Execution Version
Date: as of February 24, 2014
THE COMPANIES
listed in Schedule 10
as Joint and Several Borrowers
SCORPIO TANKERS INC.
as Guarantor
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part A
as Commercial Lenders
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part B
as K-Sure Lenders
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 2
as Swap Banks
DNB MARKETS, INC. and Skandinaviska
Enskilda Xxxxxx XX (publ)
as Bookrunners
KOREA EXCHANGE BANK
as Senior Manager
DNB MARKETS, INC., Skandinaviska
Enskilda Xxxxxx XX (publ), THE KOREA DEVELOPMENT BANK, CREDIT SUISSE AG and
ING BANK N.V., LONDON BRANCH
as Mandated Lead Arrangers
DNB BANK ASA, NEW YORK BRANCH
as Agent and
Security Trustee
– and –
DNB BANK ASA, NEW YORK BRANCH
as K-Sure Agent
LOAN AGREEMENT
Relating to
a US$458,268,000 Senior Secured Term
Loan Facility to finance part of
the acquisition cost of the Ships identified
in Schedule 8
Xxxxxx, Xxxxxx & Xxxxxxxx
New York
INDEX
| Clause |
|
Page |
| 1 |
INTERPRETATION |
2 |
| 2 |
FACILITY |
29 |
| 3 |
POSITION OF THE LENDERS, THE SWAP BANKS AND K-SURE |
30 |
| 4 |
DRAWDOWN |
32 |
| 5 |
INTEREST |
34 |
| 6 |
INTEREST PERIODS |
36 |
| 7 |
DEFAULT INTEREST |
37 |
| 8 |
REPAYMENT AND PREPAYMENT |
38 |
| 9 |
CONDITIONS PRECEDENT |
41 |
| 10 |
REPRESENTATIONS AND WARRANTIES |
44 |
| 11 |
GENERAL AFFIRMATIVE AND NEGATIVE COVENANTS |
53 |
| 12 |
FINANCIAL COVENANTS |
62 |
| 13 |
MARINE INSURANCE COVENANTS |
63 |
| 14 |
SHIP COVENANTS |
68 |
| 15 |
COLLATERAL MAINTENANCE RATIO |
73 |
| 16 |
GUARANTEES |
74 |
| 17 |
PAYMENTS AND CALCULATIONS |
80 |
| 18 |
APPLICATION OF RECEIPTS |
82 |
| 19 |
APPLICATION OF EARNINGS |
84 |
| 20 |
EVENTS OF DEFAULT |
85 |
| 21 |
FEES AND EXPENSES |
89 |
| 22 |
INDEMNITIES |
91 |
| 23 |
NO SET-OFF OR TAX DEDUCTION; TAX INDEMNITY; FATCA |
93 |
| 24 |
ILLEGALITY, ETC |
98 |
| 25 |
INCREASED COSTS |
98 |
INDEX
| Clause |
|
Page |
| 26 |
SET OFF |
101 |
| 27 |
TRANSFERS AND CHANGES IN LENDING OFFICES |
101 |
| 28 |
K-SURE |
106 |
| 29 |
VARIATIONS AND WAIVERS |
110 |
| 30 |
NOTICES |
111 |
| 31 |
SUPPLEMENTAL |
114 |
| 32 |
THE SERVICING BANKS |
115 |
| 33 |
THE K-SURE AGENT - SPECIFIC PROVISIONS |
120 |
| 34 |
LAW AND JURISDICTION |
122 |
| 35 |
WAIVER OF JURY TRIAL |
123 |
| 36 |
PATRIOT ACT NOTICE |
124 |
| EXECUTION PAGE |
125 |
| SCHEDULE 1 LENDERS AND COMMITMENTS |
129 |
| SCHEDULE 2 SWAP BANKS |
133 |
| SCHEDULE 3 DRAWDOWN NOTICE |
134 |
| SCHEDULE 4 CONDITION PRECEDENT DOCUMENTS |
136 |
| SCHEDULE 5 TRANSFER CERTIFICATE |
140 |
| SCHEDULE 6 DESIGNATION NOTICE |
144 |
| SCHEDULE 7 LIST OF APPROVED BROKERS |
145 |
| SCHEDULE 8 LIST OF SHIPS |
146 |
| SCHEDULE 9 MANDATORY COST FORMULA |
148 |
| SCHEDULE 10 BORROWERS |
151 |
| SCHEDULE 11 REPAYMENT PROFILE |
153 |
THIS LOAN AGREEMENT (this “Agreement”)
is made as of February 24, 2014
AMONG
| (1) | THE COMPANIES listed in Schedule 10, as
joint and several Borrowers (together with any other person that becomes a borrower party hereto pursuant to a Borrower Accession
Agreement (as defined below), the “Borrowers”, and each separately a “Borrower”, which expressions
include their respective successors, transferees and assigns); |
| (2) | SCORPIO TANKERS INC., a corporation incorporated
and existing under the laws of the Republic of Xxxxxxxx Islands whose principal office is at 0, Xxxxxxxxx Xxxxxxx XXX, Xxxxxx,
00000 as guarantor (the “Guarantor”, which expression includes its successors, transferees and assigns); |
| (3) | THE BANKS AND FINANCIAL INSTITUTIONS listed
in Schedule 1, Part A, as commercial lenders (the “Commercial Lenders”, which expression includes their
respective successors, transferees and assigns); |
| (4) | THE BANKS AND FINANCIAL INSTITUTIONS listed
in Schedule 1, Part B, as export credit agency lenders (the “K-Sure Lenders”, which expression includes
their respective successors, transferees and assigns and together with the Commercial Lenders, the “Lenders”); |
| (5) | THE BANKS AND FINANCIAL INSTITUTIONS listed
in Schedule 2, as swap banks (the “Swap Banks”, which expression includes their respective successors, transferees
and assigns); |
| (6) | DNB MARKETS, INC. and Skandinaviska
Enskilda Xxxxxx XX (publ), as bookrunners (the “Bookrunners”, which expression includes their respective
successors, transferees and assigns); |
| (7) | KOREA EXCHANGE BANK as senior manager (the
“Senior Manager”, which expression includes its successors, transferees and assigns); |
| (8) | DNB MARKETS, INC., Skandinaviska
Enskilda Xxxxxx XX (publ), THE KOREA DEVELOPMENT BANK, CREDIT SUISSE AG and ING BANK N.V., LONDON BRANCH as mandated lead
arrangers (the “Mandated Lead Arrangers”, which expression includes their respective successors, transferees
and assigns); |
| (9) | DNB BANK ASA, NEW YORK BRANCH acting in
such capacity through its office at 000 Xxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as agent for the Lenders (in
such capacity, the “Agent”, which expression includes its successors, transferees and assigns); |
| (10) | DNB BANK ASA, NEW YORK BRANCH, acting in
such capacity through its office at 000 Xxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as K-Sure agent (in such capacity,
the “K-Sure Agent”, which expression includes its successors, transferees and assigns); and |
| (11) | DNB BANK ASA, NEW YORK BRANCH, acting in
such capacity through its office at 000 Xxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as security trustee for the
Lenders and the Swap Banks (in such capacity, the “Security Trustee”, which expression includes its successors,
transferees and assigns). |
BACKGROUND
| (A) | The Lenders have agreed severally to make
available to the Borrowers, on a joint and several basis, a senior secured term loan facility of up to $458,268,000 for the purpose
of financing the acquisition of the Ships identified in Schedule 8, such loan facility to be comprised of the following tranches: |
| (i) | $100,000,000 to be made available to the
Borrowers by the Commercial Lenders; and |
| (ii) | $358,268,000 to be made available to the
Borrowers by the K-Sure Lenders, subject to the K-Sure Insurance Policy. |
| (B) | The Swap Banks have agreed to enter into
interest rate swap transactions with the Borrowers from time to time to hedge the Borrowers’ exposure under this Agreement
to interest rate fluctuations. |
| (C) | The Lenders and the Swap Banks have agreed
to share in the Collateral to be granted to the Security Trustee pursuant to this Agreement with the interest of the Swap Banks
being secured on a subordinated basis. |
IT IS AGREED as follows:
| 1.1 | Definitions. Subject to Clause 1.5,
in this Agreement: |
“Account Bank”
means DNB BANK ASA, Grand Cayman Branch, acting through its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
“Advance”
means the principal amount of each borrowing by the Borrowers under this Agreement of a portion of the Commercial Bank Tranche
and the K-Sure Tranche (on a pro rata basis in respect of the aggregate principal amount of such Advance);
“Affiliate”
means, as to any person, any other person that, directly or indirectly, controls, is controlled by or is under common control with
such person or is a director or officer of such person, and for purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”)
of a person means the possession, direct or indirect, of the power to vote 20% or more of the Voting Stock of such person or to
direct or cause direction of the management and policies of such person, whether through the ownership of Voting Stock, by contract
or otherwise;
“Agreed Form”
means in relation to any document, that document in the form approved by the Agent with the consent of the Lenders, the Swap Banks
and K-Sure (such consent not to be unreasonably withheld or delayed), or as otherwise approved in accordance with any other approval
procedure specified in any relevant provision of any Finance Document (such consent not to be unreasonably withheld or delayed);
“Approved Acquisition
Contract” means, in relation to a Ship, the shipbuilding contract made or to be made between a Seller and the Borrower
who will be the owner of such Ship;
“Approved Broker”
means any of the companies listed on Schedule 7 or such other company proposed by the Guarantor which the Agent may, with the consent
of the Majority Lenders (such consent not to be unreasonably withheld or delayed) and K-Sure, approve from time to time for the
purpose of valuing a Ship, who shall act as an expert and not as arbitrator and whose valuation shall be conclusive and binding
on all parties to this Agreement;
“Approved Builder”
means Hyundai Heavy Industries Co., Ltd., SPP Shipbuilding Group, Samsung Heavy Industries Co., Ltd., Daewoo Shipbuilding &
Marine Engineering Co., Ltd. or any Affiliate thereof or such other company as the Agent may, with the consent of the Majority
Lenders and the K-Sure Agent, approve from time to time in writing as the builder of a Ship;
“Approved Flag”
means the Xxxxxxxx Islands or Liberian flag or such other flag as the Agent may, with the consent of the Majority Lenders and K-Sure,
approve from time to time in writing as the flag on which a Ship shall be registered;
“Approved Management
Agreement” means, in relation to a Ship in respect of its commercial and/or technical management, a management agreement
between the Borrower that owns that Ship and the relevant Approved Manager;
“Approved Manager”
means:
| (a) | each of SSM and SCM or any other Affiliate
of the Guarantor with respect to the commercial and/or technical management of the Ships; |
| (b) | each of V. Ships Ship Management, X’Xxxxx
International Shipping, Hellespont Shipping, Anglo-Eastern Ship Management, Fleet Management, Astor Shipmanagement, Synergy Marine,
Univan Ship Management Limited, X.X. Xxxxx and Zenith Ship Management with respect to the technical management of the Ships; or
|
| (c) | any other company proposed by the Guarantor
which the Agent may, with the consent of the Majority Lenders (such consent not to be unreasonably withheld or delayed), approve
from time to time as the technical and/or commercial manager of a Ship; |
“Availability
Period” means the period commencing on the Effective Date and ending on the earlier of:
| (a) | the Delivery Date of the last Ship to be
acquired; |
| (b) | September 30, 2015 (or such later date
as the Agent may, with the consent of all the Lenders and K-Sure, agree with the Guarantor); or |
| (c) | the date on which the Total Commitments
are fully borrowed, cancelled or terminated; |
“Bank Secrecy
Act” means the United States Bank Secrecy Act of 1970, as amended;
“Basel III”
means:
| (a) | the agreements on capital requirements,
a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and
banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee
on Banking Supervision in December 2010, each as amended, supplemented or restated; |
| (b) | the rules for global systemically important
banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement
– Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or
restated; and |
| (c) | any further guidance or standards published
by the Basel Committee on Banking Supervision relating to "Basel III. |
“Borrower Accession
Agreement” means an agreement providing for the accession of a person to this Agreement as a Borrower in Agreed Form;
“Business Day”
means a day on which banks are open in Oslo, Norway, Stockholm, Sweden, London, England, New York City, United States of America,
Seoul, Korea and Zurich, Switzerland;
“Capitalized
Lease” means, as applied to any person, any lease of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such person, as lessee, in conformity with IFRS, is required to be capitalized on the
balance sheet of such person; and “Capitalized Lease Obligation” is defined to mean the rental obligations,
as aforesaid, under a Capitalized Lease;
“Cash Equivalents”
means:
| (a) | unencumbered securities issued or directly
and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full
faith and credit of the United States of America is pledged in support thereof); |
| (b) | time deposits, certificates of deposit
or deposits (in each case, unencumbered) in the interbank market of any commercial bank of recognized standing organized under
the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of
$500,000,000; and |
| (c) | such other securities or instruments as
the Majority Lenders shall agree in writing; |
and in respect of both
(a) and (b) above, with a Rating Category of at least “A-” by S&P and “A” by Xxxxx’x (or the
equivalent used by another Rating Agency) (provided that, in the case of (b) above only, such Rating Category shall not
be applicable for time deposits, certificates of deposit or deposits (in each case, unencumbered) held with any commercial bank
which is a Lender) and in each case having maturities of not more than ninety (90) days from the date of acquisition;
“Change of Control”
means:
| (a) | in respect of the Borrowers, the occurrence
of any act, event or circumstance that without prior written consent of the Majority Lenders results in the Guarantor owning directly
or indirectly less than 100% of the issued and outstanding Equity Interests in a Borrower; and |
| (b) | in respect of the Guarantor: |
| (i) | a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act), other than any director or officer or any holders of five percent (5%) or more of the Guarantor’s Equity
Interests as of the Effective Date, becomes the ultimate “beneficial owner” (as defined in Rule 13(d)-3 under the Exchange
Act and including by reason of any change in the ultimate “beneficial ownership” of the Equity Interests of the Guarantor)
of more than 35% of the total voting power of the Voting Stock of the Guarantor (calculated on a fully diluted basis); or |
| (ii) | individuals who at the beginning of any period of two consecutive calendar years constituted the
Board of Directors or equivalent governing body of the Guarantor (together with any new directors (or equivalent) whose election
by such Board of Directors or equivalent governing body or whose nomination for election was approved by a vote of at least two-thirds
of the members of such Board of Directors or equivalent governing body then still in office who either were members of such Board
of Directors or equivalent governing body at the beginning of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute at least 50% of the members of such Board of Directors or equivalent governing
body then in office; |
“Charter”
means, in relation to a Ship, any demise, time or consecutive voyage charter in respect of that Ship for a term which exceeds,
or which by virtue of any optional extension by the Borrower that owns that Ship may exceed, 12 months ;
“Charter Assignment”
means, in relation to a Ship, an assignment of the Charter for such Ship, in Agreed Form;
“Classification
Society” means, in relation to a Ship, any of Det Norske Veritas, Lloyd’s Register of Shipping, American Bureau
of Shipping, Korean Register of Shipping and Bureau Veritas or such other first-class vessel classification society that is a member
of IACS that the Agent may, with the consent of the Majority Lenders (such consent not to be unreasonably withheld or delayed)
and K-Sure, approve from time to time;
“Code”
means the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated and rulings issued thereunder;
“Collateral”
means all property (including, without limitation, any proceeds thereof) referred to in the Finance Documents that is or is intended
to be subject to any Security Interest in favor of the Security Trustee, for the benefit of the Lenders and the Swap Banks, securing
the Secured Liabilities;
“Collateral
Maintenance Ratio” has the meaning given in Clause 15.2;
“Commercial Bank
Tranche” means, in respect of the term loan facility to be made available to the Borrowers by the Commercial Lenders
under this Agreement, a tranche in the original principal amount of up to $100,000,000 made available by the Commercial Lenders;
“Commercial Bank
Tranche Advance” means the principal amount of each borrowing by the Borrowers of a portion of the Commercial Bank Tranche
Commitments;
“Commercial Bank
Tranche Commitments” means, in relation to a Lender, the amount set forth opposite its name in Schedule 1 in respect
of the Commercial Bank Tranche, or, as the case may require, the amount(s) specified in the relevant Transfer Certificate, as such
amount(s) may be reduced, cancelled or terminated in accordance with this Agreement;
“Commission”
or “SEC” means the United States Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act;
“Commitment”
means, as the context may require, the Commercial Bank Tranche Commitment or the K-Sure Tranche Commitment (and “Total
Commitments” means the aggregate of the Commercial Bank Tranche Commitments and the K-Sure Tranche Commitments or either
of them, as the context may require);
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute;
“Compliance Certificate”
means a certificate executed by an authorized person of the Guarantor in Agreed Form;
“Confirmation”
and “Early Termination Date”, in relation to any continuing Designated Transaction, have the meanings given
in the relevant Master Agreement;
“Consolidated
EBITDA” means, for any accounting period, the consolidated net income of the Guarantor for that accounting period:
| (a) | plus, to the extent deducted in
computing the net income of the Guarantor for that accounting period, the sum, without duplication, of: |
| (i) | all federal, state, local and foreign income
taxes and tax distributions; |
| (ii) | Consolidated Net Interest Expense; |
| (iii) | depreciation, depletion, amortization of
intangibles and other non-cash charges or non-cash losses (including non-cash transaction expenses and the amortization of debt
discounts), amortization of restricted stock awards and any extraordinary losses not incurred in the ordinary course of business; |
| (iv) | expenses incurred in connection with a
special or intermediate survey of a Ship during such period; and |
| (v) | any drydocking expenses of a Ship; |
| (b) | minus, to the extent added in computing the consolidated net income of the Guarantor for
that accounting period, (i) any non-cash income or non-cash gains and (ii) any extraordinary gains or losses on asset sales not
incurred in the ordinary course of business; |
“Consolidated
Funded Debt” means, for any accounting period, the sum of the following for the Guarantor determined (without duplication)
on a consolidated basis for such period and in accordance with IFRS consistently applied:
| (a) | all Financial Indebtedness; and |
| (b) | all obligations to pay a specific purchase
price for goods or services whether or not delivered or accepted (including take-or-pay and similar obligations which in accordance
with IFRS would be shown on the liability side of a balance sheet) |
provided that
balance sheet accruals for future drydock expenses shall not be classified as Consolidated Funded Debt;
“Consolidated
Liquidity” means, on a consolidated basis at any time, the sum of (a) cash, (b) Cash Equivalents, in each case held
by the Guarantor on a freely available and unencumbered basis and (c) amounts readily available for drawing by the Guarantor and
its subsidiaries under committed credit facilities with a maturity date in excess of 12 months which remain undrawn and could be
drawn for general working capital or other general corporate purposes (subject to the availability limits and other provisions
set out in the agreements related to such committed credit facilities), provided that no event of default has occurred and
is continuing under any such committed credit facilities and the Borrower is entitled to borrow under such committed credit facilities;
“Consolidated
Net Interest Expense” means the aggregate of all interest, commissions, discounts and other costs, charges or expenses
accruing that are due from the Guarantor and all of its subsidiaries during the relevant accounting period less (i) interest income
received, (ii) commitment fees and (iii) amortization of deferred charges and arrangement fees, determined on a consolidated basis
in accordance with IFRS and as shown in the consolidated statements of income for the Guarantor;
“Consolidated
Tangible Net Worth” means, on a consolidated basis, the total shareholders’ equity (including retained earnings)
of the Guarantor, minus goodwill and other non-tangible items;
“Consolidated
Total Capitalization” means Consolidated Tangible Net Worth plus Consolidated Funded Debt;
“Contractual
Currency” has the meaning given in Clause 22.4;
“Contribution”
means, in relation to a Lender, the part of the Loan which is owing to that Lender;
“CRD IV”
means Directive 2013/36/EU 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 Directive 2006/48/EC and 2006/49/EC.
“CRR”
means Regulation (EU) no. 575/2013 of 26 June 2013 on prudential requirements for credit institutions and investment firms and
amending regulation (EU) No. 648/2012.
“Creditor Party”
means the Agent, the Security Trustee, any Lender, any Swap Bank, any Bookrunner, the Senior Manager, any Mandated Lead Arranger
and the K-Sure Agent whether as at the Effective Date or at any later time;
“Currency Agreement”
means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect a person
or any of its subsidiaries against fluctuations in currency values to or under which such person or any of its subsidiaries is
a party or a beneficiary on the Effective Date or becomes a party or a beneficiary thereafter;
“Data”
shall have the meaning given to this term in Clause 31.6(a);
“Delivery Date”
means the date of delivery of a Ship to the Borrower that will own such Ship;
“Designated Transaction”
means a Transaction which fulfills the following requirements:
| (a) | it is entered into by the Guarantor pursuant
to a Master Agreement with a Swap Bank; |
| (b) | its purpose is the hedging of the Borrowers’
exposure under this Agreement to fluctuations in LIBOR arising from the funding of the Loan (or any part thereof) for a period
expiring no later than the Maturity Date; and |
| (c) | it is designated by the Guarantor, by delivery
by the Guarantor to the Agent of a notice of designation in the form set out in Schedule 6, as a Designated Transaction for the
purposes of the Finance Documents; |
“Disbursement
Authorization” has the meaning given in Clause 9.2(b);
“Dollars”
and “$” means the lawful currency for the time being of the United States of America;
“Drawdown Date”
means, in relation to an Advance, the date requested by the Borrowers for such Advance to be made, or (as the context requires)
the date on which such Advance is actually made;
“Drawdown Notice”
means a notice in the form set out in Schedule 3 (or in any other form which the Agent approves or reasonably requires);
“Earnings”
means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower
owning that Ship or the Security Trustee and which arise out of the use or operation of that Ship, including (but not limited to):
| (a) | except to the extent that they fall within
paragraph (b): |
| (i) | all freight, hire and passage moneys; |
| (ii) | compensation payable to the Borrower owning
that Ship or the Security Trustee in the event of requisition of that Ship for hire; |
| (iii) | remuneration for salvage and towage services;
|
| (iv) | demurrage and detention moneys; |
| (v) | damages for breach (or payments for variation
or termination) of any charterparty or other contract for the employment of that Ship; and |
| (vi) | all moneys which are at any time payable
under Insurances in respect of loss of hire; and |
| (b) | if and whenever that Ship is employed on
terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of
the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship; |
“Earnings Account”
means, in relation to the Ships:
| (a) | an account in the name of the Guarantor
with the Account Bank designated as the “Master Earnings Account”; or |
| (b) | an account in the name of the Borrower
owning the relevant Ship with the Account Bank designated as the Earnings Account for such Ship; |
“Earnings Account
Pledge” means a pledge of an Earnings Account, in Agreed Form;
“Earnings Assignment”
means, in relation to a Ship, an assignment of the Earnings and any Requisition Compensation of that Ship, in Agreed Form;
“XXXXX”
means the Electronic Data Gathering, Analysis, and Retrieval system maintained by the SEC;
“Effective Date”
means the date on which this Agreement is executed and delivered by the parties hereto;
“Email”
has the meaning given in Clause 30.1;
“Environmental
Claim” means:
| (a) | any claim by any governmental, judicial
or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to
any Environmental Law; or |
| (b) | any claim by any other person which relates
to an Environmental Incident or to an alleged Environmental Incident, |
and “claim”
means a claim for damages, compensation, indemnification, contribution, fines, penalties or any other payment of any kind 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 of Environmentally Sensitive
Material from a Ship; or |
| (b) | any incident in which Environmentally Sensitive
Material is released and which involves a collision or allision between a Ship and another vessel or object, or some other incident
of navigation or operation, in any case, in connection with which such Ship is actually or potentially liable to be arrested, attached,
detained or injuncted and/or such Ship and/or the Guarantor and/or the Borrower owning such Ship and/or any operator or manager
of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or |
| (c) | any other incident in which Environmentally
Sensitive Material is released otherwise than from a Ship and in connection with which such Ship is actually or potentially liable
to be arrested and/or where the Guarantor and/or the Borrower owning such Ship and/or any operator or manager of such Ship is at
fault or allegedly at fault or otherwise liable to any legal or administrative action; |
“Environmental
Law” means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive
Material or to actual or threatened releases of Environmentally Sensitive Material;
“Environmental
Permit” means any permit, approval, identification number, license or other authorization required under any applicable
Environmental Law;
“Environmentally
Sensitive Material” means oil, oil products 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;
“Equity Contribution”
has the meaning given in Clause 4.2;
“Equity Interests”
of any person means:
| (a) | any and all shares and other equity interests
(including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and |
| (b) | all rights to purchase, warrants or options
or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated)
such shares or other interests in such person; |
“Equity Proceeds”
means the net cash proceeds from the issuance of common or preferred stock of the Guarantor;
“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated and rulings
issued thereunder;
“ERISA Affiliate”
means a trade or business (whether or not incorporated) that, together with the Guarantor or any subsidiary of it, would be deemed
to be a single employer under Section 414 of the Code;
“Estate”
has the meaning assigned such term in Clause 32.1(b)(ii);
“Event of Default”
means any of the events or circumstances described in Clause 20.1;
“Exchange Act”
means the United States Securities Exchange Act of 1934, as amended, and any successor act thereto, and (unless the context otherwise
requires) includes the rules and regulations of the Commission promulgated thereunder;
“Excluded Swap
Obligation” means, with respect to any Swap Guarantor, any Swap Obligation if, and to the extent that, all or a portion
of the guarantee of such Swap Guarantor of, or the grant by such Swap Guarantor of a security interest to secure, such Swap Obligation
(or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity
Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Swap Guarantor’s
failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and
the regulations thereunder at the time the guarantee of such Swap Guarantor or the grant of such security interest becomes effective
with respect to such related Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one swap,
such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or
security interest is or becomes illegal;
“Executive Order”
means an executive order issued by the President of the United States of America;
“Fair
Market Value” means, in relation to a Ship, the market value of such Ship at any date that is shown by the average of
two (2) valuations each prepared for and addressed to the Agent:
| (a) | as at a date not more than 30 days prior
to the date such valuation is delivered to the Agent; |
| (b) | by Approved Brokers selected by the Guarantor;
|
| (c) | with (in the case of a Major Casualty)
or without (in all other cases) a physical inspection of that Ship ; and |
| (d) | on the basis of a sale for prompt delivery
for cash on normal arm’s length commercial terms as between a willing seller and a willing buyer, free of any existing charter
or other contract of employment (and with no value to be given to any pooling arrangements); |
provided
that (a) if a range of market values is provided in a particular appraisal, then the market value in such appraisal shall be
deemed to be the mid-point within such range and (b) in the event that the Agent receives notice that, in the reasonable opinion
of the Majority Lenders, one or more of the Approved Brokers listed in Schedule 7 are no longer acceptable, such Approved Brokers
shall be reviewed and re-approved by all the Lenders and additional Approved Brokers shall be added to replace any Approved Brokers
removed therefrom;
“FATCA”
means Sections 1471 through 1474 of the Code and any regulations thereunder issued by the United States Treasury or any official
interpretations or administrative guidance relating thereto;
“FATCA Deduction”
means a deduction or withholding from a payment under any Finance Document required by or under FATCA;
“FATCA Exempt
Party” means a FATCA Relevant Party who is entitled under FATCA to receive payments free from any FATCA Deduction;
“FATCA Non-Exempt
Party” means a FATCA Relevant Party who is not a FATCA Exempt Party;
“FATCA Non-Exempt
Lender” means any Lender who is a FATCA Non-Exempt Party;
“FATCA
Relevant Party” means each Creditor Party and each Security Party;
“Finance Documents”
means:
| (b) | the Charter Assignments; |
| (c) | the Earnings Account Pledges; |
| (d) | the Earnings Assignments; |
| (e) | the Insurance Assignments; |
| (f) | the Master Agreement Assignments; |
| (j) | the Manager’s Undertakings; and |
| (k) | any other document (whether creating a
Security Interest or not) which is executed at any time by any person as security for, or to establish any form of subordination
or priorities arrangement in relation to, any amount payable to the Lenders and/or the Swap Banks under this Agreement or any of
the other documents referred to in this definition or which is entered or to be entered into by any Security Party and is designated
as a “Finance Document” under and for the purposes of this Agreement; |
“Financial Indebtedness”
means, with respect to any person (the “debtor”) at any date of determination (without duplication) as determined
in conformity with IFRS:
| (a) | all obligations of the debtor for principal,
interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; |
| (b) | all obligations of the debtor evidenced
by bonds, debentures, notes or other similar instruments; |
| (c) | all obligations of the debtor in respect
of any acceptance credit, guarantee or letter of credit facility or equivalent made available to the debtor (including reimbursement
obligations with respect thereto) which in accordance with IFRS would be shown on the liability side of a balance sheet; |
| (d) | all obligations of the debtor to pay the
deferred purchase price of property or services, which purchase price is due more than six months after the date of placing such
property in service or taking delivery thereof or the completion of such services, except trade payables; |
| (e) | all Capitalized Lease Obligations of the
debtor as lessee; |
| (f) | all Financial Indebtedness of persons other
than the debtor secured by a Security Interest on any asset of the debtor, whether or not such Financial Indebtedness is assumed
by the debtor, provided that the amount of such Financial Indebtedness shall be the lesser of (i) the fair market value
of such asset at such date of determination and (ii) the amount of such Financial Indebtedness; |
| (g) | all Financial Indebtedness of persons other
than the debtor under any guarantee, indemnity or similar obligation entered into by the debtor to the extent such Financial Indebtedness
is guaranteed, indemnified, etc. by the debtor; and |
| (h) | to the extent not otherwise included in
this definition, obligations of the debtor under Currency Agreements and Interest Rate Agreements or any other kind of derivative
transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of
mutual liabilities, the liability of the debtor for the net amount. |
The
amount of Financial Indebtedness of any debtor at any date shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, as determined in conformity with IFRS, provided that (i) the amount outstanding at any time of any
Financial Indebtedness issued with an original issue discount is the face amount of such Financial Indebtedness less the remaining
unamortized portion of such original issue discount of such Financial Indebtedness at such time as determined in conformity with
IFRS, and (ii) Financial Indebtedness shall not include any liability for taxes;
“Fiscal Year”
means, in relation to any person, each period of one (1) year commencing on January 1 of each year and ending on December 31 of
such year in respect of which its accounts are or ought to be prepared;
“Foreign Pension
Plan” means any plan, fund (including without limitation, any superannuation fund) or other similar program established
or maintained outside the United States of America by the Borrower or any one or more of its subsidiaries primarily for the benefit
of its or their employees residing outside the United States of America, which plan, fund or other similar program provides, or
results in, retirement income, and which plan, fund or program would be covered by Title IV of ERISA but which is not subject to
ERISA by reason of Section 4(b)(4) of ERISA;
“Guaranteed Obligations”
has the meaning given in Clause 16.1(a)(i);
“Guaranteed Swap
Obligations” has the meaning given in Clause 16.1(b)(i);
“IACS”
means the International Association of Classification Societies;
“IFRS”
means international accounting standards within the meaning of the IAS Regulations 1606/2002 to the extent applicable to the relevant
financial statements;
“Insolvency Event”
means with respect to any person:
| (a) | such person shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or |
| (b) | any proceeding shall be instituted by or
against such person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property, and solely in case of an involuntary proceeding: |
| (i) | such proceeding shall remain undismissed
or unstayed for a period of 45 days; or |
| (ii) | any of the actions sought in such involuntary
proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its property) shall occur. |
“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 respect of that Ship, the
Earnings or otherwise in relation to that Ship whether before, on or after the Effective Date; and |
| (b) | all rights and other assets relating to,
or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether
or not the relevant policy, contract of insurance or entry has expired on or before the Effective Date; |
“Insurance Assignment”
means, in relation to a Ship, an assignment of the Insurances of that Ship, in Agreed Form;
“Interest Period”
means a period determined in accordance with Clause 6;
“Interest Rate
Agreement” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement (including any Master Agreement), interest rate cap agreement, interest rate collar agreement, interest
rate hedge agreement or other similar agreement or arrangement designed to protect a person or any of its subsidiaries against
fluctuations in interest rates to or under which such person or any of its subsidiaries is a party or a beneficiary on the date
hereof or becomes a party or a beneficiary hereafter;
“IRS”
means the United States Internal Revenue Service or any successor taxing authority or agency of the United States government;
“ISM Code”
means the International Safety Management Code (including the guidelines on its implementation), adopted by the International Maritime
Organization, as the same may be amended or supplemented from time to time (and the terms “safety management system”,
“Safety Management Certificate” and “Document of Compliance” have the same meanings as are
given to them in the ISM Code);
“ISM Code Documentation”
includes, in respect of a Ship:
| (a) | the Document of Compliance and Safety Management Certificate issued pursuant to the ISM Code in
relation to that Ship within the periods specified by the ISM Code; |
| (b) | all other documents and data which are relevant to the safety management system and its implementation
and verification which the Agent may reasonably require; and |
| (c) | any other documents which are prepared or which are otherwise relevant to establish and maintain
that Ship’s compliance or the compliance of the Borrower that owns that Ship or the relevant Approved Manager with the ISM
Code which the Agent may require; |
“ISPS Code”
means the International Ship and Port Facility Security Code as adopted by the International Maritime Organization, as the same
may be amended or supplemented from time to time;
“ISPS
Code Documentation” includes:
| (b) | all other documents and data which are
relevant to the ISPS Code and its implementation and verification which the Agent may require; |
“ISSC”
means a valid and current International Ship Security Certificate issued under the ISPS Code;
“K-Sure”
means Korea Trade Insurance Corporation of 00, Xxxxxx, Xxxxxx-xx, Xxxxx 000-000, Xxxxx;
“K-Sure Insurance
Policy” means, in respect of each Ship, the policy of the Medium and Long Term Export Insurance Policy, the General Terms
and Conditions of Medium and Long Term Export Insurance (Buyer’s Credit, Standard Type) and the special terms and conditions
attached thereto and issued or to be issued by K-Sure providing political and commercial risk cover in an amount of up to ninety-five
percent (95%) of the K-Sure Tranche Advances outstanding from time to time and accrued interest thereunder, including, for the
avoidance of doubt, the K-Sure Premium;
“K-Sure Matters”
means all communications and dealings with K-Sure in connection with each K-Sure Insurance Policy, any Finance Document, the Borrowers
and/or any other Security Party or any matters relating thereto (including, without limitation, obtaining any approvals and/or
instructions from K-Sure);
“K-Sure Premium”
means, in respect of each K-Sure Insurance Policy, the full sum payable to K-Sure as stipulated in that K-Sure Insurance Policy,
which sum shall be equal to 3.30 per cent;
“K-Sure Tranche”
means, in respect of the term loan facility to be made available to the Borrowers by the Lenders under this Agreement, a tranche
in the original principal amount of up to $358,268,000 made available by the K-Sure Lenders;
“K-Sure Tranche
Advance” means the principal amount of each borrowing by the Borrowers of a portion of the K-Sure Tranche Commitments;
“K-Sure Tranche
Commitments” means, in relation to a Lender, the amount set forth opposite its name in Schedule 1 in respect of the
K-Sure Tranche, or, as the case may require, the amount(s) specified in the relevant Transfer Certificate, as such amount(s) may
be reduced, cancelled or terminated in accordance with this Agreement;
“Lending Office”
means, with respect to any Lender, the office of such Lender specified as its “Lending Office” under its name on Schedule
1 or in the relevant Transfer Certificate pursuant to which it became a Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrowers and the Agent;
“LIBOR”
means, in relation to any period for which an interest rate is to be determined under any provision of a Finance Document:
| (a) | the applicable Screen Rate; or |
| (b) | if no Screen Rate is available for that
period, the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards to four (4) decimal places) of the
rates, as supplied to the Agent at its request, quoted by each Reference Bank to leading banks in the London Interbank Market; |
as of 11:00 a.m. (London
time) on the Quotation Date for that period for the offering of deposits in the relevant currency and for a period comparable to
that period and if LIBOR falls below zero, such rate is deemed to be zero;
“Loan”
means the aggregate principal amount from time to time outstanding under this Agreement of the Commercial Bank Tranche Advances
and the K-Sure Tranche Advances;
“Major Casualty”
means, in relation to a Ship, any casualty or injury caused by or to that Ship in respect of which the claim or the aggregate of
the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $5,000,000 or the equivalent
in any other currency;
“Majority Lenders”
means:
| (a) | before an Advance has been made, Lenders
whose Commitments total at least 66.67% of the Total Commitments; and |
| (b) | at any other time, Xxxxxxx whose Contributions
total at least 66.67% of the Loan; |
provided that:
| (i) | any Majority Lenders’ decision shall
always include at least one Commercial Lender so long as the Commitments or Contributions, as the case may be, of the Commercial
Lenders equals or exceeds 20% of the Total Commitments or the Loan, as the case may be; and |
| (ii) | the Majority Lenders will not do or omit
to do anything which contravenes the terms of any K-Sure Insurance Policy or impedes the ability of the K-Sure Lenders to make
a claim under a K-Sure Insurance Policy; |
“Manager’s
Undertaking” means, in relation to a Ship, the letter executed and delivered by an Approved Manager, in Agreed Form;
“Mandatory Cost”
means the percentage rate per annum calculated by the Agent in accordance with Schedule 9;
“Margin”
means:
| (a) | in respect of the Commercial Bank Tranche: (i) from (and including) the Effective Date to (but
excluding) the fifth (5th) anniversary thereof, 3.25% per annum; and (ii) at all times thereafter until the Maturity
Date in respect of the Commercial Bank Tranche, 3.75% per annum; |
(b) in respect of the
K-Sure Tranche, 2.25% per annum;
“Margin Regulations”
means Regulations T, U and X issued by the Board of Governors of the United States Federal Reserve System and any successor regulations
thereto, as in effect from time to time;
“Margin Stock”
means “margin stock” or “margin securities” as defined in the Margin Regulations;
“Market Disruption
Event” has the meaning given in Clause 5.7;
“Market Disruption
Notice” has the meaning given in Clause 5.8;
“Master Agreement”
means each master agreement (on the 2002 ISDA (Multicurrency - Crossborder) form) in Agreed Form made between the Guarantor and
a Swap Bank and includes all Designated Transactions from time to time entered into and Confirmations from time to time exchanged
under the master agreement;
“Master Agreement
Assignment” means, in relation to each Master Agreement, the assignment of the Master Agreement, in Agreed Form;
“Material Adverse
Effect” means any condition or circumstance which the Majority Lenders shall determine has had, or could reasonably be
expected to have, a material adverse effect:
| (a) | on the rights or remedies of any the Creditor
Parties under any of the Finance Documents or in respect of the Collateral taken as a whole; |
| (b) | on the performance of any of the Security
Parties, or the Security Parties taken as a whole, to perform its or their obligations under any of the Finance Documents; |
| (c) | with respect to the loan facility contemplated
by this Agreement; or |
| (d) | on the business, property, assets, nature
of assets, operations, liabilities or condition (financial or otherwise) of any of the Security Parties; |
“Maturity Date”
means, subject to Clause 8.3(a), the earlier of:
| (a) | in the case of the Commercial Bank Tranche,
the date falling on the sixth anniversary of the Delivery Date of the last Ship to be acquired pursuant to this Agreement; |
| (b) | in the case of the K-Sure Tranche, January
9, 2027; and |
(c)
the date on which the Loan is accelerated pursuant to Clause 20.4;
“Maximum Advance”
means in relation to a Ship, the amount set out in the column titled “Maximum Advance (60% of Contract Price)” of Schedule
8 in respect of that Ship;
“Moody’s”
means Xxxxx’x Investors Service, Inc., a subsidiary of Xxxxx’x Corporation, and its successors;
“Mortgage”
means, in relation to a Ship, the first priority or, as the case may be, preferred ship mortgage on that Ship, in Agreed Form;
“Multiemployer
Plan” means, at any time, a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Guarantor
or any subsidiary of it or any ERISA Affiliate has any liability or obligation to contribute or has within any of the six preceding
plan years had any liability or obligation to contribute;
“Net Debt”
means Consolidated Funded Debt less cash and Cash Equivalents;
“Non-indemnified
Tax” means:
| (a) | any tax on the net income of a Creditor
Party (but not a tax on gross income or individual items of income), whether collected by deduction or withholding or otherwise,
which is levied by a taxing jurisdiction which: |
| (i) | is located in the country under whose laws
such entity is formed (or in the case of a natural person is a country of which such person is a citizen); or |
| (ii) | with respect to any Lender, is located
in the country of its Lending Office; or |
| (iii) | with respect to any Creditor Party other
than a Lender, is located in the country from which such party has originated its participation in this transaction; and |
| (b) | any FATCA Deduction made on account of
a payment to a FATCA Non-Exempt Party; |
“Note”
means, in respect of a Tranche, a promissory note of the Borrowers, payable to the order of the Agent, evidencing the aggregate
indebtedness of the Borrowers in respect of such Tranche under this Agreement, in Agreed Form;
“Notifying Lender”
has the meaning given in Clause 24.1 or Clause 25.1 as the context requires;
“pari passu”,
when used with respect to the ranking of any Financial Indebtedness of any person in relation to other Financial Indebtedness of
such person, means that each such Financial Indebtedness:
| (a) | either (i) is not subordinated in right
of payment to any other Financial Indebtedness of such person or (ii) is subordinate in right of payment to the same Financial
Indebtedness of such person as is the other and is so subordinate to the same extent; and |
| (b) | is not subordinate in right of payment
to the other or to any Financial Indebtedness of such person as to which the other is not so subordinate; |
“PATRIOT Act”
means the United States Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Improvement and Reauthorization Act of 2005 (H.R. 3199);
“Payment Currency”
has the meaning given in Clause 22.4;
“Permitted Security
Interests” means:
| (a) | Security Interests created by the Finance
Documents; |
| (b) | Security Interests for unpaid but not past
due master’s and crew’s wages in accordance with usual maritime practice; |
| (c) | Security Interests for salvage; |
| (d) | Security Interests arising by operation
of law for not more than two (2) months’ prepaid hire under any charter or other contract of employment in relation to a
Ship not otherwise prohibited by this Agreement or any other Finance Document; |
| (e) | Security Interests for master’s disbursements
incurred in the ordinary course of trading and any other Security Interests arising by operation of law or otherwise in the ordinary
course of the operation, repair or maintenance of a Ship, provided such Security Interests do not secure amounts more than
30 days overdue (unless the overdue amount is being contested by the Guarantor or the Borrower that owns such Ship in good faith
by appropriate steps) and subject, in the case of Security Interests for repair or maintenance, to Clause 14.13(h); |
| (f) | any Security Interest created in favor
of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Guarantor or the Borrower
that owns the relevant Ship is actively prosecuting or defending such proceedings or arbitration in good faith and such Security
Interest does not (and is not likely to) result in any sale, forfeiture or loss of a Ship; |
| (g) | Security Interests arising by operation
of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate
steps and in respect of which appropriate reserves have been made; |
| (h) | pledges of certificates of deposit or other
cash collateral securing any Security Party’s reimbursement obligations in connection with letters of credit now or hereafter
issued for the account of such Security Party in connection with the establishment of the financial responsibility of such Security
Party under 33 C.F.R. Part 130 or 46 C.F.R. Part 540, as the case may be, as the same may be amended or replaced; |
| (i) | Security Interests to secure obligations
under workmen’s compensation laws or similar legislation, deposits to secure public or statutory obligations, warehousemen’s
or other like liens, or deposits to obtain the release of such liens and deposits to secure surety, appeal or customs bonds on
which the Guarantor or a Borrower is the principal, as to all of the foregoing, only to the extent arising and continuing in the
ordinary course of business; |
| (j) | Security Interests for loss, damage or
expense which are fully covered by insurance, subject to applicable deductibles satisfactory to the Agent; and |
| (k) | Security Interests incidental to the conduct
of the business of each Security Party or the ownership of such Security Party’s property and assets, which Security Interests
do not in the aggregate materially detract from the value of each such Security Party’s property or assets or materially
impair the use thereof in the operation of its business; |
“Pertinent Document”
means:
| (b) | any policy or contract of insurance contemplated
by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document; |
| (c) | any other document contemplated by or referred
to in any Finance Document; and |
| (d) | any document which has been or is at any
time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document
falling within paragraphs (b) or (c); |
“Pertinent Jurisdiction”,
in relation to a company, means:
| (a) | the jurisdiction under the laws of which
the company is incorporated or formed; |
| (b) | a jurisdiction in which the company has
the center of its main interests or in which the company’s central management and control is or has recently been exercised; |
| (c) | a jurisdiction in which the overall net
income of the company is subject to corporation tax, income tax or any similar tax; |
| (d) | a jurisdiction in which assets of the company
(other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company
maintains a branch or permanent place of business, or in which a Security Interest created by the company must or should be registered
in order to ensure its validity or priority; or |
| (e) | a jurisdiction the courts of which have
jurisdiction to make a winding up, administration or similar order in relation to the company whether as a main or territorial
or ancillary proceedings or which would have such jurisdiction if their assistance were requested by the courts of a country referred
to in paragraphs (a) or (b) above; |
“Pertinent Matter”
means:
| (a) | any transaction or matter contemplated
by, arising out of, or in connection with a Pertinent Document; or |
| (b) | any statement relating to a Pertinent Document
or to a transaction or matter falling within paragraph (a), |
and covers any such transaction,
matter or statement, whether entered into, arising or made at any time before the signing of this Agreement or on or at any time
after that signing;
“Plan”
means any employee benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code or Section 302 of ERISA, and in respect to which the Guarantor or any subsidiary of it or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section
3(5) of ERISA;
“Potential Event
of Default” means an event or circumstance which, with the giving of any notice, the lapse of time, would constitute
an Event of Default;
“Qualified ECP
Guarantor” means, in respect of any Swap Obligation, each Swap Guarantor that has total assets exceeding $10,000,000
at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation
or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations
promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by
entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act;
“Quotation Date”
means, in relation to any period for which an interest rate is to be determined under any provision of a Finance Document, the
day which is two (2) Business Days before the first day of that period, unless market practice differs in the London Interbank
Market for a currency, in which case the Quotation Date will be determined by the Agent in accordance with market practice in the
London Interbank Market (and if quotations would normally be given by leading banks in the London Interbank Market on more than
one day, the Quotation Date will be the last of those days);
“Rating
Agencies” means:
| (b) | if S&P or Moody’s or both of
them are not making ratings of securities publicly available, a nationally recognized United States rating agency or agencies,
as the case may be, selected by the Agent with the consent of the Majority Lenders, which will be substituted for S&P or Moody’s
or both, as the case may be; |
“Rating
Category” means:
| (a) | with respect to S&P, any of the following
categories (any of which may include a “+” or “-“): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent
successor categories); |
| (b) | with respect to Moody’s, any of the
following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and |
| (c) | the equivalent of any such categories of
S&P or Moody’s used by another Rating Agency, if applicable; |
“Reference Banks”
means, subject to Clause 27.16, DNB Bank ASA, New York Branch, Skandinaviska Enskilda Xxxxxx XX (publ), ING Bank N.V., London Branch
and/or such other banks as may be appointed by the Agent in consultation with the Borrowers;
“Repayment Date”
means a date on which a repayment is required to be made under Clause 8;
“Requisition
Compensation” includes all compensation or other moneys payable by reason of any act or event such as is referred to
in paragraph (b) of the definition of “Total Loss”;
“Restricted Party”
means a person:
| (a) | that is listed on any Sanctions List; |
| (b) | that is located in or incorporated under
the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; |
| (c) | that is directly or indirectly owned or
controlled by, or acting on behalf of, a person referred to in (a) and/or (b) above; or |
| (d) | with whom a person subject to the jurisdiction
of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities; |
“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies Inc., and its successors;
“Sanctions”
means the economic sanctions laws, regulations, Executive Orders, embargoes or restrictive measures administered, enacted or enforced
by the Sanctions Authorities,
provided that such
laws, regulations, Executive Orders, embargoes or restrictive measures shall be applicable only to the extent such laws, regulations,
Executive Orders, embargoes or restrictive measures are not in conflict with the laws of the United States of America;
“Sanctions Authorities”
means:
| (b) | the United States of America; |
| (g) | with regard to (a) – (f) above, the
respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign
Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s
Treasury (“HMT”), and the State Secretariat for Economic Affairs of Switzerland; |
“Sanctions List”
means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the “Consolidated List
of Financial Sanctions Targets” maintained by HMT, or any similar list maintained by, or public announcement of Sanctions
designation made by, any of the Sanctions Authorities;
“SCM”
means Scorpio Commercial Management X.X.X., a Monaco company, as commercial manager of the Ships;
“Screen Rate”
means, in relation to any period for which an interest rate is to be determined under any provision of a Finance Document, the
ICE Benchmark Administration Limited Interest Settlement Rate for the relevant currency and period displayed on the appropriate
page of the Reuters screen. If the agreed page is replaced or service ceases to be available, the Agent may specify another page
or service displaying the appropriate rate after consultation with the Guarantor and the Majority Lenders;
“Secured Liabilities”
means all liabilities which the Security Parties or any of them have, at the Effective Date or at any later time or times, under
or in connection with any Finance Document or the Master Agreements or any judgment relating to any Finance Documents or the Master
Agreements; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation
of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under
the insolvency laws of any country;
“Securities Act”
means the United States Securities Act of 1933, as amended, and any successor act thereto, and (unless the context otherwise requires)
includes the rules and regulations of the Commission promulgated thereunder;
“Security Interest”
means:
| (a) | a mortgage, encumbrance, charge (whether
fixed or floating) or pledge, any maritime or other lien or privilege or any other security interest of any kind; |
| (b) | the security rights of a plaintiff under
an action in rem; and |
| (c) | any arrangement entered into by a person
(A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which
B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off
or combination of accounts conferred by the standard terms of business of a bank or financial institution; |
“Security Party”
means the Borrowers, the Guarantor and any other person (except a Creditor Party and an Approved Manager) who, as a surety, guarantor,
mortgagor, assignor or pledgor, as a party to any subordination or priorities arrangement, or in any similar capacity, executes
a Finance Document;
“Security Period”
means the period commencing on the Effective Date and ending on the date on which the Agent notifies the Borrowers that:
| (a) | all amounts which have become due for payment
by the Borrowers or any other Security Party under the Finance Documents and the Master Agreements have been irrevocably and unconditionally
paid in full; |
| (b) | no amount is owing or has accrued (without
yet having become due for payment) under any Finance Document or any Master Agreement; and |
| (c) | neither the Borrowers nor any other Security
Party has any liability under Clause 21, 22 or 23 or any other provision of this Agreement or another Finance Document or a Master
Agreement; |
“Seller”
means, in relation to a Ship, the company named in the Approved Acquisition Contract for that Ship as the seller and/or the Approved
Builder thereof;
“Seller’s
Bank” has the meaning given in Clause 9.2(b);
“Servicing Bank”
means the Agent or the Security Trustee or the K-Sure Agent, as the context may require;
“Shares Pledge”
means a pledge of the Equity Interests of each Borrower, in Agreed Form;
“Ship”
means any of the Ships listed on Schedule 8 to be purchased by the relevant Borrower who will be the owner thereof and registered
in its ownership under an Approved Flag;
“SSM”
means Scorpio Ship Management X.X.X., a Monaco company, as technical manager of the Ships;
“Swap Counterparty”
means, at any relevant time and in relation to a continuing Designated Transaction, the Swap Bank which is a party to that Designated
Transaction;
“Swap Guarantors”
means the Borrowers, acting in such capacity under Clause 16;
“Swap Exposure”
means, as at any relevant date and in relation to a Swap Counterparty, the amount certified by the Swap Counterparty to the Agent
to be the aggregate net amount in Dollars which would be payable by the Guarantor to the Swap Counterparty under (and calculated
in accordance with) section 6(e) (Payments on Early Termination) of the Master Agreement entered into by the Swap Counterparty
with the Guarantor if an Early Termination Date had occurred on the relevant date in relation to all continuing Designated Transactions
entered into between the Guarantor and the Swap Counterparty;
“Swap Obligation”
means, with respect to any Swap Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act;
“Total Loss”
means in relation to a Ship:
| (a) | actual, constructive, compromised, agreed
or arranged total loss of that Ship; |
| (b) | any expropriation, confiscation, requisition
or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration
or without any consideration, which is effected by any government or official authority or by any person or persons claiming to
be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one (1)
year without any right to an extension), unless it is within three (3) months redelivered to the full control of the Borrower owning
that Ship; or |
| (c) | any arrest, capture, seizure or detention
of that Ship (including any hijacking, piracy or theft) unless it is within three (3) months redelivered to the full control of
the Borrower owning that Ship; |
“Total Loss Date”
means in relation to 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 earliest of: |
| (i) | the date on which a notice of abandonment
is given to the insurers; and |
| (ii) | the date of any compromise, arrangement
or agreement made by or on behalf of the Borrower owning that Ship with the Ship’s insurers in which the insurers agree to
treat the Ship as a total loss; and |
| (c) | in the case of any other type of total
loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred; |
“Tranche”
means each of the Commercial Bank Tranche and the K-Sure Tranche;
“Transaction”
has the meaning given in each Master Agreement;
“Transfer Certificate”
has the meaning given in Clause 27.2;
“Transferee Lender”
has the meaning given in Clause 27.2;
“Transferor Lender”
has the meaning given in Clause 27.2;
“UCC”
means the Uniform Commercial Code of the State of New York; and
“Voting Stock”
of any person as of any date means the Equity Interests of such person that are at the time entitled to vote in the election of
the board of directors or similar governing body of such person.
| 1.2 | Construction of certain terms. In
this Agreement: |
an Event of Default being
“continuing” means it has not been waived;
“approved”
means, for the purposes of Clause 13, approved in writing by the Agent with the consent of the Majority Lenders (such approval
not to be unreasonably withheld or delayed);
“asset”
includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or
other payment;
“company”
includes any corporation, limited liability company, partnership, joint venture, unincorporated association, joint
stock company, trust or other entity (whether or not having separate legal personality);
“consent”
includes an authorization, consent, approval, resolution, license, exemption, filing, registration, notarization and legalization;
“contingent liability”
means a liability which is not certain to arise and/or the amount of which remains unascertained;
“document”
includes a deed; also a letter, Email or fax;
“excess risks”
means, in relation to 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;
“expense”
means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other
tax;
“law”
includes any order or decree, any form of delegated legislation, any treaty or international convention and any statute, directive,
regulation or resolution of the United States of America, any state thereof, the Council of the European Union, the European Commission,
the United Nations or its Security Council or any other Pertinent Jurisdiction;
“legal or administrative
action” means any legal proceeding or arbitration and any administrative or regulatory action or investigation;
“liability”
includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or
otherwise;
“months”
shall be construed in accordance with Clause 1.3;
“obligatory insurances”
means, in relation to a Ship, all insurances effected, or which the Borrower owning that Ship is obliged to effect, under Clause
13 or any other provision of this Agreement or another Finance Document;
“parent company”
has the meaning given in Clause 1.4;
“person”
includes natural persons; any company; any state, political sub-division of a state and local or municipal authority; and any international
organization;
“policy”,
in relation to any insurance, 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 that is a member of the International
Group of P&I Clubs, including pollution risks, risks in excess of the amount for war risks (hull) 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 Time Clauses (Hulls)(1/11/02 or 1/11/03) or clause
8 of the Institute Time Clauses (Hulls) (1/10/83) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision;
“regulation”
includes any regulation, rule, official directive, request or guideline whether or not having the force of law of any governmental
body, intergovernmental or supranational, agency, department or regulatory, self-regulatory or other authority or organization;
“subsidiary”
has the meaning given in Clause 1.4;
“successor”
includes any person who is entitled (by assignment, novation, merger or otherwise) to any other person’s rights under this
Agreement or any other Finance Document (or any interest in those rights) or who, as administrator, liquidator or otherwise, is
entitled to exercise those rights; and in particular references to a successor include a person to whom those rights (or any interest
in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganization of it or any
other person;
“tax”
includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any country, any state, any political
sub-division of a state or any local or municipal authority or any other governmental authority authorized to levy such tax (including
any such imposed in connection with exchange controls), and any related penalties, interest or fines; and
“war risks”
includes war and allied perils, the risk of mines, terrorism, piracy, hijacking, confiscation, blocking and trapping, protection
and indemnity war risks (with a separate limit not less than hull value) and all risks excluded by clause 29 of the Institute Hull
Clauses (1/11/02 or 1/11/03) or clause 24 of the Institute Time clauses (Hulls) (1/11/1995) or clause 23 of the Institute Time
Clauses (Hulls) (1/10/83).
| 1.3 | Meaning of “month”.
A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to
the day of the calendar month on which the period started (“the numerically corresponding day”), but: |
| (a) | on the Business Day following the numerically
corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same
calendar month, on the Business Day preceding the numerically corresponding day; or |
| (b) | on the last Business Day in the relevant
calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period
has no numerically corresponding day, |
and “month”
and “monthly” shall be construed accordingly.
| 1.4 | Meaning of “subsidiary”.
A company (S) is a subsidiary of another company (P) if: |
| (a) | a majority of the issued Equity Interests
in S (or a majority of the issued Equity Interests in S which carry unlimited rights to capital and income distributions) are directly
owned by P or are indirectly attributable to P; or |
| (b) | P has direct or indirect control over a
majority of the voting rights attaching to the issued Equity Interests of S; or |
| (c) | P has the direct or indirect power to appoint
or remove a majority of the directors (or equivalent) of S; or |
| (d) | P otherwise has the direct or indirect
power to ensure that the affairs of S are conducted in accordance with the wishes of P; |
and any company of which
S is a subsidiary is a parent company of S.
| 1.5 | General interpretation. In this
Agreement: |
| (a) | references to, or to a provision of, a
Finance Document, any Master Agreement or any other document are references to it as amended or supplemented, whether before the
Effective Date or otherwise; |
| (b) | references in Clause 1.1 to a document
being in Agreed Form include references to that form with any modifications to that form which the Agent approves or reasonably
requires with the consent of all of the Lenders, the Swap Banks and K-Sure and which are acceptable to the Borrowers; |
| (c) | references to, or to a provision of, any
law or regulation include any amendment, extension, re-enactment or replacement, whether made before the Effective Date or otherwise;
|
| (d) | words denoting the singular number shall
include the plural and vice versa; and |
| (e) | Clauses 1.1 to 1.5 apply unless the contrary
intention appears. |
| 1.6 | Headings. In interpreting a Finance
Document or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document
shall be entirely disregarded. |
| 1.7 | Accounting terms. Unless otherwise
specified herein, all accounting terms used in this Agreement and in the other Finance Documents shall be interpreted, and all
financial statements and certificates and reports as to financial matters required to be delivered to any Creditor Party under
this Agreement shall be prepared, in accordance with IFRS as from time to time in effect. |
| 1.8 | Inferences regarding materiality.
To the extent that any representation, warranty, covenant or other undertaking of a Security Party in this Agreement or any other
Finance Document is qualified by reference to those matters which are not reasonably expected to result in a “material adverse
effect” or language of similar import, no inference shall be drawn therefrom that any Creditor Party has knowledge or approves
of any noncompliance by such Security Party with any law or regulation. |
| 2.1 | Amount of facility. Subject to the
other provisions of this Agreement, the Lenders severally agree to make available to the Borrowers, on a joint and several basis,
a loan facility in the principal amount of up to $458,268,000 comprised of: |
| (i) | the Commercial Bank Tranche; and |
| (ii) | the K-Sure Tranche, subject to the K-Sure
Insurance Policy; |
provided
that, the aggregate amount (in Dollars) of the Commercial Bank Tranche and the K-Sure Tranche shall not exceed 74% of the aggregate
Fair Market Value of the Ships on the Delivery Date of each of the first and last Ship.
| 2.2 | Lenders’ participations in Advances.
Subject to the other provisions of this Agreement, each Lender shall participate in each Advance in the proportion which, as at
the relevant Drawdown Date, its Commitment bears to the Total Commitments. |
| 2.3 | Purpose of Advances. The Borrowers
undertake with each Creditor Party to use each Advance only to partially finance the acquisition of a Ship pursuant to an Approved
Acquisition Contract. |
| 2.4 | Cancellation of Total Commitments. Any
portion of the Total Commitments not disbursed to the Borrowers shall be cancelled and terminated automatically on the expiration
of the Availability Period. |
| 2.5 | Joint and several liability. |
| (a) | All obligations, covenants, representations, warranties and undertakings in or pursuant to the
Finance Documents assumed, given, made or entered into by the Borrowers party thereto shall, unless otherwise expressly provided,
be assumed, given, made or entered into by the Borrowers jointly and severally; |
| (b) | Each Borrower agrees to be bound by the Finance Documents to which it is, or is to be, a party
notwithstanding that the other Borrowers which are intended to sign or to be bound may not do so or be effectually bound and notwithstanding
that any of the Finance Documents may be invalid or unenforceable against the other Borrowers whether or not the deficiency is
known to any Creditor Party; |
| (c) | None of the obligations or liabilities of the Borrowers under this Agreement or any other Finance
Document shall be discharged or reduced by reason of: |
| (i) | the insolvency, liquidation, dissolution,
winding-up, administration, receivership, amalgamation, reconstruction or other incapacity of any person whatsoever or any change
of name or style or constitution of a Borrower or any other person liable; |
| (ii) | any Creditor Party granting any time, indulgence
or concession to, or compounding with, discharging, releasing or varying the liability of a Borrower or any other person liable
or renewing, determining, varying or increasing, any accommodation, facility or transaction or otherwise dealing with the same
in any manner whatsoever, or concurring in, accepting, varying any compromise, arrangement or settlement or omitting to claim or
enforce payment from a Borrower or any other person liable; or |
| (iii) | anything done or omitted which but for
this provision might operate to exonerate the Borrowers or any of them; |
| (d) | Each Borrower agrees that any rights which it may have at any time during the Security Period by
reason of the performance of its obligations under the Finance Documents to be indemnified by any other Borrower and/or to take
the benefit of any Security Interest held by the Security Trustee pursuant to the Finance Documents shall be exercised in such
manner and on such terms as the Security Trustee may require or as provided in this Agreement. Each of the Borrowers agrees to
hold any sums received by it as a result of it having exercised any such right in trust for the Security Trustee absolutely; and |
| (e) | Each Borrower agrees that it will not at any time during the Security Period claim any set off
or counterclaim against any other Borrower in respect of any liability owed to it by that other Borrower under or in connection
with the Finance Documents, nor prove in competition with any of the Creditor Parties in any liquidation of (or analogous proceeding
in respect of) any other Borrower in respect of any payment made under the Finance Documents or in respect of any sum which includes
the proceeds of realization of any Security Interest held by the Security Trustee for the repayment of the Loan. |
| 3 | POSITION
OF THE LENDERS, the swap banks and k-sure |
| 3.1 | Interests several. The rights of
the Lenders and of the Swap Banks under this Agreement and under the Master Agreements are several. |
| 3.2 | Individual right of action. Each
Lender and each Swap Bank shall be entitled to sue for any amount which has become due and payable by a Security Party to it under
this Agreement or under a Master Agreement without joining the Agent, the Security Trustee, any other Lender or any other Swap
Bank as additional parties in the proceedings so long as any such action by such Lender and/or Swap Bank to sue for any such amount
is brought in any New York State court or Federal court of the United States of America sitting in New York County, and any appellate
court thereof. |
| 3.3 | Proceedings requiring Majority Lender
consent. Except as provided in Clause 3.2, no Lender or Swap Bank may commence any other proceedings against any Security Party
or any Collateral in connection with a Finance Document or a Master Agreement without the prior consent of the Majority Lenders. |
| 3.4 | Obligations several. The obligations
of the Lenders under this Agreement and of the Swap Banks under the Master Agreement to which each is a party are several; and
a failure of a Lender to perform its obligations under this Agreement or a failure of a Swap Bank to perform its obligations under
the Master Agreement to which it is a party shall not result in: |
| (a) | the obligations of the other Lenders or
Swap Banks being increased; nor |
| (b) | any Security Party, any other Lender or
any other Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document or under any Master
Agreement, |
and in no circumstances
shall a Lender or a Swap Bank have any responsibility for a failure of another Lender or another Swap Bank to perform its obligations
under this Agreement or a Master Agreement.
Each party to this Agreement
agrees that:
| (a) | K-Sure shall not have any obligations or
liabilities under this Agreement; |
| (b) | K-Sure shall be a third party beneficiary
of the terms of this Agreement and the rights expressed to be for its benefit or exercisable by it under this Agreement; and |
| (c) | this Agreement may not be amended to affect,
limit, modify or eliminate any rights of K-Sure without its prior written consent. |
| 3.6 | Replacement of a Lender. |
| (i) | any Lender becomes a Non-Consenting Lender
(as defined in paragraph (c) below); or |
| (ii) | the Borrowers or any other Security Party
become obliged in the absence of an Event of Default to repay any amount in accordance with Clause 24 or to pay additional amounts
pursuant to Clause 23 or Clause 25 to any Lender in excess of amounts payable to other Lenders generally, |
then
the Borrowers may, on 30 Business Days’ prior written notice to the Agent and such Lender (and in the case of such Lender
being a K-Sure Lender, with the prior consent of K-Sure (such consent not to be unreasonably withheld or delayed)), replace such
Lender by requiring such Lender to (and such Lender shall) transfer pursuant to Clause 27 all (and not part only) of its rights
and obligations under this Agreement to a Lender or other bank, financial institution, fund or other entity (a “Replacement
Lender”) selected by the Borrowers (other than any Affiliate or subsidiary of the Guarantor), which is acceptable to
the Agent with the consent of the Majority Lenders (other than the Lender the Borrowers desire to replace), which confirms its
willingness to assume and by its execution of a Transfer Certificate does assume all the obligations of the transferring Lender
(including the assumption of the transferring Lender’s participations on the same basis as the transferring Lender) for a
purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Xxxxxx’s participation
in the outstanding Advances and all accrued interest and/or breakages costs and other amounts payable in relation thereto under
the Finance Documents.
| (b) | The replacement of a Lender pursuant to
this Clause 3.6 shall be subject to the following conditions: |
| (i) | the Borrowers shall have no right to replace
the Agent or the Security Trustee in such capacities; |
| (ii) | neither the Agent nor any Lender shall
have any obligation to the Borrowers to find a Replacement Lender but nothing contained herein shall preclude them from doing so; |
| (iii) | in the event of a replacement of a Non-Consenting
Lender such replacement must take place no later than 30 days after the date the Borrowers notify the Non-Consenting Lender and
the Agent of its intent to replace the Non-Consenting Lender pursuant to Clause 3.6(a); and |
| (iv) | in no event shall the Lender replaced under
this Clause 3.6 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to
the Finance Documents. |
| (c) | For purposes of this Clause 3.6, in the
event that: |
| (i) | the Borrowers have or the Agent has requested
the Lenders to give a consent in relation to or to agree to a waiver or amendment of any provisions of the Finance Documents; |
| (ii) | the consent, waiver or amendment in question
requires the approval of all Lenders; and |
| (iii) | Lenders whose Commitments aggregate more
than 66.67% percent of the Total Commitments have consented to or agreed to such waiver or amendment, |
then
any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a “Non-Consenting
Lender”.
| 4.1 | Request for Advance. Subject to
the following conditions, the Borrowers may request an Advance to be made by delivering to the Agent a completed Drawdown Notice
not later than 11:00 a.m. (New York City time) five (5) Business Days prior to the intended Drawdown Date. |
| 4.2 | Availability. The conditions referred
to in Clause 4.1 are that: |
| (a) | the Drawdown Date must be a Business Day
during the Availability Period; |
| (b) | an Advance of each of the Commercial Bank
Tranche and the K-Sure Tranche shall be made available to the Borrowers for the purpose stated in Recital (B) provided that
the amount of each such Advance shall not exceed the lesser of (i) the Maximum Advance and (ii) 74% of the Fair Market Value of
the relevant Ship and shall be used only to partially finance the final payment due to the Seller in respect of the acquisition
of a Ship pursuant to an Approved Acquisition Contract or to reimburse the respective Borrower for any excess Equity Contribution;
|
| (c) | the aggregate outstanding principal amount
of the Commercial Bank Tranche Advances shall not exceed the Total Commitments in respect of the Commercial Bank Tranche; |
| (d) | the aggregate outstanding principal amount
of the K-Sure Loan Advances shall not exceed the Total Commitments in respect of the K-Sure Tranche; |
| (e) | the aggregate outstanding principal amount
of the Advances shall not exceed the Total Commitments; |
| (f) | there shall only be one Advance per delivery
of each Ship; and |
| (g) | the applicable conditions precedent stated
in Clause 9 hereof shall have been satisfied or waived as provided therein. |
Notwithstanding
the provisions of Clause 4.2(b) above, it is acknowledged and agreed by the parties to this Agreement that in the event that the
Borrowers pay in excess of 40% (the “Equity Contribution”) of the contract price stated in the Approved Acquisition
Contract in respect of a Ship, the amount of the relevant Advance shall remain at 60% of such contract price and the Borrowers
shall be permitted to reimburse themselves from such Advance so that the Equity Contribution is reduced to (but not less than)
40% of such contract price.
| 4.3 | Notification to Lenders of receipt of
a Drawdown Notice. The Agent shall promptly notify the Lenders, the K-Sure Agent and K-Sure that it has received a Drawdown
Notice and shall inform each Lender of: |
| (a) | the amount of the Advance and the Drawdown
Date; |
| (b) | the amount of that Xxxxxx’s participation
in the Advance; and |
| (c) | the duration of the first Interest Period. |
| 4.4 | Drawdown Notice irrevocable. A Drawdown
Notice must be signed by an officer or a duly authorized attorney-in-fact of the Borrowers and once served, a Drawdown Notice cannot
be revoked or varied without the prior consent of the Agent, acting on the authority of the Majority Lenders. |
| 4.5 | Lenders to make available Contributions.
Subject to the provisions of this Agreement, each Lender shall, before 12:00 p.m. (New York City time) on and with value on the
Drawdown Date, make available to the Agent for the account of the Borrowers the amount due from that Lender under Clause 2.2. |
| 4.6 | Disbursement of Advance. Subject
to the provisions of this Agreement, the Agent shall on the Drawdown Date pay to the Borrowers the amounts which the Agent receives
from the Lenders under Clause 4.5, the Borrowers shall at that time become indebted, as principal and direct obligors, to each
Lender in an amount equal to that Lender’s Contribution and that payment to the Borrowers shall be made: |
| (a) | to the account which the Borrowers specify
in the Drawdown Notice; and |
| (b) | in the like funds as the Agent received
the payments from the Lenders. |
| 4.7 | Disbursement of Advance to third party.
The payment by the Agent under Clause 4.6 to the account of a third party designated by the Borrowers in a Drawdown Notice shall
constitute the making of an Advance and the Borrowers shall at that time become indebted, as principal and direct obligor, to each
Lender in an amount equal to that Xxxxxx’s Contribution. |
| (a) | The obligation of the Borrowers to pay
the principal of, and interest on, each Tranche of the Loan shall be evidenced by a Note, each of which shall be dated the date
of the first Drawdown Date. |
| (b) | Each Advance made by the Lenders to the
Borrowers may be evidenced by a notation of the same made by the Agent on the grid attached to each Note, which notation, absent
manifest error, shall be prima facie evidence of the amount of such Advance. |
| (c) | Each Lender shall record on its internal
records the amount of its Contribution in each Advance and each payment in respect thereof, and the unpaid balance of such Contribution
in such Advance shall, absent manifest error and to the extent not inconsistent with the notations made by the Agent on the grid
attached to each Note, be as so recorded. |
| (d) | The failure of the Agent or any Lender
to make any such notation shall not affect the obligation of the Borrowers in respect of such Advance or the Loan nor affect the
validity of any transfer by the Agent of a Note. |
| (e) | On receipt of satisfactory
evidence that a Note has been lost, mutilated or destroyed and on surrender of the remnants thereof, if any, the Borrowers will
promptly replace such Note, without charge to the Creditor Parties, with a similar Note. If such replacement Note replaces a lost
Note it shall bear an endorsement to that effect. Any lost Note subsequently found shall be surrendered to the Borrowers and cancelled.
In the event that the Agent loses a Note, the Agent shall indemnify the Borrowers for any losses, claims or damages resulting from
the loss of such Note. |
| 5.1 | Normal rate of interest. Subject
to the provisions of this Agreement, the rate of interest on the Loan in respect of an Interest Period shall be the aggregate of: |
| (a) | LIBOR for that Interest Period; plus |
| (b) | the applicable Margin; plus |
| (c) | the Mandatory Cost (if any). |
| 5.2 | Payment of normal interest. Subject
to the provisions of this Agreement, interest on each Advance in respect of each Interest Period shall be paid by the Borrowers
on the last day of that Interest Period. |
| 5.3 | Payment of accrued interest. In
the case of an Interest Period longer than three (3) months, accrued interest shall be paid every three (3) months during that
Interest Period and on the last day of that Interest Period. |
| 5.4 | Notification of Interest Periods and
rates of normal interest. The Agent shall notify the Borrowers and each Lender of: |
| (a) | each rate of interest; and |
| (b) | the duration of each Interest Period (as
determined under Clause 6.2), |
as soon as reasonably
practicable after each is determined.
| 5.5 | Obligation of Reference Xxxxx to quote.
A Reference Bank which is a Lender shall use all reasonable efforts to supply the quotation required of it for the purposes of
fixing a rate of interest under this Agreement. |
| 5.6 | Absence of quotations by Reference Xxxxx.
If any Reference Bank fails to supply a quotation, the Agent shall determine the relevant LIBOR on the basis of the quotations
supplied by the other Reference Bank or Banks but if two (2) or more of the Reference Banks fail to provide a quotation, the relevant
rate of interest shall be set in accordance with the following provisions of this Clause 5. |
| 5.7 | Market disruption. The following
provisions of this Clause 5 apply if any one of the following events occurs (each, a “Market Disruption Event”): |
| (a) | no Screen Rate is available for an Interest
Period and two (2) or more of the Reference Banks do not, before 1:00 p.m. (London time) on the Quotation Date, provide quotations
to the Agent in order to fix LIBOR; or |
| (b) | at least one (1) Business Day before the
start of an Interest Period, Lenders having Contributions together amounting to 50% or more of the Loan (or, if an Advance has
not been made, Commitments amounting to 50% or more of the Total Commitments) notify the Agent that the cost to those Lenders of
funding their respective Contributions (or any part of them) from whatever source such Lenders may reasonably select during the
Interest Period in the London Interbank Market at or about 11:00 a.m. (London time) on the Quotation Date for the Interest Period
would exceed the LIBOR fixed by the Agent for that Interest Period. |
| 5.8 | Notification of market disruption.
If a Market Disruption Event shall have occurred, the Agent shall promptly notify the Borrower, each of the Lenders and each of
the Swap Counterparties stating the circumstances falling within Clause 5.7 which have caused its notice (a “Market Disruption
Notice”) of such Market Disruption Event to be given; provided that the level of detail of the Market Disruption
Notice shall be in the Agent’s sole discretion and the Market Disruption Notice itself shall, absent manifest error, be final,
conclusive and binding on all parties hereto. |
| 5.9 | Alternative rate of interest during
Market Disruption Event. If a Market Disruption Event has occurred, then the rate of interest on each Lender’s Contribution
for the applicable Interest Period shall be the rate per annum which is the sum of: |
| (a) | the rate notified to the Agent by that
Xxxxxx (or Lenders) whose costs of funding would exceed the LIBOR fixed by the Agent for the relevant Interest Period which expresses
the actual cost to that Lender (or Lenders) of funding its (or their) Contribution from whatever source it (or they) may reasonably
select; plus |
| (b) | the applicable Margin; plus |
| (c) | the Mandatory Cost (if any). |
The alternative rate of
interest agreed upon pursuant to this Clause 5.9 shall, subject to the consent of the K-Sure Agent (on behalf of K-Sure), be binding
on all parties hereto. The procedure provided for by this Clause 5.9 shall be repeated for each successive Interest Period during
which a Market Disruption Event has occurred.
| 5.10 | Notice of prepayment. If the Borrowers
do not agree with an interest rate set by the Agent under Clause 5.9, the Borrowers may give the Agent not less than 5 Business
Days’ notice of its intention to prepay the Loan (without premium or penalty) at the end of the Interest Period set by the
Agent. |
| 5.11 | Prepayment; termination of Commitments.
A notice under Clause 5.10 shall be irrevocable; the Agent shall promptly notify the Lenders of the Borrowers’ notice of
intended prepayment and: |
| (a) | on the date on which the Agent serves that
notice, the Total Commitments shall be cancelled; and |
| (b) | on the last Business Day of the Interest
Period set by the Agent, the Borrowers shall prepay (without premium or penalty) the Loan, together with accrued interest thereon
at the applicable rate plus the applicable Margin and the Mandatory Cost (if any). |
| 5.12 | Application of prepayment. The provisions
of Clause 8 shall apply in relation to the prepayment. |
| 6.1 | Commencement of Interest Periods.
The first Interest Period applicable to an Advance shall commence on the relevant Drawdown Date and each subsequent Interest Period
shall commence on the expiry of the preceding Interest Period. |
| 6.2 | Duration of normal Interest Periods.
Subject to Clauses 6.3 and 6.4, each Interest Period shall be: |
| (a) | 3 or 6 months as notified by the Borrowers
to the Agent not later than 11:00 a.m. (New York time) three (3) Business Days before the commencement of the Interest Period;
|
| (b) | in the case of the first Interest Period
applicable to each Advance other than the first Advance, a period ending on the last day of the Interest Period applicable to the
prior Advances then outstanding, whereupon all Advances shall be consolidated and treated as a single Advance; |
| (c) | 3 months, if the Borrowers fail to notify
the Agent by the time specified in paragraph (a); or |
| (d) | such other period as the Agent may, with
the authorization of all Lenders and K-Sure, agree with the Borrowers. |
| 6.3 | Duration of Interest Periods for repayment
installments. In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall
end on that Repayment Date. |
| 6.4 | Non-availability of matching deposits
for Interest Period selected. If, after the Borrowers have selected and the Lenders have agreed an Interest Period longer than
three (3) months, any Lender notifies the Agent by 11:00 a.m. (New York time) on the fifth Business Day before the commencement
of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available
to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of three (3) months. |
| 7.1 | Payment of default interest on overdue
amounts. A Security Party shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable
by such Security Party under any Finance Document which the Agent, the Security Trustee or any other designated payee does not
receive on or before the relevant date, that is: |
| (a) | the date on which the Finance Documents
provide that such amount is due for payment; or |
| (b) | if a Finance Document provides that such
amount is payable on demand, the date on which the demand is served; or |
| (c) | if such amount has become immediately due
and payable under Clause 20.4, the date on which it became immediately due and payable. |
| 7.2 | Default rate of interest. Interest
shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before
judgment) at the rate per annum determined by the Agent to be 2.00 percent above: |
| (a) | in the case of an overdue amount of principal,
the higher of the rates set out at Clauses 7.3(a) and (b); or |
| (b) | in the case of any other overdue amount,
the rate set out at Clause 7.3(b). |
| 7.3 | Calculation of default rate of interest.
The rates referred to in Clause 7.2 are: |
| (a) | the rate applicable to the overdue principal
amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period); and |
| (b) | the aggregate of the applicable Margin
and the Mandatory Cost (if any) plus, in respect of successive periods of any duration (including at call) up to three (3) months
which the Agent may, with the consent of the Majority Lenders, select from time to time: |
| (ii) | if the Agent (after consultation with the
Reference Banks) determines that Dollar deposits for any such period are not being made available to any Reference Bank by leading
banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference
to the cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks)
may from time to time determine. |
| 7.4 | Notification of interest periods and
default rates. The Agent shall promptly notify the Lenders and each relevant Security Party of each interest rate determined
by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this
shall not be taken to imply that such Security Party is liable to pay such interest only with effect from the date of the Agent’s
notification. |
| 7.5 | Payment of accrued default interest.
Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period
by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which
the overdue amount is due. |
| 7.6 | Compounding of default interest.
Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded. |
| 7.7 | Application to Master Agreements.
For the avoidance of doubt, this Clause 7 does not apply to any amount payable under a Master Agreement in respect of any continuing
Designated Transaction as to which section 9(h) (Interest and Compensation) of that Master Agreement shall apply. |
| 8 | REPAYMENT
AND PREPAYMENT |
| 8.1 | Amount of repayment installments.
The Borrowers shall repay the Loan by: |
| (a) | in the case of the Commercial Bank Tranche,
equal consecutive six-monthly repayment installments in accordance with a 15-year loan repayment profile, in such amounts as set
out in Schedule 11; and |
| (b) | in the case of the K-Sure Tranche, equal
consecutive six-monthly repayment installments in accordance with a 12-year loan repayment profile, in such amounts as set out
in Schedule 11; |
| (a) | The first installment in respect of the
Commercial Bank Tranche shall be repaid on the date falling 6 months after the Delivery Date of the last Ship and the last installment
shall be repaid on the Maturity Date in respect of the Commercial Bank Tranche. |
| (b) | The first installment in respect of the
K-Sure Tranche shall be repaid on July 9, 2015 and the last installment shall be repaid on the earlier of (i) the Maturity Date
of the Commercial Bank Tranche, and (ii) January 9, 2027. |
| (a) | In the event that the Commercial Bank Tranche
is refinanced or, as the case may be, is extended hereunder by the Commercial Lenders or otherwise in each case on terms acceptable
to the K-Sure Lenders and K-Sure by the date falling on or before the Maturity Date in respect of the Commercial Bank Tranche,
the Maturity Date of the K-Sure Tranche shall be the same as the new maturity date of the Commercial Bank Tranche being refinanced
or extended (as the case may be). If the Commercial Bank Tranche is not refinanced on the Maturity Date related thereto, the Maturity
Date of the K-Sure Tranche shall be the same as the Maturity Date in respect of the Commercial Bank Tranche, provided that,
in each such case described above, the Maturity Date of the K-Sure Tranche shall in no circumstances be after January 9, 2027. |
| (b) | On the final Maturity Date, the Borrowers
(and in the case of any Master Agreement, the Guarantor) shall additionally pay to the Agent for the account of the Creditor Parties
all other sums then accrued or owing under any Finance Document and any Master Agreement. |
| 8.4 | Voluntary prepayment. Subject to
the following conditions, the Borrowers may prepay the whole or any part of the Loan. |
| 8.5 | Conditions for voluntary prepayment.
The conditions referred to in Clause 8.4 are that: |
| (a) | a partial prepayment shall be $1,000,000
or a multiple of $1,000,000 (or such lesser amount as the Agent may approve with the consent of the Majority Lenders); |
| (b) | the Agent has received from the Borrowers
at least 15 Business Days’ prior written notice specifying the amount to be prepaid and the date on which the prepayment
is to be made; |
| (c) | the Borrowers have provided evidence satisfactory
to the Agent that any consent required by the Borrowers or any other Security Party in connection with the prepayment has been
obtained and remains in force, and that any regulation relevant to this Agreement which affects the Borrowers or any other Security
Party has been complied with (which may be satisfied by the Borrowers certifying that no consents are required and that no regulations
need to be complied with); and |
| (d) | the Borrowers have complied with Clause
8.18 on or prior to the date of prepayment. |
| 8.6 | Effect of notice of prepayment.
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorization of the Majority
Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrowers on the date for prepayment
specified in the prepayment notice. |
| 8.7 | Notification of notice of prepayment.
The Agent shall notify the Lenders and the K-Sure Agent promptly upon receiving a prepayment notice, and shall provide any Lender
which so requests with a copy of any document delivered by the Borrowers under Clause 8.5(c). |
| 8.8 | Mandatory prepayment on sale or Total
Loss. If a Ship is sold or becomes a Total Loss, the Borrowers shall prepay the outstanding amount of the Advance related to
the Ship which is to be sold and/or which has become a Total Loss: |
| (a) | in the case of a sale, on or before the
date on which the sale is completed by delivery of the Ship to the buyer; or |
| (b) | in the case of a Total Loss, on the earlier
of the date falling 120 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance
relating to such Total Loss. |
| 8.9 | Mandatory prepayment on Change of Control.
If a Change of Control occurs: |
| (a) | the relevant Borrower and/or the Guarantor
(as the case may be) shall promptly notify the Agent upon having knowledge of that event; |
| (b) | no Lender shall be obliged to fund or continue
to fund any Advance; and |
| (c) | the Agent, acting on the instructions of
the Majority Lenders, may, by not less than 10 Business Days’ notice to the Borrowers: |
| (i) | in the case of a Change of Control in respect
of a Borrower, cancel the Commitments in respect of the Advance relating to the Ship owned by that Xxxxxxxx and declare all amounts
outstanding under that Advance immediately due and payable together with accrued interest (and any other amount payable under Clause
22 or otherwise); and |
| (ii) | in the case of a Change of Control in respect
of the Guarantor, cancel the loan facility provided for under this Agreement and declare the Loan, together with accrued interest
(and any other amount payable under Clause 22 or otherwise), and all other amounts accrued under the Finance Documents and any
Master Agreement, immediately due and payable, whereupon the Total Commitments shall be cancelled and all such outstanding amounts
will become immediately due and payable by the Borrowers or, in the case of amounts due under any Master Agreement, by the Guarantor.
|
| 8.10 | Mandatory prepayment on termination
of K-Sure Insurance Policy. After the expiry of a 30-day period in which the Agent (on behalf of the Lenders) and the Guarantor
agree to discuss in good faith the potential restructuring of the K-Sure Tranche on such terms and conditions acceptable to the
Lenders, and upon failure to reach an agreement thereon within that 30-day period, the Borrowers shall prepay the whole of the
relevant Advance or Advances which remain outstanding under the K-Sure Tranche, together with accrued interest (and any other amount
payable under Clause 22 or otherwise), and all other amounts accrued or outstanding owing to the K-Sure Lenders thereunder on demand
by the Agent if (a) for any reason, a K-Sure Insurance Policy or the obligations of K-Sure under any K-Sure Insurance Policy terminate,
are cancelled, suspended, rescinded or revoked or become unenforceable or otherwise cease to be in full force and effect or (b)
an Insolvency Event occurs in relation to K-Sure, on the date falling no later than 90 days after the Guarantor, acting as the
Borrowers’ agent, receives notice that (i) such K-Sure Insurance Policy or K-Sure’s obligations under such K-Sure Insurance
Policy have so terminated, become unenforceable or otherwise ceased to be in full force and effect or (ii) an Insolvency Event
has occurred in relation to K-Sure. |
| 8.11 | Amounts payable on prepayment. A
voluntary prepayment under Clause 8.4 and a mandatory prepayment under Clauses 8.8, 8.9 and 8.10 shall be made together with accrued
interest (and any other amount payable under Clause 22 or otherwise) in respect of the amount prepaid and, if the prepayment is
not made on the last day of an Interest Period together with any sums payable under Clause 22.1(b), but without premium or penalty. |
| 8.12 | Application of prepayments. Each
voluntary prepayment under Clause 8.4 and mandatory prepayment under Clauses 8.8, 8.9 and 8.10 shall be applied pro rata to each
Tranche against the repayment installments specified in Clause 8.1 (including any balloon installments) in inverse order of maturity. |
| 8.13 | No reborrowing. No amount repaid
or prepaid may be reborrowed. |
| 8.14 | Voluntary cancellation of Total Commitments.
Subject to the conditions set forth in Clause 8.15, the Borrowers may cancel the whole or any part of the Total Commitments without
premium or penalty. |
| 8.15 | Conditions for voluntary cancellation
of Total Commitments. The conditions referred to in Clause 8.14 are that: |
| (a) | a partial cancellation shall be in the
amount of $1,000,000 or a multiple of $1,000,000; |
| (b) | the Agent has received from the Borrowers
at least fifteen (15) Business Days’ prior written notice specifying the amount to be cancelled and the date on which the
cancellation is to take effect; and |
| (c) | the Borrower has complied with Clause 8.18
on or prior to the date of such cancellation. |
| 8.16 | Effect of notice of cancellation.
The receipt by the Agent of a cancellation notice shall cause the amount of the Total Commitments specified in the notice to be
permanently cancelled on and as of the effective date stated in such notice. Any partial cancellation shall be applied against
the Commitments of each Lender pro rata and the commitment fee referred to in Clause 21.1(a) on such cancelled portion shall cease
to accrue. |
| 8.17 | Notification of notice of cancellation.
The Agent shall notify the Lenders promptly upon receiving a cancellation notice. |
| 8.18 | Unwinding of Designated Transactions.
On or prior to any repayment or prepayment of the Loan under this Clause 8 or any other provision of this Agreement, if required
by the Swap Banks, the Borrowers shall wholly or partially reverse, offset, unwind or otherwise terminate one or more of the continuing
Designated Transactions so that the notional principal amount of the continuing Designated Transactions thereafter remaining does
not and will not in the future (taking into account the scheduled amortization) exceed the amount of the Loan as reducing from
time to time thereafter pursuant to Clause 8.1. |
| 8.19 | Refund of K-Sure Premium. Upon any
voluntary prepayment of the Loan (whether in whole or in part), the Borrowers may request the K-Sure Agent to seek a refund by
K-Sure of such portion of the K-Sure Premium paid by the Borrowers. In the event that K-Sure (in its absolute sole discretion)
consents to such request and refunds any portion of the K-Sure Premium, the amount of which shall be determined and calculated
solely by K-Sure pursuant to the terms of the relevant K-Sure Insurance Policy and its internal regulations subject to a maximum
of 90 percent of any unutilized portion of the K-Sure Premium, to the K-Sure Agent or the Agent (as the case may be), such refund
shall be remitted to the Borrowers in accordance with Clause 18, provided that neither the Agent nor the K-Sure Agent shall
be obliged to take any further action if K-Sure refuses or fails for whatever reason to refund any portion of the K-Sure Premium. |
| 9.1 | Documents, fees and no default.
Each Lender’s obligation to contribute to an Advance is subject to the following conditions precedent: |
| (a) | that, on or before the service of the first
Drawdown Notice, the Agent receives: |
| (i) | the documents described in Part A of Schedule
4 in form and substance satisfactory to the Agent and the K-Sure Agent (on behalf of K-Sure); and |
| (ii) | such documentation and other evidence as
is reasonably requested by the Agent or a Lender in order for each to carry out and be satisfied with the results of all necessary
“know your customer” or other checks which it is required to carry out in relation to the transactions contemplated
by this Agreement and the other Finance Documents, including without limitation obtaining, verifying and recording certain information
and documentation that will allow the Agent and each of the Lenders to identify each Security Party in accordance with the requirements
of the PATRIOT Act and other applicable legislation; |
| (b) | that, on each Drawdown Date but prior to
the making of such Advance, the Agent receives or is satisfied that it will receive on the making of such Advance the documents
described in Part B of Schedule 4 in form and substance satisfactory to it and K-Sure; |
| (c) | that the Agent has not received any notice
from K-Sure requesting the K-Sure Lenders to suspend the making of an Advance under the K-Sure Tranche; |
| (d) | no occurrence, event or circumstances exist
which prohibit any of the K-Sure Lenders from participating in the Advance pursuant to the terms of the relevant K-Sure Insurance
Policy; |
| (e) | the obligations of K-Sure under the relevant
K-Sure Insurance Policy have not been terminated, cancelled, become unenforceable or otherwise ceased to be in full force and effect;
|
| (f) | that, on or before the service of the first
Drawdown Notice, the Agent receives any upfront and arrangement fees, accrued commitment fee and the first installment of the annual
agency fee referred to in Clause 21.1 and has received payment of the expenses referred to in Clause 21.2; |
| (g) | that both at the date of each Drawdown
Notice and at each Drawdown Date: |
| (i) | no Event of Default or Potential Event
of Default has occurred and is continuing or would result from the borrowing of the Advance; |
| (ii) | the representations and warranties in Clause
10 and those of the Borrowers or any other Security Party which are set out in the other Finance Documents (other than those relating
to a specific date, which shall be true and correct as of such specific date) would be true and not misleading if repeated on each
of those dates with reference to the circumstances then existing; |
| (iii) | none of the circumstances contemplated
by Xxxxxx 5.7 has occurred and is continuing; and |
| (iv) | there has been no Material Adverse Effect
since December 31, 2012; |
| (h) | that, if the Collateral Maintenance Ratio
were applied immediately following the making of such Advance, the Borrowers would not be required to provide additional Collateral
or prepay part of the Loan under Clause 15; and |
| (i) | that the Agent has received, and found
to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which
the Agent may, with the authorization of the Majority Lenders, request by notice to the Borrowers prior to the Drawdown Date. |
| 9.2 | Waiver of conditions precedent.
Notwithstanding anything in Clause 9.1 to the contrary: |
| (a) | except with respect to the circumstances
described in Clause 9.2(b), if the Agent, with the consent of the Majority Lenders and the K-Sure Agent, permits an Advance to
be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrowers shall ensure that such conditions
are satisfied within ten (10) Business Days after such Drawdown Date (or such longer period as the Agent with the consent of the
Majority Lenders may specify); and |
| (b) | only if required under the terms of an
Approved Acquisition Contract, an Advance may be borrowed before the conditions precedent set forth in Schedule 4, Part B, Paragraphs
4 and 6 are satisfied and: |
| (i) | each Lender agrees to fund its Contribution
on a day not more than five (5) Business Days prior to the Delivery Date of that Ship; and |
| (ii) | the Agent shall on the date on which the
Advance is funded (or as soon thereafter as practicable) (A) preposition an amount equal to the aggregate principal amount of the
Advance at a bank or other financial institution (the “Seller’s Bank”) satisfactory to the Agent, which
funds shall be held at the Seller’s Bank in the name and under the sole control of the Agent or one of its Affiliates and
(B) issue a SWIFT MT 199 or other similar communication (each such communication, a “Disbursement Authorization”)
authorizing the release of such funds by the Seller’s Bank on the relevant Delivery Date upon receipt of a Protocol of Delivery
and Acceptance in respect of such Ship duly executed by the Seller and the relevant Borrower and countersigned by a representative
of the Agent; |
provided
that if delivery of the Ship does not occur within five (5) Business Days after the scheduled Delivery Date, the funds held
at the Seller’s Bank shall be returned to the Agent for further distribution to the Lenders.
For
the avoidance of doubt, the parties hereto acknowledge and agree that:
| (1) | the date on which the Lenders fund the
Advance constitutes the Drawdown Date in respect of such Advance and all interest and fees thereon shall accrue from such date;
|
| (2) | the Agent and the Lenders suspend fulfillment
of the conditions precedent set forth in Schedule 4, Part B, Paragraphs 4 and 6 solely for the time period on and between such
Drawdown Date and the relevant Delivery Date, and the Borrowers acknowledge and agree that fulfillment of such conditions precedent
to the satisfaction of the Agent and K-Sure shall be required as a condition precedent to the countersignature by a representative
of the Agent of the Protocol of Delivery and Acceptance referred to in Clause 9.2(b)(ii); |
| (3) | from the date the proceeds of the Advance
are deposited at the Seller’s Bank to the Delivery Date (or, if delivery of the Ship does not occur within the time prescribed
in the Disbursement Authorization, the date on which the funds are returned to the Agent for further distribution to the Lenders),
the Borrowers shall be entitled to interest on the Advance at the applicable rate, if any, paid by the Seller’s Bank for
such deposited funds; |
| (4) | if the Ship is not delivered within the
time prescribed in the Disbursement Authorization and the proceeds of the Advance are returned to the Agent and distributed to
the Lenders, (i) the Borrowers shall pay all accrued interest and fees in respect of such returned proceeds on the date such proceeds
are returned to the Agent and (ii) the relevant available Commitment will be increased by an amount equal to the aggregate principal
amount of the Loan proceeds so returned; and |
| (5) | if the relevant Borrower has instructed
the Agent to convert the aggregate principal amount of the Advance borrowed into a currency other than Dollars for deposit with
the Seller’s Bank and the relevant Ship is not delivered within the time prescribed in the Disbursement Authorization and
the proceeds of the Advance are returned to the Agent for further distribution to the Lenders, the Agent shall convert the aggregate
principal amount of funds so returned back into Dollars and if such funds are less than the Dollar amount of the aggregate principal
amount of the Advance incurred on the relevant Drawdown Date, the Borrowers shall immediately repay the difference and, in any
event, the Borrowers shall pay any and all fees, charges and expenses arising from such conversion. |
| 10 | REPRESENTATIONS
AND WARRANTIES |
| 10.1 | General. Each of the Borrowers (jointly
and severally) and the Guarantor represents and warrants to each Creditor Party as of the Effective Date (except as otherwise provided
in this Clause 10) and each Drawdown Date as follows. |
| 10.2 | Status. Each Security Party is: |
| (a) | duly incorporated or formed and validly
existing and in good standing under the law of its jurisdiction of incorporation or formation; and |
| (b) | duly qualified and in good standing as
a foreign company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires
it to so qualify or be licensed except where, in each case, the failure to so qualify or be licensed and be in good standing could
not reasonably be expected to have a material adverse effect (i) on its business, property, assets, nature of assets, operations,
liabilities or condition (financial or otherwise) or which may affect the legality, validity, binding effect or enforceability
of the Finance Documents or the performance of the obligations of the Security Parties (or any of them) under any of the Finance
Documents, (ii) on the rights or remedies of any of the Creditor Parties under any of the Finance Documents or in respect of the
Collateral taken as a whole or (iii) with respect to the loan facility contemplated by this Agreement, |
and there are no proceedings
or actions pending or contemplated by any Security Party, or to the knowledge of any Borrower or the Guarantor contemplated by
any third party, seeking to adjudicate such Security Party as bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its property.
| 10.3 | Company power; consents. Each Security
Party has the capacity and has taken all action, and no consent of any person is required, for: |
| (a) | it to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be conducted; |
| (b) | it to execute each Finance Document and
each Master Agreement to which it is or is to become a party; |
| (c) | it to execute the Approved Acquisition
Contract to which it is a party, to purchase and pay for the relevant Ship under such Approved Acquisition Contract and register
the relevant Ship in its name under an Approved Flag; |
| (d) | it to comply with its obligations under
the Charter, each Finance Document and each Master Agreement to which it is or is to become a party; |
| (e) | it to grant the Security Interests granted
by it pursuant to the Finance Documents to which it is or is to become a party; |
| (f) | the perfection or maintenance of the Security
Interests created by the Finance Documents (including the first priority nature thereof); and |
| (g) | the exercise by any Creditor Party of their
rights under any of the Finance Documents or the Master Agreements or the remedies in respect of the Collateral pursuant to the
Finance Documents or the Master Agreements to which it is a party, |
except, in each case,
for consents which have been duly obtained, taken, given or made and are in full force and effect.
| 10.4 | Consents in force. All the consents
referred to in Clause 10.3 remain in force and nothing has occurred which makes any of them liable to revocation. |
| (a) | Each Security Party owns (i) in the case
of owned real property, good and marketable fee title to and (ii) in the case of owned personal property, good and valid title
to, or, in the case of leased real or personal property, valid and enforceable leasehold interests (as the case may be) in, all
of its properties and assets, tangible and intangible, of any nature whatsoever, free and clear in each case of all Security Interests
or claims, except for Permitted Security Interests. |
| (b) | No Security Party has created or is contractually
bound to create any Security Interest on or with respect to any of its assets, properties, rights or revenues, except for Permitted
Security Interests, and except as provided in this Agreement no Security Party is restricted by contract, applicable law or regulation
or otherwise from creating Security Interests on any of its assets, properties, rights or revenues. |
| (c) | Each Borrower has received (or will receive
on the Delivery Date) all deeds, assignments, waivers, consents, non-disturbance and attornment or similar agreements, bills of
sale and other documents, and has duly effected (or will duly effect on the Delivery Date) all recordings, filings and other actions
necessary to establish, protect and perfect such Borrower’s right, title and interest in and to the Ship owned or to be owned
by it and other properties and assets (or arrangements for such recordings, filings and other actions acceptable to the Agent shall
have been made). |
| 10.6 | Legal validity; effective first priority
Security Interests. Subject to any relevant insolvency laws affecting creditors’ rights generally: |
| (a) | the Finance Documents and the Master Agreements
to which each Security Party is a party, constitute or, as the case may be, will constitute upon execution and delivery (and, where
applicable, registration as provided for in the Finance Documents), such Security Party’s legal, valid and binding obligations
enforceable against it in accordance with their respective terms; and |
| (b) | the Finance Documents to which each Security
Party is a party, create or, as the case may be, will create upon execution and delivery (and, where applicable, registration as
provided for in the Finance Documents), legal, valid and binding first priority Security Interests enforceable in accordance with
their respective terms over all the assets to which they, by their terms, relate. |
| 10.7 | No third party Security Interests.
Without limiting the generality of Clauses 10.5 and 10.6, at the time of the execution and delivery of each Finance Document: |
| (a) | the relevant Security Party will have the
right to create all the Security Interests which that Finance Document purports to create; and |
| (b) | no third party will have any Security Interest
(except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any
such Security Interest, by its terms, relates. |
| 10.8 | No conflicts. The execution and
delivery of each Finance Document and each Master Agreement, the borrowing of each Advance, and compliance with each Finance Document
and each Master Agreement, will not involve or lead to a contravention of: |
| (a) | any law or regulation; or |
| (b) | the constitutional documents of any Security
Party; or |
| (c) | any contractual or other obligation or
restriction which is binding on any Security Party or any of its assets. |
| 10.9 | Status of Secured Liabilities. The
Secured Liabilities constitute direct, unconditional and general obligations of each Security Party and rank (a) senior to all
subordinated Financial Indebtedness and (b) not less than pari passu (as to priority of payment and as to security)
with all other Financial Indebtedness of each Security Party. |
| (a) | Based solely on the IRS Form W-8BEN, W-8ECI
or W-8IMY (or any subsequent versions thereof or successors thereto) of each Lender (which the Borrowers shall confirm receipt
thereof), all payments which a Security Party is liable to make under the Finance Documents to which it is a party can properly
be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction applicable
as of the Effective Date. |
| (b) | Each Security Party has timely filed or
has caused to be filed all tax returns and other reports that it is required by law or regulation to file in any Pertinent Jurisdiction,
and has paid or caused to be paid all taxes, assessments and other similar charges that are due and payable in any Pertinent Jurisdiction,
other than taxes and charges: |
| (i) | which (A) are not yet due and payable or
(B) are being contested in good faith by appropriate proceedings and for which adequate reserves have been established and as to
which such failure to have paid such tax does not create any risk of sale, forfeiture, loss, confiscation or seizure of a Ship
or of criminal liability; or |
| (ii) | the non-payment of which could not reasonably
be expected to have a material adverse effect on the financial condition of such Security Party. |
The
charges, accruals, and reserves on the books of each Security Party respecting taxes are adequate in accordance with IFRS.
| (c) | No material claim for any tax has been
asserted against a Security Party by any Pertinent Jurisdiction or other taxing authority other than claims that are included in
the liabilities for taxes in the most recent balance sheet of such person or disclosed in the notes thereto, if any. |
| (d) | The execution, delivery, filing and registration
or recording (if applicable) of the Finance Documents and the consummation of the transactions contemplated thereby will not cause
any of the Creditor Parties to be required to make any registration with, give any notice to, obtain any license, permit or other
authorization from, or file any declaration, return, report or other document with any governmental authority in any Pertinent
Jurisdiction. |
| (e) | No taxes are required by any governmental
authority in any Pertinent Jurisdiction to be paid with respect to or in connection with the execution, delivery, filing, recording,
performance or enforcement of any Finance Document. |
| (f) | The execution, delivery, filing, registration,
recording, performance and enforcement of the Finance Documents by any of the Creditor Parties will not cause such Creditor Party
to be subject to taxation under any law or regulation of any governmental authority in any Pertinent Jurisdiction of any Security
Party. |
| (g) | It is not necessary for the legality, validity,
enforceability or admissibility into evidence of this Agreement or any other Finance Document that any stamp, registration or similar
taxes be paid on or in relation to this Agreement or any of the other Finance Documents. |
| 10.11 | No default. No Event of Default
or Potential Event of Default has occurred or would result from the borrowing of the Advance and no other circumstances exist which
constitute or (with the giving of notice, lapse of time, determination of materiality or the fulfillment of any other applicable
condition, or any combination of the foregoing) would constitute a default under any document which is binding on a Security Party
or any of its assets and which may have a Material Adverse Effect on the ability of a Security Party to perform its obligations
under the Finance Documents to which it is or is to be a party. |
| 10.12 | Information. All financial statements,
information and other data furnished by or on behalf of a Security Party to any of the Creditor Parties: |
| (a) | was complete and at the time it was given
true and accurate in all material respects; |
| (b) | such financial statements, if any, have
been prepared in accordance with IFRS and, except as disclosed to the SEC and/or the New York Stock Exchange, accurately and fairly
represent the financial condition of such Security Party as of the date or respective dates thereof and the results of operations
of such Security Party for the period or respective periods covered by such financial statements; |
| (c) | there are no other facts or matters the
omission of which would have made or make any such information false or misleading; |
| (d) | there has been no material adverse change
in the financial condition, operations or business prospects of any Security Party since the date on which such information was
provided other than as previously disclosed to the Agent in writing; and |
| (e) | none of the Security Parties has any contingent
obligations, liabilities for taxes or other outstanding financial obligations which are material in the aggregate except as disclosed
in such statements, information and data. |
| 10.13 | No litigation. To the best of any
Security Party’s knowledge, no legal or administrative action involving a Security Party (including any legal or administrative
action relating to any alleged or actual breach of the ISM Code, the ISPS Code or any Environmental Law or any Sanctions) has been
commenced or taken by any person, or, to any Borrower’s or the Guarantor’s knowledge, is likely to be commenced or
taken which, in either case and if adversely determined, would be likely to have a material adverse effect on the business, assets
or financial condition of a Security Party or which may affect the legality, validity, binding effect or enforceability of the
Finance Documents. |
| 10.14 | Intentionally omitted. |
| 10.15 | ISM Code and ISPS Code compliance.
Each Borrower has obtained or will obtain or will cause to be obtained all necessary ISM Code Documentation and ISPS Code Documentation
in connection with the Ship owned or to be owned by it and its operation and will be or will cause such Ship and the Approved Manager
to be in full compliance with the ISM Code and the ISPS Code. |
| 10.16 | Validity and completeness of Approved
Acquisition Contracts and Charters. |
| (a) | Each Approved Acquisition Contract constitutes
valid, binding and enforceable obligations of the Borrower or the Guarantor party thereto in accordance with its terms and: |
| (i) | the copy of such Approved Acquisition Contract
delivered to the Agent is a true and complete copy; and |
| (ii) | no amendments or additions to such Approved
Acquisition Contract have been agreed nor has the Borrower party thereto or the Guarantor waived any of their respective rights
under such Approved Acquisition Contract. |
| (b) | Each Charter constitutes valid, binding
and enforceable obligations of the Borrower party thereto in accordance with its terms and: |
| (i) | the copy of such Charter delivered to the
Agent is a true and complete copy; and |
| (ii) | no amendments or additions to such Charter
have been agreed nor has the Borrower party thereto waived any of its rights under such Charter. |
| 10.17 | No rebates etc. There is no agreement
or understanding to allow or pay any rebate, premium, commission, discount or other benefit or payment (howsoever described) to
the Guarantor or any of its subsidiaries or Affiliates or any third party in connection with the relevant Approved Acquisition
Contract, other than as provided in such Approved Acquisition Contract and disclosed to the Agent in writing. |
| 10.18 | Compliance with law; Environmentally
Sensitive Material. Except to the extent the following could not reasonably be expected to have a material adverse effect (i)
on the business, property, assets, nature of assets, operations, liabilities or condition (financial or otherwise) of any of the
Security Parties or which may affect the legality, validity, binding effect or enforceability of the Finance Documents or the performance
of the obligations of the Security Parties (or any of them) under any of the Finance Documents, (ii) on the rights or remedies
of any of the Creditor Parties under any of the Finance Documents or in respect of the Collateral taken as a whole or (iii) with
respect to the loan facility contemplated by this Agreement: |
| (a) | the operations and properties of each of
the Security Parties comply with all applicable laws and regulations, including without limitation Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the operations and properties of each of the Security Parties and
each of the Security Parties is in compliance in all material respects with all such Environmental Permits; and |
| (b) | none of the Security Parties has been notified
in writing by any person that it or any of its subsidiaries or Affiliates is potentially liable for the remedial or other costs
with respect to treatment, storage, disposal, release, arrangement for disposal or transportation of any Environmentally Sensitive
Material, except for costs incurred in the ordinary course of business with respect to treatment, storage, disposal or transportation
of such Environmentally Sensitive Material. |
| 10.19 | Ownership structure. |
| (a) | All of the Equity Interests of the Guarantor
have been validly issued, are fully paid and non-assessable. |
| (b) | All of the Equity Interests of each Borrower
have been validly issued, are fully paid, non-assessable and free and clear of all Security Interests other than Permitted Security
Interests and are owned legally and beneficially and of record by the Guarantor. |
| (c) | None of the Equity Interests of any Borrower
are subject to any existing option, warrant, call, right, commitment or other agreement of any character to which any of the Borrowers
is a party requiring, and there are no Equity Interests of any Borrower outstanding which upon conversion or exchange would require,
the issuance, sale or transfer of any additional Equity Interests of any of the Borrowers or other Equity Interests convertible
into, exchangeable for or evidencing the right to subscribe for or purchase Equity Interests of any of the Borrowers. |
| 10.20 | Pension plans. None of the Borrowers
or the Guarantor or any ERISA Affiliate maintains any Plan or Multiemployer Plan and none of the Borrowers or the Guarantor maintains
any Foreign Pension Plan. |
| 10.21 | Margin stock. None of the Borrowers
or the Guarantor is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock or for any
other purpose in violation of the Margin Regulations and no proceeds of any Advance will be used to buy or carry any Margin Stock
or to extend credit to others for the purpose of buying or carrying any Margin Stock. |
| 10.22 | Investment company, public utility,
etc. None of the Borrowers or the Guarantor is: |
| (a) | an “investment company,” or
an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as amended, or subject to regulation thereunder;
or |
| (b) | a “public utility” within the
meaning of the United States Federal Power Act of 1920, as amended. |
| 10.23 | Asset control; Sanctions. |
| (a) | None of the Borrowers or the Guarantor
is a Restricted Party, is owned or controlled by, or, to the best of its knowledge, acting directly or indirectly on behalf of
or for the benefit of, a Restricted Party and does not own or control a Restricted Party. |
| (b) | No proceeds of any Advance shall be made
available, directly or indirectly, to or for the benefit of a Restricted Party or otherwise shall be, directly or indirectly, applied
in a manner or for a purpose prohibited by Sanctions. |
| (c) | No Security Party nor any subsidiary of
any Security Party nor any of their respective directors of officers: |
| (i) | is a Restricted Party; or |
| (ii) | has received notice of or is aware of any
claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority. |
| 10.24 | No money laundering.
Without prejudice to the generality of Clause 2.3, in relation
to the borrowing by the Borrowers of an Advance, the performance and discharge of its obligations and liabilities under the Finance
Documents, and the transactions and other arrangements affected or contemplated by the Finance Documents to which any Borrower
is a party, each of the Borrowers confirms that: |
| (a) | it is acting for its own account; |
| (b) | it will use the proceeds of such Advance
for its own benefit, under its full responsibility and exclusively for the purposes specified in this Agreement; and |
| (c) | the foregoing will not involve or lead
to a contravention of any law, official requirement or other regulatory measure or procedure implemented to combat “money
laundering” (as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council of the European
Union) and comparable United States federal and state laws, including without limitation the PATRIOT Act and the Bank Secrecy Act. |
| 10.25 | Ships. As of the relevant Delivery
Date, each Ship will be: |
| (a) | in the sole and absolute ownership of a
Borrower and duly registered in such Borrower’s name under the law of an Approved Flag, unencumbered save and except for
the Mortgage thereon in favor of the Security Trustee recorded against it and as permitted thereby; |
| (b) | seaworthy for hull and machinery insurance
warranty purposes and in every way fit for its intended service; |
| (c) | insured in accordance with the provisions
of this Agreement and the requirements hereof in respect of such insurances will have been complied with; |
| (d) | in class in accordance with the provisions
of this Agreement and the requirements hereof in respect of such classification will have been complied with; and |
| (e) | managed by an Approved Manager pursuant
to an Approved Management Agreement. |
| 10.26 | Place of business. For purposes
of the UCC, each Security Party has only one place of business located at, or, if it has more than one place of business, the chief
executive office from which it manages the main part of its business operations and conducts its affairs is
located at: |
0, Xxxxxxxxx
Xxxxxxx XXX
Xxxxxx 00000
| None of the Security Parties has a place of business in the
United States of America, the District of Columbia, the United States Virgin Islands, or any territory or insular possession subject
to the jurisdiction of the United States of America, other than its representative office at: |
000
Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| 10.27 | Solvency. In the case of each of
the Borrowers and the Guarantor: |
| (a) | the sum of its assets, at a fair valuation,
does and will exceed its liabilities (including guarantees), including, to the extent they are reportable as such in accordance
with IFRS, contingent liabilities; |
| (b) | the present fair market saleable value
of its assets is not and shall not be less than the amount that will be required to pay its probable liability on its then existing
debts, including, to the extent they are reportable as such in accordance with IFRS, contingent liabilities, as they mature; |
| (c) | it does not and will not have unreasonably
small working capital with which to continue its business; and |
| (d) | it has not incurred, does not intend to
incur and does not believe it will incur, debts beyond its ability to pay such debts as they mature. |
| 10.28 | Guarantor’s business; Borrowers’
business. From the date of its incorporation until the date hereof: |
| (a) | in the case of the Borrowers, none of the
Borrowers has conducted any business other than in connection with, or for the purpose of, owning, chartering and operating the
Ships; and |
| (b) | in the case of the Guarantor, the Guarantor
has not conducted any business other than in connection with, or for the purpose of, owning, chartering and operating ships. |
| 10.29 | Immunity; enforcement; submission to
jurisdiction; choice of law. |
| (a) | Each Security Party is subject to civil
and commercial law with respect to its obligations under the Finance Documents, and the execution, delivery and performance by
each Security Party of the Finance Documents to which it is a party constitute private and commercial acts rather than public or
governmental acts. |
| (b) | No Security Party or any of its properties
has any immunity from suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment, set-off,
execution of a judgment or from any other legal process in relation to any Finance Document. |
| (c) | It is not necessary under the laws of any
Security Party’s jurisdiction of incorporation or formation, in order to enable any Creditor Party to enforce its rights
under any Finance Document or by reason of the execution of any Finance Document or the performance by any Security Party of its
obligations under any Finance Document, that such Creditor Party should be licensed, qualified or otherwise entitled to carry on
business in such Security Party’s jurisdiction of incorporation or formation. |
| (d) | Other than the recording of each Mortgage
in accordance with the laws of an Approved Flag and such filings as may be required in a Pertinent Jurisdiction in respect of certain
of the Finance Documents, and the payment of fees consequent thereto, it is not necessary for the legality, validity, enforceability
or admissibility into evidence of this Agreement or any other Finance Document that any of them or any document relating thereto
be registered, filed recorded or enrolled with any court or authority in any Pertinent Jurisdiction. |
| (e) | The execution, delivery, filing, registration,
recording, performance and enforcement of the Finance Documents by any of the Creditor Parties will not cause such Creditor Party
to be deemed to be resident, domiciled or carrying on business in any Pertinent Jurisdiction of any Security Party or subject to
taxation under any law or regulation of any governmental authority in any Pertinent Jurisdiction of any Security Party. |
| (f) | Under the law of each Security Party’s
jurisdiction of incorporation or formation, the choice of the law of New York to govern this Agreement and the other Finance Documents
to which New York law is applicable is valid and binding. |
| (g) | The submission by the Security Parties
to the jurisdiction of the New York State courts and the U.S. Federal court sitting in New York County pursuant to Clause 34.2(a)
is valid and binding and not subject to revocation, and service of process effected in the manner set forth in Clause 34.2(d) will
be effective to confer personal jurisdiction over the Security Parties in such courts. |
| 10.30 | Eligible contract participant; Qualified
ECP Guarantor. On each Drawdown Date: |
| (a) | the Guarantor is an “eligible contract
participant” under the Commodity Exchange Act or any regulations promulgated thereunder; and |
| (b) | each Borrower that owns or will own a Ship
on and after such Drawdown Date, acting in its capacity as a Swap Guarantor, is a Qualified ECP Guarantor. |
| 10.31 | No other material events or facts. Without
prejudice to the generality of Clause 10.12, there are no other material events, circumstances or facts (political, commercial
or otherwise), to the best of any Security Party’s knowledge, which may give rise to any loss or claim under any K-Sure Insurance
Policy. |
| (a) | The representations and warranties set
out in this Clause 10 are deemed to be repeated both on the date of each Drawdown Notice and at each Drawdown Date. |
| (b) | The representations and warranties set
out in Clauses 10.1, 10.2, 10.4, 10.5, 10.6, 10.8, 10.9, 10.11, 10.12, 10.13, 10.16(b), 10.18, 10.19, 10.20, 10.22, 10.23, 10.24,
10.25, 10.26, 10.27, 10.28, 10.29, 10.30 and 10.31 are deemed to be repeated on each interest rollover date. |
| 11 | GENERAL
AFFIRMATIVE AND NEGATIVE COVENANTS |
| 11.1 | Affirmative covenants. From the
first Drawdown Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full each of
the Borrowers and the Guarantor, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the
following provisions of this Clause 11.1 except as the Agent, with the consent of the Majority Lenders, may approve from time to
time in writing: |
| (a) | Performance of obligations. Each
Security Party shall duly observe and perform its obligations under each Charter and each Finance Document and Master Agreement
to which it is or is to become a party. |
| (b) | Notification of defaults (etc.).
The Borrowers and the Guarantor shall promptly notify the Agent, upon becoming aware
of the same, of: |
| (i) | the occurrence of an Event of Default or
of any Potential Event of Default or any other event (including any litigation and/or arbitration) which, if adversely determined,
is reasonably likely to materially adversely affect any Security Party’s ability to perform its obligations under a Charter
and each Finance Document and Master Agreement to which it is or is to become a party; |
| (ii) | any Change of Control; |
| (iii) | any default by any party to a Charter;
and |
| (iv) | any damage or injury caused by or to a
Ship in excess of $5,000,000. |
| (c) | Confirmation of no default. The
Guarantor will, within three (3) Business Days after service by the Agent of a written request, serve on the Agent a notice which
is signed by an officer of the Guarantor and which states that: |
| (i) | no Event of Default or Potential Event
of Default has occurred; or |
| (ii) | no Event of Default or Potential Event
of Default has occurred and is continuing, except for a specified event or matter, of which all material details are given. |
The Agent may serve requests
under this Clause 11.1(c) from time to time but only if asked to do so by a Lender or Lenders having Contributions exceeding 33%
of the Loan or (if no Advances have been made) Commitments exceeding 33% of the Total Commitments, and this Clause 11.1(c) does
not affect the Guarantor or the Borrowers’ respective obligations under Clause 11.1(b).
| (d) | Notification of litigation. The
Guarantor will provide the Agent with details of any legal or administrative action involving the Borrowers, any other Security
Party, the Approved Manager or any Ship, the Earnings or the Insurances as soon as such action is instituted or it becomes apparent
to the Guarantor that it is likely to be instituted, unless it is clear that the legal or administrative action cannot be considered
material in the context of any Finance Document or Master Agreement. |
| (e) | Provision of further information.
The Guarantor will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other
information relating to: |
| (i) | the Guarantor, the Borrowers or any of
the Guarantor’s other subsidiaries; or |
| (ii) | any other matter relevant to, or to any
provision of, a Finance Document, |
which may be requested
by the Agent, the Security Trustee, K-Sure (acting through the K-Sure Agent), any Lender or any Swap Bank at any time.
| (f) | Books of record and account; separate
accounts. |
| (i) | Each of the Guarantor and the Borrowers
shall keep separate and proper books of record and account in which full and materially correct entries shall be made of all financial
transactions and the assets and business of each of the Guarantor and the Borrowers in accordance with IFRS, and the
Agent shall have the right to examine the books and records of each of the Guarantor and the Borrowers wherever
the same may be kept from time to time as it sees fit, in its sole reasonable discretion, or to cause an examination to be made
by a firm of accountants selected by it, provided that any examination shall be done without undue interference with
the day to day business operations of the Guarantor or the Borrowers, as the case may be. |
| (ii) | Each of the Guarantor and the Borrowers
shall keep separate accounts and shall not co-mingle assets with each other or any other person. |
| (g) | Financial reports. Whether or not
the Guarantor is then subject to Sections 13(a) or 15(d) of the Exchange Act, the Guarantor shall prepare and deliver to the Agent: |
| (i) | as soon as reasonably practicable and in
any event within 120 days after the end of each Fiscal Year, an annual report on Form 20-F (or any successor form) containing the
audited consolidated financial and other information required to be contained therein for such Fiscal Year (including a balance
sheet and a statement of profit and loss and cash flow for such Fiscal Year); |
| (ii) | as soon as reasonably practicable and in
any event within 60 days after the end of each quarter of each Fiscal Year, quarterly reports on Form 6-K (or any successor form)
containing unaudited consolidated financial statements for and as of the end of such fiscal quarter (with comparable financial
statements for the corresponding fiscal quarter of the immediately preceding Fiscal Year); |
| (iii) | a Compliance Certificate together with
the quarterly reports that the Guarantor delivers in (ii) above; |
| (iv) | as soon as reasonably practicable and in
any event within 90 days after the end of each Fiscal Year, cash flow projections (including a balance sheet and a statement of
profit and loss and cash flow) for the Guarantor and its subsidiaries (on a consolidated basis) for the following three consecutive
calendar years; and |
| (v) | such other financial statements (including
without limitation details of all off-balance sheet and time charter hire commitments), annual budgets and projections as may be
reasonably requested by the Agent, each to be in such form as the Agent may reasonably request; |
provided that
the Guarantor will be deemed to have furnished to the Agent such reports and information referred to in (i) and (ii) above if the
Guarantor has filed such reports and information with the SEC via the XXXXX system (or any successor system) and such reports and
information are publicly available.
| (h) | Appraisals of
Fair Market Value. The Guarantor shall procure and deliver to the Agent
two written appraisal reports setting forth the Fair Market Value of each Ship as follows: |
(i)
at the Borrowers’ expense, (A) for inclusion with each Compliance
Certificate required to be delivered together with the second quarterly and the annual financial statements that the Guarantor
delivers under Clause 11.1(g)(i), and (B) if an Event of Default or a Potential Event of Default has occurred and is continuing,
in which case the Borrowers shall procure it at their expense as often as requested by the Agent (acting on instructions from the
Majority Lenders); and
| (ii) | at the Lenders’ expense, at all other
times upon the request of the Agent (acting on instructions from the Majority Lenders). |
| (i) | Taxes. Each Security Party shall
prepare and timely file all tax returns required to be filed by it and pay and discharge all taxes imposed upon it or in respect
of any of its property and assets before the same shall become in default, as well as all lawful claims (including, without limitation,
claims for labor, materials and supplies) which, if unpaid, might become a Security Interest upon the Collateral or any part thereof,
except in each case, for any such taxes (i) as are being contested in good faith by appropriate proceedings and for which adequate
reserves have been established, (ii) as to which such failure to have paid does not create any risk of sale, forfeiture, loss,
confiscation or seizure of a Ship or criminal liability, or (ii) the failure of which to pay or discharge would not be likely to
have a material adverse effect on the business, assets or financial condition of the Borrower or any other Security Party or to
affect the legality, validity, binding effect or enforceability of the Finance Documents. |
| (j) | Consents. Each Security Party shall
obtain or cause to be obtained, maintain in full force and effect and comply with the conditions and restrictions (if any) imposed
in connection with, every consent and do all other acts and things which may from time to time be necessary or required for the
continued due performance of all of its obligations under any Charter and each Finance Document to which it is or is to become
a party, and shall deliver a copy of all such consents to the Agent promptly upon its request. |
| (k) | Compliance with applicable law.
Each Security Party shall comply in all material respects with all applicable federal, state, local and foreign laws, ordinances,
rules, orders and regulations now in force or hereafter enacted, including, without limitation, all Environmental Laws and regulations
relating thereto, the failure to comply with which would be likely to have a Material Adverse Effect or affect the legality, validity,
binding effect or enforceability of any Charter and each Finance Document to which it is or is to become a party. |
| (l) | Existence. Each Security Party shall
do or cause to be done all things necessary to preserve and keep in full force and effect its existence in good standing under
the laws of its jurisdiction of incorporation or formation. |
| (i) | The Guarantor shall conduct business only
in connection with, or for the purpose of, managing, chartering and operating the Ships and other vessels and directly or indirectly
owning the Equity Interests of each of the Borrowers and other vessel owning companies. |
| (ii) | Each Borrower shall conduct business only
in connection with, or for the purpose of, owning , managing, chartering and operating the Ship owned by it. |
| (iii) | Each Security Party shall conduct business
in its own name and observe all corporate and other formalities required by its constitutional documents. |
| (i) | Except to the extent the failure to do
so could not reasonably be expected to have a Material Adverse Effect, each Security Party shall maintain and preserve all of its
properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted. |
| (ii) | Each Security Party shall obtain and maintain
good and marketable title or the right to use or occupy all real and personal properties and assets (including intellectual property)
reasonably required for the conduct of its business. |
| (iii) | Each Security Party
shall conduct its business and affairs without infringement of or interference with any intellectual property of any other
person in any material respect and shall comply in all material respects with the terms of its licenses. |
(o)
Loan proceeds. The Borrowers shall use the proceeds of each
Advance only to partially finance the acquisition of a Ship pursuant to an Approved Acquisition Contract.
(p)
Intentionally omitted.
(q)
Pollution liability. Each
Security Party shall take, or cause to be taken, such actions as may be reasonably required
to mitigate potential liability to it arising out of pollution incidents or as may be reasonably required to protect the interests
of the Creditor Parties with respect thereto.
| (r) | Subordination
of loans. Each Security Party shall
cause all loans made to it by any Affiliate and all sums and other obligations (financial or otherwise) owed by it to any Affiliate
to be unsecured and fully subordinated to all Secured Liabilities on terms acceptable to the Majority Lenders and the K-Sure Agent. |
| (s) | Asset control.
The Guarantor shall to the best of its knowledge and ability ensure that it is not owned or controlled by, or acting directly or
indirectly on behalf of or for the benefit of, a Restricted Party and does not own or control a Restricted Party. |
| (i) | Each Borrower and the Guarantor shall ensure
that no part of the proceeds of the Loan or other transactions contemplated by this Agreement or any other Finance Document shall,
directly or indirectly, be used or otherwise made available: |
| (A) | to fund any trade, business or other activity
involving any Restricted Party; |
| (B) | for the direct or indirect benefit of any
Restricted Party; or |
| (C) | in any other manner that would reasonably
be expected to result in (1) the occurrence of an Event of Default under Clause 20.1(u), or (2) any Security Party (other than
the Borrowers or the Guarantor) or any Affiliate of such party or any other person being party to or which benefits from any Finance
Document being in breach of any Sanctions (if and to the extent applicable to either of them) or becoming a Restricted Party. |
| (ii) | Each Borrower and the Guarantor shall ensure
that its assets (including, without limitation, each Ship) shall not be used directly or indirectly: |
| (A) | by or for the direct or indirect benefit
of any Restricted Party; or |
| (B) | in any trade which is prohibited under
applicable Sanctions or which could expose any Security Party, any asset subject to a Security Interest under the Finance Documents,
any Creditor Party, any other person being party to or which benefits from any Finance Document, any Approved Manager, any operator,
crew or insurers to enforcement proceedings or any other consequences whatsoever arising from Sanctions. |
| (iii) | Each Borrower and the Guarantor shall ensure
that the Ships shall not trade to and from Iranian ports or carry or store/warehouse crude oil, petroleum products or petrochemical
products or other products subject to Sanctions if they originate in Iran, or are being exported from Iran to any other country. |
| (u) | Money laundering. Each Borrower
and the Guarantor shall to the best of its knowledge and ability comply, and cause each of its subsidiaries to comply, with any
applicable law, official requirement or other regulatory measure or procedure implemented to combat “money laundering”
(as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council) and comparable United States federal
and state laws, including without limitation the PATRIOT Act and the Bank Secrecy Act. |
| (v) | Pension Plans. Promptly upon the
institution of a Plan, a Multiemployer Plan or a Foreign Pension Plan by the Guarantor or any Borrower, the Borrowers shall furnish
or cause to be furnished to the Agent written notice thereof and, if requested by the Agent or any Lender, a copy of such Plan,
Multiemployer Plan or Foreign Pension Plan. |
| (w) | Information provided to be accurate.
All financial and other information which is provided in writing by or on behalf of any Security Party under or in connection with
any Finance Document shall be true and not misleading and shall not omit any material fact or consideration. |
| (x) | Shareholder and creditor notices.
The Guarantor shall send the Agent, at the same time as they are dispatched, copies of all communications which are dispatched
to its (i) shareholders or any class of them or (ii) creditors generally. |
| (y) | Maintenance of Security Interests.
Each of the Borrowers and the Guarantor shall: |
| (i) | at its own cost, do all that it reasonably
can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create;
and |
| (ii) | without limiting the generality of paragraph
(i), at its own cost, promptly register, file, record or enroll any Finance Document with any court or authority in all Pertinent
Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give
any notice or take any other step which, in the opinion of the Majority Lenders, is or has become reasonably necessary for any
Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest
which it creates. |
| (z) | “Know your customer” checks.
If: |
| (i) | the introduction of or any change in (or
in the interpretation, administration or application of) any law or regulation made after the Effective Date; |
| (ii) | any change in the status of a Borrower
or any other Security Party after the Effective Date; 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, |
obliges the Agent or any
Lender (or, in the case of paragraph (iii), 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, the Borrower shall promptly
upon the request of the Agent or the Lender concerned supply, or procure the supply of, such documentation and other evidence as
is reasonably requested by the Agent (for itself or on behalf of any Lender) or the Lender concerned (for itself or, in the case
of the event described in paragraph (iii), on behalf of any prospective new Lender) in order for the Agent, the Lender concerned
or, in the case of the event described in paragraph (iii), 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.
| (aa) | NYSE listing. The Guarantor shall
maintain its listing on the New York Stock Exchange. |
| (bb) | Further assurances. From time to
time, at its expense, each of the Borrowers and the Guarantor shall duly execute and deliver to the Agent such further documents
and assurances as the Majority Lenders or the Agent may reasonably request to effectuate the purposes of this Agreement, the other
Finance Documents or obtain the full benefit of any of the Collateral. |
| (cc) | Ship recycling. Each of the Borrowers
and the Guarantor shall ensure that any Ship owned, controlled and/or operated by it, which such relevant Borrower or the Guarantor
intends to recycle, is recycled in an environmentally friendly manner. |
| 11.2 | Negative covenants. From the Effective
Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full each of the Borrowers
and the Guarantor, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions
of this Clause 11.2 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing: |
| (a) | Security Interests. None of the
Borrowers shall create, assume or permit to exist any Security Interest whatsoever upon any of its properties or assets, whether
now owned or hereafter acquired, except for Permitted Security Interests. |
| (b) | Sale of assets; merger. No Security
Party shall sell, transfer or lease (other than in connection with a Charter) all or substantially all of its properties and assets,
or enter into any transaction of merger or consolidation or liquidate, windup or dissolve itself (or suffer any liquidation or
dissolution) provided that a Borrower may sell the Ship owned by it pursuant to the terms of this Agreement. |
| (c) | No contracts other than in ordinary
course of business. None of the Borrowers or the Guarantor shall enter into any transactions or series of related transactions
with third parties other than in the ordinary course of its business. |
| (d) | Affiliate transactions. None of
the Borrowers or the Guarantor shall enter into any transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate other than on terms and conditions substantially as favorable to such Borrower or the Guarantor
as would be obtainable by it at the time in a comparable arm’s-length transaction with a person other than an Affiliate. |
(i)
The Guarantor shall not change the nature of its business or commence
any business other than in connection with, or for the purpose of managing, chartering and operating the Ships and other vessels
and directly or indirectly owning the Equity Interests of each of the Borrowers and other subsidiaries.
(ii)
None of the Borrowers shall change the nature of its business or
commence any business other than in connection with, or for the purpose of, owning, managing, chartering and operating the Ship
owned by it.
| (f) | Negative pledge. The Guarantor shall
not permit any pledge or assignment of a Borrower’s Equity Interests except in favor of the Security Trustee to secure the
Secured Liabilities. |
| (g) | Increases in capital. The Guarantor
shall not permit an increase of a Borrower’s capital by way of the issuance of any class or series of Equity Interests or
create any new class of Equity Interests that is not subject to a Security Interest to secure the Secured Liabilities. |
| (h) | Financial Indebtedness; Trade payables.
|
| (i) | None of the Borrowers shall incur any Financial
Indebtedness other than in respect of (A) the Loan, (B) the Swap Exposure, (C) Financial Indebtedness existing on the Effective
Date which has been disclosed to and approved by the Majority Lenders in writing and (D) subject to Clause 11.1(r), loans made
to a Borrower by an Affiliate, parent or subsidiary. |
| (ii) | None of the Borrowers shall incur unsecured
trade credit exceeding $2,500,000 on its Ship at any time. |
| (i) | If an Event of Default or a Potential Event
of Default has occurred and is continuing, or if an Event of Default or a Potential Event of Default would result therefrom, or
if the Guarantor is not in compliance with any of the covenants in Clause 12 hereof or any payment of dividends or any form of
distribution or return of capital would result in the Guarantor not being in compliance with any of the covenants in Clause 12,
the Guarantor shall not declare or pay any dividends or return any capital to its equity holders or authorize or make any other
distribution, payment or delivery of property or cash to its equity holders, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for value, any interest of any class or series of its Equity Interests (or acquire any rights, options
or warrants relating thereto but not including convertible debt) now or hereafter outstanding, or repay any subordinated loans
to equity holders or set aside any funds for any of the foregoing purposes. |
| (ii) | Except as provided in Clause 11.2(i)(i)
above, none of the Borrowers will permit any restriction (1) to declare or pay any dividends or return any capital to the Guarantor
or authorize or make any other distribution, payment or delivery of property or cash to the Guarantor, or redeem, retire, purchase
or otherwise acquire, directly or indirectly, for value, any interest of any class or series of its Equity Interests (or acquire
any rights, options or warrants relating thereto but not including convertible debt) now or hereafter outstanding or to pay any
Financial Indebtedness owed to the Guarantor, or (2) to repay and/or make any subordinated loans to the Guarantor or set aside
any funds for any of the foregoing purposes, or (3) to transfer any of its assets to the Guarantor. |
| (j) | Intentionally omitted. |
| (k) | Internal charters. None of the Borrowers
shall enter into any demise, time or consecutive voyage charter in respect of the Ship owned by it with another Borrower or any
Affiliate of the Guarantor as charterer under that charter without the approval of the Majority Lenders, provided that the
Borrowers may contribute their respective Ships to pools managed by Affiliates of the Borrowers. |
| (l) | Loans and investments. None of the
Borrowers or the Guarantor shall make any loan or advance to, make any investment in, or enter into any working capital maintenance
or similar agreement with respect to any person, whether by acquisition of Equity Interests or indebtedness, by loan, guarantee
or otherwise, except that in case of the Guarantor, the Guarantor may undertake a transaction described above if (i) after giving
effect to any such transaction, the Guarantor will be in compliance with the financial covenants set out in Clause 12 and (ii)
no Event of Default exists at the time of such transaction or would result therefrom. |
| (m) | Acquisition of capital assets. None
of the Borrowers shall acquire any capital assets (including any vessel other than a Ship) by purchase, charter or otherwise, provided
that for the avoidance of doubt nothing in this Clause 11.2(m) shall prevent or be deemed to prevent ordinary upgrades or maintenance
works being made to a Ship. |
| (n) | Sale and leaseback. None of the
Borrowers shall enter into any arrangements, directly or indirectly, with any person whereby it shall sell or transfer any of its
property, whether real or personal, whether now owned or hereafter acquired, if it, at the time of such sale or disposition, intends
to lease or otherwise acquire the right to use or possess (except by purchase) such property or like property for a substantially
similar purpose. |
| (o) | Changes to Fiscal Year and accounting
policies. None of the Guarantor or the Borrowers shall change its Fiscal Year or make or permit any change in accounting policies
affecting (i) the presentation of financial statements or (ii) reporting practices, except in either case in accordance with IFRS
or pursuant to the requirements of applicable laws or regulations. |
| (p) | Jurisdiction of incorporation or formation;
Amendment of constitutional documents. None of the Borrowers or the Guarantor shall change the jurisdiction of its incorporation
or formation. None of the Borrowers shall amend its constitutional documents. The Guarantor shall not amend its constitutional
documents in any manner that would adversely affect its obligations under this Agreement or any Finance Document to which it is
a party. |
| (q) | Sale of Ship. No Borrower shall
consummate the sale of its Ship without paying or causing to be paid all amounts due and owing under this Agreement and the other
Finance Documents in respect of the relevant Advance which has been used to finance that Ship prior to or simultaneously with the
consummation of such sale. |
| (r) | Change of location. None of the
Guarantor or the Borrowers shall change the location of its chief executive office or the office where its corporate records are
kept or open any new office for the conduct of its business on less than thirty (30) days prior written notice to the Agent. |
| (s) | Financial Support. None of the Borrowers
shall procure any financial support (including contingent support) other than: |
| (i) | financial support incurred pursuant to
this Agreement or Financial Indebtedness permitted under Clause 11.2(h); |
| (ii) | existing financial support which is outstanding
on the Effective Date and has been disclosed to the Agent in writing; or |
| (iii) | financial support approved in writing by
the Majority Lenders. |
| (t) | Change of place of business. None
of the Borrowers or the Guarantor shall change the location of the place of business where it or any other Security Party conducts
its affairs and keeps its records. |
| 12.1 | General. From the Effective Date
until the Total Commitments have terminated and all amounts payable hereunder have been paid in full the Guarantor undertakes with
each Creditor Party to comply or cause compliance with the following provisions of this Clause 12 except as the Agent, with the
consent of the Majority Lenders, may approve from time to time in writing. |
| 12.2 | Maximum leverage. The Guarantor
shall maintain a ratio of Net Debt to Consolidated Total Capitalization of not more than 0.60 to 1.00, to be tested on the last
day of each fiscal quarter. |
| 12.3 | Minimum Consolidated Tangible Net Worth.
The Guarantor shall maintain a Consolidated Tangible Net Worth of not less than $677,286,768 plus: |
| (a) | 25% of the Guarantor’s cumulative,
positive consolidated net income for each fiscal quarter commencing on or after October 1, 2013; and |
| (b) | 50% of the value of the Equity Proceeds
realized from any issuance of Equity Interests in the Guarantor occurring on or after October 1, 2013. |
| 12.4 | Minimum interest coverage. The Guarantor
shall maintain a ratio of Consolidated EBITDA to Consolidated Net Interest Expense equal to or greater than 2.50 to 1.00. Such
ratio shall be calculated quarterly on a trailing four quarter basis. |
| 12.5 | Minimum liquidity. The Guarantor
shall maintain Consolidated Liquidity, including all amounts on deposit with any bank, of not less than (a) $25,000,000 or (b)
5% of Consolidated Funded Debt (the “Minimum Liquidity”), whichever is greater, provided that 50% of
the Minimum Liquidity shall at all times consist of cash. |
| 12.6 | Material changes in IFRS requirements.
If, at any time after the Effective Date, the IFRS requirements materially change so as to impact the financial covenants set out
in Clauses 12.2, 12.3, 12.4 and 12.5, the Borrowers shall notify the Agent and the Lenders and, if agreed between the Borrowers
and the Lenders, this Agreement shall be amended and/or supplemented to reflect these changes. |
| 13 | MARINE
INSURANCE COVENANTS |
| 13.1 | General. From the first Drawdown
Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, each of the Borrowers
and the Guarantor, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions
of this Clause 13 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing. |
| 13.2 | Maintenance of obligatory insurances.
Each Borrower shall keep or cause to keep the Ship owned by it insured at its expense against: |
| (a) | fire and usual marine risks (including
hull and machinery, hull interest, freight interest and excess risks); |
| (c) | protection and indemnity risks; and |
| (d) | any other risks against which the Security
Trustee considers, having regard to practices and other circumstances prevailing at the relevant time, it would in the opinion
of the Security Trustee be reasonable for that Borrower to insure and which are specified by the Security Trustee by notice to
that Borrower. |
| 13.3 | Terms of obligatory insurances.
Each Borrower shall affect such insurances in respect of the Ship owned by it: |
| (b) | in the case of fire and usual marine risks
and war risks, in an amount on an agreed value basis at least the greater of: |
| (i) | 120% of the outstanding principal amount
of the Advance in respect of that Ship; and |
| (ii) | the Fair Market Value of the Ship owned
by it; |
provided
that, not less than 80% of the Fair Market Value shall be on a hull and machinery basis, while the remaining part of the insured
value may be taken out by way of hull and freight interest insurance cover.
| (c) | in the case of oil pollution liability
risks and protection and indemnity war risks (in excess of the amount for war risk hull), in each case 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 (in the case of oil pollution liability risks, currently U.S.$ 1,000,000,000); |
| (d) | in relation to protection and indemnity
risks in respect of the full tonnage of the Ship owned by it; |
| (e) | on approved terms; and |
| (f) | through approved brokers and with approved
insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks
and protection and indemnity risks associations that are members of the International Group of P&I Clubs. |
| 13.4 | Further protections for the Creditor
Parties. In addition to the terms set out in Clause 13.3, each Borrower shall procure that the obligatory insurances affected
by it shall: |
| (a) | subject always to paragraph (b), name that
Xxxxxxxx as the sole named assured unless the interest of every other named assured is limited: |
| (i) | in respect of any obligatory insurances
for hull and machinery and war risks; |
| (A) | to any provable out-of-pocket expenses
that it has incurred and which form part of any recoverable claim on underwriters; and |
| (B) | to any third party liability claims where
cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and |
| (ii) | in respect of any obligatory insurances
for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any
third party liability claims made specifically against it; |
| and every other named assured has undertaken in writing to the Security Trustee (in such form as
it requires) that any deductible shall be apportioned between that Borrower and every other named assured in proportion to the
aggregate 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 Trustee to collect or recover any moneys which at any time become payable in respect of the
obligatory insurances; |
| (b) | whenever the Security Trustee requires,
name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational
interest and with full waiver of rights of subrogation against the Security Trustee, but without the Security Trustee thereby being
liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance; |
| (c) | name the Security Trustee as first priority
mortgagee and loss payee with such directions for payment as the Security Trustee may specify; |
| (d) | provide that all payments by or on behalf
of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions
or condition whatsoever; |
| (e) | provide that the obligatory insurances
shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other
Creditor Party; and |
| (f) | provide that the Security Trustee may make
proof of loss if that Xxxxxxxx fails to do so. |
| 13.5 | Renewal of obligatory insurances.
Each Borrower shall: |
| (a) | at least 14 days before the expiry of any
obligatory insurance: |
| (i) | notify the Security Trustee of the brokers
(or other insurers) and any protection and indemnity or war risks association through or with whom that Xxxxxxxx proposes to renew
that obligatory insurance and of the proposed terms of renewal; and |
| (ii) | obtain the Security Trustee’s approval
to the matters referred to in paragraph (i); |
| (b) | at least 7 days before the expiry of any
obligatory insurance, renew that obligatory insurance in accordance with the Security Trustee’s approval pursuant to paragraph
(a); and |
| (c) | procure that the approved brokers and/or
the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal
notify the Security Trustee in writing of the terms and conditions of the renewal. |
| 13.6 | Copies of policies; letters of undertaking.
Each Borrower shall ensure that all approved brokers provide the Security Trustee with pro forma copies of all policies relating
to the obligatory insurances which they are to affect or renew and of a letter or letters or undertaking in a form required by
the Security Trustee and including undertakings by the approved brokers that: |
| (a) | they will have endorsed on each policy,
immediately upon issue, a loss payable clause and a notice of assignment in accordance with the requirements of the Insurance Assignment
for that Xxxxxxxx’s Ship; |
| (b) | they will hold such policies, and the benefit
of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause; |
| (c) | they will advise the Security Trustee immediately
of any material change to the terms of the obligatory insurances or if they cease to act as brokers; |
| (d) | they will notify the Security Trustee,
not less than 14 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal
instructions from that Borrower or its agents and, in the event of their receiving instructions to renew, they will promptly notify
the Security Trustee of the terms of the instructions; and |
| (e) | they will not set off against any sum recoverable
in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts
due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums
received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory
insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect
of that Ship forthwith upon being so requested by the Security Trustee. |
| 13.7 | Copies of certificates of entry.
Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered
provides the Security Trustee with: |
| (a) | a certified copy of the certificate of
entry for that Ship; |
| (b) | a letter or letters of undertaking in such
form as may be required by the Security Trustee; |
| (c) | where required to be issued under the terms
of insurance/indemnity provided by the protection and indemnity association, but only if and when so requested by the Agent, a
certified copy of each United States of America voyage quarterly declaration (or other similar document or documents) made by the
relevant Security Party in relation to that Ship in accordance with the requirements of such protection and indemnity association;
and |
| (d) | 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 the Ship. |
| 13.8 | Deposit of original policies. Each
Borrower shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which
the insurances are effected or renewed. |
| 13.9 | Payment of premiums. Each Borrower
shall punctually pay all premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts
when so required by the Security Trustee. |
| 13.10 | Guarantees. Each Borrower shall
ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full
force and effect. |
| 13.11 | Compliance with terms of insurances.
No Borrower shall do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render
any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable
in whole or in part; and, in particular: |
| (a) | each Borrower shall take all necessary
action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting
the obligation contained in Clause 13.6(c)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications
to which the Security Trustee has not given its prior approval; |
| (b) | no Borrower shall make any changes relating
to the classification or classification society or manager or operator of the Ship owned by it unless approved by the underwriters
of the obligatory insurances; |
| (c) | each Borrower shall make (and promptly
supply copies to the Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity
risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive
Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and |
| (d) | no Borrower shall employ the Ship owned
by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without
first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers
specify. |
| 13.12 | Alteration to terms of insurances.
No Borrower shall either make or agree to any alteration to the terms of any obligatory insurance nor waive any right relating
to any obligatory insurance. |
| 13.13 | Settlement of claims. No Borrower
shall settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and each Borrower
shall do all things necessary and provide all documents, evidence and information (including, without limitation, a written confirmation
from the relevant insurers, to be issued within 120 days after the Total Loss Date, that the claim in respect of the Total Loss
has been accepted in full by such insurers) to enable the Security Trustee to collect or recover any moneys which at any time become
payable in respect of the obligatory insurances. |
| 13.14 | Provision of copies of communications.
Each Borrower shall provide the Security Trustee, at the time of each such communication, copies of all material written communications
between that Borrower and: |
| (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 Borrower’s obligations relating
to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls;
and |
| (ii) | any credit arrangements made between that
Borrower and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance
of the obligatory insurances. |
| 13.15 | Provision of information. In addition,
each Borrower shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the
Security Trustee (or any such designated person) 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 13.16 or dealing with or considering any matters relating to any such insurances;
|
and that Borrower shall,
forthwith upon demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the account
of the Security Trustee in connection with any such report as is referred to in paragraph (a).
| 13.16 | Mortgagee’s interest, additional
perils and political risk insurances. The Security Trustee shall be entitled from time to time to effect, maintain and renew
(i) mortgagee’s interest marine insurance, (ii) mortgagee’s interest additional perils insurance and/or (iii) mortgagee’s
political risks/rights insurance, in each case, in such amounts (not to exceed 120% of the Loan), on such terms, through such insurers
and generally in such manner as the Security Trustee may from time to time consider necessary and the Borrowers and the Guarantor,
jointly and severally, shall upon demand fully indemnify the Security Trustee in respect of all premiums and other expenses which
are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering,
any matter arising out of any such insurance. |
| 13.17 | Review of insurance requirements. The
Security Trustee may and, on instruction of the Majority Lenders, shall review, at the expense of the Borrowers, the requirements
of this Clause 13 from time to time in order to take account of any changes in circumstances after the Effective Date which are,
in the opinion of the Agent or the Majority Lenders significant and capable of affecting the relevant Security Party or a Ship
and its insurance (including, without limitation, changes in the availability or the cost of insurance coverage or the risks to
which the relevant Security Party may be subject). |
| 13.18 | Modification of insurance requirements.
The Security Trustee shall notify the Borrowers and the Guarantor of any proposed modification under Clause 13.17 to the requirements
of this Clause 13 which the Security Trustee may or, on instruction of the Majority Lenders, shall reasonably consider appropriate
in the circumstances and such modification shall take effect on and from the date it is notified in writing to the Borrowers and
the Guarantor as an amendment to this Clause 13 and shall bind the Borrowers and the Guarantor accordingly. |
| 13.19 | Compliance with instructions. The
Security Trustee shall be entitled (without prejudice to or limitation of any other rights which it may have or acquire under any
Finance Document) to require a Ship to remain at any safe port or to proceed to and remain at any safe port designated by the Security
Trustee until the relevant Security Party implements any amendments to the terms of the obligatory insurances and any operational
changes required as a result of a notice served under Clause 13.18. |
| 14.1 | General. From the first Drawdown
Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, each of the Borrowers
and the Guarantor, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions
of this Clause 14 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing. |
| 14.2 | Ship’s name and registration.
Each Borrower shall: |
| (a) | keep the Ship owned by it registered in
its name under the law of an Approved Flag; |
| (b) | not do, omit to do or allow to be done
anything as a result of which such registration might be cancelled or imperiled; and |
| (c) | not change the name or port of registry
on which such Ship was registered when it became subject to a Mortgage. |
| 14.3 | Repair and classification. Each
Borrower shall keep the Ship owned by it in a good and safe condition and state of repair: |
| (a) | consistent with first-class ship ownership
and management practice; |
| (b) | so as to maintain the highest class for
that Ship with the Classification Society, free of overdue recommendations and conditions affecting that Ship’s class; and |
| (c) | so as to comply with all laws and regulations
applicable to vessels registered under the law of the Approved Flag on which that Ship is registered or to vessels trading to any
jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code. |
| 14.4 | Classification Society instructions.
Each Borrower shall instruct the Classification Society referred to in Clause 14.3(b) |
| (a) | to send to the Security Trustee, following
receipt of a written request from the Security Trustee, copies of all original class records held by the Classification Society
in relation to that Xxxxxxxx’s Ship; |
| (b) | to allow the Security Trustee (or its agents),
at any time and from time to time, to inspect the original class and related records of that Borrower and the Ship owned by it
either (i) electronically (through the Classification Society directly or by way of indirect access via the relevant Borrower’s
account manager and designating the Security Trustee as a user or administrator of the system under its account) or (ii) in person
at the offices of the Classification Society, and to take copies of them electronically or otherwise; |
| (c) | to notify the Security Trustee immediately
in writing if the Classification Society: |
| (i) | receives notification from that Borrower
or any other person that that Ship’s Classification Society is to be changed; or |
| (ii) | becomes aware of any facts or matters which
may result in or have resulted in a condition of class or a recommendation (in each case affecting class), or a change, suspension,
discontinuance, withdrawal or expiry of that Ship’s class under the rules or terms and conditions of that Xxxxxxxx’s
or that Ship’s membership of the Classification Society; |
| (d) | following receipt of a written request
from the Security Trustee: |
| (i) | to confirm that that Borrower is not in
default of any of its contractual obligations or liabilities to the Classification Society and, without limiting the foregoing,
that it has paid in full all fees or other charges due and payable to the Classification Society; or |
| (ii) | if that Borrower is in default of any of
its contractual obligations or liabilities to the Classification Society, to specify to the Security Trustee in reasonable detail
the facts and circumstances of such default, the consequences of such default, and any remedy period agreed or allowed by the Classification
Society. |
| 14.5 | Modification. No Borrower shall
make any modification or repairs to, or replacement of, the Ship owned by it or equipment installed on that Ship which would or
is reasonably likely to materially negatively alter the structure, type or performance characteristics of that Ship or materially
reduce its value. |
| 14.6 | Removal of parts. No Borrower shall
remove any material part of the Ship owned by it, or any item of equipment installed on, that Ship unless the part or item so removed
is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed,
is free from any Security Interest or any right in favor of any person other than the Security Trustee and becomes on installation
on that Ship, the property of that Borrower and subject to the security constituted by a Mortgage , provided that a Borrower
may install and remove equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship
owned by it. |
| 14.7 | Surveys. Each Borrower, at its sole
expense, shall submit the Ship owned by it regularly to all periodical or other surveys which may be required for classification
purposes and, if so required by the Security Trustee, provide the Security Trustee, at that Xxxxxxxx’s sole expense, with
copies of all survey reports. |
| 14.8 | Inspection. Each Borrower shall
permit the Security Trustee (by surveyors or other persons appointed by it for that purpose at the cost of the Borrowers and the
Guarantor) to board the Ship owned by it at all reasonable times (but before the occurrence and during the continuance of an Event
of Default not more than once per year) to inspect its condition or to satisfy themselves about proposed or executed repairs and
shall afford all proper facilities for such inspections. The Security Trustee shall use reasonable efforts to ensure that the operation
of that Ship is not adversely affected as a result of such inspections. |
| 14.9 | Prevention of and release from arrest.
Each Borrower shall promptly discharge: |
| (a) | all liabilities which give or may give
rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, the Earnings or the Insurances; |
| (b) | all taxes, dues and other amounts charged
in respect of the Ship owned by it, the Earnings or the Insurances; and |
| (c) | all other accounts payable whatsoever in
respect of the Ship owned by it, the Earnings or the Insurances, |
and, forthwith upon (and
in any event not more than 60 days after) 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, that Xxxxxxxx shall procure its release by providing bail or otherwise as the circumstances
may require.
| 14.10 | Compliance with laws etc. Each Borrower
shall: |
| (a) | comply, or procure compliance with, all
laws or regulations: |
| (i) | relating to its business generally;
and |
| (ii) | relating to the ownership, employment,
operation and management of the Ship owned by it, |
including but not limited
to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions;
| (b) | without prejudice to the generality of
paragraph (a) above, not employ the Ship owned by it nor allow its employment in any manner contrary to any laws or regulations,
including but not limited to the ISM Code, the ISPS Code; all Environmental Laws and all Sanctions; and |
| (c) | in the event of hostilities in any part
of the world (whether war is declared or not), not cause or permit the Ship owned by it to enter or trade to any zone which is
declared a war zone by any government or by that Ship’s war risks insurers unless the prior written consent of both the Security
Trustee (after consultation with its insurance advisors) and the K-Sure Agent has been given and that Borrower has (at its expense)
effected any special, additional or modified insurance cover which the Security Trustee may require. |
| 14.11 | Provision of information. Each Borrower
shall promptly provide the Security Trustee with any information which it and/or the K-Sure Agent requests regarding: |
| (a) | the Ship owned by it, its employment, position
and engagements; |
| (b) | the Earnings and payments and amounts due
to that Ship’s master and crew; |
| (c) | any material expenses incurred, or likely
to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made in respect of that Ship; |
| (d) | any towages and salvages; and |
| (e) | that Xxxxxxxx’s, the Approved Manager’s
and that Ship’s compliance with the ISM Code and the ISPS Code, |
and, upon the Security
Trustee’s request, provide copies of any current charter and charter guarantee relating to that Ship and copies of that Xxxxxxxx’s
or the Approved Manager’s Document of Compliance.
| 14.12 | Notification of certain events.
Each Borrower shall immediately notify the Security Trustee by fax or Email, confirmed forthwith by letter, of: |
| (a) | any casualty which is or is likely to be
or to become a Major Casualty; |
| (b) | any occurrence as a result of which the
Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss; |
| (c) | any requirement or condition made by any
insurer or classification society or by any competent authority which is not immediately complied with in accordance with its terms; |
| (d) | any arrest or detention of the Ship owned
by it, any exercise or purported exercise of any Security Interest on that Ship or the Earnings or any requisition of that Ship
for hire; |
| (e) | any intended dry docking of the Ship owned
by it; |
| (f) | any material Environmental Claim made against
that Borrower or in connection with the Ship owned by it, or any material Environmental Incident; |
| (g) | any legal or administrative action taken
by any Sanctions Authority against or affecting any Security Party or any Ship; |
| (h) | any claim for breach of the ISM Code or
the ISPS Code being made against that Borrower, the Approved Manager or otherwise in connection with the Ship owned by it which
may result in the withdrawal of the Safety Management Certificate, the Document of Compliance or the ISSC applicable to that Ship,
the relevant Borrower or, as the case may be, the Approved Manager; 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 that Xxxxxxxx shall
keep the Security Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of that
Borrower’s, the Approved Manager’s or any other person’s response to any of those events or matters.
| 14.13 | Restrictions on chartering, appointment
of managers etc. No Borrower shall: |
| (a) | let the Ship owned by it on demise charter
for any period; |
| (b) | other than as disclosed to the Agent, enter
into any time or consecutive voyage charter in respect of that Ship for a term which exceeds, or which by virtue of any optional
extensions may exceed, 12 months; |
| (c) | enter into any charter in relation to that
Ship under which more than two (2) months’ hire (or the equivalent) is payable in advance; |
| (d) | charter that Ship otherwise than on bona
fide arm’s length terms at the time when that Ship is fixed; |
| (e) | appoint a manager of that Ship other than
the Approved Manager or agree to any alteration to the terms of the Approved Management Agreement; |
| (f) | de-activate or lay up that Ship; |
| (g) | change the Classification Society; or |
| (h) | put that Ship into the possession of any
person for the purpose of work being done upon it in an amount exceeding or likely to exceed $1,000,000 (or the equivalent in any
other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking
not to exercise any Security Interest on that Ship or the Earnings for the cost of such work or for any other reason. |
| 14.14 | Copies of Charters;
Charter Assignment; Earnings Assignment. Provided that all approvals necessary under Clause 14.13 have been previously obtained,
each Borrower shall: |
| (a) | furnish promptly to the Agent a true and
complete copy of any Charter for the Ship owned by it, all other documents related thereto and a true and complete copy of each
material amendment or other modification thereof; |
| (b) | in respect of any such Charter, execute
and deliver to the Agent a Charter Assignment and use reasonable commercial efforts to cause the charterer to execute and deliver
to the Security Trustee a consent and acknowledgement to such Charter Assignment in the form required thereby; and |
| (c) | in respect of any contract for the employment
of that Ship for a term which is or which by virtue of any optional extensions therein contained would be reasonably likely to
be of less than 12 months duration, execute and deliver to the Agent an Earnings Assignment. |
| 14.15 | Notice of Mortgage. Each Borrower
shall keep the Mortgage registered against the Ship owned by it as a valid first priority or preferred mortgage, carry on board
that Ship a certified copy of the Mortgage and place and maintain in a conspicuous place in the navigation room and the Master’s
cabin of that Ship a framed printed notice stating that such Ship is mortgaged by that Borrower to the Security Trustee. |
| 14.16 | Sharing of Earnings. No Borrower
shall enter into any agreement or arrangement for the sharing of any Earnings. |
| 14.17 | ISPS Code. Each Borrower shall comply
with the ISPS Code and in particular, without limitation, shall: |
| (a) | procure that the Ship owned by it and the
company responsible for that Ship’s compliance with the ISPS Code comply with the ISPS Code; and |
| (b) | maintain for that Ship an ISSC; and |
| (c) | notify the Agent immediately in writing
of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC. |
| 15 | COLLATERAL
MAINTENANCE RATIO |
| 15.1 | General. From the first Drawdown
Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, each Borrower and the
Guarantor undertake with each Creditor Party to comply with the following provisions of this Clause 15 except as the Agent, with
the consent of the Majority Lenders, may approve from time to time in writing. |
| 15.2 | Collateral Maintenance Ratio. If,
at any time, the Agent notifies the Guarantor that: |
| (a) | the aggregate Fair Market Value of the
Ships; plus |
| (b) | the net realizable value of any additional
Collateral previously provided under this Clause 15, |
is below
135 percent of the Loan (such ratio being the “Collateral Maintenance Ratio”), the Agent (acting upon the instruction
of the Majority Lenders) shall have the right to require the Borrowers to comply with the requirements of Clause 15.3.
| 15.3 | Provision of additional Collateral;
prepayment. If the Agent serves a notice under Clause 15.2, the Borrowers shall prepay such part (at least) of the Loan as
will in the aggregate eliminate the shortfall on or before the date falling one (1) month after the date on which the Agent’s
notice is served under Clause 15.2 (the “Prepayment Date”) unless at least one (1) Business Day before
the Prepayment Date it has provided, or ensured that a third party has provided, additional Collateral which, in the opinion of
the Majority Lenders, has a net realizable value at least equal to the shortfall and which has been documented in such terms as
the Agent may, with the authorization of the Majority Lenders, approve or require (including, without limitation, favorable legal
opinions from lawyers appointed by the Agent in form and substance satisfactory to the Agent and the Majority Lenders). |
| 15.4 | Suitability of additional Collateral.
Any additional Collateral proposed under Clause 15.3 shall be reasonably satisfactory to the Majority Lenders and the K-Sure Agent,
it being understood and agreed that cash comprised of Dollars shall be deemed satisfactory by the Majority Lenders. |
| 15.5 | Value of additional vessel Collateral.
The net realizable value of any additional Collateral which is provided under Clause 15.3 and which consists of a Security Interest
over a vessel shall be that shown by a valuation complying with the definition of Fair Market Value. |
| 15.6 | Valuations binding. Any valuation
under Clause 15.3 or 15.5 shall be binding and conclusive as regards the Borrowers and the Guarantor, as shall be any valuation
which the Majority Lenders make of any additional Collateral which does not consist of or include a vessel. |
| 15.7 | Provision of information. The Borrowers
shall promptly provide the Agent and any Approved Broker or other expert acting under Clause 15.5 with any information which the
Agent or the Approved Broker or other expert may request for the purposes of the valuation; and, if the Borrowers fail to provide
the information by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved
Broker or the Majority Lenders (or the expert appointed by them) consider prudent. |
| 15.8 | Payment of valuation expenses. Without
prejudice to the generality of the Borrowers’ obligations under Clauses 21.2, 21.3 and 22.3, the Borrowers shall, on demand,
pay the Agent the amount of the fees and expenses of any Approved Broker or other expert instructed by the Agent under this Clause
15 and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause 15. |
| 15.9 | Application of prepayment. Clause
8 shall apply in relation to any prepayment pursuant to Clause 15.3. |
| 16.1 | Guarantee and indemnity. In order
to induce the Lenders to make the Loan to the Borrowers, and to induce the Swap Banks to enter into Designated Transactions with
the Guarantor: |
| (a) | the Guarantor irrevocably and unconditionally:
|
| (i) | guarantees, as a primary obligor and not
merely as a surety, to each Creditor Party, the punctual payment and performance by the Borrowers when due, whether at stated maturity,
by acceleration or otherwise, of all Secured Liabilities of the Borrowers, whether for principal, interest, fees, expenses or otherwise
(collectively, the “Guaranteed Obligations”). |
| (ii) | undertakes with each Creditor Party that
whenever the Borrowers do not pay any Guaranteed Obligation when due, the Guarantor shall immediately on demand pay that Guaranteed
Obligation as if it were the primary obligor; and |
| (iii) | indemnifies each Creditor Party immediately
on demand against any cost, loss or liability suffered or incurred by that Creditor Party (A) if any Guaranteed Obligation is or
becomes unenforceable, invalid or illegal or (B) by operation of law as a consequence of the transactions contemplated by the Finance
Documents. The amount of the cost, loss or liability shall be equal to the amount which that Creditor Party would otherwise have
been entitled to recover; and |
| (b) | each Swap Guarantor irrevocably and unconditionally
jointly and severally: |
| (i) | guarantees, as a primary obligor and not
merely as a surety, to each Swap Bank, the punctual payment and performance by the Guarantor when due of its obligations under
any Master Agreement (the “Guaranteed Swap Obligations”). Notwithstanding the foregoing, “Guaranteed Swap
Obligations”, with respect to any Swap Guarantor, shall not include any Excluded Swap Obligations of such Swap Guarantor; |
| (ii) | undertakes with each Swap Bank that whenever
the Guarantor does not pay or perform any Guaranteed Swap Obligations when due, the Swap Guarantors shall immediately on demand
pay that Guaranteed Swap Obligation as if it were the primary obligor; and |
| (iii) | indemnifies each Swap Bank immediately
on demand against any cost, loss or liability suffered or incurred by that Swap Bank (A) if any Guaranteed Swap Obligation is or
becomes unenforceable, invalid or illegal or (B) by operation of law as a consequence of the transactions contemplated by the Master
Agreements. The amount of the cost, loss or liability shall be equal to the amount which that Swap Bank would otherwise have been
entitled to recover. |
| 16.2 | Continuing guarantees. Each guarantee
made in Clause 16.1: |
| (a) | is a continuing guarantee; |
| (b) | constitutes a guarantee of punctual performance
and payment and not merely of collection; |
| (c) | is joint and several with any other guarantee
given in respect of the Guaranteed Obligations or the Guaranteed Swap Obligations, as the case may be, and shall not in any way
be prejudiced by any other guarantee or security now or subsequently held by any Creditor Party in respect of the Guaranteed Obligations
or by any Swap Bank in respect of the Guaranteed Swap Obligations, as the case may be; |
| (d) | shall remain in full force and effect until
the later of the termination of the Total Commitments and the payment and performance in full of the Guaranteed Obligations, the
Guaranteed Swap Obligations and all other amounts payable hereunder regardless of any intermediate payment or discharge in whole
or in part; and |
| (e) | shall be binding upon the Guarantor (in
respect of the Guaranteed Obligations), the Swap Guarantors (in respect of the Guaranteed Swap Obligations), their respective successors
and permitted assigns. |
| 16.3 | Performance of Guaranteed Obligations
and Guaranteed Swap Obligations; obligations pari passu. |
| (a) | Each of the Guarantor and the Swap Guarantors
agrees that the Guaranteed Obligations and the Guaranteed Swap Obligations, as the case may be, shall be performed and paid strictly
in accordance with the terms of the relevant Finance Document or Master Agreement, as the case may be, regardless of any law or
regulation or order of any court: |
| (i) | affecting (A) any term of such Finance
Document or Master Agreement or the rights of any of the Creditor Parties with respect thereto or (B) the Borrowers’ or,
as the case may be, the Guarantor’s ability or obligation to make or render, or right of any Creditor Party to receive, any
payments or performance due thereunder; or |
| (ii) | which might otherwise constitute a defense
to, or a legal or equitable discharge of, the Borrowers or, as the case may be, the Guarantor. |
| (b) | The obligations of the Guarantor under
its guarantee shall rank pari passu with all other unsecured obligations of such Guarantor. |
| (c) | The obligations of each of the Swap Guarantors
under this guarantee shall rank pari passu with all other unsecured obligations of such Swap Guarantor. |
| 16.4 | Reinstatement. If any payment of
any of the Guaranteed Obligations or the Guaranteed Swap Obligations is rescinded, discharged, avoided or reduced or must otherwise
be returned by a Creditor Party or any other person upon the insolvency, bankruptcy or reorganization of any Borrower or any other
Security Party or otherwise: |
| (a) | each of the guarantees under this Clause
16 shall continue to be effective or be reinstated, and the liability of the Guarantor (in respect of the Guaranteed Obligations)
and of each of the Swap Guarantors (in respect of the Guaranteed Swap Obligations) hereunder shall continue or be reinstated, as
the case may be, as if the payment, discharge, avoidance or reduction had not occurred; and |
| (b) | each Creditor Party shall be entitled to
recover the value or amount of that payment from the Guarantor (in respect of the Guaranteed Obligations) or from each Swap Guarantor
(in respect of the Guaranteed Swap Obligations), as the case may be, as if the payment, discharge, avoidance or reduction had not
occurred. |
| 16.5 | Liability absolute and unconditional.
The obligations of the Guarantor (in respect of the Guaranteed Obligations) and of each of the Swap Guarantors (in respect of the
Guaranteed Swap Obligations) under this Clause 16 shall be irrevocable, absolute and unconditional and shall not be affected by
an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of their respective obligations
under this Clause 16, and the Guarantor and each Swap Guarantor hereby irrevocably waives any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following: |
| (a) | any time, waiver or consent granted to,
or composition with, any Security Party or other person; |
| (b) | the release of any other Security Party
or any other person under the terms of any composition or arrangement with any creditor of any Security Party; |
| (c) | the taking, variation, compromise, exchange,
renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any
Security Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realize the full value of any security; |
| (d) | any incapacity or lack of power, authority
or legal personality of or dissolution or change in the corporate or company structure or status of a Security Party or any other
person (including without limitation any change in the holding of such Security Party’s or other person’s Equity Interests); |
| (e) | any amendment to or replacement of a Finance
Document, a Master Agreement or any other document or security; |
| (f) | any unenforceability, illegality or invalidity
of any obligation of any Security Party or any other person under any Finance Document, any Master Agreement or any other document
or security; |
| (g) | any bankruptcy, insolvency or similar proceedings;
or |
| (h) | any other circumstance whatsoever that
might otherwise constitute a defense available to, or a legal or equitable discharge of, any Security Party. |
| 16.6 | Waiver of promptness, etc. The Guarantor
and each Swap Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of non-performance, default, acceleration, protest or dishonor and any other notice with respect
to any of the Guaranteed Obligations and the Guaranteed Swap Obligations and each guarantee under this Clause 16 and any requirement
that a Creditor Party protect, secure, perfect or insure any Security Interest or any property subject thereto or exhaust any right
or take any action against any Security Party or any other person or entity or any Collateral. |
| 16.7 | Waiver of revocation, etc. The Guarantor
and each Swap Guarantor hereby unconditionally and irrevocably waives any right to revoke this guarantee. |
| 16.8 | Waiver of certain defenses. The
Guarantor and each Swap Guarantor hereby unconditionally and irrevocably waives: |
| (a) | any defense arising by reason of any claim
or defense based upon an election of remedies by a Creditor Party that in any manner impairs, reduces, releases or otherwise adversely
affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Guarantor or such Swap Guarantor
or other rights of the Guarantor or such Swap Guarantor to proceed against any of the other Security Parties, any other guarantor
or any other person or entity or any Collateral; and |
| (b) | any defense based on any right of set-off
or counterclaim against or in respect of the obligations of the Guarantor or such Swap Guarantor hereunder. |
| 16.9 | Waiver of disclosure, etc. The Guarantor
and each Swap Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Creditor Party to disclose to
the Guarantor or such Swap Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Borrower, any other Security Party or any of their respective subsidiaries now or hereafter
known by any Creditor Party. |
| 16.10 | Immediate recourse. The Guarantor
and each Swap Guarantor waives any right it may have of first requiring any Creditor Party (or any trustee or agent on its behalf)
to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor
or, as the case may be, that Swap Guarantor under this Clause 16. This waiver applies irrespective of any law or any provision
of a Finance Document or Master Agreement to the contrary. |
| 16.11 | Acknowledgment of benefits. The
Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated
by the Finance Documents and that the waivers set forth in this Clause 16 are knowingly made in contemplation of such benefits. |
| 16.12 | Independent obligations. |
| (a) | The obligations of the Guarantor under or in respect of its guarantee are independent of the Guaranteed
Obligations or any other obligations of the Borrowers or any other Security Party under or in respect of the Finance Documents,
and a separate action or actions may be brought and prosecuted against the Guarantor to enforce its guarantee irrespective of whether
any action is brought against any Borrower or any other Security Party or whether any Borrower or any other Security Party is joined
in any such action or actions; and |
| (b) | The obligations of each of the Swap Guarantors under or in respect of their guarantee are independent
of the Guaranteed Swap Obligations or any other obligations of the Guarantor or any other Security Party under or in respect of
the Master Agreements, and a separate action or actions may be brought and prosecuted against each Swap Guarantor to enforce such
guarantee irrespective of whether any action is brought against the Guarantor or any other Security Party or whether the Guarantor
or any other Security Party is joined in any such action or actions. |
| 16.13 | Deferral of rights. Until each of
the Guaranteed Obligations and the Guaranteed Swap Obligations have been irrevocably paid and performed in full and unless the
Agent otherwise directs, none of the Guarantor or the Swap Guarantors shall exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents: |
| (a) | to be indemnified by another Security Party; |
| (b) | to claim any contribution from any other
guarantor of any Security Party’s obligations under the Finance Documents; and/or |
| (c) | to take the benefit (in whole or in part
and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under the Finance Documents, the Master Agreements
or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents or the Master Agreements
by any Creditor Party. |
| 16.14 | Limitation of liability. Each of
the Guarantor, the Swap Guarantors and the Creditor Parties hereby confirms that it
is its intention that the Guaranteed Obligations (in the case of the Guarantor) and the Guaranteed Swap Obligations (in the case
of each Swap Guarantor) do not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar law. To effectuate the foregoing intention,
each of the Guarantor, the Swap Guarantors and the Creditor Parties hereby irrevocably agrees that the Guaranteed Obligations guaranteed
by the Guarantor and the Guaranteed Swap Obligations guaranteed by the Swap Guarantors shall be limited to such amount as will,
after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of the Guarantor or such Swap Guarantor
(as the case may be) that are relevant under such laws, and in the case of the Swap Guarantors after giving effect to any rights
of contribution among such Swap Guarantor and the other Swap Guarantors, result in the Guaranteed Obligations of the Guarantor
or in the Guaranteed Swap Obligations of such Swap Guarantor in respect of such maximum amount not constituting a fraudulent transfer
or conveyance. |
| 16.15 | Reliance of Creditor Parties. Each
of the Creditor Parties has entered into this Agreement in reliance upon, among other things, this guarantee. |
| 16.16 | Release of a Swap Guarantor and of Swap
Guarantors’ right of contribution. Upon the sale of its Ship in accordance with the terms of this Agreement, a Swap Guarantor
shall be released as a guarantor hereunder and in respect of its obligations under the other Finance Documents to which it is a
party. Provided that no Event of Default has occurred and is continuing, or would result therefrom, and that no payment is then
due from that Swap Guarantor under any of the Finance Documents to which it is a party, upon the written approval of the Agent
(acting with the consent of the Majority Lenders, such consent not to be unreasonably withheld or delayed), such Swap Guarantor
shall be deemed a retiring guarantor (in such capacity, a “Retiring Swap Guarantor”) and shall cease to be a
Swap Guarantor hereunder and released from its obligations hereunder and under the other Finance Documents, and on the date such
Retiring Swap Guarantor ceases to be a Swap Guarantor: |
| (a) | that Retiring Swap Guarantor is released
by each other Swap Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution
to any other Swap Guarantor arising by reason of the performance by any other Swap Guarantor of its obligations under the Finance
Documents; and |
| (b) | each other Swap Guarantor waives any rights
it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part
and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under any Finance Document or of any other
security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation
to the assets of the Retiring Swap Guarantor. |
| 16.17 | Keepwell. Each Qualified ECP Guarantor
hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may
be needed from time to time by each other Swap Guarantor to honor all of its obligations under this guarantee in respect of Swap
Obligations (provided that each Qualified ECP Guarantor shall be liable under this Clause 16.17 only for the maximum
amount of such liability that can be hereby incurred without rendering its obligations under this Clause 16.17, or otherwise under
this guarantee, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater
amount). The obligations of each Qualified ECP Guarantor under this Clause 16.17 shall remain in full force and effect until such
Qualified ECP Guarantor is released pursuant to Clause 16.16. Each Qualified ECP Guarantor intends that this Clause 16.17 constitute,
and this Clause 16.17 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each
other Swap Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. |
| 17 | PAYMENTS
AND CALCULATIONS |
| 17.1 | Currency and method of payments.
All payments to be made by the Lenders or by the Security Parties under a Finance Document shall be made to the Agent or to the
Security Trustee, in the case of an amount payable to it: |
| (a) | by not later than 12:00 p.m. (New York
City time) on the due date; |
| (b) | in same day Dollar funds settled through
the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the
Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by
this Agreement); |
| (c) | in the case of an amount payable by a Lender
to the Agent or by another Security Party to the Agent or any Lender, to the account of the Agent at |
| |
Bank Name: |
Bank
of New York, N.Y. (SWIFT CODE) XXXXXX0X |
| |
ABA No: |
021
000 018 |
| |
Account Name: |
DNB
Bank ASA, New York (SWIFT CODE) XXXXXX00 |
| |
Account No: |
000 000 0000 |
| |
FFC Account
Name: |
Scorpio Tankers |
| |
FFC Account
No: |
00000000 |
| |
Attention: |
CSD
Loans |
| |
Reference: |
Scorpio
Tankers, |
or to
such other account with such other bank as the Agent may from time to time notify to the Borrowers, the other Security Parties
and the other Creditor Parties; and
| (d) | in the case of an amount payable to the
Security Trustee, to such account as it may from time to time notify to the Borrowers and the other Creditor Parties. |
| 17.2 | Payment on non-Business Day. If
any payment by a Security Party under a Finance Document would otherwise fall due on a day which is not a Business Day: |
| (a) | the due date shall be extended to the next
succeeding Business Day; or |
| (b) | if the next succeeding Business Day falls
in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day; |
and interest shall be
payable during any extension under paragraph (a) at the rate payable on the original due date.
| 17.3 | Basis for calculation of periodic payments.
All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall
accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year. |
| 17.4 | Distribution of payments to Creditor
Parties. Subject to Clauses 17.5, 17.6 and 17.7: |
| (a) | any amount received by the Agent under
a Finance Document for distribution or remittance to a Lender, a Swap Counterparty or the Security Trustee shall be made available
by the Agent to that Lender, that Swap Counterparty or, as the case may be, the Security Trustee by payment, with funds having
the same value as the funds received, to such account as the Lender and the Swap Counterparty or the Security Trustee may have
notified to the Agent not less than five (5) Business Days previously; and |
| (b) | amounts to be applied in satisfying amounts
of a particular category which are due to the Lenders and/or the Swap Counterparties generally shall be distributed by the Agent
to each Lender and each Swap Counterparty, as applicable, pro rata to the amount in that category which is due to it. |
| 17.5 | Permitted deductions by Agent. Notwithstanding
any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender
or a Swap Counterparty, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender
or that Swap Counterparty under any Finance Document or any sum which the Agent is then entitled under any Finance Document to
require that Lender or that Swap Counterparty to pay on demand. |
| 17.6 | Agent only obliged to pay when monies
received. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged
to make available to the Borrowers or any Lender or any Swap Counterparty any sum which the Agent is expecting to receive for remittance
or distribution to the Borrowers or that Lender or that Swap Counterparty until the Agent has satisfied itself that it has received
that sum. |
| 17.7 | Refund to Agent of monies not received.
If and to the extent that the Agent makes available a sum to the Borrowers or a Lender or a Swap Counterparty, without first having
received that sum, the Borrowers or (as the case may be) the Lender or the Swap Counterparty concerned shall, on demand: |
| (a) | refund the sum in full to the Agent; and
|
| (b) | pay to the Agent the amount (as certified
by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a
result of making the sum available before receiving it. |
| 17.8 | Agent may assume receipt. Clause
17.7 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent
had any form of notice that it had not received the sum which it made available. |
| 17.9 | Creditor Party accounts. Each Creditor
Party shall maintain accounts showing the amounts owing to it by the Borrowers and each other Security Party under the Finance
Documents and all payments in respect of those amounts made by the Borrowers and any other Security Party. |
| 17.10 | Agent’s memorandum account.
The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent,
the Security Trustee and each Lender from the Borrowers and each other Security Party under the Finance Documents and all payments
in respect of those amounts made by the Borrowers and any other Security Party. |
| 17.11 | Accounts prima facie evidence. If
any accounts maintained under Clauses 17.9 and 17.10 show an amount to be owing by the Borrowers or any other Security Party to
a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party. |
| 18 | APPLICATION
OF RECEIPTS |
| 18.1 | Normal order of application. Except
as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue
of any Finance Document shall be applied: |
| (a) | FIRST: in or towards satisfaction of any
amounts then due and payable under the Finance Documents and the Master Agreements in the following order and proportions: |
| (i) | first, in or towards satisfaction of all
amounts then due and payable to the Agent and the Security Trustee; |
| (ii) | second, in or towards satisfaction pro
rata of all amounts then due and payable to the Creditor Parties or K-Sure under the Finance Documents other than those amounts
referred to at paragraphs (iii), (iv), (v) and (vi) (including, but without limitation, all amounts payable by any Security Party
under Clauses 21, 22 and 23 of this Agreement or by the Borrowers or any other Security Party under any corresponding or similar
provision in any other Finance Document); |
| (iii) | third, in or towards satisfaction pro rata
of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents; |
| (iv) | fourth, in or towards satisfaction pro
rata of any and all amounts of principal payable to the Lenders under this Agreement; |
| (v) | fifth, in or towards satisfaction pro rata
of any and all amounts of interest or default interest payable to each Swap Counterparty (and, for this purpose, the expression
“interest” shall include any net amount which the Guarantor shall have become liable to pay or deliver under section
9(h) (Interest and Compensation) of any Master Agreement but shall have failed to pay or deliver to the relevant Swap Counterparty
at the time of application or distribution under this Clause 18); and |
| (vi) | sixth, in or towards satisfaction of the
Swap Exposure of each Swap Counterparty (calculated as at the actual Early Termination Date applying to each particular Designated
Transaction, or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the
date of application or distribution hereunder); and |
| (b) | SECOND: if an Event of Default has occurred
and is continuing, in retention of an amount equal to any amount not then due and payable under any Finance Document or any Master
Agreement but which the Agent, by notice to the Borrowers, the other Security Parties and the other Creditor Parties, states in
its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction
of them in accordance with the provisions of Clause 18.1(a); and |
| (c) | THIRD: any surplus shall be paid to the
Borrowers or to any other person appearing to be entitled to it. |
Notwithstanding
the foregoing, no amount received from a Swap Guarantor in respect of its Guaranteed Swap Obligations shall be applied to any Excluded
Swap Obligations.
| 18.2 | Variation of order of application.
|
| (a) | The Agent may, with the authorization of
K-Sure, the Majority Lenders and the Swap Counterparties, by notice to the Borrowers, the other Security Parties and the other
Creditor Parties provide for a different manner of application from that set out in Clauses 18.1(a)(ii) through (vi) either as
regards a specified sum or sums or as regards sums in a specified category or categories (save that any variation which results
in any of the sums referred to in Clauses 18.1(a)(v) and 18.1(a)(vi) ranking prior to any of the sums referred to in Clauses 18.1(a)(ii),
18.1(a)(iii) and 18.1(a)(iv) shall require instead the authorization of all Lenders and K-Sure). |
| (b) | Following an Event of Default and where
the Agent has confirmed to the Borrowers that the K-Sure Lenders have received in full the amount payable under each K-Sure Insurance
Policy, the parties acknowledge that K-Sure may vary the order of application set out in Clause 18.1 in respect of sums payable
to it only, in accordance with the terms of the relevant K-Sure Insurance Policy and each party to this Agreement agrees that it
is bound by any such varied order of payment. |
| 18.3 | Notice of variation of order of application.
The Agent may give notices under Clause 18.2 from time to time; and such a notice may be stated to apply not only to sums which
may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business
Day before the date on which the notice is served. |
| 18.4 | Appropriation rights overridden.
This Clause 18 and any notice which the Agent gives under Clause 18.2 shall override any right of appropriation possessed, and
any appropriation made, by the Borrowers or any other Security Party. |
| 18.5 | Application of insurance proceeds under
K-Sure Insurance Policy. Notwithstanding the foregoing provisions of this Clause 18: |
| (a) | if any K-Sure Lender receives any insurance
proceeds under a K-Sure Insurance Policy other than from the Agent or the K-Sure Agent, it shall pay such moneys to the Agent; |
| (b) | notwithstanding the provisions of Clause
18.1, any insurance proceeds received by any K-Sure Lender under a K-Sure Insurance Policy other than from the Agent shall be applied
by the Agent only in accordance with the provisions of paragraphs (a) and (b) of Clause 18.1 as the case may be, in favour of the
K-Sure Lenders, and, for the avoidance of doubt, no such insurance proceeds shall in any circumstances be available to the Borrowers
or any other Security Party; |
| (c) | any unpaid K-Sure Premium and any unpaid
fees, costs and expenses of K-Sure shall constitute amounts then due and payable in respect of the K-Sure Tranche under the Finance
Documents (and any of them) for the purposes of the amounts then due and payable in respect of paragraphs (a) and (b) of Clause
18.1 as the case may be. |
| 18.6 | Payments in excess of Contribution.
|
| (a) | If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, counterclaim or otherwise) in excess of its Contribution,
such Lender shall forthwith purchase from the other Lenders such participation in their respective Contributions as shall be necessary
to share the excess payment ratably with each of them, provided that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount equal to such Xxxxxx’s ratable share (according
to the proportion of (a) the amount of such Xxxxxx’s required repayment to (b) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. |
| (b) | The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Clause 18.6 may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrowers in the amount of such participation. |
| (c) | Notwithstanding paragraphs (a) and (b)
of this Clause 18.6, any Lender which shall have commenced or joined (as a plaintiff) in an action or proceeding in any court to
recover sums due to it under any Finance Document and pursuant to a judgment obtained therein or a settlement or compromise of
that action or proceeding shall have received any amount, such Lender shall not be required to share any proportion of that amount
with a Lender which has the legal right to, but does not, join such action or proceeding or commence and diligently prosecute a
separate action or proceeding to enforce its rights in the same or another court. |
| (d) | Each Lender exercising or contemplating
exercising any rights giving rise to a receipt or receiving any payment of the type referred to in this Clause 18.6 or instituting
legal proceedings to recover sums owing to it under this Agreement shall, as soon as reasonably practicable thereafter, give notice
thereof to the Agent who shall give notice to the other Lenders. |
| 19 | APPLICATION
OF EARNINGS |
| 19.1 | General. From the Effective Date
until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, each of the Borrowers and
the Guarantor, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions
of this Clause 19 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing. |
| 19.2 | Payment of Earnings. Each of the
Borrowers and the Guarantor, as the case may be, undertakes with each Creditor Party to ensure that subject only to the provisions
of any Charter Assignment or Earnings Assignment, all Earnings of each Ship are paid to the Earnings Account for such Ship. |
| 19.3 | Use of proceeds in Earnings Accounts.
Unless and until an Event of Default or a Potential Event of Default occurs and subject to the provisions of the other Finance
Documents, the Earnings of each Ship shall be freely available to each of the Borrowers and the Guarantor. |
| 19.4 | Intentionally omitted. |
| 19.5 | Intentionally omitted. |
| 19.6 | Location of accounts. Each of the
Borrowers and the Guarantor, as the case may be, shall promptly: |
| (a) | comply with any requirement of the Agent
as to the location or re-location of any Earnings Account , and without limiting the foregoing, each of the Borrowers and the Guarantor
agrees to segregate the Earnings Accounts from the banking platform on which their other accounts are located or designated; and |
| (b) | execute any documents which the Agent specifies
to create or maintain in favor of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other
rights in relation to) any Earnings Account. |
| 19.7 | Debits for expenses etc. The Agent
shall be entitled (but not obliged) from time to time to debit any Earnings Account without prior notice in order to discharge
any amount due and payable under Clause 21 or 22 to a Creditor Party or payment of which any Creditor Party has become entitled
to demand under Clause 21 or 22. |
| 19.8 | Borrowers’ obligations unaffected.
The provisions of this Clause 19 do not affect: |
| (a) | the liability of the Borrowers to make
payments of principal and interest on the due dates; or |
| (b) | any other liability or obligation of the
Borrowers or any other Security Party under any Finance Document. |
| 20.1 | Events of Default. An Event of Default
occurs if: |
| (a) | a Borrower or any other Security Party
fails to pay when due any sum payable under a Finance Document or under any document relating to a Finance Document or, only in
the case of sums payable on demand, within three (3) Business Days after the date when first demanded, provided that if such failure
to pay a sum when due is solely the result of an administrative or technical error, it shall not constitute an Event of Default
unless such failure continues unremedied for more than three (3) Business Days from the occurrence thereof; or |
| (b) | any breach occurs of any of Clauses 8.8,
8.9, 8.10, 9.2(a), 11.2(b), 11.2(e), 11.2(f), 11.2(o), 13 or 15.3; or |
| (c) | any breach by a Borrower or any other Security
Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a), (b), (d), (e) or (n) of this
Clause 20.1) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied 10 Business
Days after the earlier of (i) the relevant Security Party becoming aware of such breach and (ii) written notice from the Agent
requesting action to remedy the same; or |
| (d) | subject to any applicable grace period
specified in a Finance Document, any breach by a Borrower or any other Security Party occurs of any provision of a Finance Document
(other than a breach falling within paragraphs (a), (b), (c) or (e) of this Clause 20.1); or |
| (e) | any representation, warranty or statement
made or repeated by, or by an officer or director of, a Borrower or any other Security Party in a Finance Document or in a Drawdown
Notice or any other notice or document relating to a Finance Document is untrue or misleading when it is made or repeated; or |
| (f) | an event of default, or an event or circumstance
which, with the giving of any notice, the lapse of time or both would constitute an event of default, has occurred on the part
of a Security Party under any contract or agreement (other than the Finance Documents) to which such Security Party is a party
and the value of which is or exceeds $10,000,000 in the aggregate, and such event of default has not been cured within any applicable
grace period; |
| (g) | any Financial Indebtedness of a Security
Party in excess of $10,000,000 in the aggregate is not paid when due (or if there is a grace period, within such grace period)
or, only in the case of sums payable on demand, when first demanded, except for any such Financial Indebtedness which is being
contested by such Security Party in good faith and through appropriate proceedings for which adequate reserves in accordance with
IFRS have been established and maintained on the books and records of the applicable Security Party, and in a manner that does
not involve any risk of sale, forfeiture, loss, confiscation or seizure of a Ship; or |
| (h) | an Insolvency Event occurs with respect
to any Security Party; or |
| (i) | Intentionally omitted; or |
| (j) | all or a material part of the undertakings,
assets, rights or revenues of, or shares or other ownership interest in, any Security Party are seized, nationalized, expropriated
or compulsorily acquired by or under authority of any government, provided that, in the reasonable opinion of the Agent,
such occurrence would adversely affect any Security Party’s ability to perform its obligations under the Finance Documents
to which it is a party; or |
| (k) | a creditor attaches or takes possession
of, or a distress, execution, sequestration or process (each an “action”) is levied or enforced upon or sued
out against, a material part of the undertakings, assets, rights or revenues (the “assets”) of any Security
Party in relation to a claim by such creditor which, in the reasonable opinion of the Majority Lenders, is likely to materially
and adversely affect the ability of such Security Party to perform all or any of its obligations under or otherwise to comply with
the terms of any Finance Document to which it is a party and such Security Party does not procure that such action is lifted, released
or expunged within 30 Business Days of such action being (i) instituted and (ii) notified to such Security Party; or |
| (l) | any of the Borrowers or the Guarantor fails
(within 5 business days after becoming obliged to do so) to comply with or pay any sum in an amount exceeding $5,000,000 (or the
equivalent in any other currencies) due from it under any final judgment or any final order (being one against which there is no
right of appeal or if a right of appeal exists the time limit for making such appeal has expired and no appeal has been made or
if an appeal has been made such appeal has been dismissed) made or given by any court of competent jurisdiction, provided that
such event shall not be deemed to constitute an Event of Default if the Borrowers are entitled to insurance cover for the whole
of such sum and the relevant insurers have confirmed liability and undertaken to make payment of the whole of such sum in writing
to the person(s) entitled to payment and it is likely (in the reasonable opinion of the Majority Lenders) that the insurers will
be able to make such payment within thirty (30) days; or |
| (m) | any Security Party ceases or suspends or
threatens to cease or suspend the carrying on of its business, or a part of its business which, in the opinion of the Majority
Lenders, is material in the context of this Agreement, except in the case of a sale or a proposed sale of the Ship by a Borrower;
or |
| (n) | a Ship becomes a Total Loss or suffers
a Major Casualty and (i) in the case of a Total Loss, insurance proceeds are not collected or received by the Security Trustee
from the underwriters within 120 days of the Total Loss Date; or (ii) in the case of a Major Casualty, that Ship has not been otherwise
repaired in a timely and proper manner; or |
| (o) | it becomes unlawful or impossible: |
| (i) | for any Security Party to discharge any
liability under a Finance Document or to comply with any other obligation which the Majority Lenders consider material under a
Finance Document; |
| (ii) | for the Agent, the Security Trustee, the
Lenders or the Swap Banks to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document;
or |
| (p) | any consent necessary to enable a Borrower
to own, operate or charter the Ship owned by it or to enable a Borrower or any other Security Party to comply with any provision
which the Majority Lenders consider material of a Finance Document or a Charter is not granted, expires without being renewed,
is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or |
| (q) | any provision of a Finance Document which
the Majority Lenders consider material proves to have been or becomes invalid or unenforceable, or a Security Interest created
by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked
after, or loses its priority to, another Security Interest or any other third party claim or interest; or |
| (r) | the security constituted by a Finance Document
is in any way imperiled or in jeopardy; or |
| (s) | an Event of Default (as defined in section
14 of a Master Agreement) occurs; or |
| (t) | an event or series of events occurs which,
in the reasonable opinion of the Majority Lenders, may constitute a Material Adverse Effect;
or |
| (u) | any Security Party
or any subsidiary of any Security Party or any of their respective directors or officers becomes a Restricted Party; or |
| (v) | any breach by an
Approved Manager of any provision of its Manager’s Undertaking unless (i) that Approved Manager is replaced by an Approved
Manager acceptable to the Majority Lenders in all respects within 120 days from the date the relevant Security Party becomes aware
of such breach and (ii) a new Manager’s Undertaking is issued within 30 days from such replacement by the new Approved Manager
in substantially the same form as the existing Manager’s Undertaking. |
| 20.2 | Actions following an Event of Default.
On, or at any time after, the occurrence of an Event of Default: |
| (a) | the Agent may, and if so instructed by
the Majority Lenders, the Agent shall: |
| (i) | serve on the Borrowers a notice stating
that the Commitments and all other obligations of each Lender to the Borrowers under this Agreement, the other Finance Documents
and the Master Agreements are cancelled; and/or |
| (ii) | serve on the Borrowers a notice stating
that the Loan, together with accrued interest and all other amounts accrued or owing under this Agreement, the other Finance Documents
and the Master Agreements are immediately due and payable or are due and payable on demand, provided that in the case of
an Event of Default under Clause 20.1(h), the Loan and all accrued interest and other amounts accrued or owing under this Agreement,
the other Finance Documents and the Master Agreements shall be deemed immediately due and automatically become payable without
notice or demand therefor; and/or |
| (iii) | take any other action which, as a result
of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under
any Finance Document or any applicable law; and/or |
| (b) | the Security Trustee may, and if so instructed
by the Agent, acting with the authorization of the Majority Lenders, the Security Trustee shall, take any action which, as a result
of the Event of Default or any notice served under paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders
and/or the Swap Counterparties are entitled to take under any Finance Document or any applicable law to enforce the Security Interests
created by this Agreement and any other Finance Document in any manner available to it and in such sequence as the Security Trustee
may, in its absolute discretion, determine. |
| 20.3 | Termination of Commitments. On the
service of a notice under Clause 20.2(a)(i) or, upon an Event of Default under Clause 20.1(h), the Commitments and all other obligations
of each Lender to the Borrowers under this Agreement shall be cancelled. |
| 20.4 | Acceleration of Loan. On the service
of a notice under Clause 20.2(a)(ii) or, upon an Event of Default under Clause 20.1(h), all or, as the case may be, the part of
the Loan specified in the notice (if any), together with accrued interest and all other amounts accrued or owing from the Borrowers
or any other Security Party under this Agreement and every other Finance Document shall become immediately due and payable or,
as the case may be, payable on demand. |
| 20.5 | Multiple notices; action without notice.
The Agent may serve notices under Clauses 20.2(a)(i) and (ii) simultaneously or on different dates and it and/or the Security Trustee
may take any action referred to in Clause 20.2 if no such notice is served or simultaneously with or at any time after the service
of both or either of such notices. |
| 20.6 | Notification of Creditor Parties and
Security Parties. The Agent shall send to each Lender, each Swap Counterparty, the Security Trustee and each Security Party
a copy of the text of any notice which the Agent serves on the Borrowers under Clause 20.2. Such notice shall become effective
when it is served on the Borrowers, and no failure or delay by the Agent to send a copy or the text of the notice to any other
person shall invalidate the notice or provide the Borrowers or any other Security Party with any form of claim or defense. |
| 20.7 | Creditor Party rights unimpaired.
Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders or Swap Counterparties
under a Finance Document, a Master Agreement or the general law; and, in particular, this Clause is without prejudice to Clause
3.1. |
| 20.8 | Exclusion of Creditor Party liability.
No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to any Security Party: |
| (a) | for any loss caused by an exercise of rights
under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right
or to enforce such a Security Interest; or |
| (b) | as mortgagee in possession or otherwise,
for any income or principal amount which might have been produced by or realized from any asset comprised in such a Security Interest
or for any reduction (however caused) in the value of such an asset, |
provided that nothing
in this Clause 20.8 shall exempt a Creditor Party or a receiver or manager from liability for losses shown to have been caused
by the gross negligence or the willful misconduct of such Creditor Party’s own officers and employees or ( as the case may
be) such receiver’s or manager’s own partners or employees.
| 20.9 | Position of Swap Counterparties.
Neither the Agent nor the Security Trustee shall be obliged, in connection with any action taken or proposed to be taken under
or pursuant to the foregoing provisions of this Clause 20, to have any regard to the requirements of a Swap Counterparty except
to the extent that such Swap Counterparty is also a Lender. |
| 21.1 | Commitment, agency and other fees.
The Borrowers shall pay to the Agent: |
| (a) | in respect of the Commercial Bank Tranche
during the period from (and including) the Effective Date to the Maturity Date thereof (payable on the Effective Date and thereafter,
in arrears, on the last day of each quarter and on the Commercial Bank Tranche Maturity Date), for the account of the Commercial
Lenders, a commitment fee at the rate per annum of 40 percent of the applicable Margin on the undrawn amount of the Commitments
relating to the Commercial Bank Tranche, for distribution among the Commercial Lenders pro rata to their Commitments; |
| (b) | in respect of the K-Sure Tranche, during
the period from (and including) the Effective Date to the Maturity Date thereof payable on the Effective Date and thereafter, in
arrears, on the last day of each quarter and on the K-Sure Tranche Maturity Date, for the account of the K-Sure Lenders, a commitment
fee at the rate per annum of 40 percent of the applicable Margin on the undrawn amount of the Commitments relating to the K-Sure
Tranche, for distribution among the K-Sure Lenders pro rata to their Commitments; |
| (c) | an annual agency fee payable on the dates
and in the amounts described in an agency fee letter entered into between the Agent and the Borrowers on or about the Effective
Date; and |
| (d) | any other fees as may be payable by the
Borrowers. |
| 21.2 | K-Sure Premium. Without prejudice
to Clause 8.19, the Borrowers: |
| (a) | agree, and each K-Sure Xxxxxx acknowledges
and agrees, that: |
| (i) | the amounts of any K-Sure Premium will
be solely determined by K-Sure; and |
| (ii) | no K-Sure Lender is in any way involved
in the calculation or payment (otherwise than as financed in whole or in part pursuant to this Agreement) of any part of any K-Sure
Premium; |
| (b) | agree that their obligation to pay any
K-Sure Premium or any part of any K-Sure Premium in accordance with the relevant K-Sure Insurance Policy shall be an absolute and
unconditional obligation and, without limitation, shall not be affected by any failure by a Borrower to draw down funds under this
Agreement or the prepayment or acceleration of the whole or any part of the Loan; |
| (c) | acknowledge that they shall pay an amount
equivalent to each K-Sure Premium (including default interest under the relevant K-Sure Insurance Policy) to K-Sure on the relevant
due date, and no K-Sure Premium will be refundable in whole or in part in any circumstances, unless otherwise provided in the relevant
K-Sure Insurance Policy and Clause 8.19; |
| (d) | agree that if, for any reason whatsoever,
any additional premium is or becomes payable to K-Sure in respect of any K-Sure Insurance Policy, the Borrowers shall promptly
pay such additional premium in full and the Borrowers shall fully cooperate with the Agent and the K-Sure Agent on their reasonable
request to take all steps necessary on the part of the Borrowers to ensure that each K-Sure Insurance Policy remains in full force
and effect throughout the Security Period; and |
| (e) | shall indemnify K-Sure in relation to any
costs or expenses (including reasonable legal fees) suffered or incurred by K-Sure in connection with any transfer to K-Sure undertaken
pursuant to Clause 27.2 or in connection with any review by K-Sure of or in relation to any Event of Default and/or amendment or
supplement to any of the Finance Documents and/or a request for a consent or approval from K-Sure. |
| 21.3 | Costs of negotiation, preparation etc.
The Borrowers shall pay to the Agent on its demand the amount of all expenses incurred by the Agent, the K-Sure Agent or the Security
Trustee in connection with the negotiation, preparation, execution or registration of any Finance Document or any related document
or with any transaction contemplated by a Finance Document or a related document, including, without limitation, the reasonable
fees and disbursements of such Creditor Party’s or K-Sure’s legal counsel and any local counsel retained by them. |
| 21.4 | Costs of variations, amendments, enforcement
etc. The Borrowers shall pay to the Agent, on the Agent’s demand, for the account of the Creditor Party concerned or
K-Sure, the amount of all expenses incurred by a Creditor Party in connection with: |
| (a) | any amendment or supplement to a Finance
Document or a K-Sure Insurance Policy, or any proposal for such an amendment to be made; |
| (b) | any consent or waiver by the Lenders, the
Swap Banks, the Majority Lenders, the Creditor Party concerned or K-Sure under or in connection with a Finance Document, or any
request for such a consent or waiver; |
| (c) | the valuation of any additional Collateral
provided or offered under Clause 15 or any other matter relating to such additional Collateral; or |
| (d) | any step taken by the Security Trustee,
a Lender, K-Sure or a Swap Bank with a view to the protection, exercise or enforcement of any right or Security Interest created
by a Finance Document or for any similar purpose. |
There shall be recoverable
under paragraph (d) the full amount of all legal expenses, whether or not such as would be allowed under rules of court or any
taxation or other procedure carried out under such rules.
| 21.5 | Intentionally omitted. |
| 21.6 | Documentary taxes. The Borrowers
shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent’s demand, fully indemnify
each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrowers to
pay such a tax. |
| 21.7 | Certification of amounts. A notice
which is signed by an officer of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor
Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of
which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due. |
| 22.1 | Indemnities regarding borrowing and
repayment of Loan. The Borrowers shall fully indemnify the Agent, each Lender and K-Sure on the Agent’s demand and the
Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or
incurred by that Creditor Party or K-Sure, or which that Creditor Party or K-Sure reasonably and with due diligence estimates that
it will incur, as a result of or in connection with: |
| (a) | an Advance not being borrowed on the date
specified in the Drawdown Notice for any reason other than a default by the Lender claiming the indemnity; |
| (b) | funding, or making arrangements to fund,
its participation in an Advance requested by the Borrowers in a Drawdown Notice but not made or funded by reason of the operation
of any one or more of the provisions of this Agreement (other than by reason of default or negligence solely by that Creditor Party); |
| (c) | the receipt or recovery of all or any part
of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period; |
| (d) | any failure (for whatever reason) by a
Borrower or any other Security Party to make payment of any amount due under a Finance Document on the due date or, if so payable,
on demand (after giving credit for any default interest paid by the Borrowers on the amount concerned under Clause 7); or |
| (e) | the occurrence of an Event of Default or
a Potential Event of Default and/or the acceleration of repayment of the Loan under Clause 20. |
It is
understood that the indemnities provided in this Clause 22.1 shall not apply to any claim cost or expense which is a tax levied
by a taxing authority on the indemnified party (which taxes are subject to indemnity solely as provided in Clause 23 below) but
shall apply to any other costs associated with any tax which is not a Non-indemnified Tax.
| 22.2 | Breakage costs. Without limiting
its generality, Clause 22.1 covers any claim, expense, liability or loss, including a loss of a prospective profit, incurred by
a Lender: |
| (a) | in liquidating or employing deposits from
third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate
amount which includes its Contribution or any overdue amount); and |
| (b) | in terminating, or otherwise in connection
with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another
office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender
concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses
of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this
Agreement is one. |
| 22.3 | Miscellaneous indemnities. The Borrowers
shall fully indemnify each Creditor Party, their respective directors, officers, employees, counsel, agents, trustees, advisors
and attorneys-in-fact and K-Sure severally on their respective demands in respect of all claims, expenses, liabilities and losses
which may be made or brought against or incurred by a Creditor Party and K-Sure, in any country, as a result of or in connection
with: |
| (a) | any action taken, or omitted or neglected
to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee, any other Creditor Party or K-Sure
or by any receiver appointed under a Finance Document; or |
| (b) | any other Pertinent Matter, |
other than claims, expenses,
liabilities and losses which are shown to have been caused by the gross negligence or willful misconduct of the officers or employees
of the Creditor Party concerned.
Without prejudice to its
generality, this Clause 22.3 covers any claims, expenses, liabilities and losses which arise, or are asserted, under or in connection
with any law relating to safety at sea, the ISM Code, the ISPS Code or any Environmental Law.
| 22.4 | Currency indemnity. If any sum due
from a Borrower or any other Security Party to a Creditor Party or K-Sure under a Finance Document or under any order or judgment
relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid
(the “Contractual Currency”) into another currency (the “Payment Currency”) for the purpose
of: |
| (a) | making or lodging any claim or proof against
a Borrower or any other Security Party, whether in its liquidation, any arrangement involving it or otherwise; or |
| (b) | obtaining an order or judgment from any
court or other tribunal; or |
| (c) | enforcing any such order or judgment, |
the Borrowers shall indemnify
the Creditor Party concerned or K-Sure against the loss arising when the amount of the payment actually received by that Creditor
Party or K-Sure is converted at the available rate of exchange into the Contractual Currency.
In this Clause 22.4, the
“available rate of exchange” means the rate at which the Creditor Party concerned is able at the opening of
business (London time) on the Business Day after it receives the sum concerned to purchase the Contractual Currency with the Payment
Currency.
This Clause 22.4 creates
a separate joint and several liability of the Borrowers which is distinct from its other liabilities under the Finance Documents
and which shall not be merged in any judgment or order relating to those other liabilities.
| 22.5 | Application to Master Agreements.
For the avoidance of doubt, Xxxxxx 22.4 does not apply in respect of sums due from the Guarantor to a Swap Counterparty under or
in connection with a Master Agreement as to which sums the provisions of section 8 (Contractual Currency) of that Master Agreement
shall apply. |
| 22.6 | Certification of amounts. A notice
which is signed by an officer of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor
Party under this Clause 22 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of
which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due. |
| 22.7 | Sums deemed due to a Lender. For
the purposes of this Clause 22, a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender
shall be treated as a sum due to that Lender. |
| 23 | NO
SET-OFF OR TAX DEDUCTION; tax indemnity; FATCA |
| 23.1 | No deductions. All amounts due from
a Security Party under a Finance Document shall be paid: |
| (a) | without any form of set-off, cross-claim
or condition; and |
| (b) | free and clear of any tax deduction except
a tax deduction which such Security Party is required by law to make. |
| 23.2 | Grossing-up for taxes. If a Security
Party is required by law to make a tax deduction from any payment: |
| (a) | such Security Party shall notify the Agent
as soon as it becomes aware of the requirement; |
| (b) | such Security Party shall pay the tax deducted
to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and |
| (c) | except if the deduction is for collection
or payment of a Non-indemnified Tax of a Creditor Party, the amount due in respect of the payment shall be increased by the amount
necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net
amount which, after the tax deduction, is equal to the full amount which it would otherwise have received. |
| 23.3 | Evidence of payment of taxes. Within
one (1) month after making any tax deduction, the relevant Security Party shall deliver to the Agent documentary evidence satisfactory
to the Agent that the tax had been paid to the appropriate taxation authority. |
| 23.4 | Tax credits. A Creditor Party which
receives for its own account a repayment or credit in respect of tax on account of which the Borrowers have made an increased payment
under Clause 23.2 shall pay to the Borrowers a sum equal to the proportion of the repayment or credit which that Creditor Party
allocates to the amount due from the Borrowers in respect of which the Borrowers made the increased payment, provided that: |
| (a) | the Creditor Party shall not be obliged
to allocate to this transaction any part of a tax repayment or credit which is referable to a class or number of transactions; |
| (b) | nothing in this Clause 23.4 shall oblige
a Creditor Party to arrange its tax affairs in any particular manner, to claim any type of relief, credit, allowance or deduction
instead of, or in priority to, another or to make any such claim within any particular time; |
| (c) | nothing in this Clause 23.4 shall oblige
a Creditor Party to make a payment which would leave it in a worse position than it would have been in if the Borrowers had not
been required to make a tax deduction from a payment; and |
| (d) | any allocation or determination made by
a Creditor Party under or in connection with this Clause 23.4 shall be conclusive and binding on the Borrowers and the other Creditor
Parties. |
| 23.5 | Indemnity for taxes. Each of the
Borrowers and the Guarantor hereby indemnifies and agrees to hold each Creditor Party harmless from and against all taxes other
than Non-indemnified Taxes levied on such Creditor Party (including, without limitation, taxes imposed on any amounts payable under
this Clause 23.5) paid or payable by such person, whether or not such taxes or other taxes were correctly or legally asserted.
Such indemnification shall be paid within 10 days from the date on which such Creditor Party makes written demand therefor specifying
in reasonable detail the nature and amount of such taxes or other taxes. |
| 23.6 | Exclusion from indemnity and gross-up
for taxes. The Borrowers and the Guarantor shall not be required to indemnify any Creditor Party for a tax pursuant to Clause
23.5, or to pay any additional amounts to any Creditor Party pursuant to Clause 23.2, to the extent that the tax is collected by
withholding on payments (a “Withholding”) and is levied by a Pertinent Jurisdiction of the payer and: |
| (a) | the person claiming such indemnity or additional
amounts was not an original party to this agreement and under applicable law (after taking into account relevant treaties and assuming
that such person has provided all forms it may legally and truthfully provided) on the date such person became a party to this
Agreement a Withholding would have been required on such payment, provided that this exclusion shall not apply to the extent
such Withholding does not exceed the Withholding that would have been applicable if such payment had been made to the person from
whom such person acquired its rights under the Agreement and this exclusion shall not apply to the extent that such Withholding
exceeds the amount of Withholding that would have been required under the law in effect on the date such person became a party
to this Agreement; or |
| (b) | the person claiming such indemnity or additional
amounts is a Lender who has changed its Lending Office and under applicable law (after taking into account relevant treaties and
assuming that such Lender has provided all forms it may legally and truthfully provide) on the date such Lender changed its Lending
Office Withholding would have been required on such payment provided that this exclusion shall not apply to the extent such
Withholding does not exceed the Withholding that would have been applicable to such payment if such Lender had not changed its
Lending Office and this exclusion shall not apply to the extent that the Withholding exceeds the amount of Withholding that would
have been required under the law in effect immediately after such Lender changed its Lending Office; or |
| (c) | in the case of a Lender, to the extent
that Withholding would not have been required on such payment if such Lender has complied with its obligations to deliver certain
tax form pursuant to Section 23.7 below. |
| 23.7 | Delivery of tax forms. |
| (a) | Upon the reasonable request of the Borrowers,
each Lender or transferee that is organized under the laws of a jurisdiction outside the United States (a “Non-U.S. Lender”)
shall deliver to the Agent and the Borrowers two properly completed and duly executed copies of (as applicable) IRS Form W-8BEN,
W-8ECI or W-8IMY or, upon request of the Borrowers or the Agent, any subsequent versions thereof or successors thereto, in each
case claiming such reduced rate (which may be zero) of U.S. Federal withholding tax under Sections 1441 and 1442 of the Code with
respect to payments of interest hereunder as such Non-U.S. Lender may properly claim. In addition, in the case of a Non-U.S. Lender
claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code, such Non-U.S. Lender shall, when
so requested by the Borrowers provide to the Agent and the Borrowers in addition to the W-8BEN required above a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrowers and is not a controlled foreign corporation related to the Borrowers
(within the meaning of Section 864(d)(4) of the Code), and such Non-U.S. Lender agrees that it shall promptly notify the Agent
in the event any representation in such certificate is no longer accurate. |
| (b) | In the event that Withholding taxes may
be imposed under the laws of any Pertinent Jurisdiction (other than the United States or any political subdivision or taxing jurisdiction
thereof or therein) in respect of payments on the Loan or other amounts due under this Agreement and if certain documentation provided
by a Lender could reduce or eliminate such Withholding taxes under the laws of such Pertinent Jurisdiction or any treaty to which
the Pertinent Jurisdiction is a party, then, upon written request by the Guarantor, a Lender that is entitled to an exemption from,
or reduction in the amount of, such Withholding tax shall deliver to the Guarantor (with a copy to the Agent), at the time or times
prescribed by applicable law or promptly after receipt of the Guarantor’s request, whichever is later, such properly completed
and executed documentation requested by the Guarantor, if any, as will permit such payments to be made without withholding or at
a reduced rate of withholding; provided that such Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender’s reasonable judgment such completion, execution or delivery would not materially prejudice the legal
or commercial position of such Lender. |
| (c) | Each Lender shall deliver such forms as
required in this Clause 23.7 within twenty (20) days after receipt of a written request therefor from the Agent or Guarantor. |
| (d) | Notwithstanding any other provision of
this Clause 23.7, a Lender shall not be required to deliver any form pursuant to this Clause 23.7 that such Lender is not legally
entitled to deliver. |
| 23.8 | Application to Master Agreements.
For the avoidance of doubt, Xxxxxx 23 does not apply in respect of sums due from the Guarantor to a Swap Counterparty under or
in connection with a Master Agreement as to which sums the provisions of Section 2(d) (Deduction or Withholding for Tax)
of that Master Agreement shall apply. |
| (a) | Subject to paragraph (c) below, within
ten (10) Business Days of a reasonable request by another FATCA Relevant Party, each FATCA Relevant Party shall: |
| (i) | confirm to that other party whether it
is a FATCA Exempt Party or is not a FATCA Exempt Party; and |
| (ii) | supply to the requesting party (with a
copy to all other FATCA Relevant Parties) such other form or forms (including IRS Form W-8 or Form W-9 or any successor or substitute
form, as applicable) and any other documentation and other information relating to its status under FATCA (including its applicable
“passthru percentage” or other information required under FATCA or other official guidance including intergovernmental
agreements) as the requesting party reasonably requests for the purpose of determining whether any payment to such party may be
subject to any FACTA Deduction. |
| (b) | If a FATCA Relevant Party confirms to any
other FATCA Relevant Party that it is a FATCA Exempt Party or provides an IRS Form W-8 or W-9 to showing that it is a FATCA Exempt
Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that party shall so notify all
other FATCA Relevant Parties reasonably promptly. |
| (c) | Nothing in this Clause 23.9 shall obligate
any FATCA Relevant Party to do anything which would or, in its reasonable opinion, might constitute a breach of any law or regulation,
any policy of that party, any fiduciary duty or any duty of confidentiality, or to disclose any confidential information (including,
without limitation, its tax returns and calculations); provided that nothing in this paragraph shall excuse any FATCA Relevant
Party from providing a true complete and correct IRS Form W-8 or W-9 (or any successor or substitute form where applicable). Any
information provided on such IRS Form W-8 or W-9 (or any successor or substitute forms) shall not be treated as confidential information
of such party for purposes of this paragraph. |
| (d) | If a FATCA Relevant
Party fails to confirm its status or to supply forms, documentation or other information requested in accordance the provisions
of this Agreement or the provided information is insufficient under FATCA, then: |
| (i) | such party shall
be treated as a FATCA Non-Exempt Party; and |
| (ii) | if that party failed
to confirm its applicable passthru percentage then such party shall be treated for the purposes of the Finance Documents (and payments
made thereunder) as if its applicable passthru percentage is 100%, |
until
(in each case) such time as the party in question provides sufficient confirmation, forms, documentation or other information to
establish the relevant facts.
| (a) | A FATCA Relevant Party making a payment
to any FACTA Non-Exempt Party shall make such FATCA Deduction as it determines is required by law and shall render payment to the
IRS within the time allowed and in the amount required by FATCA. |
| (b) | If a FATCA Deduction is required to be
made by any FATCA Relevant Party to a FACTA Non-Exempt Party, the amount of the payment due from such FATCA Relevant Party shall
be reduced by the amount of the FATCA Deduction reasonably determined to be required by such FATCA Relevant Party. |
| (c) | Each FATCA Relevant Party shall promptly
upon becoming aware that a FATCA Deduction is required with respect to any payment owed to it (or that there is any change in the
rate or basis of a FATCA Deduction) notify each other FATCA Relevant Party accordingly. |
| (d) | Within thirty days of making either a FATCA
Deduction or any payment required in connection with that FATCA Deduction, the party making such FATCA Deduction shall deliver
to the Agent for delivery to the party on account of whom the FATCA Deduction was made evidence reasonably satisfactory to that
party that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the IRS. |
| (e) | A FATCA Relevant Party who becomes aware
that it must make a FATCA Deduction in respect of a payment to another FATCA Relevant Party (or that there is any change in the
rate or basis of such FATCA Deduction) shall notify that party and the Agent. |
| (f) | The Agent shall promptly upon becoming
aware that it must make a FATCA Deduction in respect of a payment to a Lender which relates to a payment by a Borrower (or that
there is any change in the rate or the basis of such a FATCA Deduction) notify the Borrowers and the relevant Lender. |
| (g) | If a FATCA Deduction is made as a result
of any Creditor Party failing to be a FATCA Exempt Party, such party shall indemnify each other Creditor Party against any loss,
cost or expense to it resulting from such FATCA Deduction. |
Notwithstanding
any other provision of this Agreement, if a FATCA Deduction is or will be required to be made by any party under Clause 23.10 in
respect of a payment to any FATCA Non-Exempt Lender, the FATCA Non-Exempt Lender may either:
| (a) | transfer its entire interest in the Loan
to a U.S. branch or Affiliate, or |
| (b) | nominate one or more transferee lenders
who upon becoming a Lender would be a FATCA Exempt Party, by notice in writing to the Agent and the Borrowers specifying the terms
of the proposed transfer, and cause such transferee lender(s) to purchase all of the FATCA Non-Exempt Xxxxxx’s interest in
the Loan. |
| 24.1 | Illegality. If it becomes unlawful
in any applicable jurisdiction for a Lender (the “Notifying Lender”) to perform any of its obligations as contemplated
by this Agreement or to fund or maintain its participation in any Advance: |
| (a) | the Notifying Lender shall promptly notify
the Agent upon becoming aware of that event; |
| (b) | upon the Agent notifying the Borrowers
and the other Creditor Parties, the Commitment of the Notifying Lender will be immediately cancelled; and |
| (c) | the Borrowers shall jointly and severally
repay the Notifying Xxxxxx’s participation in each Advance on the last day of the Interest Period for each Advance occurring
after the Agent has notified the Borrowers or, if earlier, the date specified by the Notifying Lender in the notice delivered to
the Agent (being no earlier than the last day of any applicable grace period permitted by law) without premium or penalty. |
| 24.2 | Mitigation. If circumstances arise
which would result in a notification under Clause 24.1 then, without in any way limiting the obligations of the Borrowers under
Clause 24.1, the Notifying Lender shall use reasonable commercial efforts to transfer its obligations, liabilities and rights under
this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying
Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might: |
| (a) | have an adverse effect on its business,
operations or financial condition; or |
| (b) | involve it in any activity which is unlawful
or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or |
| (c) | involve it in any expense (unless indemnified
to its satisfaction) or tax disadvantage. |
| 24.3 | Limitation of Liability. The Borrowers shall promptly indemnify the Notifying Lender for
all costs and expenses reasonably incurred by that Notifying Lender as a result of any action taken by it under Clause 24.2. |
| 25.1 | Increased costs. This Clause 25
applies if a Lender or its Affiliate (that Lender or that Xxxxxx’s Affiliate, the “Notifying Lender”)
notifies the Agent that as a result of: |
| (a) | the introduction or alteration after the
Effective Date of a law or an alteration after the Effective Date in the manner in which a law is interpreted or applied (disregarding
any effect which relates to the application to payments under this Agreement of a Non-Indemnified Tax); or |
| (b) | complying with any regulation (including
any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates
capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application
of which is altered, after the Effective Date; or |
| (c) | any introduction, change, clarification
or publication relating to Basel III, CRD IV or CRR to the extent such increased costs were not capable of being calculated
with sufficient accuracy prior to the date of this Agreement due to a lack of clarity or detail in Basel III, CRD IV, CRR and/or
any related information from a banking regulator available on the date of this Agreement, |
the
Notifying Lender has incurred or will incur an “increased cost”.
Notwithstanding anything
herein to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines and
directives promulgated thereunder, are deemed to have been introduced or adopted after the date hereof, regardless of the date
enacted or adopted.
| 25.2 | Meaning of “increased costs”.
In this Clause 25, “increased costs” means, in relation to a Notifying Lender: |
| (a) | an actual additional or increased cost
incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or
having taken an assignment of rights under this Agreement, of funding or maintaining its Commitment or Contribution or performing
its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums; |
| (b) | a reduction in the amount of any payment
to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender
or on its capital; |
| (c) | an actual additional or increased cost
of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying
Lender’s Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or |
| (d) | a liability to make a payment, or a return
foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement. |
For the purposes of this
Clause 25.2 the Notifying Lender may in good faith allocate or spread costs and/or losses among its assets and liabilities (or
any class of its assets and liabilities) on such basis as it considers appropriate.
| 25.3 | Notification to Borrowers of claim for
increased costs. The Agent shall promptly notify the Borrowers and the other Security Parties of the notice which the Agent
received from the Notifying Lender under Clause 25.1. |
| 25.4 | Payment of increased costs. The
Borrowers shall pay to the Agent, on the Agent’s demand, for the account of the Notifying Lender the amounts which the Agent
from time to time notifies the Borrowers that the Notifying Xxxxxx has specified to be necessary to compensate the Notifying Lender
for the increased cost. |
| 25.5 | Notice of prepayment. If the Borrowers
are not willing to continue to compensate the Notifying Lender for the increased cost under Clause 25.4, the Borrowers may give
the Agent not less than 14 days’ notice of their intention to prepay the Notifying Lender’s Contribution at the end
of an Interest Period. |
| 25.6 | Prepayment; termination of Commitment.
A notice under Clause 25.5 shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrowers’ notice
of intended prepayment; and: |
| (a) | on the date on which the Agent serves that
notice, the Commitment of the Notifying Lender shall be cancelled; and |
| (b) | on the date specified in its notice of
intended prepayment, the Borrowers shall prepay (without premium or penalty) the Notifying Lender’s Contribution, together
with accrued interest thereon at the applicable rate plus the applicable Margin and the Mandatory Cost (if any). |
| 25.7 | Application of prepayment. Clause
8 shall apply in relation to the prepayment. |
| (a) | The Notifying Lender shall, in consultation
with the Guarantor, take all reasonable steps to mitigate any circumstances which arise and would result in any amount becoming
payable under or pursuant to, or cancelled pursuant to or in connection with, Clause 25.1 including (but not limited to) transferring
its rights and obligations under the Finance Documents to another Affiliate or Lending Office; and |
| (b) | Paragraph (a) above does not in any way
limit the obligations of any Security Party under the Finance Documents. |
| 25.9 | Limitation of Liability. |
| (a) | The Borrowers shall promptly indemnify
the Notifying Lender for all costs and expenses reasonably incurred by that Notifying Lender as a result of any action taken by
it under Clause 25.8; and |
| (b) | The Notifying Lender shall not be under
any obligation to take any action under Clause 25.8 if, in its opinion (acting reasonably), to do would or might: |
| (i) | have an adverse effect on its business,
operations or financial condition; or |
| (ii) | involve it in any activity which is unlawful
or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or |
| (iii) | involve it in any expense (unless indemnified
to its satisfaction) or tax disadvantage. |
| 26.1 | Application of credit balances.
Upon the occurrence and during the continuance of an Event of Default, each Creditor Party may without prior notice: |
| (a) | apply any balance (whether or not then
due) which at any time stands to the credit of any account in the name of any Borrower or the Guarantor at any office in any country
of that Creditor Party in or towards satisfaction of any sum then due from the Borrowers or the Guarantor to that Creditor Party
under any of the Finance Documents; and |
| (i) | break, or alter the maturity of, all or
any part of a deposit of any Borrower or the Guarantor; |
| (ii) | convert or translate all or any part of
a deposit or other credit balance into Dollars; and |
| (iii) | enter into any other transaction or make
any entry with regard to the credit balance which the Creditor Party concerned considers appropriate. |
| 26.2 | Existing rights unaffected. No Creditor
Party shall be obliged to exercise any of its rights under Clause 26.1; and those rights shall be without prejudice and in addition
to any right of set-off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether
under the general law or any document). |
| 26.3 | Sums deemed due to a Lender. For
the purposes of this Clause 26, a sum payable by any Borrower or the Guarantor to the Agent or the Security Trustee for distribution
to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender’s proportion of a sum so
payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender. |
| 26.4 | No Security Interest. This Clause
26 gives the Creditor Parties a contractual right of set-off only, and does not create any Security Interest over any credit balance
of any Borrower or the Guarantor. |
| 27 | TRANSFERS
AND CHANGES IN LENDING OFFICES |
| 27.1 | Transfer by Borrowers or Guarantor.
None of the Borrowers nor the Guarantor may, without the consent of the Agent, given on the instructions of all the Lenders and
K-Sure, transfer any of its rights, liabilities or obligations under any Finance Document. |
| 27.2 | Transfer by a Lender. |
| (a) | Subject to Clause 27.4, a Lender (the “Transferor
Lender”) may at any time, without any additional costs to, but with the prior written consent (unless the transfer is
(i) to another Lender or an Affiliate of a Lender or (ii) by a K-Sure Lender to K-Sure or (iii) an Event of Default has occurred
and is continuing in which each such case, subject to proviso (iii) of this Clause 27.2(a), no consent is required) of, (1) the
Agent, (2) in relation to the K-Sure Lenders only (the “K-Sure Transferor Lender”), K-Sure, and (3) the Guarantor
(such consent not to be unreasonably withheld or delayed and to be deemed granted within fifteen (15) Business Days from the day
it has been sought unless it has been expressly refused within that period), cause: |
| (i) | its rights in respect of all or part of
its Contribution; or |
| (ii) | its obligations in respect of all or part
of its Commitment; or |
| (iii) | a combination of (i) and (ii), |
to be (in the case of
its rights) transferred to, or (in the case of its obligations) assumed by, another bank or financial institution (a “Transferee
Lender”) which is (i) regularly engaged in or established for the purpose of making, purchasing or investing in loans,
securities or other financial assets including (without limitation) K-Sure and (ii) not an Affiliate of the Borrowers, by delivering
to the Agent a completed certificate in the form set out in Schedule 5 with any modifications approved or required by the Agent
(a “Transfer Certificate”) executed by the Transferor Lender and the Transferee Lender provided that (i)
the amount of the Contribution and/or Commitment of the Lender which is to be transferred shall not be less than $5,000,000, (ii)
in the event that the amount of a Lender’s Contribution and/or Commitment is less than $5,000,000, such Lender shall be entitled
to transfer such lesser but entire amount of its Contribution and/or Commitment and (iii) in respect of a transfer by a K-Sure
Lender, the consent of K-Sure (such consent not be unreasonably withheld) is required except in the case of a transfer by such
K-Sure Lender to K-Sure.
Notwithstanding the foregoing,
any rights and obligations of the Transferor Lender in its capacity as Agent or Security Trustee shall be determined in accordance
with Clause 32.
| (b) | To the extent that it is required to do
so by K-Sure pursuant to the terms of any K-Sure Insurance Policy, the K-Sure Transferor Lender shall cause a transfer to K-Sure
in respect of such part of its Commitment or (as the case may be) its portion of the relevant Advance under the K-Sure Tranche
as is equal to the amount simultaneously paid to it by K-Sure under the relevant K-Sure Insurance Policy, provided that
this shall not be construed as depriving any K-Sure Transferor Lender of its rights to recover any part of the Total Commitments,
Loan or otherwise of the Secured Liabilities owing to it after receipt of the relevant K-Sure Insurance Policy insurance proceeds. |
| (c) | For the avoidance of doubt and without
prejudice to the generality of the foregoing, in the event that K-Sure pays out in full or in part the insurance proceeds in accordance
with the terms of any K-Sure Insurance Policy: |
| (i) | the obligations of the Security Parties
under this Agreement and each of the Finance Documents shall neither be reduced nor affected in any way; |
| (ii) | K-Sure shall be entitled to the extent
of such payment to exercise all rights of the K-Sure Lenders (whether present or future) against the Security Parties pursuant
to this Agreement and the Finance Documents or any relevant laws and/or regulations, as the case may be in respect of the Collateral
and solely to the extent that these relate to such payment (but without prejudice to the exercise of such rights by the other Creditor
Parties) unless and until such insurance proceeds and the interest accrued on them are fully reimbursed to K-Sure; and |
| (iii) | with respect to the obligations of the
Security Parties owed to the Agent and/or the K-Sure Lenders under the Finance Documents (or any of them), such obligations shall
be owed to K-Sure by way of subrogation of the rights of the K-Sure Lenders. |
| 27.3 | Transfer Certificate, delivery and notification.
As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe
that the Transfer Certificate may be defective): |
| (a) | sign the Transfer Certificate on behalf
of itself, the Borrowers, the other Security Parties, the Security Trustee, each of the other Lenders and each of the Swap Banks; |
| (b) | on behalf of the Transferee Lender, send
to the Borrowers and each other Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy
of it; |
| (c) | send to the Transferee Lender copies of
the letters or faxes sent under paragraph (b), |
but the Agent shall only
be obliged to execute a Transfer Certificate delivered to it by the Transferor Lender and the Transferee Lender once it is satisfied
it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations
to the transfer to that Transferee Lender.
| 27.4 | Effective Date of Transfer Certificate.
A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date, provided
that it is signed by the Agent under Clause 27.3 on or before that date. |
| 27.5 | No transfer without Transfer Certificate.
Except as provided in Clause 27.17, no assignment or transfer of any right or obligation of a Lender under any Finance Document
is binding on, or effective in relation to, the Borrowers, any other Security Party, the Agent or the Security Trustee unless it
is effected, evidenced or perfected by a Transfer Certificate. |
| 27.6 | Lender re-organization; waiver of Transfer
Certificate. If a Lender enters into any merger, de-merger or other reorganization as a result of which all its rights or obligations
vest in a successor, the Agent may, in its sole discretion, by notice to the successor and the Borrower and the Security Trustee
waive the need for the execution and delivery of a Transfer Certificate and, upon service of the Agent’s notice, the successor
shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender. |
| 27.7 | Effect of Transfer Certificate.
The effect of a Transfer Certificate is as follows: |
| (a) | to the extent specified in the Transfer
Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the
Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender’s title
and of any rights or equities which the Borrowers or any other Security Party had against the Transferor Lender; |
| (b) | the Transferor Lender’s Commitment
is discharged to the extent specified in the Transfer Certificate; |
| (c) | the Transferee Lender becomes a Lender
with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate; |
| (d) | the Transferee Lender becomes bound by
all the provisions of the Finance Documents which are applicable to the Lenders generally, including but not limited to those about
pro-rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee
and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability),
the Transferor Lender ceases to be bound by them; |
| (e) | any part of the Loan which the Transferee
Lender advances after the Transfer Certificate’s effective date ranks in point of priority and security in the same way as
it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor’s title and any
rights or equities of a Borrower or any other Security Party against the Transferor Lender had not existed; |
| (f) | the Transferee Lender becomes entitled
to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those
relating to the Majority Lenders and those under Clause 5.7 and Clause 21, and to the extent that the Transferee Lender becomes
entitled to such rights, the Transferor Lender ceases to be entitled to them; and |
| (g) | in respect of any breach of a warranty,
undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance
Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the
breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount. |
The rights and equities
of the Borrowers or any other Security Party referred to above include, but are not limited to, any right of set off and any other
kind of cross-claim.
| 27.8 | Maintenance of register of Lenders.
During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and
administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective
date (in accordance with Clause 27.4) of the Transfer Certificate; and the Agent shall make the register available for inspection
by any Lender, the Security Trustee and the Borrowers during normal banking hours, subject to receiving at least three (3) Business
Days’ prior notice. |
| 27.9 | Reliance on register of Lenders.
The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders
and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon
by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents. |
| 27.10 | Authorization of Agent to sign Transfer
Certificates. The Borrowers, the Guarantor, the Security Trustee, each Lender and each Swap Bank irrevocably authorizes the
Agent to sign Transfer Certificates on its behalf. |
| 27.11 | Registration fee. In respect of
any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $7,500 from the Transferor Lender or (at
the Agent’s option) the Transferee Lender. For any change of Lending Office, the Agent shall be entitled to recover a registration
fee of $3,750 from the relevant Lender (unless the Transferee Lender is, or the change of Lending Office is related to, K-Sure,
in which each such event no fee shall be payable). |
| 27.12 | Sub-participation; subrogation assignment.
A Lender may sub-participate all or any part of its rights and/or obligations under or in connection with the Finance Documents
without the consent of, or any notice to, the Borrowers, any other Security Party, the Agent or the Security Trustee; and the Lenders
may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those
rights to an insurer or surety who has become subrogated to them. |
| 27.13 | Disclosure of information. A Creditor
Party may disclose any information which the Creditor Party has received in relation to the Borrowers, any other Security Party
or their affairs under or in connection with any Finance Document, so long as each such party (in the case of paragraphs (b)-(f)
below) agrees to keep such information, which is not already publicly available, confidential (other than in the case of protection
or enforcement of the Creditor Parties’ rights under the Finance Documents), to: |
| (a) | any private, public or internationally
recognized authorities that are entitled to and have requested to obtain such information; |
| (b) | the Creditor Parties’ respective
head offices, branches and Affiliates worldwide and professional advisors; |
| (c) | any other parties to the Finance Documents;
|
| (d) | a rating agency or their professional advisors;
|
| (e) | any person with whom such Creditor Party
proposes to enter (or considers entering) into contractual relations in relation to the Commercial Bank Tranche and/or the K-Sure
Tranche and/or its Commitment or Contribution; and |
| (f) | any other person regarding the funding,
re-financing, transfer, assignment, sale, sub-participation or operational arrangement or other transaction in relation to the
Commercial Bank Tranche and/or the K-Sure Tranche, its Contribution or its Commitment, including without limitation, for purposes
in connection with a securitization or any enforcement, preservation, assignment, transfer, sale or sub-participation of any of
such Creditor Parties’ rights and obligations. |
| 27.14 | Change of lending office. A Lender
may change its lending office by giving notice to the Agent and the change shall become effective on the later of: |
| (a) | the date on which the Agent receives the
notice; and |
| (b) | the date, if any, specified in the notice
as the date on which the change will come into effect. |
| 27.15 | Notification. On receiving such
a notice, the Agent shall notify the Borrowers and the Security Trustee; and, until the Agent receives such a notice, it shall
be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice. |
| 27.16 | Replacement of Reference Bank. If
any Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 then,
unless the Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority
Lenders, and after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference
Bank; and, when that appointment comes into effect, the first-mentioned Reference Bank’s appointment shall cease to be effective. |
| 27.17 | Security over Lenders’ rights.
In addition to the other rights provided to Lenders under this Clause 27, each Lender may without consulting with or obtaining
consent from the Borrowers or any other Security Party, at any time charge, assign or otherwise create a Security Interest in or
over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that
Lender including, without limitation: |
| (a) | any charge, assignment or other Security
Interest to secure obligations to a federal reserve or central bank; and |
| (b) | in the case of any Lender which is a fund,
any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations
owed, or securities issued, by that Lender as security for those obligations or securities; |
except
that no such charge, assignment or Security Interest shall:
| (i) | release a Lender from any of its obligations
under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender
as a party to any of the Finance Documents; or |
| (ii) | require any payments to be made by the
Borrowers or any other Security Party or grant to any person any more extensive rights than those required to be made or granted
to the relevant Lender under the Finance Documents. |
| 28.1 | Assignment to K-Sure. Each of the
parties agrees that, upon payment in full or in part by K-Sure of all moneys due under a K-Sure Insurance Policy in accordance
with the terms of any K-Sure Insurance Policy, provided that, to the extent required under the relevant K-Sure Insurance
Policy, this payment has satisfied the Secured Liabilities in full or in part in respect of the relevant Advance under the K-Sure
Tranche to which such K-Sure Insurance Policy relates: |
| (a) | each of the K-Sure Lenders shall assign
to K-Sure such part of their respective Contributions in respect of that K-Sure Tranche and (to the extent that there remain any)
of their respective Contributions in respect of that K-Sure Tranche as is equal to the amount simultaneously paid to it by K-Sure
under the relevant K-Sure Insurance Policy, provided that this shall not be construed as depriving any K-Sure Lender of
its rights to recover any part of the Total Commitments, the Loan or otherwise of the Secured Liabilities still owing to it after
receipt of the relevant K-Sure Insurance Policy insurance proceeds; |
| (b) | K-Sure shall, upon receipt by the Agent
of a duly completed Transfer Certificate in accordance with the provisions of Clause 27, be an assignee and as such shall be entitled
to the rights and benefits of the K-Sure Lenders under this Agreement and the other Finance Documents in respect of such payment
to the extent of its interest; |
| (c) | without prejudice to the indemnity provisions
in Clause 22, the Borrowers shall indemnify K-Sure in respect of any actual, reasonable costs or expenses (including legal fees)
suffered or incurred by K-Sure in connection with the assignment referred to in this Clause 28.1 or in connection with any review
by K-Sure of any Event of Default or dispute between the Borrowers and/or any Security Party and the Creditor Parties occurring
prior to the assignment referred to in this Clause 28.1; |
| (d) | with respect to the obligations of the
Borrowers and the Security Parties owed to the Agent and/or the K-Sure Lenders under the Finance Documents, such obligations shall
additionally be owed to K-Sure by way of subrogation of the rights of the K-Sure Lenders; |
| (e) | the Borrowers agree to cooperate with the
Agent, the K-Sure Agent and the Lenders, as the case may be, in giving effect to any subrogation or assignment referred to in this
Clause 28.1 and to take all actions requested by the Agent, any K-Sure Lender, the K-Sure Agent or K-Sure, in each case to the
extent capable of being done by it, to implement or give effect to such subrogation or assignment; |
| (f) | on the date of any subrogation to, or (as
applicable) assignment of any rights referred to in this Clause 28.1: |
| (i) | all further rights and benefits (including
the right to receive commission in respect thereof but not any duty or other obligations) whatsoever of the relevant K-Sure Lender
in relation to the portion of the Loan or the rights and benefits to which such assignment or rights of subrogation relate under
or arising out of this Agreement shall, to the extent of such assignment or rights of subrogation, be vested in and be for the
benefit of K-Sure; and |
| (ii) | references in this Agreement to the K-Sure
Lenders shall, where relevant in the context thereafter be construed so as to include K-Sure in relation to such rights and benefits
as are assigned to, or to which K-Sure has rights of subrogation; and |
| (g) | the representations and warranties made
in this Agreement in favor of the relevant K-Sure Lender shall survive any assignment or transfer pursuant to this Clause 28.1
and shall also inure to the benefit of K-Sure; |
provided
that nothing in this Clause 28.1 shall be construed as depriving the K-Sure Lenders of any rights they may have against any
Borrowers or any other Security Party in respect of the Lenders’ rights under Clauses 22 and 25.
| 28.2 | Cooperation with K-Sure; Events of Default.
|
| (a) | Each of the K-Sure Agent, the Agent and
the Security Trustee shall provide to K-Sure any information which it receives from the Borrowers and any other Security Party
pursuant to the Finance Documents. |
| (b) | Each of the K-Sure Agent, the Agent and
the Security Trustee agrees that it shall consult with K-Sure wherever reasonably practical prior to issuing a notice pursuant
to Clause 20, provided that K-Sure’s consent shall not be required in order for any such notice of default to be issued
(other than by K-Sure to the extent required under any K-Sure Insurance Policy). |
| (c) | Notwithstanding anything to the contrary
in any Finance Document: |
| (i) | if an Event of Default has occurred and
is continuing, the Agent shall put to the vote of the Majority Lenders and K-Sure the question of whether the provisions of the
Finance Documents as to the consequences of the occurrence of such Event of Default should apply and/or whether the remedies afforded
under Clause 20 of this Agreement should be invoked. Should the Majority Lenders and K-Sure vote be in favor of any of actions
described in the preceding sentence, the Agent and the Security Trustee shall be entitled to take the necessary steps to enforce
the Finance Documents and the Lenders shall agree and execute and otherwise perfect and do all such acts and things necessary for
such purpose; |
| (ii) | in the event the Majority Lenders’
and K-Sure’s respective positions are inconsistent, the Agent shall discuss with K-Sure with a view to reaching a mutually
agreeable position. Failing agreement between the Agent (acting on behalf of the Majority Lenders) and K-Sure, the Agent and the
Security Trustee shall be entitled to act in accordance with the instructions of the Majority Lenders, including in relation to
any waiver of an Event of Default and enforcement of remedies related thereto. |
| 28.3 | K-Sure override. Notwithstanding
anything to the contrary in this Agreement or any other Finance Document, nothing in this Agreement shall permit or oblige any
K-Sure Lender to act (or omit to act) in a manner that is inconsistent with any requirement of K-Sure under or in connection with
any K-Sure Insurance Policy and, in particular: |
| (a) | each of the K-Sure Lenders shall be authorized
to take all such actions as they may deem necessary to ensure that all requirements of K-Sure under or in connection with each
of the K-Sure Insurance Policies are complied with; |
| (b) | no K-Sure Lender shall be obliged to do
anything if, in its opinion (upon consultation with K-Sure), to do so could result in a breach of any requirements of K-Sure under
or in connection with a K-Sure Insurance Policy or affect the validity of a K-Sure Insurance Policy; and |
| (c) | each of the K-Sure Lenders will agree to
accept the instructions as advised to them by the K-Sure Agent or K-Sure and to act in conformity therewith in connection with
their obligations under this Agreement. |
| 28.4 | Liability for the K-Sure Premiums. The
Borrowers shall be responsible and shall bear the cost of the K-Sure Premium of each K-Sure Insurance Policy and shall pay the
relevant K-Sure Premium on the Drawdown Date relating to a Ship. |
| 28.5 | K-Sure Insurance Policies. |
| (a) | The Borrowers will not, without the K-Sure
Agent’s prior written consent, do or omit to do anything which may to their knowledge adversely prejudice the K-Sure Lenders’
rights under any K-Sure Insurance Policy. |
| (b) | The K-Sure Agent and the K-Sure Lenders
are responsible for complying with the terms of each K-Sure Insurance Policy from which each K-Sure Lender benefits. |
| 28.6 | K-Sure Requirements. Each Borrower
must execute all such other documents and instruments and do all such other acts and things as the K-Sure Agent, acting on the
instructions of K-Sure and/or any Creditor Party may reasonably require: |
| (a) | in order to comply with, and carry out
the transactions contemplated by, the Finance Documents and any documents required to be delivered under the Finance Documents;
and |
| (b) | in order for the beneficiaries under each
K-Sure Insurance Policy to comply with and continue to benefit from that K-Sure Insurance Policy or to maintain the effectiveness
of that K-Sure Insurance Policy. |
| 28.7 | Protection of each K-Sure Insurance
Policies. If at any time in the reasonable opinion of the Agent, any provision of a Finance Document contradicts or conflicts
(as such conflict relates to the K-Sure Tranche) with any provision of a K-Sure Insurance Policy or K-Sure requires any further
action to be taken or documents to be entered into for such K-Sure Insurance Policy to remain in full force and effect, the Borrowers
shall use their best efforts to take such action as the K-Sure Agent or K-Sure shall reasonably require to remove any contradiction
or conflict and to ensure each K-Sure Insurance Policy remain in full force and effect. In addition, the Borrowers shall comply
with any instructions given by K-Sure to the K-Sure Agent in relation to each K-Sure Insurance Policy and the transactions contemplated
in each K-Sure Insurance Policy provided that such instructions are in compliance with that K-Sure Insurance Policy. |
| (a) | The Borrowers will deliver a notice to
each of the Agent and the K-Sure Agent promptly after they become aware of the occurrence of any political or commercial risk covered
by a K-Sure Insurance Policy and will: |
(i)
pay any additional premium payable to K-Sure
in relation to the relevant K-Sure Insurance Policy; and
(ii)
cooperate with the K-Sure Agent on its reasonable
request to take all steps necessary on the part of the Borrowers to ensure that the relevant K-Sure Insurance Policy remain in
full force and effect throughout the Security Period which shall include providing the K-Sure Agent with any information, reasonably
requested by the K-Sure Agent, relating to any material commercial facts which could result in a Material Adverse Effect.
| (b) | In addition, the Borrowers shall promptly
supply to the K-Sure Agent copies of all financial or other information reasonably required by the K-Sure Agent to satisfy any
request for information made by K-Sure pursuant to a K-Sure Insurance Policy. |
| (c) | The Borrowers agree that it shall be reasonable
for the K-Sure Agent to make a request under this Clause 28 if it is required to do so as a condition of maintaining a K-Sure Insurance
Policy in full force and effect. |
| 28.9 | Prior consultation with K-Sure. Each
Borrower acknowledges that the K-Sure Agent may, under the terms of each K-Sure Insurance Policy be required: |
| (a) | to consult with K-Sure, prior to the exercise
of certain decisions under the Finance Documents to which that Borrower is a party (including the exercise of such voting rights
in relation to any substantial amendment to any Finance Document); and |
| (b) | to follow certain instructions given by
X-Xxxx. |
Each
Creditor Party will be deemed to have acted reasonably if it has acted on the instructions of the K-Sure Agent (given by K-Sure
to the K-Sure Agent in accordance with the terms of a K-Sure Insurance Policy) in the making of any such decision or the taking
or refraining to take any action under any Finance Document to which it is a party.
| 28.10 | Conflict. As between the K-Sure
Lenders and K-Sure, in case of any conflict between the Finance Documents and any K-Sure Insurance Policy, that K-Sure Insurance
Policy shall prevail, and to the extent of such conflict or inconsistency, none of the K-Sure Lenders shall assert to K-Sure, the
terms of the relevant Finance Documents. |
| 28.11 | Demand under K-Sure Insurance Policies.
Notwithstanding any other terms as set forth herein and the other Finance Documents, the Agent (or K-Sure Agent, as the case
may be) shall make a written demand to K-Sure under a K-Sure Insurance Policy only after the Agent has first made a written demand
for payment of the relevant amount of the Secured Liabilities to the Guarantor pursuant to Clause 16. |
| 29.1 | Variations, waivers etc. by Majority
Lenders. Subject to Clause 29.2, a document shall be effective to vary, waive, suspend or limit any provision of a Finance
Document, or any Creditor Party’s rights or remedies under such a provision or the general law, only if the document is signed,
or specifically agreed to by fax or Email, by the Borrowers, by the Agent on behalf and with the approval of the Majority Lenders,
by the Agent and the Security Trustee in their own rights, by the K-Sure Agent (on behalf of K-Sure) and, if the document relates
to a Finance Document to which a Security Party is party, by that Security Party. |
| 29.2 | Variations, waivers etc. requiring agreement
of all Lenders and K-Sure. As regards the following, Clause 29.1 applies as if the words “by the Agent on behalf and
with the approval of the Majority Lenders” were replaced by the words “by or on behalf and with the approval of K-Sure,
every Lender and every Swap Bank”: |
| (a) | a reduction in the Margin; |
| (b) | a postponement to the date for, or a reduction
in the amount of, any payment of principal, interest, fees or other sum payable under this Agreement or a Note; |
| (c) | an increase in or extension of any Lender’s
Commitment or an extension of the Maturity Date or an amendment of the definition of “Availability Period”; |
| (d) | a change to the definition of “Majority
Lenders”; |
| (e) | a change to Clause 2.3, Xxxxxx 3, Clause
24.1, Clause 27 (only in the case the change affects the K-Sure Lenders) or this Clause 29; |
| (f) | any release of, or material variation to,
a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; |
| (g) | any amendment or waiver if the Agent or
a Lender which is a FATCA Non-Exempt Party reasonably believes that it may constitute a “material modification” within
the meaning of FATCA that may result (directly or indirectly) in any party to any Finance Document being required to make a FATCA
Deduction; |
| (h) | any other change or matter as regards which
this Agreement or another Finance Document expressly provides that each Lender’s consent is required; |
| (i) | any amendment of or waiver to any provision
in any Finance Document providing for the pro rata nature of disbursements by or payments to Lenders; and |
| (j) | a substitution or replacement of any Security
Party. |
| 29.3 | Variations, waivers etc. relating to
the Servicing Banks. An amendment or waiver that relates to the rights or obligations of the Agent or the Security Trustee
or the K-Sure Agent under Clause 32 may not be effected without the consent of the Agent or the Security Trustee or the K-Sure
Agent. |
| 29.4 | Exclusion of other or implied variations.
Except for a document which satisfies the requirements of Clauses 29.1, 29.2 or 29.3, no document, and no act, course of conduct,
failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf
of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken
to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising: |
| (a) | a provision of this Agreement or another
Finance Document; or |
| (b) | an Event of Default; or |
| (c) | a breach by a Borrower or another Security
Party of an obligation under a Finance Document or the general law; or |
| (d) | any right or remedy conferred by any Finance
Document or by the general law, |
and there shall not be
implied into any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to
be exercised, within a certain or reasonable time.
| 30.1 | General. Unless otherwise specifically
provided, any notice under or in connection with any Finance Document shall be given by letter, electronic mail (“Email”)
(subject to Clause 30.7) or fax and references in the Finance Documents to written notices, notices in writing and notices signed
by particular persons shall be construed accordingly. |
| 30.2 | Addresses for communications. A
notice by letter, Email or fax shall be sent: |
| (a) |
to the Borrowers |
Scorpio Tankers Inc. |
|
or the Guarantor: |
0, Xxxxxxxxx Xxxxxxx XXX |
| |
|
Monaco, 98000 |
| |
|
Attention: Xxxx Xxxxxxxx |
| |
|
|
| |
|
with a copy to: 000 Xxxx 00xx Xxxxxx |
| |
|
New York, New York 10155 |
| |
|
Attention: Chief Financial Officer |
| |
|
Facsimile: x000-000-0000 |
| |
|
|
| (b) |
to a Lender: |
At the address below its name in Schedule 1 or (as the case may require) in the relevant Transfer Certificate. |
| |
|
|
| (c) |
to a Swap Bank |
At the address below its name in Schedule 2. |
| |
|
|
| (d) |
to the Agent: |
DNB Bank ASA, New York Branch |
| |
|
000 Xxxx Xxxxxx, 31st Floor |
| |
|
New York, New York 10166 |
| |
|
Attention: Xxxx X. Xxxxxx/ Xxxxxxxxx Xxxxxxxxxxx |
| |
|
|
| |
|
Facsimile: 000 000 0000 |
| |
|
Email: xxxx.xxxxxx@xxx.xx/xxxxxxxxx.xxxxxxxxxxx@xxx.xx |
| |
|
|
| (e) |
to the Security Trustee: |
DNB Bank ASA, New York Branch |
| |
|
000 Xxxx Xxxxxx, 31st Floor |
| |
|
New York, New York 10166 |
| |
|
Attention: Xxxx X. Xxxxxx/ Xxxxxxxxx Xxxxxxxxxxx |
| |
|
|
| |
|
Facsimile: 000 000 0000 |
| |
|
Email: xxxx.xxxxxx@xxx.xx/xxxxxxxxx.xxxxxxxxxxx@xxx.xx |
| |
|
|
| (f) |
to the K-Sure Agent: |
DNB Bank ASA, New York Branch |
| |
|
000 Xxxx Xxxxxx, 31st Floor |
| |
|
New York, New York 10166 |
| |
|
Attention: Xxxx X. Xxxxxx/ Xxxxxxxxx Xxxxxxxxxxx |
| |
|
|
| |
|
Facsimile: 000 000 0000 |
| |
|
Email: xxxx.xxxxxx@xxx.xx/xxxxxxxxx.xxxxxxxxxxx@xxx.xx |
or to such
other address as the relevant party may notify the Agent or, if the relevant party is the Agent or the Security Trustee, the Borrowers,
the Lenders, the Swap Banks and the Security Parties.
Any notice to or from
the Borrowers, the Agent, the Security Trustee or any K-Sure Lender shall be copied to K-Sure as follows:
Korea Trade Insurance Corporation
00, Xxxxxx, Xxxxxx-xx,
Seoul 110-729
South Korea
Attention: Xxxxxxx.
Lew/ Seongmin. Jin
Fax No: x00-0-000-0000
Email: Xxxxxxx.xxx@xxxxx.xx.xx/xxx00000@xxxxx.xx.xx
| 30.3 | Effective date of notices. Subject
to Clauses 30.4 and 30.5: |
| (a) | a notice which is delivered personally
or posted shall be deemed to be served, and shall take effect, at the time when it is delivered; |
| (b) | a notice which is sent by Email shall be
deemed to be served, and shall take effect, at the time when it is actually received in readable form; and |
| (c) | a notice which is sent by fax shall be
deemed to be served, and shall take effect, two (2) hours after its transmission is completed. |
| 30.4 | Service outside business hours.
However, if under Clause 30.3 a notice would be deemed to be served: |
| (a) | on a day which is not a business day in
the place of receipt; or |
| (b) | on such a business day, but after 5:00
p.m. local time, |
the notice shall (subject
to Clause 30.5) be deemed to be served, and shall take effect, at 9:00 a.m. on the next day which is such a business day.
| 30.5 | Illegible notices. Clauses 30.3
and 30.4 do not apply if the recipient of a notice notifies the sender within one (1) hour after the time at which the notice would
otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect. |
| 30.6 | Valid notices. A notice under or
in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply
with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if: |
| (a) | the failure to serve it in accordance with
the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant
loss or prejudice; or |
| (b) | in the case of incorrect and/or incomplete
contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars
should have been. |
| 30.7 | Electronic communication between any
party to this Agreement. Any communication to be made between any party to this Agreement under or in connection with the Finance
Documents may be made by Email or other electronic means. |
The
parties agree that any information and notices in connection with the Finance Documents may also be transmitted by Email. Any party
to this Agreement shall be authorized to send information to any Email address it has received from any party to this Agreement
either by way of written notification or by Email exchange, and it may rely without further enquiry as the sender’s due authorization
to communicate in such manner in connection with any Email it receives on behalf of any party to this Agreement. Any party to this
Agreement shall also, subject to the terms and conditions of this Agreement, be authorized to communicate by Email with any third
parties who may be involved in this transaction or affected by this Agreement. The Guarantor and the Borrowers acknowledge and
accept that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and that they
acknowledge all the risks connected therein including, but not limited to, the identification of a bank relationship and, if a
particular department or officer is specified as part of its address details provided in this Agreement, if addressed to that department
or officer.
Any
communication or document to be made or delivered to the Agent, a Lender or a Swap Bank will be effective only when actually received
in readable form by that party and then only if it is expressly marked for the attention of the department or officer identified
with respect to that party in this Agreement (or any substitute department or officer as that party shall specify for this purpose).
| 30.8 | English language. Any notice under
or in connection with a Finance Document shall be in English. |
| 30.9 | Meaning of “notice”.
In this Clause 30, “notice” includes any demand, consent, authorization, approval, instruction, waiver or other
communication. |
| 31.1 | Rights cumulative, non-exclusive.
The rights and remedies which the Finance Documents give to each Creditor Party are: |
| (b) | may be exercised as often as appears expedient;
and |
| (c) | shall not, unless a Finance Document explicitly
and specifically states so, be taken to exclude or limit any right or remedy conferred by any law. |
| 31.2 | Severability of provisions. If any
provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity,
enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document. |
| 31.3 | Counterparts. A Finance Document
may be executed in any number of counterparts. |
| 31.4 | Binding Effect. This Agreement shall
become effective on the Effective Date and thereafter shall be binding upon and inure to the benefit of each of the parties hereto
and their respective successors and assigns. |
| 31.5 | Mandated Lead Arrangers, Bookrunners,
Senior Manager. None of the persons identified on the cover page or signature pages of this Agreement as a “mandated
lead arranger”, “bookrunners” or “senior manager” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such Creditor Parties, those applicable to all Creditor
Parties as such. Without limiting the foregoing, none of the Creditor Parties so identified shall have or be deemed to have any
fiduciary relationship with any Creditor Party. Each Creditor Party acknowledges that it has not relied, and will not rely, on
any of the Creditor Parties so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. |
| 31.6 | Banking secrecy waiver; authorization
for Data transfer. The following provisions apply in respect of a Creditor Party based in Switzerland: |
| (a) | The Borrowers and the Guarantor authorize
that Creditor Party and that Creditor Party’s branches, Affiliates and/or direct and indirect subsidiaries to disclose by
means of telephone, fax, mail or any other means of telecommunications, including, but not limited to, electronic data transmission,
and/or to grant access from or through branches, Affiliates and/or direct and indirect subsidiaries, any information in connection
with this Agreement and the Finance Documents, including, but not limited to, the Security Parties’ names, domicile, address,
and the terms and conditions of this Agreement and the other Finance Documents (collectively, the “Data”) to
any of their branches, Affiliates, direct and indirect subsidiaries and/or to third parties within Switzerland or abroad to the
extent as required or useful for the preparation, negotiation, execution, performance, administration, hedge or syndication of
this Agreement and/or the facility to be made available pursuant to this Agreement, and/or for due exercise of their respective
rights or fulfillment of their respective obligations, and/or for business management purposes, including, without limitation,
date and transaction processing services, information technology (including production, testing, and development, services and
support), risk oversight, reporting, international collaboration and coordination and managing conflicts of interests. |
| (b) | For the purposes of paragraph (a) above,
the Borrowers and the Guarantor release that Creditor Party and that Creditor Party’s Affiliates, directors, officers, employees,
and professional advisors from any confidentiality obligations and any further restrictions based on the Swiss or other applicable
banking secrecy and data protection legislation among each other and towards any relevant third party with respect to the Data.
The Borrowers and the Guarantor acknowledge that the Data may also be shared, processed or held outside Switzerland and, therefore,
will be subject to the laws of the countries where the relevant Creditor Party’s Affiliates and/or the relevant third parties
are located and will not be covered by Swiss laws including Swiss banking secrecy and data protection rules. The laws and regulations
of such foreign countries may not necessarily offer the same level of confidentiality, banking secrecy or data protection as Swiss
laws do, and may require the foreign financial institutions and/or insurance companies to disclose all or any part of the Data
to authorities or third parties (e.g. also after a possible revocation of these present authorization). |
| 32.1 | Appointment and Granting. |
| (a) | The Agent. Each of the Lenders and
the Swap Banks appoints and authorizes (with a right of revocation) the Agent to act as its agent hereunder and under any of the
other Finance Documents with such powers as are specifically delegated to the Agent by the terms of this Agreement and of any of
the other Finance Documents, together with such other powers as are reasonably incidental thereto. |
| (i) | Authorization of Security Trustee.
Each of the Lenders, the Swap Banks, the Agent and the K-Sure Agent appoints and authorizes (with a right of revocation) the Security
Trustee to act as security trustee hereunder and under the other Finance Documents (other than the Notes) with such powers as are
specifically delegated to the Security Trustee by the terms of this Agreement and such other Finance Documents, together with such
other powers as are reasonably incidental thereto. |
(ii)
Granting Clause. To
secure the payment of all sums of money from time to time owing (i) to the Lenders under the Finance Documents,
and (ii) to the Swap Banks under the Master Agreements, and the performance of the
covenants of the Borrowers and any other Security Party herein and therein contained, and in consideration of the premises and
of the covenants herein contained and of the extensions of credit by the Lenders, the Security Trustee does hereby declare that
it will hold as such trustee in trust for the benefit of the Lenders, the Agent, the K-Sure Agent and the Swap Banks, from and
after the execution and delivery thereof, all of its right, title and interest as mortgagee in, to and under the Mortgages and
its right, title and interest as assignee and secured party under the other Finance Documents (the right, title and interest of
the Security Trustee in and to the property, rights and privileges described above, from and after the execution and delivery thereof,
and all property hereafter specifically subjected to the Security Interest of the indenture created hereby and by the Finance Documents
by any amendment hereto or thereto are herein collectively called the “Estate”); TO HAVE AND TO HOLD the Estate
unto the Security Trustee and its successors and assigns forever, BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit
and security of the Lenders, the Agent, the K-Sure Agent and the Swap Banks and their respective successors and assigns without
any priority of any one over any other, UPON THE CONDITION that, unless and until an Event of Default under this Agreement shall
have occurred and be continuing, the relevant Security Party shall be permitted, to the exclusion of the Security Trustee, to possess
and use the Ships. IT IS HEREBY COVENANTED, DECLARED AND AGREED that all property subject or to become subject hereto is to be
held, subject to the further covenants, conditions, uses and trusts hereinafter set forth, and each Security Party, for itself
and its respective successors and assigns, hereby covenants and agrees to and with the Security Trustee and its successors in said
trust, for the equal and proportionate benefit and security of the Lenders, the Agent, the K-Sure Agent and the Swap Banks as hereinafter
set forth.
| (iii) | Acceptance of Trusts. The Security
Trustee hereby accepts the trusts imposed upon it as Security Trustee by this Agreement, and the Security Trustee covenants and
agrees to perform the same as herein expressed and agrees to receive and disburse all monies constituting part of the Estate in
accordance with the terms hereof. |
| (c) | The K-Sure Agent. Each K-Sure Lender
appoints and authorizes the K-Sure Agent to act as its agent under and in connection with the Loan Agreement, and the other Finance
Documents in relation to each K-Sure Insurance Policy and all K-Sure Matters, with power to take such actions as: |
| (i) | are specified under any Finance Document
as being for the K-Sure Agent to take on behalf of the K-Sure Lenders insured under the K-Sure Insurance Policy; |
| (ii) | are specifically delegated to the K-Sure
Agent by the terms of the K-Sure Insurance Policy; or |
| (iii) | are reasonably incidental thereto, |
and if expressly authorized
in writing by each K-Sure Lender, the K-Sure Agent may execute and deliver on its behalf the K-Sure Insurance Policy and all documents
that are necessary or desirable in connection with the K-Sure Insurance Policy, and where the K-Sure Agent has acted in accordance
with the express written instructions of the K-Sure Lenders, each K-Sure Lender agrees severally to be bound by the terms and conditions
of the K-Sure Insurance Policy as if it had executed and delivered such agreement for and in its own name.
Without limiting the foregoing:
| (i) | each K-Sure Lender authorizes the K-Sure Agent to exercise those rights, powers and discretions
which are expressly given to the K-Sure Agent by this Agreement and the other Finance Documents, together with any other reasonably
incidental rights, powers and discretions; and |
| (ii) | each K-Sure Lender appoints the K-Sure Agent solely for the purpose of: |
| (A) | providing, revealing and disclosing, such
information and details relating to any Security Party, the Finance Documents and the facilities granted pursuant thereto, to K-Sure
as K-Sure may require from time to time for the purpose of issuing and administering the K-Sure Insurance Policy; and |
| (B) | making a claim on behalf of the K-Sure
Lenders under the K-Sure Insurance Policy and directing payment of the insurance proceeds under the K-Sure Insurance Policy which
shall be held by the Security Trustee in trust for the K-Sure Lenders and for application by the Agent in accordance with Clause
18 of this Agreement. |
| 32.2 | Scope of Duties. None of the Servicing
Banks (which terms as used in this sentence and in Clause 32.5 hereof shall include reference to their respective affiliates and
their own respective and their respective affiliates’ officers, directors, employees, agents and attorneys-in-fact): |
| (a) | shall have any duties or responsibilities
except those expressly set forth in this Agreement and in any of the Finance Documents, and shall not by reason of this Agreement
or any of the Finance Documents be (except, with respect to the Security Trustee, as specifically stated to the contrary in this
Agreement) a trustee for a Lender or a Swap Bank; |
| (b) | shall be responsible to the Lenders or
the Swap Banks for any recitals, statements, representations or warranties contained in this Agreement or in any of the Finance
Documents, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement
or any of the other Finance Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any of the other Finance Documents or any other document referred to or provided for herein or therein or for
any failure by a Security Party or any other person to perform any of its obligations hereunder or thereunder or for the location,
condition or value of any property covered by any Security Interest under any of the Finance Documents or for the creation, perfection
or priority of any such Security Interest; |
| (c) | shall be required to initiate or conduct
any litigation or collection proceedings hereunder or under any of the Finance Documents unless expressly instructed to do so in
writing by the Majority Lenders; or |
| (d) | shall be responsible for any action taken
or omitted to be taken by it hereunder or under any of the Finance Documents or under any other document or instrument referred
to or provided for herein or therein or in connection herewith or therewith, except for its own gross negligence or willful misconduct.
Each of the Servicing Banks may employ agents and attorneys-in-fact and none of the Servicing
Banks shall be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
Each of the Servicing Banks may deem and treat the payee of a Note as the holder thereof (unless such Note is held by the Agent)
for all purposes hereof unless and until a written notice of the assignment or transfer thereof shall have been filed with the
Agent, together with the written consent of the Borrowers (other than in the case of a transfer to an Affiliate of the Transferor
Lender) to such assignment or transfer. |
| 32.3 | Reliance. Each of the Servicing
Banks shall be entitled to rely upon any certification, notice or other communication (including any thereof by telephone, telex,
telefacsimile, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the
proper person or persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by
the Security Trustee, the Agent or the K-Sure Agent, as the case may be. |
| 32.4 | Absence of express authorization. As
to any matters not expressly provided for by this Agreement or any of the other Finance Documents, each of the Servicing Banks
shall in all cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in accordance with instructions
signed by the Majority Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding
on all of the Lenders; provided that if the K-Sure Agent has received no such instructions
within five (5) Business Days of receipt by the K-Sure Lenders of a notice from the K-Sure Agent relating to a K-Sure Insurance
Policy (unless a shorter period is specified in such notice and in which case the shorter notice period shall apply) the K-Sure
Agent shall be fully entitled, but shall have no obligation, to act in such manner as it considers to be consistent with the relevant
K-Sure Insurance Policy and otherwise in the best interests of all the K-Sure Lenders or the K-Sure Lender or K-Sure Lenders concerned. |
32.5
Knowledge. None
of the Servicing Banks shall be deemed to have knowledge or notice of the occurrence of a Potential Event of Default or Event of
Default (other than, in the case of the Agent, the non-payment of principal of or interest on the Loan) unless each of the Servicing
Banks has received notice from a Lender or the Borrowers specifying such Potential Event of Default or Event of Default and stating
that such notice is a “Notice of Default”. If the Agent receives such a notice of the occurrence of such Potential
Event of Default or Event of Default, the Agent shall give prompt notice thereof to the Security Trustee, the K-Sure Agent, the
Swap Banks and the Lenders (and shall give each Lender prompt notice of each such non-payment). Subject to Clause 32.9 hereof,
the Security Trustee and the Agent shall take such action with respect to such Potential Event of Default or Event of Default or
other event as shall be directed by the Majority Lenders, except that, unless and until the Security Trustee and the Agent shall
have received such directions, each of the Security Trustee and the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Potential Event of Default or Event of Default or other event as it shall
deem advisable in the best interest of the Lenders and the Swap Banks.
32.6
Servicing Bank as Lender.
Each of the Servicing Banks (and any successor acting as Security Trustee, Agent or K-Sure Agent, as the case may be) in its individual
capacity as a Lender hereunder shall have the same rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Security Trustee, the Agent or the K-Sure Agent, as the case may be, and the term “Lender”
or “Lenders” shall, unless the context otherwise indicates, include each of the Servicing Banks in their respective
individual capacities. Each of the Servicing Banks (and any successor acting as Security Trustee, Agent or K-Sure Agent, as the
case may be) and their respective affiliates may (without having to account therefor to a Lender) accept deposits from, lend money
to and generally engage in any kind of banking, trust or other business with the Borrowers, the Guarantor and any of their subsidiaries
or affiliates as if it were not acting as a Servicing Bank, and each of the Servicing Banks and their respective affiliates may
accept fees and other consideration from the Borrowers for services in connection with this Agreement or otherwise without having
to account for the same to the Lenders.
32.7
Indemnification of Servicing Banks.
The Lenders severally agree, ratably in accordance with the aggregate principal amount of each Lender’s Contribution in the
Loan, to indemnify each of the Servicing Banks (to the extent not reimbursed under other provisions of this Agreement, but without
limiting the obligations of the Borrowers under said other provisions) for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against a Servicing Bank in any way relating to or arising out of this Agreement or any of the other Finance
Documents or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby (including,
without limitation, the costs and expenses which the Borrowers are to pay hereunder) or the enforcement of any of the terms hereof
or thereof or of any such other documents, except that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to be indemnified.
32.8
Reliance on Servicing Bank.
Each Lender and each Swap Bank agrees that it has, independently and without reliance on any of the Servicing Banks or any other
Lender or Swap Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis of
the Borrowers and decision to enter into this Agreement and that it will, independently and without reliance upon any of the Servicing
Banks or any other Lender or Swap Bank, and based on such documents and information as it shall deem appropriate at the time, continue
to make its own analysis and decisions in taking or not taking action under this Agreement or any of the Finance Documents. None
of the Servicing Banks shall be required to keep itself informed as to the performance or observance by the Borrowers or the Guarantor
of this Agreement or any of the Finance Documents or any other document referred to or provided for herein or therein or to inspect
the properties or books of any Borrower or the Guarantor. Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders and/or the Swap Banks by a Servicing Bank hereunder, none of the Servicing Banks shall
have any duty or responsibility to provide a Lender or a Swap Bank with any credit or other information concerning the affairs,
financial condition or business of any Borrower, the Guarantor or any subsidiaries or affiliates thereof which may come into the
possession of a Servicing Bank or any of their respective affiliates.
32.9
Actions by a Servicing Bank.
Except for action expressly required of a Servicing Bank hereunder and under the other Finance Documents, each of the Servicing
Banks shall in all cases be fully justified in failing or refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification obligations under Clause 32.7 against any and all liability
and expense which may be incurred by it by reason of taking or continuing to take any such action.
| 32.10 | Resignation and Removal. Subject
to the appointment and acceptance of a successor Servicing Bank as provided below, each of the Servicing Xxxxx may resign at any
time by giving notice thereof to the Lenders, the Swap Banks and the Borrowers, and a Servicing Bank may be removed at any time
with or without cause by the Majority Lenders by giving notice thereof to the Agent, the Security Trustee, the K-Sure Agent the
Lenders, the Swap Xxxxx and the Borrowers. Upon any such resignation or removal, the Majority Lenders shall have the right to appoint
a successor Security Trustee or Agent or K-Sure Agent, as the case may be. If no successor Security Trustee or Agent or K-Sure
Agent, as the case may be, shall have been so appointed by the Lenders or, if appointed, shall not have accepted such appointment
within 30 days after the retiring Security Trustee’s or Agent’s or K-Sure Agent’s, as the case may be, giving
of notice of resignation or the Majority Lenders’ removal of the retiring Security Trustee or Agent or K-Sure Agent, as the
case may be, then the retiring Security Trustee or Agent or K-Sure Agent, as the case may be, may, on behalf of the Lenders and
the Swap Banks, appoint a successor Security Trustee or Agent or K-Sure Agent. Upon the acceptance of any appointment as Security
Trustee or Agent or K-Sure Agent hereunder by a successor Security Trustee or Agent or K-Sure Agent, such successor Security Trustee
or Agent or K-Sure Agent, as the case may be, shall thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Security Trustee or Agent or K-Sure Agent, as the case may be, and the retiring Security Trustee or
Agent or K-Sure Agent shall be discharged from its duties and obligations hereunder. After any retiring Security Trustee’s
or Agent’s or K-Sure Agent’s resignation or removal hereunder as Security Trustee or Agent or K-Sure Agent, as the
case may be, the provisions of this Clause 32 shall continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Security Trustee or the Agent or K-Sure Agent, as the case may be. |
| 32.11 | Release of Collateral. Without the
prior written consent of the Majority Lenders and the Swap Banks, none of the Servicing Banks will consent to any modification,
supplement or waiver under any of the Finance Documents nor without the prior written consent of all of the Lenders and the Swap
Banks shall the Security Trustee or the Agent release any Collateral or otherwise terminate any Security Interest under the Finance
Documents, except that no such consent is required, and each of the Security Trustee and the Agent is authorized, to release any
Security Interest covering property if the Secured Liabilities have been irrevocably and unconditionally paid and performed in
full or which is the subject of a disposition of property permitted hereunder or to which the Lenders have consented. |
| 33 | THE
K-SURE AGENT - SPECIFIC PROVISIONS |
| 33.1 | No actions without K-Sure Lender consent.
Except where the K-Sure Agent reasonably believes that this is inconsistent with the terms of any K-Sure Insurance Policy,
the K-Sure Agent agrees: |
| (a) | not to take any
action under the relevant K-Sure Insurance Policy without the consent of all the K-Sure Lenders (which consent shall not be unreasonably
withheld or delayed), unless the K-Sure Agent has reasonably determined that such action would not be detrimental to the insurance
coverage provided to the K-Sure Lenders thereunder; and |
| (b) | to take such actions
under the relevant K-Sure Insurance Policy (including with respect to any amendment, modification or supplement to that K-Sure
Insurance Policy) as may be directed by all the K-Sure Lenders from time to time; provided that, notwithstanding anything
herein or in the relevant K-Sure Insurance Policy to the contrary, the K-Sure Agent shall not be obliged to take any such action
or to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties or the exercise of
any of its rights or powers under this Agreement or the relevant K-Sure Insurance Policy if: |
| (i) | it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; or |
| (ii) | such action would be contrary to applicable
law. |
| 33.2 | Limitation on obligation of K-Sure Agent
to request instructions. The K-Sure Agent shall not have any obligation to request the Agent or the Majority Lenders or any
other Creditor Party to give it any instructions or to make any determination. |
| 33.3 | Ratification of unauthorised action
of K-Sure Agent. Any action which the K-Sure Agent takes or purports to take at a time when it had not been authorized to do
so shall, if subsequently ratified, be as valid as regards every Creditor Party as if the K-Sure Agent had been expressly authorized
in advance. |
| 33.4 | Cooperation with the K-Sure Agent.
Each Lender and each Security Party undertakes to cooperate with the K-Sure Agent to comply with any legal requirements imposed
on the K-Sure Agent in connection with the performance of its duties under this Agreement or any other Finance Document and shall
supply any information reasonably requested by the K-Sure Agent in connection with the proper performance of those duties. |
| 33.5 | Nature of the K-Sure Agent’s duties.
The K-Sure Agent’s duties under the Finance Documents are solely mechanical and administrative in nature. |
| 33.6 | K-Sure Lenders’ representations.
Each K-Sure Lender represents and warrants to the K-Sure Agent, with effect from the date of the relevant K-Sure Insurance Policy,
that: |
| (a) | no information provided by such K-Sure
Lender in writing to the K-Sure Agent or to K-Sure prior to the Effective Date was untrue or incorrect in any material respect
except to the extent that such K-Sure Lender, in the exercise of reasonable care and due diligence prior to giving such information,
could not have discovered the error or omission; |
| (b) | it has not taken (or failed to take), and
agrees that it shall not take (or fail to take), any action that would result in the K-Sure Agent being in breach of any of its
obligations in its capacity as K-Sure Agent under the relevant K-Sure Insurance Policy or the other Finance Documents, or result
in the relevant K-Sure Lenders being in breach of any of their respective obligations as insured parties under the relevant K-Sure
Insurance Policy, or which would otherwise prejudice the K-Sure Agent’s ability to make a claim on behalf of the K-Sure Lenders
under the relevant K-Sure Insurance Policy; |
| (c) | it has reviewed the relevant K-Sure Insurance
Policy and is aware of the provisions thereof; |
| (d) | the representations and warranties made
by the K-Sure Agent on behalf of each K-Sure Lender under the relevant K-Sure Insurance Policy are true and correct with respect
to such K-Sure Lender in all respects. |
| 33.7 | Supply of copy documents. The K-Sure
Agent shall promptly send each K-Sure Lender a copy of each written communication received by it from or sent by it to K-Sure in
relation to the K-Sure Matters (and in particular, a K-Sure Insurance Policy, but the K-Sure Agent shall not be obliged to check
their accuracy or completeness). |
| 33.8 | Provision of information. The K-Sure
Agent shall provide to K-Sure any information which it receives from any Security Party pursuant to the Finance Documents and which
it is obliged to provide to K-Sure under the terms of the relevant K-Sure Insurance Policy. |
| 33.9 | Lender communications. Each K-Sure
Lender shall promptly forward to the K-Sure Agent a copy of any communication relating to K-Sure Matters which that K-Sure Lender
sends to, or receives from, any Security Party or K-Sure directly. The K-Sure Agent shall promptly forward to the K-Sure Lenders
or as applicable, for the relevant Security Party, a copy of any communication in connection with any K-Sure Matters (which the
K-Sure Agent considers material) which the K-Sure Agent sends to, or receives from, any Security Party or K-Sure (but the K-Sure
Agent shall not be obliged to check their accuracy or completeness). |
| 33.10 | Reimbursement of K-Sure Premium.
Without limitation to the generality of Clause 32.7 and notwithstanding the provisions of Clause 33.12, each K-Sure Lender severally
agrees to reimburse the K-Sure Agent on its demand in respect of the K-Sure Premium (or any part of it) if the K-Sure Premium (or
any part of it) is paid by the K-Sure Agent and the K-Sure Agent is not fully reimbursed in accordance with the terms of this Agreement. |
| 33.11 | Claims under K-Sure Insurance Policies.
Each K-Sure Lender acknowledges and agrees that, unless otherwise provided for in the relevant K-Sure Insurance Policy, it shall
have no entitlement to make any claim or to take any action whatsoever under or in connection with any of the K-Sure Insurance
Policies except through the K-Sure Agent and that all of the rights of the K-Sure Lenders under any of the K-Sure Insurance Policies
shall only be exercised by the K-Sure Agent. |
| 33.12 | Application of receipts. |
| (a) | Except as expressly stated to the contrary
in any Finance Document, any moneys which the K-Sure Agent receives or recovers shall be transferred to the Agent for application
in accordance with Clause 18 of this Agreement. |
| (b) | The parties agree that any unpaid K-Sure
Premium and any unpaid fees, costs and expenses of K-Sure shall constitute amounts then due and payable in respect of the Loan
under the Finance Documents for the purposes of the amounts then due and payable in respect of Clause 18 of this Agreement. |
| 34.1 | Governing law. THIS AGREEMENT AND
THE OTHER FINANCE DOCUMENTS (EXCEPT AS OTHERWISE PROVIDED IN A FINANCE DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES. |
| 34.2 | Consent to Jurisdiction. |
| (a) | Each of the Borrowers and the Guarantor
hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York County, and any appellate court thereof, in any action
or proceeding arising out of or relating to this Agreement or any of the other Finance Documents to which such Security Party is
a party or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State Court or,
to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by law. |
| (b) | Nothing in this Clause 34.2 shall affect
the right of a Creditor Party to bring any action or proceeding against a Security Party or its property in the courts of any other
jurisdictions where such action or proceeding may be heard. |
| (c) | Each of the Borrowers and the Guarantor
hereby irrevocably and unconditionally waives to the fullest extent it may legally and effectively do so: |
| (i) | any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Finance
Document to which it is a party in any New York State or Federal court and the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court; and |
| (ii) | any immunity from suit, the jurisdiction
of any court in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Finance Document
or from any legal process with respect to itself or its property (including without limitation attachment prior to judgment, attachment
in aid of execution of judgment, set-off, execution of a judgment or any other legal process), and to the extent that in any such
jurisdiction there may be attributed to such person such an immunity (whether or not claimed), such person hereby irrevocably agrees
not to claim such immunity. |
| (d) | Each of the
Borrowers and the Guarantor hereby agrees to appoint Xxxxxx and Xxxxxx LLP, with offices currently located at Xxx Xxxxxxx Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxxxxx, as its designated agent for service of process for any action or
proceeding arising out of or relating to this Agreement or any other Finance Document. Each
of the Borrowers and the Guarantor also irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to its address specified in Clause 30.2. Each
of the Borrowers and the Guarantor also agrees that service of process may be made
on it by any other method of service provided for under the applicable laws in effect in the State of New York. |
| 34.3 | Creditor Party rights unaffected.
Nothing in this Clause 34 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any jurisdiction. |
| 34.4 | Waiver of punitive damages. Each
of the Borrowers and the Guarantor waives, to the maximum extent not prohibited by law, any right it may have to claim or recover
any special, exemplary, punitive or consequential damages in any action or proceeding arising out of or relating to this Agreement
or any of the other Finance Documents to which such Security Party is a party. |
| 34.5 | Meaning of “proceedings”.
In this Clause 34, “proceedings” means proceedings of any kind, including an application for a provisional or
protective measure. |
| 35.1 | WAIVER. EACH OF THE BORROWERS, THE
GUARANTOR AND THE CREDITOR PARTIES MUTUALLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. |
| 36.1 | PATRIOT Act Notice. Each of the
Agent and the Lenders hereby notifies the Borrowers and the Guarantor that pursuant to the requirements of the Patriot
Act and the policies and practices of the Agent and each Lender, the Agent and each of the Lenders is required to obtain, verify
and record certain information and documentation that identifies each Security Party, which information includes the name and address
of each Security Party and such other information that will allow the Agent and each of the Lenders to identify each Security Party
in accordance with the PATRIOT Act. |
[SIGNATURE
PAGE FOLLOWS ON NEXT PAGE]
EXECUTION
PAGE
WHEREFORE, the
parties hereto have caused this Loan Agreement to be executed as of the date first above written.
|
STI CHELSEA SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
STI BATTERSEA SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI POWAI SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
STI MAYFAIR SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI LEXINGTON SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
XXX XXXXXXXXXXX SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
|
STI OLIVIA SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
XXX XXXXXXXXXXX SHIPPING COMPANY
LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI TRIBECA SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
STI BRONX SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
|
STI SOHO SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
STI OXFORD SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI GRAMERCY SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
STI CONNAUGHT SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI MANHATTAN SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
STI BROOKLYN SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI QUEENS SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
STI WINNIE SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
|
STI NOTTING HILL SHIPPING COMPANY
LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary |
STI LAUREN SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
|
STI WESTMINSTER SHIPPING COMPANY LIMITED,
as Borrower
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Secretary
|
DNB MARKETS, INC., as Mandated Lead
Arranger and Bookrunner
By: /s/ Xxx Xxxx Xxxxxx
Name: Xxx Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, CFA
Title: Managing Director
Head of U.S. Private Placements
|
|
SCORPIO TANKERS INC., as Guarantor
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Chief Financial Officer |
SKANDINAVISKA ENSKILDA XXXXXX XX (publ),
as Xxxxxx, Mandated Lead Arranger, Bookrunner
and Swap Bank
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title:
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title:
|
|
DNB BANK ASA, NEW YORK BRANCH, as Agent,
Security Trustee, K-Sure Agent and Swap Bank
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: First Vice President
|
DNB CAPITAL LLC, as Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: First Vice President
|
|
THE KOREA DEVELOPMENT BANK,
as Lender and Mandated Lead Arranger
By: /s/ Xxxx Xxx Xxxx
Name: Xxxx Xxx Xxxx
Title: Head of Shipping Finance Team
|
CREDIT SUISSE AG,
as Xxxxxx and Mandated Lead Arranger
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Director |
|
KOREA EXCHANGE BANK,
as Senior Manager
By: /s/ Xxxxx Xxx Park
Name: Xxxxx Xxx Park
Title: General Manager
Korea Exchange Bank
Investment Banking Div. |
CATHAY UNITED BANK, as Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Senior Vice President
|
|
KEB NY FINANCIAL CORP, as Lender
By: /s/ Xxxx Xxxx Xxx
Name: Xxxx Xxxx Xxx
Title: President
ING BANK N.V., LONDON BRANCH
as Lender and Mandated Lead Arranger
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
|
|
