |
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. |
|
(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. |
|
32.34 |
Amounts received by Obligors |
If any of the Obligors receives or recovers any amount which, under the terms of any of the Finance Documents, should have been paid to the Security Agent, that Obligor will hold the amount received or recovered on trust for the Security Agent and promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement.
|
32.35 |
Application and consideration |
In consideration for the covenants given to the Security Agent by each Obligor in relation to Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent agrees with each Obligor to apply all moneys from time to time paid by such Obligor to the Security Agent in accordance with the foregoing provisions of this Clause 32 (The Security Agent).
|
32.36 |
Full freedom to enter into transactions |
Without prejudice to Clause 32.7 (Business with the Group) or any other provision of a Finance Document and notwithstanding any rule of law or equity to the contrary, the Security Agent shall be absolutely entitled:
|
(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, |
and, in particular, the Security Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
33 |
CONTUCT OF BUSINESS BY THE FINANCE PARTIES |
No provision of this Agreement will:
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; |
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or |
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. |
|
34 |
SHARING AMONG THE FINANCE PARTIES |
|
34.1 |
Payments to Finance Parties |
If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from a Transaction Obligor other than in accordance with Clause 35 (Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due to it under the Finance Documents then:
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent; |
|
(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 35 (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 35.5 (Application of receipts; partial payments). |
|
34.2 |
Redistribution of payments |
The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Transaction Obligor and distribute it among the Finance Parties (other than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 35.5 (Application of receipts; partial payments) towards the obligations of that Transaction Obligor to the Sharing Finance Parties.
|
34.3 |
Recovering Finance Party's rights |
On a distribution by the Facility Agent under Clause 34.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from a Transaction Obligor, as between the relevant Transaction Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Transaction Obligor.
|
34.4 |
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:
|
(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. |
|
(a) |
This Clause 34 (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. |
|
(c) |
This Clause 34 shall not apply to any receipt or recovery by way of: |
|
(i) |
Close-Out Netting by a Hedge Counterparty; or |
|
(ii) |
Payment Netting by a Hedge Counterparty. |
For the purposes of this Clause 34.5:
"Close-Out Netting" means any step involved in determining an Early Termination Amount (as defined in the relevant Hedging Agreement) under section 6(e) of the relevant ISDA Master Agreement; and
"Payment Netting" means netting under section 2(c) of the relevant ISDA Master Agreement.
|
35.1 |
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 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. |
|
35.2 |
Distributions by the Facility Agent |
Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 35.3 (Distributions to a Transaction Obligor) and Clause 35.4 (Clawback and pre-funding) be made available by the Facility Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Facility Agent by not less than five Business Days' notice with a bank specified by that Party in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London), as specified by that Party or, in the case of an Advance, to such account of such person as may be specified by the Borrower in a Utilisation Request.
|
35.3 |
Distributions to a Transaction Obligor |
The Facility Agent may (with the consent of the Transaction Obligor or in accordance with Clause 36 (Set-Off)) apply any amount received by it for that Transaction Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Transaction Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
|
35.4 |
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 that 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 the 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. |
|
35.5 |
Application of receipts; partial payments |
|
(a) |
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 or any Delegate under the Finance Documents; |
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest and fees due but unpaid to the Lenders under this Agreement; |
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid to the Lenders under this Agreement; |
|
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents; and |
|
(v) |
fifthly, in or towards payment pro rata 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; and |
|
(vi) |
sixthly, in or towards payment pro rata of any payments as a result of termination or closing out due but unpaid to the Hedge Counterparties under the Hedging Agreements. |
|
(b) |
The Facility Agent shall, if so directed by the Majority Lenders and the Hedge Counterparties, vary, or instruct the Security Agent to vary (as applicable), the order set out in sub-paragraphs (ii) to (iv) of paragraph (a) above. |
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by a Transaction Obligor. |
|
35.6 |
No set-off by Transaction Obligors |
|
(a) |
All payments to be made by a Transaction 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. |
|
(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. |
|
(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 dollar shall be paid in that other 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 Borrower); and |
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the 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 Market and otherwise to reflect the change in currency. |
|
35.10 |
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. |
|
35.11 |
Disruption to Payment Systems etc. |
If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Borrower that a Disruption Event has occurred:
|
(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 Facilities 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 and any Transaction Obligors 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 35.11 (Disruption to Payment Systems etc.); and |
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. |
|
35.12 |
Amounts paid in error |
|
(a) |
If the Facility Agent pays an amount to another Party and the Facility Agent notifies that Party that such payment was an Erroneous Payment (as defined in Clause 35.12(d) below) then the Party to whom that amount 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. |
|
(b) |
Neither (i) the obligations of any Party to the Facility Agent nor (ii) the remedies of the Facility Agent (whether arising under this Clause 35.12 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this Clause 35.12(b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Facility Agent or any other Party). |
|
(c) |
All payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause 35.12 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. |
|
(d) |
In this Agreement, "Erroneous Payment" means a payment of an amount by the Facility Agent to another Party which the Agent determines (in its sole discretion) was made in error. |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 35 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities.
A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
The rights conferred on a Hedge Counterparty by this Clause 36 shall be in addition to, and without prejudice to or limitation of, the rights of netting and set off conferred on a Hedge Counterparty by any Hedging Agreement to which it is a party.
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document, each Party acknowledges and accepts that any liability of any party to a Finance Document 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. |
|
(c) |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 37 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities. |
|
38.1 |
Communications in writing |
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents are:
|
(a) |
in the case of the Borrower, 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); |
|
(d) |
in the case of the Security Agent, that specified in Schedule 1 (The Parties); |
|
(e) |
in the case of the Arrangers, the Coordinators and the Bookrunner, the same details as for the respective Lender as referred to at paragraph (b) above, |
or any substitute address, fax number or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the other Parties, if a change is made by the Facility Agent) by not less than five Business Days' notice.
|
(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, |
and, if a particular department or officer is specified as part of its address details provided under Clause 38.2 (Addresses), if addressed to that department or officer.
|
(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 Transaction 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. |
|
38.4 |
Notification of address and fax number |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 38.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
|
38.5 |
Electronic communication |
|
(a) |
Any communication to be made or document to be delivered by one Party to another under or in connection with the Finance Documents may be made or delivered 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 or delivery 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 or delivery. |
|
(c) |
Any such electronic communication or document as specified in paragraph (a) above made or delivered by one Party to another will be effective only when actually received (or made available) in readable form and in the case of any electronic communication or document made or delivered 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 or document 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 or document 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 or a document being delivered shall be construed to include that communication or document being made available in accordance with this Clause 38.5 (Electronic communication). |
|
(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: |
|
(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. |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 38 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities.
|
39 |
CALCULATIONS AND CERTIFICATES |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
|
39.2 |
Certificates and determinations |
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
|
39.3 |
Day count convention and interest calculation |
|
(a) |
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated: |
|
(i) |
on the basis of the actual number of days elapsed and a year of 360 days (or, in any case where the practice in the Relevant Market differs, in accordance with that market practice); and |
|
(ii) |
subject to paragraph (b) below, without rounding. |
|
(b) |
The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall be rounded to 2 decimal places. |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this Clause 39 do not include any Hedging Agreement entered into by the Borrower with a Hedge Counterparty in connection with the Facilities.
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
|
(a) |
No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any Finance Document. No election to affirm any Finance Document on the part of a Secured Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law. |
|
(b) |
No variation or amendment of a Finance Document shall be valid unless in writing and signed by or on behalf of all the relevant Finance Parties in accordance with the provisions of Clause 45 (Amendments and waivers). |
|
(a) |
This Agreement, in conjunction with the other Finance Documents, constitutes the entire agreement between the Parties and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral, in respect of its subject matter. |
|
(b) |
Each Obligor acknowledges that it has not entered into this Agreement or any other Finance Document in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or in any other Finance Document. |
|
43 |
SETTLEMENT OR DISCHARGE CONDITIONAL |
Any settlement or discharge under any Finance Document between any Finance Party and any Transaction Obligor shall be conditional upon no security or payment to any Finance Party by any Transaction Obligor or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency law or otherwise.
If the Facility Agent considers that an amount paid or discharged by, or on behalf of, a Transaction Obligor or by any other person in purported payment or discharge of an obligation of that Transaction Obligor to a Secured Party under the Finance Documents is capable of being avoided or otherwise set aside on the liquidation or administration of that Transaction Obligor or otherwise, then that amount shall not be considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Finance Documents.
|
45 |
AMENDMENTS AND WAIVERS |
|
(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. |
|
(d) |
Paragraph (c) of Clause 29.10 (Pro rata interest settlement) shall apply to this Clause 45 (Amendments and Waivers). |
Subject to Clause 45.4 (Changes to reference rates), an amendment of or waiver or consent in relation to any term of any Finance Document (excluding any Hedging Agreement) that has the effect of changing or which relates to:
|
(a) |
the definition of "Change of Control Event", "Majority Lenders", "Restricted Party", "Sanctions", "Sanctions Authority", "Sanctions Event" and "Ship Criteria" in Clause 1.1 (Definitions); |
|
(b) |
a postponement to or extension of the date of payment of any amount under the Finance Documents (excluding any Hedging Agreement); |
|
(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 (excluding any Hedging Agreement); |
|
(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 relevant Facility; |
|
(f) |
a change to any Transaction Obligor other than in accordance with Clause 30 (Changes to the Transaction 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 Facilities), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8.1 (Illegality), Clause 8.5 (Mandatory prepayment on sale or Total Loss etc), Clause 9 (Interest), Clause 19.34 (Sanctions), Clause 24.9 (Compliance with laws etc.), Clause 24.11 (Sanctions and Ship trading), Clause 24.12 (Use of Proceeds), Clause 27 (Earnings Account and application of Earnings), Clause 29 (Changes to the Lenders and Hedge Counterparties), Clause 30.6 (Release of a Ship and Collateral Guarantor), Clause 34 (Sharing among the Finance Parties), Clause 50 (Governing Law) or Clause 51 (Enforcement); |
|
(j) |
(other than as expressly permitted by the provisions of any Finance Document other than any Hedging Agreement), the nature or scope of: |
|
(i) |
the guarantees and indemnities granted under Clause 18 (Guarantee and Indemnity) or any other guarantee and indemnity forming part of the Finance Documents; |
|
(ii) |
the Security Assets; or |
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed, |
(except in the case of sub-paragraphs (ii) and (iii) above, insofar as it relates to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document);
|
(k) |
the release or any material variation of the guarantees and indemnities granted under Clause 18 (Guarantee and Indemnity) or of any Transaction Security or any guarantee, indemnity or subordination arrangement set out in a Finance Document 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, |
shall not be made, or given, without the prior consent of all the Lenders.
|
(a) |
An amendment or waiver which relates to the rights or obligations of a Servicing Party or the Arrangers (each in their capacity as such) may not be effected without the consent of that Servicing Party or the Arrangers, 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 relevant Hedge Counterparty and the Borrower may amend, supplement or waive the terms of any Hedging Agreement. |
|
45.4 |
Changes to reference rates |
|
(a) |
Subject to Clause 45.3 (Other exceptions), if a Published Rate Replacement Event has occurred in relation to the any Published Rate for dollars, any amendment or waiver which relates to: |
|
(i) |
providing for the use of a Replacement Reference Rate in place of the Published Rate; and |
|
(A) |
aligning any provision of any Finance Document (excluding any Hedging Agreement) to the use of that Replacement Reference Rate; |
|
(B) |
enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement); |
|
(C) |
implementing market conventions applicable to that Replacement Reference Rate; |
|
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or |
|
(E) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation), |
may be made with the consent of the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrower.
|
(b) |
An amendment or waiver that relates to, or has the effect of, aligning the means of calculation of interest on a Compounded Rate Loan under this Agreement to any recommendation of a Relevant Nominating Body which: |
|
(i) |
relates to the use of the RFR on a compounded basis in the international or any relevant domestic syndicated loan markets; and |
|
(ii) |
is issued on or after the date of this Agreement, |
may be made with the consent of the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrower.
|
(c) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Borrower and the Facility Agent may agree) of that request being made: |
|
(i) |
its Commitment or its participation in the Loan (as the case may be) shall not be included for the purpose of calculating the Total Commitments or the amount of the Loan (as applicable) when ascertaining whether any relevant percentage of Total Commitments or the aggregate of participations in the Loan (as applicable) 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. |
|
(d) |
In this Clause 45.4 (Changes to reference rates): |
"Published Rate" means:
|
(b) |
Term SOFR for any Quoted Tenor. |
"Published Rate Replacement Event" means, in relation to a Published Rate:
|
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders and the Borrower, materially changed; |
(b)
(i)
|
(A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or |
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Published Rate is insolvent, |
provided that, in each case, at that time, there is no successor administrator to continue to provide that Published Rate;
|
(ii) |
the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate; |
|
(iii) |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or |
|
(iv) |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or |
|
(c) |
in the opinion of the Majority Lenders and the Borrower, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. |
"Quoted Tenor" means, in relation to Term SOFR, any period for which that rate is customarily displayed on the relevant page or screen of an information service.
"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Replacement Reference Rate" means a reference rate which is:
|
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by: |
|
(i) |
the administrator of a Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or |
|
(ii) |
any Relevant Nominating Body, |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate" will be the replacement under sub-paragraph (ii) above;
|
(b) |
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor or alternative to a Published Rate; or |
|
(c) |
in the opinion of the Majority Lenders and the Borrower, an appropriate successor or alternative to a Published Rate. |
Without prejudice to the generality of Clauses 1.2 (Construction), each Borrower expressly confirms that it intends that any Security created by any Finance Document to which it is a party 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 (including, without limitation, any Accordion Facility and any extension of any Facility and any fees, costs and/or expenses associated with any of the foregoing.
|
46 |
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 46.2 (Disclosure of Confidential Information) and Clause 46.5 (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.
|
46.2 |
Disclosure of Confidential Information |
Any Finance Party may disclose:
|
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, insurers, , reinsurers, insurance advisors, insurance or reinsurance brokers, credit or political risk protection providers, 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; |
|
(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 Transaction 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 or tribunal of competent jurisdiction or any governmental, quasi-governmental, banking, taxation or other regulatory, supervisory or administrative 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 29.9 (Security over Lenders' rights); |
|
(viii) |
which is a classification society or other entity which a Lender has engaged to make the calculations necessary to enable that Lender to comply with its reporting obligations under the Poseidon Principles; |
|
(ix) |
who is a Party, a member of the Group or any related entity of a Transaction Obligor; |
|
(x) |
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 |
|
(xi) |
with the consent of the Borrower; |
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
|
(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-paragraphs (iv) and (viii) 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 Borrower 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 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. |
Nothing in any Finance Document shall prevent disclosure of any Confidential Information or other matter to the extent that preventing that disclosure would otherwise cause any transaction contemplated by the Finance Documents or any transaction carried out in connection with any transaction contemplated by the Finance Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU (as amended by the Council Directive of 25 May 2018 (2018/822/EU)) .
|
46.4 |
Disclosure of personal data |
|
(a) |
If any Obligor provides the Finance Parties with personal data of any individual as required by, pursuant to, or in connection with the Finance Documents, that Obligor represents and warrants to the Finance Parties that it has, to the extent required by law: |
|
(i) |
notified the relevant individual of the purposes for which data will be collected, processed, used or disclosed; and |
|
(ii) |
obtained such individual's consent for, and hereby consents on behalf of such individual to, the collection, processing, use and disclosure of his/her personal data by the Finance Parties, in each case, in accordance with or for the purposes of the Finance Documents (or such purposes as set out in the Finance Party's privacy statement (duly provided to the Obligor)) or as permitted by applicable laws or regulations, and confirms that it is authorised by such individual to provide such consent on his/her behalf. |
|
(b) |
Each Obligor agrees and undertakes to notify the Facility Agent promptly upon its becoming aware of the withdrawal by the relevant individual of his/her consent to the collection, processing, use and/or disclosure by any Finance Party of any personal data provided by that Obligor to any Finance Party. |
|
(c) |
Any consent given pursuant to this agreement in relation to personal data shall, subject to all applicable laws and regulations, survive death, incapacity, bankruptcy or insolvency of any such individual and the termination or expiration of this Agreement |
|
46.5 |
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 Facilities and/or one or more Transaction 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 50 (Governing Law); |
|
(vi) |
the names of the Facility Agent and the Arrangers; |
|
(vii) |
date of each amendment and restatement of this Agreement; |
|
(viii) |
amounts of, and names of, the Facilities; |
|
(ix) |
amount of Total Commitments; |
|
(x) |
currency of the Facilities; |
|
(xii) |
ranking of Facilities; |
|
(xiii) |
Termination Date for the Facilities; |
|
(xiv) |
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xiii) above; and |
|
(xv) |
such other information agreed between such Finance Party and the Borrower, |
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities 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 (xv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information. |
|
(d) |
The Facility Agent shall notify the Borrower and the other Finance Parties of: |
|
(i) |
the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facilities and/or one or more Transaction Obligors; and |
|
(ii) |
the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Transaction Obligors by such numbering service provider. |
This Clause 46 (Confidential Information) 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. Nothing in this Clause 46.6 shall be deemed to constitute an express or implied agreement by any Finance Party with the Borrowers or other Security Party for a higher degree of confidentiality than that prescribed in Section 47 of, and in the Third Schedule to, the Banking Act 1970 Singapore.
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.
|
46.8 |
Notification of disclosure |
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrower:
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to 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). |
|
46.9 |
Continuing obligations |
The obligations in this Clause 46 (Confidential Information) are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and |
|
(b) |
the date on which such Finance Party otherwise 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 Borrower pursuant to Clause 9.5 (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. |
|
(c) |
The Facility Agent 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 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. |
|
(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 or 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). |
No Event of Default will occur under Clause 28.4 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 47 (Confidentiality of Funding Rates).
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
|
49 |
THE SUBORDINATED CREDITOR AND SUBORDINATED LIABILITIES |
In this Clause 49 (The Subordinated Creditor and Subordinated Liabilities):
"Enforcement Action" means:
|
(a) |
the acceleration of any Subordinated Liabilities or the making of any declaration that any Subordinated Liabilities are prematurely due and payable; |
|
(b) |
the making of any declaration that any Subordinated Liabilities are payable on demand; |
|
(c) |
the making of a demand in relation to a Subordinated Liability that is payable on demand; |
|
(d) |
the making of any demand under any guarantee or indemnity in respect of any Subordinated Liabilities; |
|
(e) |
the exercise of any right of set-off, account combination or payment netting against any Obligor in respect of any Subordinated Liabilities; |
|
(f) |
the exercise of any right to require any member of the Group to acquire any Subordinated Liability (including exercising any put or call option against any member of the Group for the redemption or purchase of any Subordinated Liability); |
|
(g) |
the suing for, commencing or joining of any legal or arbitration proceedings against any Obligor to recover any Subordinated Liabilities; |
|
(h) |
the taking of any steps to enforce or require the enforcement of any Security in respect of any Subordinated Liabilities (including the crystallisation of any floating charge forming part of that Security); |
|
(i) |
the entering into of any composition, compromise, assignment or arrangement with any member of the Group which owes any Subordinated Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any Subordinated Liabilities; or |
|
(j) |
the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any member of the Group which owes any Subordinated Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Subordinated Liabilities, or any of such member of the Group's assets or any suspension of payments or moratorium of any indebtedness of any such member of the Group, or any analogous procedure or step in any jurisdiction, |
except that the taking of any action falling within paragraph (g) or (j) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of any Subordinated Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any loss of the right to bring, support or join proceedings by reason of applicable limitation periods shall not constitute Enforcement Action.
"Payment" means, in respect of any Subordinated Liabilities (or any other liabilities or obligations), a payment, prepayment, repayment, redemption, defeasance or discharge of those Subordinated Liabilities (or other liabilities or obligations).
Each of the Parties agree that the Subordinated Liabilities are postponed and subordinated to the Secured Liabilities.
|
49.3 |
Restriction on Payment |
Prior to the end of the Security Period, no Obligor shall make any Payment of the Subordinated Liabilities at any time unless that Payment is permitted under Clause 49.4 (Permitted Payments).
An Obligor may make Payments in respect of the Subordinated Liabilities then due if:
|
(a) |
that Payment constitutes a Payment of principal or interest under the Subordinated Finance Documents; |
|
(b) |
no Event of Default is continuing or where such Payment would not result in the occurrence of an Event of Default; |
|
(c) |
no breach of Clause 21 (Financial Covenants) has occurred which has not been remedied; and |
|
(d) |
no breach of Clause 26 (Security Cover) has occurred which has not been remedied. |
For the avoidance of doubt, the Collateral Guarantors shall, notwithstanding the restrictions set out above, always be entitled to make Payments to the Borrower provided that such Payments are solely and only used by the Borrower for the repayment of the Loan and are so paid by the Borrower.
|
49.5 |
Payment obligations continue |
No Obligor shall be released from liability to make any Payment (including of default interest, which shall continue to accrue) under any Subordinated Finance Document by the operation of Clause 49.3 (Restriction on Payment) and Clause 49.4 (Permitted Payments) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
|
49.6 |
No disposal of Subordinated Liabilities |
Prior to the end of the Security Period, no Obligor shall dispose of any of the Subordinated Liabilities or of any interest in them.
|
49.7 |
Amendments and Waivers |
Prior to the end of the Security Period, no Obligor may amend or waive the terms of any of the documents or instruments pursuant to which the Subordinated Liabilities are constituted unless the prior consent of the Security Agent is obtained.
|
49.8 |
Validity of Finance Documents not to be contested |
No Obligor will, in any proceedings or otherwise, claim:
|
(a) |
that any Finance Document is invalid, should be set aside or adjusted or lacks the priority which it was intended to have; or |
|
(b) |
that any Payment made, or transaction entered into, under or in connection with any Finance Document was invalid or should be set aside or adjusted. |
No Obligor may take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss from any Obligor in respect of any of the Subordinated Liabilities prior to the end of the Security Period.
|
49.10 |
Restriction on Enforcement |
No Obligor shall be entitled to take any Enforcement Action in respect of any of the Subordinated Liabilities at any time prior to the end of the Security Period.
GOVERNING LAW AND ENFORCEMENT
This Agreement is, and any non-contractual obligations arising out of or in connection with it are, governed by English law.
|
(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) |
To the extent allowed by law, this Clause 51.1 (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. |
|
(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 Grindrod Shipping Service UK Limited of 1st Floor, 59 Markham Street, London SW3 3NR 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 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. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
PART A
THE OBLIGORS
Corporate Guarantor |
|
Place of Incorporation |
|
Registration number (or equivalent, if any) |
|
Address for Communication |
|
|
|
|
|
|
|
Grindrod Shipping Holdings Ltd. |
|
Singapore |
|
201731497H |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
|
|
|
|
|
|
|
Email: loanmgmt@grindrodshipping.com |
Borrower |
|
Place of Incorporation |
|
Registration number (or equivalent, if any) |
|
Address for Communication |
|
|
|
|
|
|
|
Grindrod Shipping Pte. Ltd. |
|
Singapore |
|
200407212K |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192 |
|
|
|
|
|
|
|
|
|
|
|
|
|
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran |
|
|
|
|
|
|
|
|
|
|
|
|
|
Email: loanmgmt@grindrodshipping.com |
Existing Collateral Guarantors |
|
Place of Incorporation |
|
Registered Address and Registration number (or equivalent, if any) |
|
Address for Communication |
|
|
|
|
|
|
|
IVS Bulk 5858 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201328882C
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
|
|
|
|
|
|
|
IVS Bulk 543 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201322656Z
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
IVS Bulk 5855 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201325921Z
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
|
|
|
|
|
|
|
IVS Bulk 545 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201322704H
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
|
|
|
|
|
|
|
IVS Bulk 1345 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201333777E
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
|
|
|
|
|
|
|
IVS Bulk 554 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201327439Z
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
IVS Bulk 7297 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201333601R
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
|
|
|
|
|
|
|
IVS Bulk 3693 Pte. Ltd. |
|
Singapore |
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
UEN: 201405131D
|
|
1 Temasek Avenue #10-02 Millenia Tower Singapore 039192
FAO: Debbie Davel / Christopher Kingsley-Wilkins / Suria Thambiran
Email: loanmgmt@grindrodshipping.com
|
PART B
THE LENDERS AND HEDGE COUNTERPARTIES
THE LENDERS
Lender |
|
Commitment – Reducing Revolving Facility and Accordion Facility |
|
Lending Office |
|
|
|
|
|
Nordea Bank Abp, Filial i Norge |
|
Reducing Revolving Commitment: $41,500,000
Accordion Commitment:
$_______________.
|
|
Essendropsgate 7
0368 Oslo
Norway
For loan credit matters:
Nordea Bank Abp, filial i Norge
P.O. Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: Henrik Trulsen, Didrik Biermann Wahl and Jens Petersen
E-mail: Henrik.Trulsen@nordea.com, Didrik.b.wahl@nordea.com and jens.petersen-1@nordea.com Phone: +47 240 13 520, +47 240 14 647 and +47 468 99 999
For loan administration matters:
Sls.Norway@nordea.com
|
|
|
|
|
|
Skandinaviska Enskilda Banken AB (publ), Singapore Branch |
|
Reducing Revolving Commitment: $41,500,000
Accordion Commitment:
$_______________.
|
|
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6223 5644
Contact – Credit Matters:
Name: Chris Fasseland / Johan Lindström / Sze Bin Gan
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6350 1392 / +46 85062 4654 / +65 6350 1376
Telefax: +65 6634 3370
E-mail: chris.fasseland@seb.no / johan.lindstrom@seb.se / sze-bin.gan@seb.se
|
|
|
|
|
Contact – Operations/Administrations:
Name: Ms Pauline Ng / Ms Emily Heng
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6357 0813 / +65 6357 0841
E-mail:
singaporeloanadmin@seb.se
|
THE HEDGE COUNTERPARTIES
Name |
|
Address for communication |
|
|
|
Nordea Bank Abp |
|
Address: c/o Nordea Danmark, filial af Nordea Bank Abp, Finland, 7288 Derivatives Services, Postbox 850, DK-0900 Copenhagen C, Denmark
Attn: Henrik Trulsen and Didrik Biermann Wahl
E-mail: Henrik.Trulsen@nordea.com and Didrik.b.wahl@nordea.com
Phone: +47 240 13 520 and +47 240 14 647
|
|
|
|
Skandinaviska Enskilda Banken AB (publ) |
|
Kungsträdgårdsgatan 8
SE-10640 Stockholm
Sweden
E-mail: chris.fasseland@seb.no / johan.lindstrom@seb.se / sze-bin.gan@seb.se
Telephone: +65 6350 1392 / +46 85062 4654 / +65 6350 1376]
|
PART C
THE ARRANGERS
Name |
|
Address for communication |
|
|
|
Skandinaviska Enskilda Banken AB (publ), Singapore Branch |
|
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6223 5644
Name: Chris Fasseland / Johan Lindström / Sze Bin Gan
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6350 1392 / +46 85062 4654 / +65 6350 1376
Telefax: +65 6634 3370
E-mail: chris.fasseland@seb.no / johan.lindstrom@seb.se / sze-bin.gan@seb.se
|
|
|
|
Nordea Bank Abp, Filial i Norge |
|
Nordea Bank Abp, filial i Norge
P.O. Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: Henrik Trulsen, Didrik Biermann Wahl and Jens Petersen
E-mail: Henrik.Trulsen@nordea.com, Didrik.b.wahl@nordea.com and jens.petersen-1@nordea.com
Phone: +47 240 13 520, +47 240 14 647 and +47 468 99 999
|
PART D
THE COORDINATORS
Name |
|
Address for communication |
|
|
|
Skandinaviska Enskilda Banken AB (publ), Singapore Branch |
|
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6223 5644
Name: Chris Fasseland / Johan Lindström / Sze Bin Gan
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6350 1392 / +46 85062 4654 / +65 6350 1376
Telefax: +65 6634 3370
E-mail: chris.fasseland@seb.no / johan.lindstrom@seb.se / sze-bin.gan@seb.se
|
|
|
|
Nordea Bank Abp, Filial i Norge |
|
Nordea Bank Abp, filial i Norge
P.O. Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: Henrik Trulsen, Didrik Biermann Wahl and Jens Petersen
E-mail: Henrik.Trulsen@nordea.com, Didrik.b.wahl@nordea.com and jens.petersen-1@nordea.com
Phone: +47 240 13 520, +47 240 14 647 and +47 468 99 999
|
PART E
THE SERVICING PARTIES
Name of Facility Agent |
|
Address for Communication |
|
|
|
Nordea Bank Abp, Filial i Norge |
|
For loan administration matters:
Nordea Bank Abp, filial i Norge
P.O.Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: SLS Norway
E-mail: sls.norway@nordea.com
Phone: +47 240 13 444
For agency matters / if syndicated:
Nordea Bank Abp, filial i Norge
P.O.Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: Loan Agency
E-mail: agency.soosid@nordea.com
|
|
|
|
Name of Security Agent |
|
Address for Communication |
|
|
|
Nordea Bank Abp, Filial i Norge |
|
For loan administration matters:
Nordea Bank Abp, filial i Norge
P.O.Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: SLS Norway
E-mail: sls.norway@nordea.com
Phone: +47 240 13 444
For agency matters / if syndicated:
Nordea Bank Abp, filial i Norge
P.O.Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: SLS Norway
E-mail: agency.soosid@nordea.com
|
PART A
CONDITIONS PRECEDENT TO INITIAL UTILISATION REQUEST
|
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 each 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 |
A copy of a resolution signed by: |
|
(a) |
the Corporate Guarantor as the holder of the issued shares in the Borrower, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Borrower is a party; and |
|
(b) |
the Borrower (or, as applicable, IVS Bulk and ratified and confirmed by the Borrower) as the holder of the issued shares in each of the Existing Collateral Guarantors, approving the terms of, and the transactions contemplated by, the Finance Documents to which each such Existing Collateral Guarantor is a party. |
|
1.6 |
A certificate of the Corporate Guarantor, each Existing Collateral Guarantor and the Borrower (signed by a director or the company secretary) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on the Corporate Guarantor, that Existing Collateral Guarantor and the Borrower to be exceeded. |
|
1.7 |
A certificate of each Obligor (signed by a director or the company secretary) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies. |
|
1.8 |
A certificate of an authorised signatory of each 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. |
|
1.9 |
If required for the purpose of any legal opinion, a certificate of good-standing in respect of each Obligor and, in respect to each Singapore incorporated Obligor, a Business Profile issued by the Accounting and Corporate Regulatory Authority in Singapore. |
|
2.1 |
If applicable, a duly executed original of the Subordination Agreement and copies of each Subordinated Finance Document. |
|
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 this Schedule 2 (Conditions Precedent). |
|
3.1 |
A legal opinion of Stephenson Harwood LLP, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matter of English law, substantially in the form distributed to the Original Lenders before signing this Agreement. |
|
3.2 |
A legal opinion of Virtus Law LLP, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters of Singapore law, substantially in the form distributed to the Original Lenders before signing this Agreement. |
|
4 |
Other documents and evidence |
|
4.1 |
Evidence that any process agent referred to in Clause 51.2 (Service of process), if not an Obligor, has accepted its appointment. |
|
4.2 |
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 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. |
|
4.3 |
Detailed financial projections of the Group (which shall include a consolidated cash flow, balance sheet and income statement projection for the Group) for the two years ending after the Closing Date signed by its chief financial officer evidencing the consolidated financial condition of the Group. |
|
4.4 |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 12 (Fees) and Clause 17 (Costs and Expenses) have been paid or will be paid by the First Utilisation Date. |
|
4.5 |
Evidence of the opening of the Earnings Account. |
|
4.6 |
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. |
PART B
CONDITIONS PRECEDENT TO UTILISATION
|
1.1 |
Documents of the kind specified in Schedule 2, Part A, paragraph 1 (Obligors), 2.1 (Finance Documents), 4.1 and 4.6 (Other documents and evidence) of this Agreement in respect of the relevant Collateral Guarantor if not already provided under Schedule 2, Part A, paragraph 1 (Obligors), 2.1 (Finance Documents) 4.1 and 4.6 (Other documents and evidence) of this Agreement. |
|
1.2 |
A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it provided pursuant to Part A of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than three (3) Business Days before the relevant Utilisation Date. |
|
2 |
Release of Existing Security |
In respect of the first Advance, evidence of the full discharge of the Existing Indebtedness on the relevant Utilisation Date (or such other date acceptable to all Lenders) including, without limitation, an original or copy of any deed of release in respect of the Existing Security and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Facility Agent of its due execution by the parties to it and that such registrations of the release of the Existing Security as are required to enable the registrations required by paragraph 3.1 (e) below have been or will be effected on the relevant Utilisation Date (or such other date acceptable to all Lenders).
|
3 |
Ship and other security |
|
3.1 |
A duly executed original of: |
|
(a) |
each Mortgage together with, if applicable, the Deed of Covenants in respect of each Ship; |
|
(b) |
in respect of the first Advance, the Account Security and any Hedging Agreement Security; |
|
(c) |
the Shares Security in respect of each Collateral Guarantor; |
|
(d) |
the General Assignment in respect of each Ship; and |
|
(e) |
each document to be delivered under or pursuant to each Mortgage, each Deed of Covenants (as applicable), the Account Security, each Hedging Agreement Security, each Shares Security (including share certificates evidencing that the relevant Collateral Guarantors are wholly owned by the Borrower or will be wholly owned by the Borrower on the relevant Utilisation Date (or such other date acceptable to all Lenders)), and each General Assignment, save for any acknowledgments which shall be provided within any applicable time periods specified in Schedule 2, Part C. |
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3.2 |
Documentary evidence that each Mortgage in respect the relevant Ship has been or will be duly registered or recorded as a valid first preferred or priority ship mortgage in accordance with the laws of the jurisdiction of its Approved Flag on the relevant Utilisation Date (or such other date acceptable to all Lenders). |
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3.3 |
Documentary evidence that each Ship: |
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(a) |
is definitively and permanently registered in the name of the Collateral Guarantor under the Approved Flag applicable to that Ship; |
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(b) |
is in the absolute and unencumbered ownership of the Collateral Guarantor save as contemplated by the Finance Documents; |
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(c) |
maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and |
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(d) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with. |
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3.4 |
Each Management Agreement or any other documents establishing that each Ship will, as from the Utilisation Date of the relevant Advance under a Facility (or such other date acceptable to all Lenders), be managed commercially by the Approved Commercial Manager and managed technically by the Approved Technical Manager on terms acceptable to the Facility Agent acting with the authorisation of all of the Lenders, together with: |
|
(a) |
a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager of each Ship; and |
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(b) |
copies of the relevant Approved Technical Manager's Document of Compliance and of that Ship'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 Ship including without limitation an ISSC. |
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3.5 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances in respect of each Ship as the Facility Agent may require. |
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3.6 |
Two valuations in respect of each Ship and any other Ships subject (or to be subject) to a Mortgage upon the making of the Advance, addressed to the Corporate Guarantor and the Facility Agent on behalf of the Finance Parties, from Approved Valuers and dated not earlier than 30 days before the relevant Utilisation Date (except in relation to the First Utilisation Date when valuations may be prepared as at a date previously agreed with the Facility Agent) which evidence that the aggregate amount of the proposed Advance and all other Advances made under this Agreement do not exceed 50 per cent. of the aggregate Market Value of each Ship and any other Ships subject (or to be subject) to a Mortgage upon the making of the Advance. |
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3.7 |
In case of any reflagging of a Ship, documentary evidence that the Ship has been deleted from its flag free from all registered encumbrances or, in the alternative, evidence that the Ship will be so deleted within such period as the Facility Agent shall require and that, in any event, there are no encumbrances registered against that Ship on its flag. |
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3.8 |
If applicable, a copy of the certificate, being the document listing all the potentially hazardous materials on board each Ship. |
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4.1 |
A legal opinion of Stephenson Harwood LLP, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matter of English law, substantially in the form distributed to the Original Lenders before the relevant Utilisation Date (or such other date acceptable to all Lenders). |
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4.2 |
A legal opinion of Virtus Law LLP, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters of Singapore law, substantially in the form distributed to the Original Lenders before the relevant Utilisation Date (or such other date acceptable to all Lenders). |
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4.3 |
An legal opinion Ehlermann Rindfleisch Gadow, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters of German law, substantially in the form distributed to the Original Lenders before the relevant Utilisation Date. |
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4.4 |
To the extent that a Collateral Guarantor's jurisdiction of incorporation or the jurisdiction of a Ship's Approved Flag is not Singapore, an agreed form legal opinion of, legal advisers (acceptable to the Majority Lenders) to the Arrangers, the Facility Agent and the Security Agent as to matter of law of the relevant jurisdictions, substantially in the form distributed to the Original Lenders before the relevant Utilisation Date (or such other date acceptable to all Lenders). |
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5 |
Other documents and evidence |
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5.1 |
A duly executed Accession Deed in respect of any Collateral Guarantor to become a Party by virtue of the proposed Advance or addition or replacement. |
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5.2 |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 12 (Fees) and Clause 17 (Costs and Expenses) have been paid or will be paid by the Utilisation Date for the Advance under a Facility (or such other reference date as acceptable to all Lenders). |
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5.3 |
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 Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction Document referred to in Paragraph 3 (Ship and other security) above or for the validity and enforceability of any such Transaction Document. |
PART C
CONDITIONS SUBSEQUENT
Evidence that the prescribed particulars of the relevant Security Documents have been registered with the Accounting and Corporate Regulatory Authority of Singapore (or for an Obligor not incorporated in Singapore, such other applicable registration authority) within 30 days (or such other statutory time line for an Obligor not incorporated in Singapore) of the date of each such Security Document, in respect to such Security Document, to be provided by the last day permitted for registration of that Security.
Such of the legal opinions specified in Schedule 2, Part B that are not provided in the relevant Utilisation Date (or such other reference date as acceptable to all Lenders), to be provided with three Business Days of that Utilisation Date.
The opinion from the independent insurance consultant specified in Schedule 2, Part B in respect of the relevant Ship(s) that is not provided in the relevant Utilisation Date (or such other reference date as acceptable to all Lenders), to be provided with ten Business Days of that Utilisation Date (or other reference date).
Letters of undertaking in respect of the Insurances of the relevant Ship(s) as required by the Finance Documents together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Security Agent, to be provided within five Business Days of the relevant Utilisation Date (or such other reference date as acceptable to all Lenders).
A transcript of registry (or equivalent) issued by the Singapore Registry of Ships at the Maritime and Port Authority of Singapore (or other registration authority of the jurisdiction of the Approved Flag of the each relevant Ship) confirming that (a) each relevant Ship is registered under the laws and flag of Singapore (or the law of any other Approved Flag) in the ownership of each relevant Collateral Guarantor, (b) each relevant Mortgage has been recorded as a first priority (or, as the case may be, preferred) mortgage against each relevant Ship and (c) there are no further Security registered against each such Ship, to be provided within five Business Days of the relevant Utilisation Date (or such other reference date as acceptable to all Lenders).
If applicable, evidence that relevant Share Security has been stamped with the Inland Revenue Authority of Singapore, to be provided within fourteen days of the date of each such Share Security.
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7.1 |
In respect of the first Advance, receipt of the acknowledgement from (i) the Account Bank under the Account Security and (ii) the relevant Hedge Counterparties under any Hedging Agreement Security, in each case, to be provided within five Business Days of the date of the Account Security. |
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7.2 |
If a notice of assignment is served on a counterparty to a Charter under the General Assignment for the relevant Ship, receipt of the acknowledgement to such notice of assignment only if the same is available after the relevant Collateral Guarantor has used reasonable endeavours to obtain the same. |
In relation to any Advance (other than a Rollover Advance), evidence of the submission to the Maritime and Port Authority of Singapore of a self-declaration form (or, as applicable, supplement to a previous self-declaration form) under the "Maritime Sector Incentive" in respect of that Advance, to be provided no later than five Business Day after the deadline for submission of the relevant self-declaration form as determined by reference to that self-declaration form.
From: |
Grindrod Shipping Pte. Ltd. |
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To: |
Nordea Bank Abp, Filial i Norge |
Dated: [●]
Grindrod Shipping Pte. Ltd. – Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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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. |
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2 |
We wish to borrow an Advance under [the Reducing Revolving Facility][the Accordion Facility] on the following terms: |
Proposed Utilisation Date: |
[●] (or, if that is not a Business Day, the next Business Day) |
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Amount: |
$[●] or, if less, the Available Facility |
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Interest Period for the [first] Advance: |
[●] |
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Ship or Ships relevant to the Advance: |
[●], [●] and [●] |
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3.1 |
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 or will be satisfied on the date of this Utilisation Request (or, if that Advance has been prepositioned in accordance with the Agreement, from the date of release of such Advance). |
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3.2 |
the amount of the advance will solely be used for the purpose stated in the preamble (Background) to this Agreement. |
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4 |
[The proceeds of this Advance should be credited to [account]][This Advance is to be made in [part] for the purpose of refinancing [identify maturing Advance under Revolving / Accordion Facility]. [Note: No Utilisation Request is required for a Rollover Advance. As such, the second option here would only be relevant if Borrower wants to draw a larger Advance on the last day of an Interest Period for a maturing Advance.] |
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5 |
This Utilisation Request is irrevocable. |
Yours faithfully
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[●] |
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authorised signatory for |
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Grindrod Shipping Pte. Ltd. |
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To: |
Nordea bank Abp, Filial i Norge as Facility Agent |
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From: |
[Subsidiary] and Grindrod Shipping Pte. Ltd. |
Dated: [●]
Dear Sirs
Grindrod Shipping Pte. Ltd. – Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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1 |
We refer to the Agreement. This deed (the "Accession Deed") shall take effect as an Accession Deed for the purposes of the Agreement. Terms defined in the Agreement have the same meaning in this Accession Deed unless given a different meaning in this Accession Deed. |
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2 |
[Subsidiary] agrees to become a Collateral Guarantor and to be bound by the terms of the Agreement and the other Finance Documents as a Collateral Guarantor pursuant to Clause 30.3 (Collateral Guarantors) of the Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a [limited liability company][corporation] with registered number [●]. |
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3 |
The Borrower confirms that no Default is continuing or would occur as a result of [Subsidiary] becoming Collateral Guarantor. |
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4 |
[Subsidiary's] administrative details for the purposes of the Agreement are as follows: |
Address:
Email:
Attention:
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5 |
[Subsidiary] (for the purposes of this paragraph 5, the "Acceding Debtor") intends to incur Secured Liabilities under the following documents: |
[Insert details (date, parties and description) of relevant documents]
the "Relevant Documents".
IT IS AGREED as follows:
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(a) |
The Acceding Debtor and the Security Agent agree that the Security Agent shall hold: |
|
(i) |
any Security in respect of the Secured Liabilities created or expressed to be created pursuant to the Relevant Documents; |
|
(ii) |
all proceeds of that Security; |
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(iii) |
all obligations expressed to be undertaken by the Acceding Debtor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties (in the Relevant Documents or otherwise) and secured by the Transaction Security together with all representations and warranties expressed to be given by the Acceding Debtor (in the Relevant Documents or otherwise) in favour of the Security Agent as trustee for the Secured Parties, |
on trust for the Secured Parties on the terms and conditions contained in the Agreement.
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6 |
Without prejudice to the generality of paragraphs 1 and 2 above, on the date the Facility Agent enters into this Accession Deed, [Subsidiary] shall be a joint and several guarantor to each Finance Party of each other Obligors obligations under the Finance Documents on the terms set out under Clause 18 (Guarantee and Indemnity) of the Agreement and the terms of such Clause shall be deemed to be set out in full (mutatis mutandis) in this Accession Deed. |
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7 |
This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by English law. |
This Accession Deed has been signed on behalf of the Security Agent (for the purposes of paragraph 5 above only), and executed as a deed by each party and is delivered on the date stated above.
EXECUTION PAGES
[Subsidiary] |
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EXECUTED AND DELIVERED AS A DEED |
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For and on behalf of |
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[Subsidiary] |
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By: |
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Director |
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In the presence of: |
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Grindrod Shipping Pte. Ltd. |
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EXECUTED AND DELIVERED AS A DEED |
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For and on behalf of |
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Grindrod Shipping Pte. Ltd. |
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By: |
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Director |
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In the presence of: |
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The Security Agent |
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EXECUTED AND DELIVERED AS A DEED |
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By: Nordea Bank Abp, Filial i Norge |
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In the presence of: |
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The Facility Agent |
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EXECUTED AND DELIVERED AS A DEED |
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By: Nordea Bank Abp, Filial i Norge |
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In the presence of: |
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FORM OF TRANSFER CERTIFICATE
To: |
Nordea Bank Abp, Filial i Norge as Facility Agent |
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From: |
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender") |
Dated: [●]
Grindrod Shipping Pte. Ltd.– Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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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. |
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2 |
We refer to Clause 29.5 (Procedure for transfer) of the Agreement: |
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(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 Commitments 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. |
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(b) |
The proposed Transfer Date is [●]. |
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(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 38.2 (Addresses) of the Agreement are set out in the Schedule. |
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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. |
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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. |
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5 |
By execution and acceptance of this Transfer Certificate, the New Lender hereby accepts that it shall become party to the Account Security as Pledgee (as defined in the Account Security) and further ratifies any actions or declarations of the Security Agent as representative without power of attorney (veritreter ohne vertretvngsmacht) made on its behalf as a Future Pledgee (as such term is defined in the Account Pledge) under the terms of the Account Security. |
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6 |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are is governed by English law. |
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7 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate. |
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
THE SCHEDULE
Commitments/participations/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details
for notices and account details for payments.]
[Existing Lender] |
[New Lender] |
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By: [●] |
By: [●] |
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [●].
Nordea Bank Abp, Filial i Norge
By: [●]
FORM OF ASSIGNMENT AGREEMENT
To: |
Nordea Bank Abp, Filial i Norge as Facility Agent and Grindrod Shipping Pte. Ltd. as Borrower, for and on behalf of each Transaction Obligor |
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From: |
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender") |
Dated: [●]
Grindrod Shipping Pte. Ltd. – Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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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. |
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2 |
We refer to Clause 29.6 (Procedure for assignment) of the Agreement: |
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(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 Commitments and participations in the Loan under the Agreement as specified in the Schedule. |
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(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. |
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(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. |
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(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 Borrower or any other Transaction Obligor had against the Existing Lender. |
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3 |
The proposed Transfer Date is [●]. |
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4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender. |
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5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 38.2 (Addresses) of the Agreement are set out in the Schedule. |
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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) of the Agreement. |
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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 Borrower) of the Agreement, to the Borrower (on behalf of each Transaction Obligor) of the assignment referred to in this Assignment Agreement. |
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8 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement. |
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9 |
By execution and acceptance of this Assignment Agreement, the New Lender hereby accepts that it shall become party to the Account Security as a Pledgee (as defined in the Account Security) and further ratifies any actions or declarations of the Security Agent same as transfer certificate made on its behalf as a Future Pledgee (as such term is defined in the Account Pledge) under the terms of the Account Security. |
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10 |
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
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11 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement. |
Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
THE SCHEDULE
Commitment and participation rights and obligations to be transferred by assignment, release and accession
[insert relevant details]
[Facility office address, fax number and attention details for notices
and account details for payments]
[Existing Lender] |
[New Lender] |
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By: [●] |
By: [●] |
This Assignment Agreement is accepted by the Facility Agent and the Transfer Date is confirmed as [●].
Signature of this Assignment Agreement by the Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the assignment referred to herein, which notice the Facility Agent receives on behalf of each Finance Party.
Nordea Bank Abp, Filial i Norge
By:
SCHEDULE 7
FORM OF HEDGE COUNTERPARTY ACCESSION LETTER
To: |
Nordea Bank Abp, Filial i Norge as Facility Agent |
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From: |
[Additional Hedge Counterparty] (the "Additional Hedge Counterparty") |
Dated: [●]
Grindrod Shipping Pte. Ltd. – Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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1 |
We refer to the Agreement. This is a Hedge Counterparty Accession Letter and shall take effect as a Hedge Counterparty Accession Letter for the purposes of the Agreement. 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. |
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2 |
We refer to Clause 29.8 (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 on the terms set out in the Agreement. |
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3 |
Administrative details for the purposes of the Agreement are as follows: |
Address:
Email:
Attention:
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4 |
This Hedge Counterparty Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
Yours faithfully
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[Additional Hedge Counterparty] |
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By: [●] |
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Nordea Bank Abp, Filial i Norge |
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By: [●] |
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SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: |
Nordea Bank Abp, Filial i Norge as Facility Agent |
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From: |
Grindrod Shipping Holdings Ltd. |
Dated: [●]
Grindrod Shipping Pte. Ltd. – Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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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. |
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2 |
We confirm that the Group as of [●] maintains on a consolidated basis: |
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2.1 |
Minimum Adjusted Equity: an Adjusted Equity of [●], which [satisfies][does not satisfy] the minimum Adjusted Equity of no less than the higher of (i) 40% of the sum of the liabilities of the Group (as stated in the most recent consolidated financial statements and/or management accounts of the Group provided in accordance with Clause 20.2 (Financial statements) and determined in accordance with IFRS) and Adjusted Equity and (ii) $175,000,000. |
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2.2 |
Minimum Liquidity: Cash and Cash Equivalents of [●], which [ satisfies] [does not satisfy] the minimum liquidity of Cash and Cash Equivalents of no less than the higher of (i) $500,000 per Fleet Vessel and (ii) an amount equal to 5% of interest bearing debt of the Group. |
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2.3 |
Positive Working Capital: current assets of $[●] and current liabilities of $[●], so that current assets are [higher][lower] than current liabilities. |
Signed: |
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Director |
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Director |
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of |
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of |
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Grindrod Shipping Holdings Ltd. |
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Grindrod Shipping Holdings Ltd. |
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) |
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Five Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of a Utilisation Request)) or such shorter period as the Facility Agent may approve. |
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Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation) |
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Three Business Days before the intended Utilisation Date or such shorter period as the Lenders may approve. |
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Term SOFR Reference Rate is fixed |
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Quotation Day |
SCHEDULE 10
FORM OF ACCORDION FACILITY NOTICE
To: |
Nordea Bank Abp, Filial i Norge as Agent |
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From: |
Grindrod Shipping Pte. Ltd. as the Borrower and the entities listed in the Schedule as Accordion Facility Lenders (the "Accordion Facility Lenders") |
Dated: [●]
Grindrod Shipping Pte. Ltd. – Up to $83,000,000 (as may be increased by up to $30,000,000) Facilities Agreement dated [●] 2024 (the "Agreement")
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1 |
We refer to the Agreement. This is an Accordion Facility Notice. This Accordion Facility Notice shall take effect as an Accordion Facility Notice for the purposes of the Agreement. Terms defined in the Agreement have the same meaning in this Accordion Facility Notice unless given a different meaning in this Accordion Facility Notice. |
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2 |
We refer to Clause 6 (Establishment of Accordion Facility) of the Agreement. |
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3 |
We request the establishment of an Accordion Facility with the following Accordion Facility Terms: |
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3.2 |
Margin: [●] % per annum |
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3.3 |
Borrower: The Accordion Facility shall be available only to the Borrower. |
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3.4 |
Purpose: The Accordion Facility shall only be used for the purpose set out in Clause 3 (Purpose) of the Agreement. |
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3.5 |
Availability: The Accordion Facility shall only be available during the Availability Period for the Accordion Facility. |
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3.6 |
Fees/payments terms: [●]. |
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3.7 |
Commitment fee: [●] % per annum |
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3.8 |
Proposed Collateral Guarantor: [●]. |
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3.9 |
Proposed Accordion Ship: [●]. |
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4 |
The proposed Accordion Facility Date is [●]. |
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5 |
The Borrower confirms that the Accordion Facility Terms set out above comply with Clause 6.5 (Restrictions on Accordion Facility Terms and fees) of the Agreement; |
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5.1 |
the Accordion Facility Lenders and the Accordion Facility Commitments set out in this Accordion Facility Notice have been selected and allocated in accordance with Clause 6.1 (Selection of Accordion Facility Lenders) of the Agreement; and |
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5.2 |
each condition specified in sub-paragraph (i) of paragraph (a) of Clause 6.6 (Conditions to establishment) of the Agreement is satisfied on the date of this Accordion Facility Notice. |
|
6 |
Each Accordion Facility Lender agrees to assume and will assume all of the obligations corresponding to the Accordion Facility Commitment set opposite its name in the Schedule as if it had been an Original Lender under the Agreement in respect of that Accordion Facility Commitment. |
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7 |
On the Accordion Facility Date each Accordion Facility Lender becomes party to the relevant Finance Documents as a Lender. |
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8 |
Each Accordion Facility Lender expressly acknowledges the limitations on the Lenders' obligations referred to in Clause 6.11 (Limitation of responsibility) of the Agreement. |
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9 |
This Accordion Facility Notice is irrevocable. |
|
10 |
This Accordion Facility Notice 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 Accordion Facility Notice. |
|
11 |
This Accordion Facility Notice and any non-contractual obligations arising out of or in connection with it are governed by English law. |
|
12 |
This Accordion Facility Notice has been entered into on the date stated at the beginning of this Accordion Facility Notice. |
|
13 |
The facility office and address and attention details for notices of the Accordion Facility Lenders for the purposes of Clause 38 (Notices) of the Agreement are: |
[●]
Note: The execution of this Accordion Facility Notice may not be sufficient for each Accordion Facility Lender to obtain the benefit of the Transaction Security in all jurisdictions. It is the responsibility of each Accordion Facility Lender to ascertain whether any other documents or other formalities are required to obtain the benefit of the Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
THE SCHEDULE
Name of Accordion Facility Lender |
Accordion Facility Commitment ($) |
|
|
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The Borrower
By: |
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|
For and on behalf of |
|
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|
Grindrod Shipping Pte. Ltd. |
|
The Accordion Facility Lenders
By: |
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For and on behalf of |
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|
[·] |
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By: |
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For and on behalf of |
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[·] |
|
This document is accepted as an Accordion Facility Notice for the purposes of the Agreement by the Facility Agent and the Accordion Facility Date is confirmed as [].
The Agent
By: |
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|
For and on behalf of |
|
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|
Nordea Bank Abp, Filial i Norge |
|
SCHEDULE 11
EXISTING COLLATERAL SHIPS
|
Existing Collateral Ship,
IMO No. and Year of Build
|
|
Type |
|
Existing Collateral
Guarantor
|
|
Approved Flag |
|
|
|
|
|
|
|
|
m.v. "IVS Wentworth"
IMO No: 9725550
2015
|
|
Steel Bulk Carrier |
|
IVS Bulk 5858 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Phinda"
IMO No: 9700940
2014
|
|
Steel General Cargo |
|
IVS Bulk 543 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Sparrowhawk"
IMO No: 9712656
2014
|
|
Steel Bulk Carrier |
|
IVS Bulk 5855 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Thanda"
IMO No: 9701009
2015
|
|
Steel General Cargo |
|
IVS Bulk 545 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Swinley Forest"
IMO No: 9736080
2017
|
|
Steel Bulk Carrier |
|
IVS Bulk 1345 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Tembe"
IMO No: 9726164
2016
|
|
Steel Bulk Carrier |
|
IVS Bulk 554 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Sunbird"
IMO No: 9736042
2015
|
|
Steel Bulk Carrier |
|
IVS Bulk 7297 Pte. Ltd. |
|
Singapore |
|
|
|
|
|
|
|
|
m.v. "IVS Gleneagles"
IMO No: 9736066
2016
|
|
Steel Bulk Carrier |
|
IVS Bulk 3693 Pte. Ltd. |
|
Singapore |
CURRENCY: |
|
Dollars. |
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|
|
Cost of funds as a fallback |
|
Cost of funds will apply as a fallback. |
|
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Definitions |
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Additional Business Days: |
|
An RFR Banking Day. |
|
|
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Break Costs: |
|
None. |
Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): |
|
(a) |
If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: |
|
|
|
(i) |
subject to sub-paragraph (iii) 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; |
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(ii) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
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(iii) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
|
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(b) |
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). |
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|
|
|
Central Bank Rate: |
|
(a) |
The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or |
|
|
(b) |
if that target is not a single figure, the arithmetic mean of: |
|
|
|
(i) |
the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and |
|
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|
|
|
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(ii) |
the lower bound of that target range. |
Central Bank Rate Adjustment: |
|
In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent trimmed arithmetic mean (calculated by the Facility Agent or by any other Finance Party which agrees to determine that mean in place of the Facility Agent), of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. |
|
|
|
"Central Bank Rate Spread" |
|
In relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent) between: |
|
|
(a) |
the RFR for that RFR Banking Day; and |
|
|
|
|
|
|
(b) |
the Central Bank Rate prevailing at close of business on that RFR Banking Day. |
Daily Rate: |
|
The "Daily Rate" for any RFR Banking Day is: |
|
|
(a) |
the RFR for that RFR Banking Day; or |
|
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|
|
|
|
(b) |
if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: |
|
|
|
(i) |
the Central Bank Rate for that RFR Banking Day; and |
|
|
|
|
|
|
|
|
(ii) |
the applicable Central Bank Rate Adjustment; or |
|
|
(c) |
if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: |
|
|
|
(i) |
the most recent Central Bank Rate for a day which is no more than 5 RFR Banking Days before that RFR Banking Day; and |
|
|
|
(ii) |
the applicable Central Bank Rate Adjustment, |
|
|
rounded, in either case, to five decimal places and if, in either case, that rate is less than zero, the Daily Rate shall be deemed to be zero. |
|
|
|
Lookback Period: |
|
Five RFR Banking Days. |
|
|
|
Market Disruption Rate: |
|
The percentage rate per annum which is the Cumulative Compounded RFR Rate for the Interest Period of the Loan or the relevant part of the Loan. |
|
|
|
Reporting Day: |
|
The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. |
|
|
|
Reporting Times |
|
|
|
|
|
Deadline for Lenders to report market disruption in accordance with Clause 11.2 (Market disruption) |
|
Close of business in London on the Business Day immediately following the Reporting Day for the relevant Compounded Rate Loan. |
|
|
|
Deadline for Lenders to report their cost of funds in accordance with Clause 11.3 (Cost of funds) |
|
Close of business on the date falling 3 Business Days after the Reporting Day for the relevant Compounded Rate Loan (or, if earlier, on the date falling 3 Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Compounded Rate Loan). |
|
|
|
RFR: |
|
The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). |
|
|
|
RFR Banking Day: |
|
Any day other than: |
|
|
(a) |
a Saturday or Sunday; and |
|
|
|
|
|
|
(b) |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. |
SCHEDULE 13
DAILY NON-CUMULATIVE COMPOUNDED RFR RATE
The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during an Interest Period for a Compounded Rate Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below:
|
(UCCDRi – UCCDRi – 1 X |
dcc |
|
|
ni |
|
where:
"UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";
"UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period;
"dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number;
"ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and
the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose):
where:
"ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;
"tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;
"Cumulation Period" means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day;
"dcc" has the meaning given to that term above; and
the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to five decimal places) calculated as set out below:
where:
"d0" means the number of RFR Banking Days in the Cumulation Period;
"Cumulation Period" has the meaning given to that term above;
"i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;
"DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the Lookback Period prior to that RFR Banking Day "i";
"ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;
"dcc" has the meaning given to that term above; and
"tni" has the meaning given to that term above.
SCHEDULE 14
CUMULATIVE COMPOUNDED RFR RATE
The "Cumulative Compounded RFR Rate" for any Interest Period for a Compounded Rate Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition of "Annualised Cumulative Compounded Daily Rate" in Schedule 13 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out below:
where:
"d0" means the number of RFR Banking Days during the Interest Period;
"i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period;
"DailyRatei-LP" means for any RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the Lookback Period prior to that RFR Banking Day "i";
"ni" means, for any RFR Banking Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;
"dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and
"d" means the number of calendar days during that Interest Period.
BORROWER
SIGNED by |
) |
|
/s/ Matthews Edward Alastair |
duly authorised |
) |
|
Matthews Edward Alastair |
for and on behalf of |
) |
|
Attorney-in-fact |
GRINDROD SHIPPING PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
CORPORATE GUARANTOR
SIGNED by |
) |
|
/s/ Matthews Edward Alastair |
duly authorised |
) |
|
Matthews Edward Alastair |
for and on behalf of |
) |
|
Attorney-in-fact |
GRINDROD SHIPPING HOLDINGS LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
COLLATERAL GUARANTORS
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 5858 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Matthews Edward Alastair |
|
) |
|
Matthews Edward Alastair |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 543 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 5855 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 545 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 1345 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 554 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 7297 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Gerald Christopher Kingsley-Wilkins |
|
) |
|
Gerald Christopher KINGSLEY-WILKINS |
|
) |
|
Attorney-in-fact |
as attorney-in-fact |
) |
|
|
for and on behalf of |
) |
|
|
IVS BULK 3693 PTE. LTD. |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Kamini Balaraj |
Witness' name: |
) |
|
Kamini Balaraj |
Witness' address: |
) |
|
STEPHENSON HARWOOD LLP |
|
|
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
ORIGINAL LENDERS |
|
|
/s/ Chang Wei Liang |
|
|
|
Chang Wei Liang |
SIGNED by |
) |
|
Attorney-in-fact |
duly authorised |
) |
|
|
for and on behalf of |
) |
|
|
NORDEA BANK ABP, FILIAL I NORGE |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Seah Wei Loong, Matthew Linton |
|
/s/ Gregg Crawford Johnston |
duly authorised |
) |
|
Seah Wei Loong, Matthew Linton |
|
Gregg Crawford Johnston |
for and on behalf of |
) |
|
Attorney-in-fact |
|
Attorney-in-fact |
SKANDINAVISKA ENSKILDA |
) |
|
|
|
|
BANKEN AB (PUBL), SINGAPORE BRANCH |
) |
|
|
|
|
in the presence of: |
) |
|
|
|
|
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
|
|
Witness' name: |
) |
|
Revathi sasitharan |
|
|
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
|
|
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
|
|
Singapore 018981 |
|
|
ORIGINAL HEDGE COUNTERPARTIES
SIGNED by |
) |
|
/s/ Chang Wei Liang |
duly authorised |
) |
|
Chang Wei Liang |
for and on behalf of |
) |
|
Attorney-in-fact |
NORDEA BANK ABP |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
Singapore 018981 |
SIGNED by |
) |
|
/s/ Seah Wei Loong, Matthew Linton |
|
/s/ Gregg Crawford Johnston |
duly authorised |
) |
|
Seah Wei Loong, Matthew Linton |
|
Gregg Crawford Johnston |
for and on behalf of |
) |
|
Attorney-in-fact |
|
Attorney-in-fact |
SKANDINAVISKA ENSKILDA |
) |
|
|
|
|
BANKEN AB (PUBL) |
) |
|
|
|
|
in the presence of: |
) |
|
|
|
|
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
|
|
Witness' name: |
) |
|
Revathi sasitharan |
|
|
Witness' address: |
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8 Marina Boulevard #29-01 |
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Marina Bay Financial Centre Tower 1 |
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Singapore 018981 |
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ARRANGERS
SIGNED by |
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/s/ Seah Wei Loong, Matthew Linton |
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/s/ Gregg Crawford Johnston |
duly authorised |
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Seah Wei Loong, Matthew Linton |
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Gregg Crawford Johnston |
for and on behalf of |
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Attorney-in-fact |
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Attorney-in-fact |
SKANDINAVISKA ENSKILDA |
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BANKEN AB (PUBL), SINGAPORE BRANCH |
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in the presence of: |
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Witness' signature: |
) |
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/s/ Revathi sasitharan |
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Witness' name: |
) |
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Revathi sasitharan |
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Witness' address: |
) |
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8 Marina Boulevard #29-01 |
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Marina Bay Financial Centre Tower 1 |
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Singapore 018981 |
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SIGNED by |
) |
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/s/ Chang Wei Liang |
duly authorised |
) |
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Chang Wei Liang |
for and on behalf of |
) |
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Attorney-in-fact |
NORDEA BANK ABP, FILIAL I NORGE |
) |
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in the presence of: |
) |
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Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
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8 Marina Boulevard #29-01 |
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|
Marina Bay Financial Centre Tower 1 |
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Singapore 018981 |
BOOKRUNNER
SIGNED by |
) |
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/s/ Chang Wei Liang |
duly authorised |
) |
|
Chang Wei Liang |
for and on behalf of |
) |
|
Attorney-in-fact |
NORDEA BANK ABP, FILIAL I NORGE |
) |
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in the presence of: |
) |
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Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
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|
Marina Bay Financial Centre Tower 1 |
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Singapore 018981 |
COORDINATORS
SIGNED by |
) |
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/s/ Seah Wei Loong, Matthew Linton |
|
/s/ Gregg Crawford Johnston |
duly authorised |
) |
|
Seah Wei Loong, Matthew Linton |
|
Gregg Crawford Johnston |
for and on behalf of |
) |
|
Attorney-in-fact |
|
Attorney-in-fact |
SKANDINAVISKA ENSKILDA |
) |
|
|
|
|
BANKEN AB (PUBL), SINGAPORE BRANCH |
) |
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in the presence of: |
) |
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Witness' signature: |
) |
|
/s/ Revathi sasitharan |
|
|
Witness' name: |
) |
|
Revathi sasitharan |
|
|
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
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|
|
|
|
Marina Bay Financial Centre Tower 1 |
|
|
|
|
|
Singapore 018981 |
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|
SIGNED by |
) |
|
/s/ Chang Wei Liang |
duly authorised |
) |
|
Chang Wei Liang |
for and on behalf of |
) |
|
Attorney-in-fact |
NORDEA BANK ABP, FILIAL I NORGE |
) |
|
|
in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
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|
Marina Bay Financial Centre Tower 1 |
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|
Singapore 018981 |
FACILITY AGENT
SIGNED by |
) |
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/s/ Jonathan Charles Li Ming Simson |
duly authorised |
) |
|
Jonathan Charles Li Ming Simson |
for and on behalf of |
) |
|
Attorney-in-fact |
NORDEA BANK ABP, FILIAL I NORGE |
) |
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in the presence of: |
) |
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|
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|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
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|
Marina Bay Financial Centre Tower 1 |
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|
Singapore 018981 |
SECURITY AGENT
SIGNED by |
) |
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/s/ Jonathan Charles Li Ming Simson |
duly authorised |
) |
|
Jonathan Charles Li Ming Simson |
for and on behalf of |
) |
|
Attorney-in-fact |
NORDEA BANK ABP, FILIAL I NORGE |
) |
|
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in the presence of: |
) |
|
|
|
|
|
|
Witness' signature: |
) |
|
/s/ Revathi sasitharan |
Witness' name: |
) |
|
Revathi sasitharan |
Witness' address: |
) |
|
8 Marina Boulevard #29-01 |
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|
Marina Bay Financial Centre Tower 1 |
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Singapore 018981 |
