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FORM 20-F
Ardmore Shipping Corp - ASC
Filed: April 06, 2016 (period: December 31, 2015)
Annual and transition report of foreign private issuers under sections 13 or 15(d)
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user
assumes all risks for any damages or losses arising from any use of this information, except to the extent such damages or losses cannot be
limited or excluded by applicable law. Past financial performance is no guarantee of future results.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(Mark One)
o REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
OR
OR
OR
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Securities registered or to be registered pursuant to section 12(g) of the Act.
NONE
(Title of class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
NONE
(Title of class)
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
TABLE OF CONTENTS
Indicate the number of outstanding shares of each of the issuer's classes of capital or common stock as of the close of the period
covered by the annual report.
As of December 31, 2015, there were 26,210,311 shares of common stock outstanding, par value $0.01 per share.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.Yes o No x
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934.Yes o No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90 days.Yes x No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every
Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (232.405 of this chapter)
during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).Yes x No
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer or a non-accelerated filer. See the
definitions of large accelerated filer and accelerated filer in Rule 12b-2 of the Exchange Act. (Check one):
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
TABLE OF CONTENTS
TABLE OF CONTENTS
PART I
Item 1. Identity of Directors, Senior Management and Advisors 3
Item 2. Offer Statistics and Expected Timetable 3
Item 3. Key Information 3
Item 4. Information on the Company 25
Item 4.A Unresolved Staff Comments 48
Item 5. Operating and Financial Review and Prospects 49
Item 6. Directors, Senior Management and Employees 62
Item 7. Major Shareholders and Related Party Transactions 67
Item 8. Financial Information 69
Item 9. The Offer and Listing 69
Item 10. Additional Information 70
Item 11. Quantitative and Qualitative Disclosures about Market Risks 78
Item 12. Description of Securities Other than Equity Securities 78
PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies 79
Item 14. Material Modifications to the Rights of Shareholders and Use of Proceeds 79
Item 15. Controls and Procedures 79
Item 16 Reserved 80
Item 16.A Audit Committee Financial Expert 80
Item 16.B Code of Ethics 80
Item 16.C Principal Accountant Fees and Services 80
Item 16.D Exemptions from the Listing Standards for Audit Committees 80
Item 16.E Purchases of Equity Securities by the Issuer and Affiliated Purchasers 80
Item 16.F Change in Registrants Certifying Accountant 81
Item 16.G Corporate Governance 81
Item 16.H Mine Safety Disclosures 81
Item 17. Financial Statements 81
Item 18. Financial Statements 81
Item 19. Exhibits 82
INDEX TO FINANCIAL STATEMENTS OF ARDMORE SHIPPING CORPORATION F-1
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides safe harbor protections for forward-looking statements in order to
encourage companies to provide prospective information about their business. We desire to take advantage of the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995 and is including this cautionary statement in connection with
such safe harbor legislation.
This Annual Report and any other written or oral statements made by us or on our behalf may include forward-looking statements
which reflect our current views and assumptions with respect to future events and financial performance and are subject to risks
and uncertainties. Forward-looking statements include statements concerning plans, objectives, goals, expectations, projections,
strategies, beliefs about future events or performance, and underlying assumptions and other statements, which are other than
statements of historical facts. In some cases, words such as believe, anticipate, intends, estimate, forecast, project,
plan, potential, will, may, should, expect and similar expressions are intended to identify forward-looking
statements, but are not the exclusive means of identifying such statements.
Forward-looking statements in this Annual Report include, among others, such matters as:
our future operating or financial results;
global and regional economic and political conditions;
the strength of national economies and currencies;
general market conditions;
our vessel acquisitions, our business strategy and expected capital spending or operating expenses, including bunker
prices, drydocking and insurance costs;
competition in the tanker industry;
shipping market trends and general market conditions, including fluctuations in charter rates and vessel values and
changes in demand for and the supply of tanker vessel capacity;
charter counterparty performance;
changes in governmental rules and regulations or actions taken by regulatory authorities;
our financial condition and liquidity, including our ability to obtain financing in the future to fund capital expenditures,
acquisitions, refinancing of existing indebtedness and other general corporate activities;
our ability to comply with covenants in financing arrangements;
vessel breakdowns and instances of off-hires;
future dividends;
our ability to enter into fixed-rate charters after our current charters expire and our ability to earn income in the spot
market; and
our expectations of the availability of vessels to purchase, the time it may take to construct new vessels, and vessels useful
lives.
Many of these statements are based on our assumptions about factors that are beyond our ability to control or predict and are
subject to risks and uncertainties that are described more fully under the Risk Factors section of this Annual Report. Any of
these factors or a combination of these factors could materially affect our business, results of operations and financial condition
and the ultimate accuracy of the forward-looking statements. Factors that might cause future results to differ include, among
others, the following:
changes in the markets in which we operate;
changes in governmental rules and regulations or actions taken by regulatory authorities;
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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changes in economic and competitive conditions affecting our business, including market fluctuations in charter rates and
charterers abilities to perform under existing time charters;
potential liability from future litigation and potential costs due to environmental damage and vessel collisions;
the length and number of off-hire periods and dependence on third-party managers; and
other factors discussed under the Risk Factors section of this Annual Report.
You should not place undue reliance on forward-looking statements contained in this Annual Report, because they are statements
about events that are not certain to occur as described or at all. All forward-looking statements in this Annual Report are qualified
in their entirety by the cautionary statements contained in this Annual Report. These forward-looking statements are not
guarantees of our future performance, and actual results and future developments may vary materially from those projected in the
forward-looking statements.
Except to the extent required by applicable law or regulation, we undertake no obligation to release publicly any revisions to
these forward-looking statements to reflect events or circumstances after the date of this Annual Report or to reflect the occurrence
of unanticipated events.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
TABLE OF CONTENTS
PART I
Item 1. Identity of Directors, Senior Management and Advisors
Not applicable
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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As at
BALANCE SHEET DATA Dec 31, 2015 Dec 31, 2014 Dec 31, 2013 Dec 31, 2012 Dec 31, 2011
Cash and cash equivalents $ 40,109,382 59,879,596 56,860,845 15,334,123 5,460,304
Net vessels (including drydock assets) 662,359,307 489,833,626 292,054,606 157,008,968 145,760,106
Total assets 778,197,608 562,214,991 357,965,633 179,960,468 160,631,102
Short-term revolving credit facility 30,265,000
Senior debt and capital leases 415,014,315 224,902,715 119,239,015 67,100,000 65,600,000
Paid in capital 337,211,121 338,064,585 244,883,077 117,073,352 65,747,599
Accumulated surplus/(deficit) $ 10,400,157 (10,864,492) (12,524,966) (8,682,363) (4,143,270)
For the years ended
CASH FLOW DATA Dec 31, 2015 Dec 31, 2014 Dec 31, 2013 Dec 31, 2012 Dec 31, 2011
Net cash provided by operating
activities $ 37,659,686 12,421,127 8,120,173 3,985,253 397,273
Net cash used in investing activities (232,849,734) (209,741,529) (144,637,558) (14,941,514) (56,920,554)
Net cash provided by financing
activities $ 175,419,834 200,339,153 178,044,107 20,830,080 56,779,795
For the years ended
FLEET OPERATING DATA Dec 31, 2015 Dec 31, 2014 Dec 31, 2013 Dec 31, 2012 Dec 31, 2011
Time Charter Equivalent(1)
MR Tankers Eco-design $ 19,149 15,913 15,838
MR Tankers Eco-mod 20,223 14,793 13,732 13,294 13,097
Chemical Tankers Eco-mod $ 13,417 11,404 10,483 9,108 8,878
Fleet weighted average TCE(2) $ 18,309 14,393 12,850 10,911 11,100
Operating expenditure
Fleet operating costs per day (3) 5,976 6,197 6,152 6,103 6,150
Technical management fees per day (4) 357 359 379 344 334
Total fleet operating costs per day 6,333 6,556 6,531 6,447 6,484
Expenditures for drydock(5) 3,314,568 4,921,479 242,263 2,959,820
On-hire utilization(6) 99.70% 99.90% 99.54% 99.10% 99.80%
(1) Time Charter Equivalent (TCE) daily rate is the gross charter rate or gross pool rate, as applicable, per revenue day plus
allowances paid by charterers to owners for communications, victualing and entertainment costs for crew. Revenue days are the
total number of calendar days the vessels are in our possession less off-hire days generally associated with drydocking or
repairs. For vessels employed on voyage charters, TCE is the net rate after deducting voyage expenses incurred by commercial
managers.
(2) Fleet weighted average TCE is total gross revenue for the fleet, after deducting voyage expenses incurred on voyage charters
divided by the number of revenue days. Voyage expenses are all expenses related to a particular voyage, including any bunker
fuel expenses, port fees, cargo loading and unloading expenses, canal tolls and agency fees.
(3) Fleet operating costs per day are routine operating expenses and include crewing, repairs and maintenance, insurance, stores,
lube oils and communication costs. They do not include additional costs related to upgrading or enhancement of the vessels
that are not capitalized.
(4) Technical management fees are fees paid to third-party technical managers.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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(5) Drydock costs, which include costs for in-water surveys, represent direct costs that are incurred as part of vessel drydocking to
meet regulatory requirements, expenditures during drydocking that add economic life to the vessel, and expenditures during
drydocking that increase the vessels earnings capacity or improve the vessels operating efficiency.
(6) On-hire utilization represents revenue days divided by net operating days (i.e. operating days less scheduled off-hire days).
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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D. Risk Factors
Some of the following risks relate principally to the industry in which we operate and to our business in general. Other risks
relate principally to the securities market and to ownership of our securities. The occurrence of any of the events described in
this section could significantly and negatively affect our business, financial condition, operating results and ability to pay
dividends on our shares, or the trading price of our shares.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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Any decrease in spot-charter rates in the future may adversely affect our results of operations.
As at March 15, 2016, seven of our vessels were employed in a spot market-oriented commercial pool and ten of our vessels
operated directly in the spot market. The earnings of these vessels are based on the spot market charter rates of the pool or the
particular voyage charter. We may seek to employ other vessels directly in the spot market upon re-delivery from the current
charterers.
We may employ additional vessels that we may acquire in the future or vessels upon termination of existing time charter contracts
in the spot-charter market. Where we plan to employ a vessel in the spot-charter market, we intend to generally place such vessel
in a commercial pool that pertains to that vessels size class or to employ the vessel in the spot market directly. Although spot
chartering is common in the tanker industry, the spot-charter market may fluctuate significantly based upon tanker and oil
product/chemical supply and demand, and there have been periods when spot rates have declined below the operating cost of
vessels. The successful operation of our vessels in the competitive spot-charter market, including within commercial pools,
depends upon, among other things, spot-charter rates and minimizing, to the extent possible, time spent waiting for charters and
time spent travelling unladen to pick up cargo. If spot-charter rates decline, we may be unable to operate our vessels trading in the
spot market profitably, meet our obligations, including payments on indebtedness or of dividends in the future. In addition, as
charter rates for spot-charters are fixed for a single voyage that may last up to several weeks, during periods in which spot-charter
rates are rising, we will generally experience delays in realizing the benefits from such increases.
Our ability to renew the charters on our vessels on the expiration or termination of our current charters, or to enter into charters on
vessels that we may acquire in the future, the charter rates payable under any replacement charters and vessel values will depend
upon, among other things, economic conditions in the sectors in which our vessels operate at that time, changes in the supply and
demand for vessel capacity and changes in the supply and demand for the seaborne transportation of oil and chemical products.
A continuation of the recent significant declines in oil prices may adversely affect our growth prospects and results of
operations.
Global crude oil prices have significantly declined since mid-2014. A continuation of lower oil prices or a further decline in oil
prices may adversely affect our business, results of operations and financial condition and our ability to pay dividends, as a result
of, among other things:
a reduction in exploration for or development of new oil fields or energy projects, or the delay or cancelation of existing
projects as energy companies lower their capital expenditures budgets, which may reduce our growth opportunities;
potential lower demand for tankers, which may reduce available charter rates and revenue to us upon chartering or
rechartering of our vessels;
customers failing to extend or renew contracts upon expiration;
the inability or refusal of customers to make charter payments to us due to financial constraints or otherwise; or
declines in vessel values, which may result in losses to us upon vessel sales or impairment charges against our earnings.
Declines in charter rates and other market deterioration could cause us to incur impairment charges.
We evaluate the carrying amounts of our vessels to determine if events have occurred that would require an impairment of their
carrying amounts. The recoverable amount of vessels is reviewed based on events and changes in circumstances that would
indicate that the carrying amount of the assets might not be recovered. The review for potential impairment indicators and
projection of future cash flows related to our vessels is complex and requires us to make various estimates, including future charter
rates, operating expenses and drydock costs. All of these items have been historically volatile.
An impairment charge is recognized if the carrying value is in excess of the estimated future undiscounted net operating cash
flows. The impairment loss is measured based on the excess of the carrying amount over the fair market value of the asset. An
impairment loss could adversely affect our results of operations.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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An over-supply of tanker capacity may lead to reductions in charter rates, vessel values, and profitability.
The market supply of tankers is affected by a number of factors, such as demand for energy resources, oil, petroleum and chemical
products, as well as the level of global and regional economic growth. If the capacity of new ships delivered exceeds the capacity
of tankers being scrapped and lost, tanker capacity will increase. In addition, the global newbuilding MR product tanker
orderbook, which extends to 2020, equalled approximately 8.8% of the existing MR product tanker fleet as of March 15, 2016,
and the orderbook may increase further in proportion to the existing fleet. If the supply of tanker capacity increases and if the
demand for tanker capacity does not increase correspondingly, charter rates and vessel values could materially decline. A
reduction in charter rates and the value of our vessels may have a material adverse effect on our business, results of operations and
financial condition.
Acts of piracy on ocean-going vessels could adversely affect our business.
Acts of piracy have historically affected ocean-going vessels trading in regions of the world such as the South China Sea, the
Indian Ocean and in the Gulf of Aden. Sea piracy incidents continue to occur, particularly in the Gulf of Aden off the coast of
Somalia and increasingly in the Gulf of Guinea, with tankers particularly vulnerable to such attacks. If piracy attacks result in the
characterization of regions in which our vessels are deployed as war risk zones or Joint War Committee war and strikes listed
areas by insurers, premiums payable for such coverage could increase significantly and such insurance coverage may be more
difficult to obtain. In addition, crew costs, including costs which may be incurred to the extent we employ onboard security
guards, could increase in such circumstances. We may not be adequately insured to cover losses from these incidents, which could
have a material adverse effect on us. In addition, detention or hijacking as a result of an act of piracy against our vessels, or an
increase in cost, or unavailability of insurance for our vessels, could have a material adverse impact on our business, results of
operations, cash flows and financial condition and may result in loss of revenues, increased costs and decreased cash flows to our
customers, which could impair their ability to make payments to us under our charters.
Global financial markets and economic conditions may adversely impact our ability to obtain additional financing on
acceptable terms and otherwise negatively impact our business.
Global financial markets and economic conditions have been, and continue to be, volatile. In the last economic downturn,
operating businesses in the global economy faced tightening credit, weakening demand for goods and services, deteriorating
international liquidity conditions and declining markets. There was a general decline in the willingness of banks and other
financial institutions to extend credit, particularly in the shipping industry due to the historically volatile asset values of vessels.
Since 2008, lending by financial institutions worldwide decreased significantly compared to the period preceding 2008. As the
shipping industry is highly dependent on the availability of credit to finance and expand operations, it was negatively affected by
this decline.
Also, as a result of concerns about the stability of financial markets generally and the solvency of counterparties specifically, the
cost of borrowing funds during the last economic downturn increased as many lenders increased interest rates, enacted tighter
lending standards, refused to refinance existing debt at all or on terms similar to current debt and reduced, and in some cases,
ceased to provide funding to borrowers. Due to these factors, additional financing may not be available if needed by us on
acceptable terms or at all if financial or economic markets deteriorate. If additional financing is not available when needed or is
available only on unfavorable terms, we may be unable to expand or meet our obligations as they come due or we may be unable
to enhance our existing business, complete additional vessel acquisitions or otherwise take advantage of business opportunities as
they arise.
Changes in fuel, or bunkers, prices may adversely affect our results of operation.
Fuel, or bunkers, is a significant expense for our vessels employed in the spot market and can have a significant impact on pool
earnings. For our vessels employed on time charters, the charterer is generally responsible for the cost and supply of fuel; however,
such cost may affect the charter rates we are able to negotiate for our vessels. Changes in the price of fuel may adversely affect our
profitability. The price and supply of fuel is unpredictable and fluctuates based on events outside our control, including
geopolitical
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
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developments, supply and demand for oil and gas, actions by OPEC and other oil and gas producers, war and unrest in oil
producing countries and regions, regional production patterns and environmental concerns. In addition, fuel price increases may
reduce the profitability and competitiveness of our business versus other forms of transportation, such as truck or rail.
Changes in the oil, oil products and chemical markets could result in decreased demand for our vessels and services.
Demand for our vessels and services in transporting oil, oil products and chemicals depends upon world and regional oil markets.
Any decrease in shipments of oil, oil products and chemicals in those markets could have a material adverse effect on our business,
financial condition and results of operations. Historically, those markets have been volatile as a result of the many conditions and
events that affect the price, production and transport of oil, oil products and chemicals, including competition from alternative
energy sources. Past slowdowns of the U.S. and world economies have resulted in reduced consumption of oil and oil products and
decreased demand for our vessels and services, which reduced vessel earnings. Additional slowdowns could have similar effects on
our operating results and may limit our ability to expand our fleet.
We are subject to complex laws and regulations, including environmental laws and regulations, which can adversely affect our
business, results of operations and financial condition.
Our operations are subject to numerous laws and regulations in the form of international conventions and treaties, national, state
and local laws and national and international regulations in force in the jurisdictions in which our vessels operate or are registered,
which can significantly affect the ownership and operation of our vessels. Compliance with such laws and regulations, where
applicable, may require installation of costly equipment or operational changes and may affect the resale value or useful lives of
our vessels. We may also incur additional costs in order to comply with other existing and future regulatory obligations, including
costs relating to, among other things: air emissions including greenhouse gases; the management of ballast and bilge waters;
maintenance and inspection; elimination of tin-based paint; development and implementation of emergency procedures and
insurance coverage or other financial assurance of our ability to address pollution incidents. Environmental or other initiatives or
incidents (such as the 2010 Deepwater Horizon oil spill in the Gulf of Mexico) may result in additional regulatory initiatives or
statutes or changes to existing laws that may affect our operations or require us to incur additional expenses to comply with such
regulatory initiatives, statutes or laws. These costs could have a material adverse effect on our business, results of operations and
financial condition.
A failure to comply with applicable laws and regulations may result in administrative and civil penalties, criminal sanctions or the
suspension or termination of our operations. Environmental laws often impose strict liability for remediation of spills and releases
of oil and hazardous substances, which could subject us to liability without regard to whether we were negligent or at fault. Under
the U.S. Oil Pollution Act of 1990, for example, owners, operators and bareboat charterers are jointly and severally strictly liable
for the discharge of oil in U.S. waters, including the 200-nautical mile exclusive economic zone around the United States. An oil
spill could also result in significant liability, including fines, penalties, criminal liability, remediation costs and natural resource
damages under international and U.S. federal, state and local laws, as well as third-party damages, and could harm our reputation
with current or potential charterers of our tankers. We are required to satisfy insurance and financial responsibility requirements for
potential oil (including marine fuel) spills and other pollution incidents. Although we have arranged insurance to cover certain
environmental risks, there can be no assurance that such insurance will be sufficient to cover all such risks or that any claims will
not have a material adverse effect on our business, results of operations and financial condition.
If we fail to comply with international safety regulations, we may be subject to increased liability, which may adversely affect
our insurance coverage and may result in a denial of access to, or detention in, certain ports.
The operation of our vessels is affected by the requirements set forth in the International Maritime Organizations International
Safety Management Code for the Safe Operation of Ships and Pollution Prevention (ISM Code). The ISM Code requires ship
owners, ship managers and bareboat charterers to develop and maintain an extensive Safety Management System that includes
the adoption of safety and
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
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environmental protection policies setting forth instructions and procedures for safe operation and describing procedures for
dealing with emergencies. If we fail to comply with the ISM Code or similar regulations, we may be subject to increased liability
or our existing insurance coverage may be invalidated or decreased for our affected vessels. Such failure may also result in a denial
of access to, or detention of our vessels in, certain ports.
The market values of our vessels may decrease, which could cause us to breach covenants in our credit facilities and adversely
affect our operating results.
The market values of tankers have historically experienced high volatility. The market prices for tankers declined significantly
from historically high levels reached in early 2008 and remain at relatively low levels. The market value of our vessels will
fluctuate depending on general economic and market conditions affecting the shipping industry and prevailing charterhire rates,
competition from other shipping companies and other modes of transportation, the types, sizes and ages of vessels, applicable
governmental regulations and the cost of newbuildings. If the market value of our fleet declines, we may not be able to obtain
other financing or to incur debt on terms that are acceptable to us or at all. A decrease in these values could also cause us to breach
certain loan-to-value covenants that are contained in our credit facilities and in future financing agreements that we may enter into
from time to time. If we breach such covenants due to decreased vessel values and we are unable to remedy the relevant breach, our
lenders could accelerate our debt and foreclose on vessels in our fleet, which would adversely affect our business, results of
operations and financial condition.
If our vessels suffer damage due to the inherent operational risks of the shipping industry, we may experience unexpected
drydocking costs and delays or total loss of our vessels, which may adversely affect our business and financial condition.
The operation of an ocean-going vessel carries inherent risks. Our vessels and their cargoes will be at risk of being damaged or lost
because of events, such as marine disasters, bad weather, climate change, business interruptions caused by mechanical failures,
grounding, fire, explosions, collisions, human error, war, terrorism, piracy, cargo loss, latent defects, acts of God and other
circumstances or events. Changing economic, regulatory and political conditions in some countries, including political and
military conflicts, have from time to time resulted in attacks on vessels, mining of waterways, piracy, terrorism, labor strikes and
boycotts. These hazards may result in death or injury to persons, loss of revenues or property, environmental damage, higher
insurance rates, damage to our customer relationships, market disruptions, delays or rerouting. In addition, the operation of tankers
has unique operational risks associated with the transportation of oil and chemical products. An oil or chemical spill may cause
significant environmental damage and the associated costs could exceed the insurance coverage available to us. Compared to
other types of vessels, tankers are exposed to a higher risk of damage and loss by fire, whether ignited by a terrorist attack,
collision or other causes, due to the high flammability and high volume of the oil or chemicals transported in tankers.
If our vessels suffer damage, they may need to be repaired at a drydocking facility. The costs of drydock repairs are unpredictable
and may be substantial. We may have to pay drydocking costs if our insurance does not cover them in full. The loss of revenues
while these vessels are being repaired and repositioned, as well as the actual cost of these repairs, may adversely affect our
business, results of operations and financial condition. In addition, space at drydocking facilities is sometimes limited and not all
drydocking facilities are conveniently located. We may be unable to find space at a suitable drydocking facility or our vessels
may be forced to travel to a drydocking facility that is not conveniently located to our vessels positions. The loss of earnings
while such vessels wait for space or travel or are towed to more distant drydocking facilities may be significant. The total loss of
any of our vessels could harm our reputation as a safe and reliable vessel owner and operator. If we are unable to adequately
maintain or safeguard our vessels, we may be unable to prevent any such damage, costs or loss which could negatively impact our
business, results of operations and financial condition.
We operate our vessels worldwide and, as a result, our vessels are exposed to international risks which may reduce revenue or
increase expenses.
The international shipping industry is an inherently risky business involving global operations. Our vessels are at risk of damage
or loss because of events such as marine disasters, bad weather, climate change, business interruptions caused by mechanical
failures, grounding, fire, explosions, collisions, human error, war,
10
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terrorism, piracy, cargo loss, latent defects, acts of God and other circumstances or events. In addition, changing economic,
regulatory and political conditions in some countries, including political and military conflicts, have from time to time resulted in
attacks on vessels, mining of waterways, piracy, terrorism, labor strikes and boycotts. These sorts of events could interfere with
shipping routes and result in market disruptions, which may reduce our revenue and increase our expenses.
International shipping is subject to various security and customs inspection and related procedures in countries of origin and
destination and transhipment points. Inspection procedures can result in the seizure of the cargo or vessels, delays in the loading,
offloading or delivery and the levying of customs duties, fines or other penalties against vessel owners. It is possible that changes
to inspection procedures could impose additional financial and legal obligations on us. In addition, changes to inspection
procedures could also impose additional costs and obligations on our customers and may, in certain cases, render the shipment of
certain types of cargo uneconomical or impractical. Any such changes or developments may have a material adverse effect on our
business, results of operations and financial condition.
Political instability, terrorist or other attacks, war or international hostilities can affect the tanker industry, which may
adversely affect our business.
We conduct most of our operations outside of the United States, and our business, results of operations, cash flows, financial
condition and available cash may be adversely affected by the effects of political instability, terrorist or other attacks, war or
international hostilities. Continuing conflicts and recent developments in the Middle East, and the presence of the United States
and other armed forces in regions of conflict, may lead to additional acts of terrorism and armed conflict around the world, which
may contribute to further world economic instability and uncertainty in global financial markets. As a result of these factors,
insurers have increased premiums and reduced or restricted coverage for losses caused by terrorist acts generally. Future terrorist
attacks could result in increased volatility of the financial markets and negatively impact the United States and global economy.
These uncertainties could also adversely affect our ability to obtain additional financing on terms acceptable to us or at all.
In the past, political instability has also resulted in attacks on vessels, mining of waterways and other efforts to disrupt
international shipping, particularly in the Arabian Gulf region. Acts of terrorism and piracy have also affected vessels trading in
regions such as the South China Sea and the Gulf of Aden off the coast of Somalia. Any of these occurrences could have a material
adverse impact on our business, results of operations and financial condition.
If our vessels call on ports located in countries that are subject to restrictions imposed by the U.S. government, our reputation
and the market for our securities could be adversely affected.
Although no vessels owned or operated by us have called on ports located in countries subject to sanctions and embargoes
imposed by the U.S. government and other authorities or countries identified by the U.S. government or other authorities as state
sponsors of terrorism, such as Cuba, Iran, Sudan and Syria, in the future our vessels may call on ports in these countries from time
to time on charterers instructions in violation of contractual provisions that prohibit them from doing so. Sanctions and embargo
laws and regulations vary in their application, as they do not all apply to the same covered persons or proscribe the same
activities, and such sanctions and embargo laws and regulations may be amended or strengthened over time.
Although we believe that we have been in compliance with all applicable sanctions and embargo laws and regulations, and intend
to maintain such compliance, there can be no assurance that we will be in compliance in the future, particularly as the scope of
certain laws may be unclear and may be subject to changing interpretations. Any such violation could result in fines, penalties or
other sanctions that could severely impact the market for our common shares, our ability to access U.S. capital markets and
conduct our business and could result in some investors deciding, or being required, to divest their interest, or not to invest, in us.
Our charterers may violate applicable sanctions and embargo laws and regulations as a result of actions that do not involve us or
our vessels and those violations could in turn negatively affect our reputation or the ability of our charters to meet their
obligations to us or result in fines, penalties or sanctions.
11
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The smuggling of drugs or other contraband onto our vessels may lead to governmental claims against us.
We expect that our vessels will call on ports where smugglers may attempt to hide drugs and other contraband on vessels, with or
without the knowledge of crew members. To the extent our vessels are found with contraband, whether inside or attached to the
hull of our vessel and whether with or without the knowledge of any of our crew, we may face governmental or other regulatory
claims which could have an adverse effect on our business, results of operations and financial condition.
Maritime claimants could arrest our vessels, which would have a negative effect on our business and results of operations.
Crew members, suppliers of goods and services to a vessel, shippers of cargo and other parties may be entitled to a maritime lien
against a vessel for unsatisfied debts, claims or damages. In many jurisdictions, a maritime lien holder may enforce its lien by
arresting or attaching a vessel through foreclosure proceedings. The arrest or attachment of one or more of our vessels could
interrupt our business or require us to pay significant amounts to have the arrest lifted, which would have a negative effect on our
business, results of operations and financial condition.
In addition, in some jurisdictions, such as South Africa, under the sister ship theory of liability, a claimant may arrest both the
vessel that is subject to the claimants maritime lien and any associated vessel, which is any vessel owned or controlled by the
same owner. Claimants could try to assert sister ship liability against one vessel in our fleet for claims relating to another of our
vessels.
Governments could requisition our vessels during a period of war or emergency, which may adversely affect our business and
results of operations.
A government could requisition for title or seize our vessels. Requisition for title occurs when a government takes control of a
vessel and becomes the owner. Also, a government could requisition our vessels for hire. Requisition for hire occurs when a
government takes control of a vessel and effectively becomes the charterer at dictated charter rates. Generally, requisitions occur
during a period of war or emergency. Government requisition of one or more of our vessels could adversely affect our business,
results of operations and financial condition.
Technological innovation could reduce our charterhire income and the value of our vessels.
The charterhire rates and the value and operational life of a vessel are determined by a number of factors, including the vessels
efficiency, operational flexibility and physical life. Efficiency includes speed, fuel economy and the ability to load and discharge
cargo quickly. Flexibility includes the ability to enter various harbors and ports, utilize related docking facilities and pass through
canals and straits. The length of a vessels physical life is related to its original design and construction, its maintenance and the
impact of the stress of operations. If new tankers are built that are more efficient or more flexible or have longer physical lives than
our vessels, competition from these more technologically advanced vessels could adversely affect the amount of charterhire
payments, if any, we receive for our vessels once existing charters expire and the resale value of our vessels could significantly
decrease. As a result, our business, results of operations and financial condition could be adversely affected.
If labor or other interruptions are not resolved in a timely manner, they could have a material adverse effect on our business.
We, indirectly through our technical managers, employ masters, officers and crews to operate our vessels, exposing us to the risk
that industrial actions or other labor unrest may occur. If not resolved in a timely and cost-effective manner, industrial action or
other labor unrest could prevent or hinder our operations from being carried out as we expect and could have a material adverse
effect on our business, results of operations and financial condition.
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Delays in deliveries of vessels we may purchase or order , our decision to cancel an order for purchase of a vessel or our inability
to otherwise complete the acquisitions of additional vessels for our fleet, could harm our operating results.
We expect to purchase and order additional vessels from time to time. The delivery of these vessels could be delayed, not
completed or cancelled, which would delay or eliminate our expected receipt of revenues from the employment of these vessels.
The seller could fail to deliver these vessels to us as agreed, or we could cancel a purchase contract because the seller has not met
its obligations. The delivery of any vessels we may propose to acquire could be delayed because of, among other things,
hostilities or political disturbances, non-performance of the purchase agreement with respect to the vessels by the seller, our
inability to obtain requisite permits, approvals or financings or damage to or destruction of vessels while being operated by the
seller prior to the delivery date.
If the delivery of any vessel is materially delayed or cancelled, especially if we have committed the vessel to a charter under which
we become responsible for substantial liquidated damages to the customer as a result of the delay or cancellation, our business,
financial condition and results of operations could be adversely affected.
The delivery of vessels we may purchase or order could be delayed because of, among other things:
work stoppages or other labor disturbances or other events that disrupt the operations of the shipyard building the vessels;
quality or other engineering problems;
changes in governmental regulations or maritime self-regulatory organization standards;
lack of raw materials;
bankruptcy or other financial crisis of the shipyard building the vessels;
our inability to obtain requisite financing or make timely payments;
a backlog of orders at the shipyard building the vessels;
hostilities or political or economic disturbances in the countries where the vessels are being built;
weather interference or catastrophic event, such as a major earthquake or fire;
our requests for changes to the original vessel specifications;
shortages or delays in the receipt of necessary construction materials, such as steel;
our inability to obtain requisite permits or approvals; or
a dispute with the shipyard building the vessels.
We will be required to make substantial capital expenditures to expand the number of vessels in our fleet and to maintain all
our vessels, which will depend on our ability to obtain additional financing.
Our business strategy is based in part upon the expansion of our fleet through the purchase and ordering of additional vessels. We
will be required to make substantial capital expenditures to expand the size of our fleet. We also have incurred significant capital
expenditures to upgrade secondhand vessels we have required to Eco-Mod standards.
In addition, we will incur significant maintenance costs for our current fleet and any additional vessels we acquire. A newbuilding
vessel must be drydocked within five years of its delivery from a shipyard and vessels are typically drydocked every 30 to 60
months thereafter depending on the vessel, not including any unexpected repairs. We estimate the cost to drydock a vessel is
between $0.75 million and $1.5 million, depending on the size and condition of the vessel and the location of drydocking relative
to the location of the vessel.
13
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However, we may be unable to access required financing under these facilities if conditions change and we may be unsuccessful in
obtaining financing for future fleet growth. To fund any shortfall for purchasing vessels or for drydocking costs from time to time,
we may be required to incur additional debt or raise capital through the sale of equity securities. Use of cash from operations will
reduce available cash. Our ability to obtain bank financing or to access the capital markets for future offerings may be limited by
our financial condition at the time of any such financing or offering as well as by adverse market conditions resulting from, among
other things, general economic conditions and contingencies and uncertainties that are beyond our control. If we finance our
expenditures by issuing debt securities, our financial leverage could increase. If we finance our expenditures by issuing equity
securities, our shareholders ownership interest in us could be diluted.
We will not be able to take advantage of favorable opportunities in the spot market with respect to vessels employed on medium
to long-term time charters.
As of March 15, 2016, seven of our vessels were employed under fixed rate time charter agreements. When our existing time
charter agreements expire and upon delivery of any vessels to be ordered, we may enter into new time charter agreements for
periods of one year or longer. Vessels committed to medium- and long-term time charters may not be available for spot charters
during periods of increasing charter hire rates, when spot charters might be more profitable.
If we do not identify suitable vessels or shipping companies for acquisition or successfully integrate any acquired vessels or
shipping companies, we may not be able to grow or effectively manage our growth.
One of our principal strategies is to continue expanding our operations and our fleet. Our future growth will depend upon a
number of factors, some of which may not be within our control. These factors include our ability to:
identify suitable tankers and/or shipping companies for acquisitions at attractive prices;
identify businesses engaged in managing, operating or owning tankers for acquisitions or joint ventures;
integrate any acquired tankers or businesses successfully with our existing operations;
hire, train and retain qualified personnel and crew to manage and operate our growing business and fleet;
identify additional new markets;
improve or expand our operating, financial and accounting systems and controls; and
obtain required financing for our existing and new vessels and operations.
Our failure to effectively identify, purchase, develop and integrate any tankers or businesses could adversely affect our business,
financial condition and results of operations. The number of employees that perform services for us and our current operating and
financial systems may not be adequate as we implement our plan to expand the size of our fleet and we may not be able to
effectively hire more employees or adequately improve those systems. In addition, acquisitions may require additional equity
issuances or the incurrence of additional debt (which may require additional amortization payments). If we are unable to
successfully accommodate any growth, our business, results of operations and financial condition may be adversely affected.
Growing any business by acquisition presents numerous risks such as undisclosed liabilities and obligations, difficulty in
obtaining additional qualified personnel and managing relationships with customers and suppliers and integrating newly acquired
vessels and operations into existing infrastructures. The expansion of our fleet may impose significant additional responsibilities
on our management and staff, and the management and staff of our technical managers, and may necessitate that we, and they,
increase the number of personnel to support such expansion. We may not be successful in executing our growth plans and we may
incur significant expenses and losses in connection with such growth plans.
14
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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If we purchase and operate second-hand vessels, we will be exposed to increased operating costs that could adversely affect our
earnings and, as our fleet ages, the risks associated with older vessels could adversely affect our ability to obtain profitable
charters.
Our current business strategy includes additional growth through the acquisition of new and second-hand vessels. While we
typically inspect second-hand vessels prior to purchase, this does not provide us with the same knowledge about their condition
that we would have had if these vessels had been built for and operated exclusively by us. Generally, we do not receive the benefit
of warranties from the builders of the second-hand vessels that we acquire. These factors could increase the ultimate cost of any
second-hand vessel acquisitions by us.
In general, the costs to maintain a vessel in good operating condition increase with the age of the vessel. Older vessels are
typically less fuel-efficient than more recently constructed vessels due to improvements in engine technology. Cargo insurance
rates increase with the age of a vessel, making older vessels less desirable to charterers.
Governmental regulations, safety or other equipment standards related to the age of vessels may require expenditures for
alterations or the addition of new equipment, to our vessels and may restrict the type of activities in which the vessels may engage.
As our vessels age, market conditions may not justify those expenditures or enable us to operate our vessels profitably during the
remainder of their useful lives.
An increase in operating or voyage expenses would decrease our earnings and cash flows.
For all vessels operating under time charters, the charterer is primarily responsible for voyage expenses and we are responsible for
the vessel operating expenses. We may seek to employ vessels in the spot market following expiration of time charters. Under spot
chartering arrangements, we will be responsible for all cost associated with operating the vessel, including operating expenses,
voyage expenses, bunkers, port and canal costs.
Our vessel operating expenses include the costs of crew, provisions, deck and engine stores, insurance and maintenance, repairs
and spares, which depend on a variety of factors, many of which are beyond our control. If our vessels suffer damage, they may
need to be repaired at a drydocking facility. The costs of drydocking repairs are unpredictable and can be substantial. Increases in
any of these expenses would decrease earnings and cash flow.
We may be unsuccessful in competing in the highly competitive international tanker market, which would negatively affect our
results of operations and financial condition and our ability to expand our business.
The operation of tanker vessels and transportation of petroleum and chemical products is extremely competitive, and our industry
is capital intensive and highly fragmented. Competition arises primarily from other tanker owners, including major oil companies
as well as independent tanker companies, some of which have substantially greater resources than we do. Competition for the
transportation of oil products and chemicals can be intense and depends on price, location, size, age, condition and the
acceptability of the tanker and its operators to the charterers. We may be unable to compete effectively with other tanker owners,
including major oil companies and independent tanker companies.
Our market share may decrease in the future. We may not be able to compete profitably as we seek to expand our business into new
geographic regions or provide new services. New markets may require different skills, knowledge or strategies than we use in our
current markets, and the competitors in those new markets may have greater financial strength and capital resources than we do.
We derive a substantial majority of our revenues from a limited number of customers, and the loss of any such customers could
result in a significant loss of revenues and cash flow.
We have derived, and we believe we will continue to derive, a substantial majority of revenues and cash flow from a limited
number of customers. Each of Mansel Ltd. and Navig8 Group accounted for more than 10% of our consolidated revenues from
continuing operations during 2015; each of Cargill International SA, Geneva, Koch Shipping Inc., Mansel Ltd., and Womar
Logistic Pte. Ltd (pool arrangement) accounted for more than 10%, of our consolidated revenues from continuing operations
during 2014; and each of Cargill International
15
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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SA, Geneva, Dampskibsselskabet Norden A/S, Itochu Enex Co., Ltd, Koch Shipping Inc., and Womar Logistic Pte. Ltd (pool
arrangement) accounted for more than 10% of our consolidated revenues from continuing operations during 2013. No other
customer accounted for 10% or more of revenues from continuing operations during any of these periods.
If we lose a key customer or if a customer exercises its right under some charters to terminate the charter, we may be unable to enter
into an adequate replacement charter for the applicable vessel or vessels. The loss of any of our significant customers or a
reduction in revenues from them could have a material adverse effect on our business, results of operations, cash flows and
financial condition.
Our charterers may terminate or default on their charters, which could adversely affect our business, results of operations and
cash flow.
Our charters may terminate earlier than their scheduled expirations. The terms of our charters vary as to which events or
occurrences will cause a charter to terminate or give the charterer the option to terminate the charter, but these generally include: a
total or constructive loss of the relevant vessel; the governmental requisition for hire of the relevant vessel; the drydocking of the
relevant vessel for a certain period of time; and the failure of the relevant vessel to meet specified performance criteria. In addition,
the ability of each of our charterers to perform its obligations under a charter will depend on a number of factors that are beyond
our control. These factors may include general economic conditions, the condition of the tanker industry, the charter rates
received for specific types of vessels and various operating expenses. The costs and delays associated with the default by a
charterer under a charter of a vessel may be considerable and may adversely affect our business, results of operations, cash flows
and financial condition and our available cash.
We cannot predict whether our charterers will, upon the expiration of their charters, re-charter our vessels on favorable terms or at
all. If our charterers are unable or decide not to re-charter our vessels, we may not be able to re-charter them on terms similar to our
current charters or at all. In addition, the ability and willingness of each of our counterparties to perform its obligations under a
time charter agreement with us will depend on a number of factors that are beyond our control and may include, among other
things, general economic conditions, the condition of the tanker shipping industry and the overall financial condition of the
counterparties. Charterers are sensitive to the commodity markets and may be impacted by market forces affecting commodities. In
depressed market conditions, there have been reports of charterers renegotiating their charters or defaulting on their obligations
under charters. Our customers may fail to pay charter hire or attempt to renegotiate charter rates. If a counterparty fails to honor its
obligations under agreements with us, it may be difficult for us to secure substitute employment for such vessel, and any new
charter arrangements we secure in the spot market or on time charters may be at lower rates. Any failure by our charterers to meet
their obligations to us or any renegotiation of our charter agreements could have a material adverse effect on our business,
financial condition and results of operations.
GA Holdings LLC (GA Holdings) beneficially owns a significant amount of our outstanding common shares and is
represented on our board of directors, which may limit other shareholders ability to influence our actions, and GA Holdings
may compete with us.
As of March 15, 2016, GA Holdings beneficially owns approximately 16.8% of our outstanding common shares and has the power
to exert considerable influence over matters requiring shareholder approval, including the election of directors and the
determination to enter into a corporate transaction or to prevent a transaction, regardless of whether our shareholders believe that
any such transaction is in their or our best interests. For example, GA Holdings may have considerable influence in our
determining whether to consummate a merger or acquisition or to sell all or substantially all of our assets. In addition, members of
our management team are investors in GA Holdings, which may affect their decisions relative to matters directly or indirectly
involving GA Holdings and us. We cannot assure you that the interests of GA Holdings will align with the interests of other
shareholders. As a result, the market price of our common shares could be adversely affected. In addition, two members of our
board of directors, Reginald Jones and Niall McComiskey, are affiliated with GA Holdings.
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GA Holdings may invest in entities that directly or indirectly compete with us, or companies in which GA Holdings currently
invests may begin competing with us. GA Holdings may also separately pursue acquisition opportunities that may be
complementary to our business and, as a result, those acquisition opportunities may not be available to us. As a result of these
relationships, when conflicts arise between the interests of GA Holdings and the interests of our other shareholders, our directors
who are affiliated with GA Holdings may not be disinterested.
Our ability to obtain additional debt financing may be dependent on the performance of our then-existing charters and the
creditworthiness of our charterers.
The actual or perceived credit quality of our charterers, and any defaults by them, may materially affect our ability to obtain the
additional capital resources that we will require to purchase additional vessels or may significantly increase our costs of obtaining
such capital. Our inability to obtain additional financing at all or at a higher than anticipated cost may materially affect our results
of operations and our ability to implement our business strategy.
Servicing our debt, including debt which we may incur in the future, limits funds available for other purposes and if we cannot
service our debt, we may lose our vessels.
Borrowing under our existing credit facilities requires us to dedicate a significant part of our cash flow from operations to paying
principal and interest on our indebtedness, and we intend to incur additional debt in the future. These payments limit funds
available for working capital, capital expenditures and other purposes. Amounts borrowed under our credit facilities bear interest
at variable rates. Increases in prevailing rates could increase the amounts that we would have to pay to our lenders, even though
the outstanding principal amount remains the same, and our net income and cash flows would decrease. We expect our earnings
and cash flow to vary from year to year due to the cyclical nature of the tanker industry. If we do not generate or reserve enough
cash flow from operations to satisfy our debt obligations, we may have to:
seek to raise additional capital;
refinance or restructure our debt;
sell tankers; or
reduce or delay capital investments.
However, these alternatives, if necessary, may not be sufficient to allow us to meet our debt obligations. If we are unable to meet
our debt obligations or if some other default occurs under our credit facilities, the lenders could elect to declare that debt, together
with accrued interest and fees, to be immediately due and payable and proceed against the vessels or other collateral securing that
debt.
We are a holding company and depend on the ability of our subsidiaries to distribute funds to us in order to satisfy our financial
obligations and to make dividend payments.
We are a holding company and our subsidiaries, which are all directly and indirectly wholly owned by us, conduct all of our
operations and own all of our operating assets. As a result, our ability to satisfy our financial obligations and to pay dividends to
our shareholders depends on the ability of our subsidiaries to generate profits available for distribution to us and, to the extent that
they are unable to generate profits, we will be unable to pay our creditors or dividends to our shareholders.
Our ability to grow may be adversely affected by our new dividend policy.
Under our new dividend policy, we expect to distribute on a quarterly basis as dividends on our shares of common stock cash in an
amount equal to 60% of Earnings from Continuing Operations (which represents our earnings per share reported under U.S. GAAP
as adjusted for unrealized and realized gains and losses and extraordinary items). Accordingly, our growth, if any, may not be as
fast as businesses that do not distribute quarterly dividends. To the extent we do not have sufficient cash reserves or are unable to
obtain financing from external sources, our dividend policy may significantly impair our ability to meet our financial needs or to
grow.
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Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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Our credit facilities contain restrictive covenants that limit the amount of cash that we may use for other corporate activities,
which could negatively affect our growth and results of operations.
Our credit facilities and capital leases impose operating and financial restrictions on us. These restrictions may limit our ability, or
the ability of our subsidiaries to:
pay dividends and make capital expenditures if we do not repay amounts drawn under our credit facilities or if there is a
default under our credit facilities;
incur additional indebtedness, including the issuance of guarantees;
create liens on our assets;
change the flag, class or management of our vessels or terminate or materially amend the management agreement relating
to each vessel;
sell our vessels;
merge or consolidate with, or transfer all or substantially all our assets to, another person; or
enter into a new line of business.
Certain of our credit facilities and capital leases require us to maintain specified financial ratios and satisfy financial covenants.
These financial ratios and covenants require us, among other things, to maintain minimum solvency, cash and cash equivalents,
corporate net worth, working capital, loan-to-value and interest coverage levels and to avoid exceeding corporate leverage
maximum.
As a result of these restrictions, we may need to seek consent from our lenders in order to engage in some corporate actions. Our
lenders interests may be different from ours and we may not be able to obtain our lenders consent when needed. This may limit
our ability to finance our future operations or capital requirements, make acquisitions or pursue business opportunities. Our ability
to comply with covenants and restrictions contained in debt instruments may be affected by events beyond our control, including
prevailing economic, financial and industry conditions. If market or other economic conditions deteriorate, we may fail to comply
with these covenants. If we breach any of the restrictions, covenants, ratios or tests in our financing agreements, our obligations
may become immediately due and payable, and the lenders commitment under our credit facilities, if any, to make further loans
may terminate. A default under financing agreements could also result in foreclosure on any of our vessels and other assets
securing related loans.
If interest rates increase, it will affect the interest rates under our credit facilities, which could affect our results of operations.
Amounts borrowed under our existing credit facilities bear interest at an annual rate ranging from 2.50% to 3.25% above LIBOR.
Interest rates have recently been at historic lows and any normalization in interest rates would lead to an increase in LIBOR, which
would affect the amount of interest payable on amounts that we were to drawdown under our credit facilities, which in turn could
have an adverse effect on our results of operations.
If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report
our financial results or prevent fraud. As a result, shareholders could lose confidence in our financial and other public
reporting, which would harm our business and the trading price of our common stock.
Effective internal controls over financial reporting are necessary for us to provide reliable financial reports and, together with
adequate disclosure controls and procedures, are designed to prevent fraud. Any failure to implement required new or improved
controls, or difficulties encountered in their implementation, could cause us to fail to meet our reporting obligations. In addition,
any testing we conduct in connection with Section 404 of Sarbanes-Oxley, or any subsequent testing by our independent
registered public accounting firm, may reveal deficiencies in our internal controls over financial reporting that are deemed to be
material weaknesses or that may require prospective or retroactive changes to our financial statements or identify other
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areas for further attention or improvement. Inferior internal controls could also cause investors to lose confidence in our reported
financial information, which could have a negative effect on the trading price of our securities.
We are required to disclose changes made in our internal controls and procedures and our management is required to assess the
effectiveness of these controls annually. However, for as long as we are an emerging growth company, our independent
registered public accounting firm will not be required to attest to the effectiveness of our internal controls over financial reporting
pursuant to Section 404 of Sarbanes-Oxley. We could be an emerging growth company until December 31, 2018. An
independent assessment of the effectiveness of our internal controls could detect problems that our managements assessment
might not. Undetected material weaknesses in our internal controls could lead to financial statements and restatements and require
us to incur the expense of remediation.
We are subject to certain risks with respect to our counterparties on contracts, and failure of such counterparties to meet their
obligations could cause us to suffer losses or otherwise adversely affect our results of operation.
We enter into time-charter contracts, commercial pool agreements, ship management agreements, credit facilities and capital lease
arrangements and other commercial arrangements. Such agreements and arrangements subject us to counterparty risks. The ability
of each of our counterparties to perform its obligations under a contract with us will depend on a number of factors that are beyond
our control and may include, among other things, general economic conditions, the condition of the maritime and offshore
industries, the overall financial condition of the counterparty, charter rates received for specific types of vessels, and various
expenses. For example, the combination of a reduction of cash flow resulting from declines in world trade, a reduction in
borrowing bases under reserve-based credit facilities and the lack of availability of debt or equity financing may result in a
significant reduction in the ability of our charterers to make charter payments to us. In addition, in depressed market conditions,
our charterers and customers may no longer need a vessel that is currently under charter or contract or may be able to obtain a
comparable vessel at lower rates. As a result, charterers and customers may seek to renegotiate the terms of their existing charter
agreements or avoid their obligations under those contracts. Should a counterparty fail to honor its obligations under agreements
with us, we could sustain significant losses, which could have a material adverse effect on our business, financial condition and
results of operation.
Our business depends upon key members of our senior management team who may not necessarily continue to work for us.
Our future success depends to a significant extent upon certain members of our senior management team. Our management team
includes members who have substantial experience in the product tanker and chemical shipping industries and have worked with
us since inception. Our management team is crucial to the execution of our business strategies and to the growth and development
of our business. If the individuals were no longer affiliated with us, we may be unable to recruit other employees with equivalent
talent and experience, and our business and financial condition may suffer as a result.
Our insurance may not be adequate to cover our losses that may result from our operations due to the inherent risks of the
tanker industry.
We carry insurance to protect us against most of the accident-related risks involved in the conduct of our business, including
marine hull and machinery insurance, protection and indemnity insurance, which includes pollution risks, crew insurance and war
risk insurance. However, we may not be adequately insured to cover losses from our operational risks, which could have a material
adverse effect on us. Additionally, our insurers may refuse to pay particular claims and our insurance may be voidable by the
insurers if we take, or fail to take, certain action, such as failing to maintain certification of our vessels with applicable maritime
regulatory organizations. Any significant uninsured or under-insured loss or liability could have a material adverse effect on our
business, results of operations and financial condition. In addition, we may not be able to obtain adequate insurance coverage at
reasonable rates in the future during adverse insurance market conditions.
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Changes in the insurance markets attributable to terrorist attacks may also make certain types of insurance more difficult for us to
obtain due to increased premiums or reduced or restricted coverage for losses caused by terrorist acts generally.
Because we obtain some of our insurance through protection and indemnity associations, we may be required to make
additional premium payments.
We receive insurance coverage for tort liability, including pollution-related liability, from protection and indemnity associations.
We may be subject to increased premium payments, or calls, in amounts based on our claim records, the claim records of our
managers, as well as the claim records of other members of the protection and indemnity associations. In addition, our protection
and indemnity associations may not have enough resources to cover claims made against them. Our payment of these calls could
result in significant expense to us, which could have a material adverse effect on our business, results of operations and financial
condition.
Exposure to currency exchange rate fluctuations could result in fluctuations in our operating results.
We operate within the international shipping market, which utilizes the U.S. Dollar as its functional currency. As a consequence,
the majority of our revenues and the majority of our expenses are in U.S. Dollars. However, we incur certain general and operating
expenses, including vessel operating expenses and general and administrative expenses, in foreign currencies, the most significant
of which are the Euro, Singapore Dollar, British Pound Sterling, Japanese Yen and Hong Kong Dollar. This partial mismatch in
revenues and expenses could lead to fluctuations in net income due to changes in the value of the U.S. Dollar relative to other
currencies.
Climate change and greenhouse gas restrictions may adversely affect our operating results.
A number of countries have adopted, or are considering the adoption of, regulatory frameworks to reduce greenhouse gas
emissions due to the concern about climate change. These regulatory measures in various jurisdictions include the adoption of cap
and trade regimes, carbon taxes, increased efficiency standards, and incentives or mandates for renewable energy. In December
2015, a total of 195 countries adopted the international Paris Agreement that deals with greenhouse gas emission reduction
measures and targets to limit global temperature increases. Compliance with changes in laws, regulations and obligations relating
to climate change, including as a result of such international negotiations, could increase our costs related to operating and
maintaining our vessels and require us to install new emission controls, acquire allowances or pay taxes related to our greenhouse
gas emissions, or administer and manage a greenhouse gas emissions program. Revenue generation and strategic growth
opportunities may also be adversely affected.
The effects upon the oil industry relating to climate change and the resulting regulations may also include declining demand for
our services. We do not expect that demand for oil will lessen dramatically over the short-term, but in the long-term climate
change may reduce the demand for oil or increased regulation of greenhouse gases may create greater incentives for use of
alternative energy sources. Any long-term material adverse effect on the oil industry could adversely affect the financial and
operational aspects of our business, which we cannot predict with certainty at this time.
We are incorporated in the Marshall Islands, which does not have a well-developed body of corporate case law or bankruptcy
law and, as a result, shareholders may have fewer rights and protections under Marshall Islands law than under a typical
jurisdiction in the United States.
Our corporate affairs are governed by our articles of incorporation and bylaws and by the Marshall Islands Business Corporations
Act (the BCA). The provisions of the BCA resemble provisions of the corporation laws of a number of states in the United States.
However, there have been few judicial cases in the Marshall Islands interpreting the BCA. The rights and fiduciary responsibilities
of directors under the law of the Marshall Islands are not as clearly established as the rights and fiduciary responsibilities of
directors under statutes or judicial precedent in existence in certain U.S. jurisdictions. Shareholder rights may differ as well. While
the BCA does specifically incorporate the non-statutory law, or judicial case law, of the State of Delaware and other states with
substantially similar legislative provisions, our shareholders may have more
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difficulty in protecting their interests in the face of actions by management, directors or controlling shareholders than would
shareholders of a corporation incorporated in a U.S. jurisdiction. In addition, the Marshall Islands does not have a well-developed
body of bankruptcy law. As such, in the case of a bankruptcy involving us, there may be a delay of bankruptcy proceedings and
the ability of securityholders and creditors to receive recovery after a bankruptcy proceeding, and any such recovery may be less
predictable.
It may be difficult to serve process on or enforce a U.S. judgment against us, our officers and our directors.
We are a Marshall Islands corporation and several of our executive offices are located outside of the United States. Most of our
directors and officers reside outside the United States. In addition, a substantial portion of our assets and the assets of our directors,
officers and experts are located outside of the United States. As a result, you may have difficulty serving legal process upon us or
any of these persons within the United States. You may also have difficulty enforcing, both in and outside the United States,
judgments you may obtain in U.S. courts against us or any of these persons in any action, including actions based upon the civil
liability provisions of U.S. federal or state securities laws. In addition, there is substantial doubt that the courts of the Marshall
Islands or of the non-U.S. jurisdictions in which our offices are located would enter judgments in original actions brought in those
courts predicated on U.S. federal or state securities laws.
Our ability to pay dividends may be limited by the amount of cash we generate from operations following the payment of fees
and expenses, by the establishment of any reserves by our board of directors and by additional factors unrelated to our
profitability.
We intend to pay regular quarterly dividends on our common shares. The amount of dividends we pay will depend in part upon
the amount of cash we generate from our operations. We may not, however, have sufficient cash available each quarter to pay
dividends, as a result of insufficient levels of profit, restrictions on the payment of dividends and the decisions of our management
and directors. The amount of cash we have available for dividends may fluctuate upon, among other things:
the rates we obtain from our charters, as well as the rates obtained following expiration of our existing charters;
the level of our operating costs;
the number of unscheduled off-hire days and the timing of, and number of days required for, scheduled drydocking of our
vessels;
vessel acquisitions and related financings, such as restrictions in our credit facilities and in any future debt programs;
prevailing global and regional economic and political conditions;
the effect of governmental regulations and maritime self-regulatory organization standards, including with respect to
environmental and safety matters, on the conduct of our business; and
changes in the bases of taxation of our activities in various jurisdictions.
The actual amount of cash we will have available for dividends will also depend on many factors, including:
changes in our operating cash flows, capital expenditure requirements, working capital requirements and other cash needs;
our fleet expansion strategy and associated uses of our cash and our financing requirements;
modification or revocation of our dividend policy by our board of directors;
the amount of any cash reserves established by our board of directors; and
restrictions under our credit facilities and Marshall Islands law.
The amount of cash we generate from our operations may differ materially from our net income or loss for the period, which may
be affected by non-cash items. We may incur other expenses or liabilities that could reduce or eliminate the cash available for
distribution as dividends. Our credit facilities also restrict our ability
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to declare and pay dividends if an event of default has occurred and is continuing or if the payment of the dividend would result
in an event of default. In addition, Marshall Islands law generally prohibits the payment of dividends other than from surplus
(retained earnings in excess of consideration received for the sale of stock above the par value of the stock), or while a company is
insolvent or if it would be rendered insolvent by the payment of such a dividend, and any dividend may be discontinued at the
discretion of our board of directors. As a result of these or other factors, we may pay dividends during periods when we record
losses and may not pay dividends during periods when we record income.
Future sales of our common shares could cause the market price of our common shares to decline.
The market price for our common shares could decline as a result of sales by existing shareholders, including GA Holdings, of
large numbers of our common shares, or as a result of the perception that such sales may occur. Sales of our common shares by
these shareholders also might make it more difficult for us to sell equity or equity-related securities in the future at a time and at
the prices that we deem appropriate.
Anti-takeover provisions in our charter documents could make it difficult for our shareholders to replace or remove our current
board of directors or could have the effect of discouraging, delaying or preventing a merger or acquisition, which could
adversely affect the market price of our common shares.
Several provisions of our articles of incorporation and bylaws could make it difficult for our shareholders to change the
composition of our board of directors in any one year, preventing them from changing the composition of management. In
addition, the same provisions may discourage, delay or prevent a merger or acquisition that shareholders may consider favorable.
These provisions include:
authorizing the board of directors to issue blank check preferred stock without shareholder approval;
providing for a classified board of directors with staggered, three-year terms;
prohibiting cumulative voting in the election of directors;
authorizing the removal of directors only for cause and only upon the affirmative vote of the holders of two-thirds of the
outstanding shares of our common stock entitled to vote for the directors;
limiting the persons who may call special meetings of shareholders; and
establishing advance notice requirements for nominating candidates for election to our board of directors or for proposing
matters that can be acted on by shareholders at shareholder meetings.
These anti-takeover provisions could substantially impede the ability of public shareholders to benefit from a change in control
and, as a result, may adversely affect the market price of our common stock and your ability to realize any potential change of
control premium.
We are an emerging growth company, and we cannot be certain if the reduced reporting requirements applicable to
emerging growth companies will make our common shares less attractive to investors.
We are an emerging growth company, as defined in the U.S. Securities Act of 1933, as amended (the Securities Act), and we
may take advantage of certain exemptions from various reporting requirements applicable to other public companies that are not
emerging growth companies. Investors may find our common shares less attractive because we rely on certain of these
exemptions. If some investors find our common shares less attractive as a result, there may be a less active trading market for our
common shares and our share price may be more volatile.
Because of our status as an emerging growth company under the Jumpstart Our Business Startups Act status, our independent
registered public accounting firm will not be required to attest to the effectiveness of our internal control over financial reporting
pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act) for so long as we are an emerging growth
company. As long as we take advantage of the reduced reporting obligations, the information that we provide shareholders may be
different from information provided by other public companies. We may take advantage of these provisions until December 31,
2018 or such earlier time that we are no longer an emerging growth company. We will cease to
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be an emerging growth company if, among other things, we have more than $1.0 billion in total annual gross revenues during
the most recently completed fiscal year.
The Public Company Accounting Oversight Board (PCAOB) is not currently permitted to inspect our independent accounting
firm and you may not benefit from such inspections.
Auditors of U.S. public companies are required by law to undergo periodic PCAOB inspections to assess their compliance with
U.S. law and professional standards in connection with performance of audits of financial statements filed with the SEC. Certain
European Union countries, including Ireland, do not currently permit the PCAOB to conduct inspections of accounting firms
established and operating in such European Union countries, even if they are part of major international firms. Accordingly,
unlike for most U.S. public companies, the PCAOB is currently prevented from evaluating our auditors performance of audits and
its quality control procedures, and, unlike shareholders of most U.S. public companies, we and our shareholders are deprived of the
possible benefits of such inspections.
Tax Risks
U.S. tax authorities could treat us as a passive foreign investment company, which could have adverse U.S. federal income tax
consequences to U.S. holders.
A foreign corporation will be treated as a passive foreign investment company (PFIC), for U.S. federal income tax purposes if
either (1) at least 75% of its gross income for any taxable year consists of passive income or (2) at least 50% of the average value
of the corporations assets produce or are held for the production of passive income. For purposes of these tests, passive
income generally includes dividends, interest, and gains from the sale or exchange of investment property and rents and royalties
other than rents and royalties which are received from unrelated parties in connection with the active conduct of a trade or
business. For purposes of these tests, income derived from the performance of services generally does not constitute passive
income. U.S. shareholders of a PFIC are subject to an adverse U.S. federal income tax regime with respect to the income derived
by the PFIC, the distributions they receive from the PFIC and the gain, if any, they derive from the sale or other disposition of their
shares in the PFIC.
Based upon our operations as described herein, we do not believe that our income from our time charters should be treated as
passive income for purposes of determining whether we are a PFIC, and, consequently, the assets that we own and operate in
connection with the production of that income should not constitute passive assets. Accordingly, based on our current operations,
we do not believe we will be treated as a PFIC with respect to any taxable year.
There is substantial legal authority supporting this position consisting of case law and U.S. Internal Revenue Service (IRS),
pronouncements concerning the characterization of income derived from time charters and voyage charters as services income for
other tax purposes. However, there is also authority which characterizes time charter income as rental income rather than services
income for other tax purposes. Accordingly, no assurance can be given that the IRS or a court of law will accept this position, and
there is a risk that the IRS or a court of law could determine that we are a PFIC. Moreover, no assurance can be given that we would
not constitute a PFIC for any future taxable year if the nature and extent of our operations change.
If the IRS were successful in asserting that we are or have been a PFIC for any taxable year, U.S. shareholders would face adverse
U.S. federal income tax consequences. Under the PFIC rules, unless a shareholder makes an election available under the U.S.
Internal Revenue Code of 1986, as amended, (the Code), (which election could itself have adverse consequences for such
shareholders, as discussed below under Tax Considerations U.S. Federal Income Tax Considerations U.S. Federal Income
Taxation of U.S. Holders), excess distributions and any gain from the disposition of such shareholders common shares would be
allocated ratably over the shareholders holding period of the common shares and the amounts allocated to the taxable year of the
excess distribution or sale or other disposition and to any year before we became a PFIC would be taxed as ordinary income. The
amount allocated to each other taxable year would be subject to tax at the highest rate in effect for individuals or corporations, as
appropriate, for that taxable year, and an interest charge would be imposed with respect to such tax. See Tax
Considerations U.S. Federal
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Income Tax Considerations U.S. Federal Income Taxation of United States Holders for a more comprehensive discussion of the
U.S. federal income tax consequences to United States shareholders if we are treated as a PFIC.
We may have to pay tax on U.S. source shipping income, which would reduce our earnings.
Under the U.S. Internal Revenue Code of 1986, as amended (the Code), 50% of the gross shipping income of a corporation that
owns or charters vessels, as we and our subsidiaries do, that is attributable to transportation that begins or ends, but that does not
both begin and end, in the United States will be subject to a 4% U.S. federal income tax without allowance for deduction, unless
that corporation qualifies for exemption from tax under Section 883 of the Code and the applicable Treasury Regulations
promulgated thereunder or that corporation is entitled to an exemption from such tax under an applicable U.S. income tax treaty.
We have taken the position that we qualified for this statutory exemption for U.S. federal income tax return reporting purposes for
our 2015 taxable year and we intend to so qualify for future taxable years. However, there are factual circumstances beyond our
control that could cause us to lose the benefit of this tax exemption and thereby cause us to become subject to U.S. federal income
tax on our U.S. source shipping income. For example, there is a risk that we could no longer qualify for exemption under Section
883 of the Code for a particular taxable year if non-qualified shareholders with a 5% or greater interest in our stock were, in
combination with each other, to own 50% or more of the outstanding shares of our stock on more than half the days during the
taxable year. Due to the factual nature of the issues involved, we can give no assurances on our tax-exempt status or that of any of
our subsidiaries.
If we or our subsidiaries were not entitled to exemption under Section 883 of the Code for any taxable year, we or our subsidiaries
would be subject for such year to an effective 4% U.S. federal income tax on the shipping income we or our subsidiaries derive
during the year which is attributable to the transport of cargoes to or from the United States. The imposition of this taxation would
have a negative effect on our business and would decrease our earnings available for distribution to our shareholders.
We may be subject to additional taxes, which could adversely impact our business and financial results.
We and our subsidiaries are subject to tax in certain jurisdictions in which we or our subsidiaries are organized, own assets or have
operations. In computing our tax obligations in these jurisdictions, we are required to take various tax accounting and reporting
positions on matters that are not entirely free from doubt and for which we have not received rulings from the governing
authorities. We cannot assure you that, upon review of these positions, the applicable authorities will agree with our positions. A
successful challenge by a tax authority could result in additional tax imposed on us or our subsidiaries, which could adversely
impact our business and financial results.
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We maintain our principal executive and management offices at Cumberland House, 1 Victoria Street, 5 th Floor, Hamilton, HM 11,
Bermuda. Our telephone number at these offices is +1 441 405 7800. Ardmore Shipping (Bermuda) Limited (ASBL), a wholly-
owned subsidiary incorporated in Bermuda, carries out our management services and associated functions. Ardmore Shipping
Services (Ireland) Limited (ASSIL), a wholly-owned subsidiary incorporated in Ireland, provides our corporate, accounting, fleet
administration and operations services. Ardmore Shipping (Asia) Pte. Limited (ASA), a wholly-owned subsidiary incorporated in
Singapore, performs commercial management and chartering services for us. Ardmore Shipping (Americas) LLC (ASUS), a
wholly-owned subsidiary incorporated in Delaware, performs commercial management and chartering services for us.
Vessel Acquisitions
Our current fleet consists of 24 double-hulled product and chemical tankers, all of which are in operation. We acquired ten of our
vessels as second-hand vessels, all of which we have upgraded to increase efficiency and improve performance. In 2013, 2014, and
2015 we paid an aggregate of $144.6 million, $209.7 million and $232.9 million, respectively, in capital expenditures for vessel
acquisitions, vessel equipment and newbuilding orders.
As of December 31, 2010, our operating fleet consisted of four vessels. During 2011, 2012, 2013, 2014 and 2015, we acquired or
took delivery of two, none, two, six and 10 vessels, respectively.
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have issued more than $1.0 billion in non-convertible debt over the three year period to such date. For as long as we take
advantage of the reduced reporting obligations, the information that we provide shareholders may be different from information
provided by other public companies. We have irrevocably chosen to opt out of the extended transition period relating to the
exemption from new or revised financial accounting standards and, as a result, we comply with new or revised accounting
standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies.
B. Business Overview
We commenced business operations in April 2010 through our predecessor company with the goal of building an enduring
product and chemical tanker company that emphasizes service excellence, innovation, and operational efficiency through our
focus on high quality, fuel-efficient vessels. We are led by a team of experienced senior managers who have previously held senior
management positions with highly regarded public shipping companies and financial institutions.
We are strategically focused on modern, fuel-efficient, mid-size product and chemical tankers. We actively pursue opportunities to
exploit the overlap we believe exists between the clean petroleum product (CPP) and chemical sectors in order to enhance
earnings, and also seek to engage in more complex CPP trades, such as multi-grade and multi-port loading and discharging
operations, where our knowledge of chemical operations is beneficial to our CPP customers.
Our fuel-efficient operations are designed to enhance our investment returns and provide value-added service to our customers.
We believe we are on the forefront of fuel efficiency and emissions reduction trends and are well positioned to capitalize on these
developments by (a) constructing new economically advanced vessels (Eco-design), (b) modifying existing vessels to improve
fuel efficiency (Eco-mod) and (c) equipping our fleet with engine diagnostic and ship performance management systems to
optimize voyage performance. As a result, we have reduced the fuel consumption of our Eco-mod vessels which, in some cases,
achieve performance close to that of new Eco-design vessels. Our acquisition strategy is to build our fleet with Eco-design
newbuildings and modern second-hand vessels that can be upgraded to Eco-mod.
We have no related-party transactions concerning our vessel operations. Certain of our wholly-owned subsidiaries carry out our
management and administrative services, with ASBL providing our management services and associated functions, ASSIL
providing our corporate, accounting, fleet administration and operations services and ASA and ASUS performing our commercial
management and chartering services. Technical management of our vessels is performed by a combination of ASSIL and our third-
party technical managers. ASSILs operations team is directly responsible for insurance and for overseeing significant operational
functions of the third-party technical managers. ASSILs operations team also supervises the construction of our newbuilding
vessels in close coordination with the third-party supervision teams. We have a resolute focus on both high-quality service and
efficient operations, and we believe that our corporate overhead and operating expenses are among the lowest of our peers.
We are commercially independent, as we have no blanket employment arrangements with third-party or related-party commercial
managers. We market our services both directly to a broad range of customers, including oil majors, national oil companies, oil
and chemical traders, chemical companies, and a range of pooling service providers. We monitor the tanker markets to understand
and best utilize our vessels and may change our chartering strategy to take advantage of changing market conditions.
We believe that the market for mid-size product and chemical tankers has recovered from cyclical lows, resulting from strong
underlying demand growth driven by both cyclical and secular trends, as well as a reduction in the supply overhang due to
reduced ordering activity and an extended period of fleet growth at a rate below that of demand growth. We believe that we are
well positioned to benefit from the market recovery with a modern, fuel-efficient fleet, access to capital for growth, a diverse and
high-quality customer base, an emphasis on service excellence in an increasingly demanding regulatory environment and a
relative cost advantage in assets, operations and corporate overhead.
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Fleet List
Our current fleet consists of 24 vessels, including 15 Eco-design and nine Eco-mod vessels, all of which are in operation. The
average age of our vessels at March 15, 2016, is 4.3 years.
Dwt
Vessel Name Type Tonnes IMO Built Country Flag Specification
Ardmore Seavaliant Product/Chemical 49,998 2/3 Feb-13 Korea MI Eco-design
Ardmore Seaventure Product/Chemical 49,998 2/3 Jun-13 Korea MI Eco-design
Ardmore Seavantage Product/Chemical 49,997 2/3 Jan-14 Korea MI Eco-design
Ardmore Seavanguard Product/Chemical 49,998 2/3 Feb-14 Korea MI Eco-design
May-
Ardmore Sealion Product/Chemical 49,999 2/3 15 Korea MI Eco-design
Ardmore Seafox Product/Chemical 49,999 2/3 Jun-15 Korea MI Eco-design
Aug-
Ardmore Seawolf Product/Chemical 49,999 2/3 15 Korea MI Eco-design
Nov-
Ardmore Seahawk Product/Chemical 49,999 2/3 15 Korea MI Eco-design
Ardmore Endeavour Product/Chemical 49,997 2/3 Jul-13 Korea MI Eco-design
Aug-
Ardmore Seafarer Product/Chemical 45,744 3 04 Japan MI Eco-mod
Ardmore Seatrader Product 47,141 Dec-02 Japan MI Eco-mod
Ardmore Seamaster Product/Chemical 45,840 3 Sep-04 Japan MI Eco-mod
Ardmore Seamariner Product 45,726 Oct-06 Japan MI Eco-mod
Aug-
Ardmore Sealeader Product 47,463 08 Japan MI Eco-mod
Ardmore Sealifter Product 47,472 Jul-08 Japan MI Eco-mod
Ardmore Dauntless Product/Chemical 37,764 2 Feb-15 Korea MI Eco-design
Ardmore Defender Product/Chemical 37,791 2 Feb-15 Korea MI Eco-design
Nov-
Ardmore Centurion Product/Chemical 29,006 2 05 Korea MI Eco-mod
Ardmore Cherokee Product/Chemical 25,215 2 Jan-15 Japan MI Eco-design
Mar-
Ardmore Cheyenne Product/Chemical 25,217 2 15 Japan MI Eco-design
Ardmore Chinook Product/Chemical 25,217 2 Jul-15 Japan MI Eco-design
Nov-
Ardmore Chippewa Product/Chemical 25,217 2 15 Japan MI Eco-design
Ardmore Calypso Product/Chemical 17,589 2 Jan-10 Korea MI Eco-mod
Ardmore Capella Product/Chemical 17,567 2 Jan-10 Korea MI Eco-mod
Total 24 969,953
Business Strategy
Our objective is to consolidate our position as a market leader in modern, fuel-efficient, mid-size product and chemical tankers by
engaging in well-timed growth and utilizing our operational expertise and quality-focused approach to provide value-added
services to our customers. The key elements of our business strategy include:
Focus on Modern, Mid-Size Product and Chemical Tankers. The average sizes of our product and chemical tankers are
substantially similar to the median sizes of the global fleets for product tankers and chemical tankers. We have developed
our strategic focus around mainstream tanker sizes that are readily employed and actively traded worldwide in broad and
deep markets. Additionally, as a result of the overlap between the product and chemical sectors, we believe that our fleet
composition enables us to take advantage of opportunities, both operationally and strategically, while also providing
investment diversification.
Well-Timed Growth through the Acquisition of Quality Tonnage. We have a diligent and patient approach to expanding
our fleet and are selective as to the quality of ships we seek to acquire. Since we commenced business in 2010, we have
only acquired Japanese or Korean-built ships, but may consider vessels constructed elsewhere if they meet the same high
standard of quality. We believe that our commitment and selectivity in growing our fleet has been instrumental in building
our reputation for quality and service excellence.
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Optimizing Fuel Efficiency. The shipping industry is experiencing a steady increase in fuel efficiency, and we intend to
remain at the forefront of this development. Our Eco-design vessels incorporate many of the latest technological
improvements, such as electronically-controlled engines, more efficient hull forms matched with energy efficient
propellers, and decreased water resistance. Our Eco-mod vessels have improved propulsion efficiency and decreased water
resistance. In addition, we achieve further improvements through engine diagnostics and operational performance
monitoring. We estimate that our Eco-design and Eco-mod medium range (MR) tankers consume approximately
10 20% less fuel than similar standard MR tankers.
Commercial Independence, Flexibility and Diversification. We maintain a broad range of existing and potential time-
charter and spot customers, as well as pooling alternatives, as part of our effort to maximize commercial flexibility and to
manage cash flow visibility through charter duration and customer diversification. In particular we seek customers who
value our active approach to fuel efficiency and service delivery.
Low Cost Structure. We have established a solid foundation for growth while cost-effectively managing our operating
expenses and corporate overhead. We intend to grow our staff as needed and to realize further economies of scale as our
fleet expands. At the core of our business philosophy is the belief that well-run companies can deliver high quality service
and achieve efficiency simultaneously, through hands-on management, effective communication with employees, and
constant re-evaluation of budgets and operational performance.
Customers
Our customers include national, regional, and international companies and our fleet is employed through a mixture of time
charters (including some time charters with profit participation components), direct spot charter employment and commercial pool
employment. We believe that developing strong relationships with the end users of our services allows us to better satisfy their
needs with appropriate and capable vessels. A prospective charterers financial condition, creditworthiness, and reliability track
record are important factors in negotiating our vessels employment.
Competition
We operate in markets that are highly competitive and based primarily on supply and demand. We compete for charters on the
basis of price, vessel location, size, age and condition of the vessel, as well as our reputation. Ownership of tanker vessels is highly
fragmented and is divided among publicly listed companies, state-controlled owners and private ship-owners.
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becomes a new product, which has opened up further export opportunities. In short, changes in the U.S. oil market have had a very
positive impact on product tanker demand because U.S. product exports have risen steeply since 2009 as the chart below
indicates.
Source: Drewry
Much of the increase in U.S. exports have gone to satisfy growing South American and African demand for oil products while
other U.S. exports have been moving transatlantic into Europe, where local refinery shutdowns have supported the rise in import
of products.
In terms of tonne-mile demand, a notable development in the patterns of world refining over the last five years has been the shift
towards crude oil producing regions developing their own refinery capacity, while at the same time, poor refinery margins have
led to closures of refineries in the developed world, most notably in Europe and on the U.S. east coast. In this context it is already
apparent that the closures of refining capacity in the developed world are prompting longer haul imports to cater for product
demand, for instance on routes such as the West Coast India to the U.S. eastern seaboard and Europe. Refinery closures close to
consuming regions elsewhere in the world will also help to support product import demand. For example, in Australia, trade from
Singapore has become increasingly important to compensate for the conversion of local producing refineries into storage depots.
This is part of a general increase in intra-Asian trade which is already boosting product tanker demand.
As a result of the growth in trade and the changes in the location of refinery capacity, demand for product tankers expressed in
terms of tonne-miles grew by a CAGR of 5.8% between 2005 and 2015. Generally growth in products trade and product tanker
demand is more consistent and less volatile than crude oil trade.
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Source: Drewry
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(1) IMO 2 Tankers with an average tank size in excess of 3,000 cbm are classified as product tankers.
(2) Chemical Tankers
Source: Drewry
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For example, the average time charter equivalent (TCE) of the spot rate for a Medium Range (MR) product tanker in 2015 was
$18,422/day, compared with an average of $9,592/day in 2014. On a one-year time charter rate basis, average MR rates rose from
$14,438/day in 2014 to $17,271/day in 2015. The trend in MR spot and time charter rates in the period from 2005 to February
2016 is shown in the chart below.
MR Product Tanker Freight Rates
(US$ Per Day)
Source: Drewry
It should be noted that these rates are based on a standard MR vessel built circa 2010, and there is some evidence that more-
recently built vessels constructed to particularly fuel-efficient Eco specifications are currently able to achieve an additional
premium on these levels of up to 10%.
Asset Values
Product tanker asset values have also fluctuated over time, and there is a relationship between changes in asset values and the
charter market. Newbuilding prices increased significantly between 2003 and early 2008, primarily as a result of increased tanker
demand and rising freight rates. Current newbuilding prices are significantly below the peaks reported at the height of the market
in 2008, and in February 2016 the newbuilding price for an MR product tanker was estimated at $35.0 million.
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The secondhand sale and purchase market has traditionally been relatively liquid, with tankers changing hands between owners
on a regular basis. Secondhand prices peaked over the summer of 2008 and have since followed a similar path to both freight rates
and newbuilding prices. In February 2016 a five year old MR product tanker was estimated to have a value of $27.0 million. The
trend in newbuilding prices, second hand values and freight rates for an MR tanker in the period 2005 to February 2016 are
summarised in the table below.
Introduction
The world chemical industry is one of the largest and most diversified industries in the world with more than 1,000 large and
medium-sized companies manufacturing over 70,000 different product lines. Although most specialist chemicals are used locally,
world trade is becoming an increasingly prominent part of the global chemical industry for a number of reasons ranging from local
stock imbalances to a lack of local production of particular chemicals in various parts of the world. In broad terms, seaborne trade
growth in bulk liquid chemicals has tracked trends in economic activity and globalization.
The seaborne transportation of chemicals is technically and logistically complex compared with the transportation of crude oil
and oil products, with cargoes ranging from hazardous and noxious chemicals to products such as edible oils and fats.
Consequently, the chemical tanker sector comprises a wide array of specially constructed small and medium sized tankers
designed to carry chemical products in various stages of production.
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Source: Drewry
The U.S. is the largest exporter of organic chemicals, accounting for approximately 25% of all exports, while China accounts for
approximately one-third of total organic chemical imports. The four organic chemicals most frequently traded by sea are
methanol, styrene, benzene and P-xylene. Inorganic chemical trade accounts for approximately 10-15% of total seaborne
movements. They are not traded geographically as wide as organic chemicals and they also present several transport problems; not
only are they very dense, they are also highly corrosive. Palm oil accounts for about half of this, with the next top two
commodities in this sector traded by sea being soybean oil and sunflower seed oil.
From a regional perspective, activity is focused on three main geographical areas. Europe is a mature, established producing
region, contributing over one quarter of total chemical production. Much of Europes production serves domestic requirements.
This manifests itself in increased demand for short-sea services, rather than deep-sea trades. North American (predominantly the
U.S. manufacturers produce approximately one fifth of the major chemical products in the world. Although the majority of the U.S.
production is for domestic use, particularly where gasoline additives are involved, the country also produces above domestic
requirements, which results in significant export volumes.
In the U.S. the chemicals industry will be affected by the development of shale gas. Increased supplies of natural gas in the U.S.
have already served to push down domestic gas prices and the fall in natural gas prices has had a beneficial impact on feedstock
costs for the petrochemical industry. In particular, the cost of ethane has fallen
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significantly since 2011 thereby increasing the competiveness of the U.S. petrochemical industry within a global perspective.
Accordingly, U.S. ethylene production costs have fallen to levels where the U.S. can now compete with Middle Eastern suppliers,
and this opens up new opportunities to expand U.S. ethylene cracking capacity and subsequently petrochemical capacity.
Ethylene cracker utilization in the U.S. has improved and prior to the recent fall in oil prices plans had been announced for a
number of new petrochemical plants. Ethylene is a precursor for many of the organic chemicals shipped by sea (e.g. ethylene
dichloride, ethylene glycol), so increased production would lead to increased availability of downstream chemical products for
export from the U.S. Although the Middle East will continue to be the largest supplier of organic chemicals, the U.S. will be a
major exporter of methanol and ethylene derivatives to the Far East market. Meanwhile, the U.S. and Irans new methanol projects
may have a significant impact on global seaborne chemical trade.
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World Coated IMO 2 and Stainless Steel Tanker Fleet and Orderbook: March 15, 2016
Orderbook Delivery Schedule (No.
Size Fleet Orderbook Jan 2016 Ships)
Ship Type (DWT) Number M Dwt Number M Dwt % Fleet 2016 2017 2018 2019
Coated IMO 2 10,000+ 927 20.3 47 1.4 6.9% 27 13 4 3
Stainless Steel 10,000+ 601 13.0 142 3.7 28.5% 63 47 26 6
Total 1,528 33.3 189 5.1 15.3% 90 60 30 9
Source: Drewry
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with continuous training of officers and crews to maintain compliance with applicable local, national and international
environmental laws and regulations. Such laws and regulations frequently change and may impose increasingly strict
requirements. We cannot predict the ultimate cost of complying with these or future requirements, or the impact of these
requirements on the resale value or useful lives of our tankers. In addition, a future serious marine incident that results in
significant oil pollution, release of hazardous substances, loss of life or otherwise causes significant adverse environmental
impact, such as the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, could result in additional legislation, regulation or
other requirements that could negatively affect our business, results of operations or financial position.
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the MARPOL Annex VI amendments, which would subject ocean-going vessels in these areas to stringent emissions controls and
cause us to incur additional costs. The North American ECA came into force on August 1, 2012. The North American ECA
includes areas subject to the exclusive sovereignty of the United States and extends up to 200 nautical miles from the coasts of the
United States, which area includes parts of the United States Gulf of Mexico. As of July 1, 2010, ships operating within an ECA
were not permitted to use fuel with sulfur content in excess of 1.0%, which was further reduced to 0.1% on January 1, 2015. On
January 1, 2014, the United States Caribbean Sea was also designated an ECA.
If other ECAs are approved by the IMO or other new or more stringent requirements relating to emissions from marine diesel
engines or port operations by vessels are adopted by the EPA or the states where we operate, compliance with these regulations
could entail significant capital expenditures or operational changes or otherwise increase the costs of our operations.
Safety Management System Requirements
The IMO also adopted the International Convention for the Safety of Life at Sea of 1974 (SOLAS) and the International
Convention on Load Lines (LL Convention), which impose a variety of standards that regulate the design and operational
features of ships. The IMO periodically revises the SOLAS and LL Convention standards. The May 2012 SOLAS amendments that
relate to the safe manning of vessels entered into force on January 1, 2014.
The IMO Legal Committee also adopted the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims (the
LLMC), which specifies limits of liability for loss of life or personal injury claims and property claims against ship-owners. The
limits of liability are periodically amended to adjust to inflation. Amendments to the LLMC, which were adopted in April 2012,
went into effect on June 8, 2015.
Our operations are also subject to environmental standards and requirements contained in the International Management Code for
the Safe Operation of Ships and for Pollution Prevention (ISM Code), promulgated by the IMO under SOLAS. The ISM Code
requires the party with operational control of a vessel to develop an extensive safety management system that includes, among
other things, the adoption of safety and environmental protection policies setting forth instructions and procedures for operating
its vessels safely and describing procedures for responding to emergencies. We rely upon the safety management system that has
been developed for our vessels for compliance with the ISM Code.
The ISM Code requires that vessel operators also obtain a safety management certificate for each vessel they operate. This
certificate evidences compliance by a vessels management with code requirements for a safety management system. No vessel can
obtain a certificate unless its manager has been awarded a document of compliance, issued by each flag state, under the ISM Code.
Our technical managers have obtained documents of compliance for its offices and safety management certificates for all of our
vessels for which the certificates are required by the ISM Code. These documents of compliance and safety management
certificates are renewed as required.
Noncompliance with the ISM Code and other IMO regulations may subject the ship-owner or bareboat charterer to increased
liability, may lead to decreases in, or invalidation of, available insurance coverage for affected vessels and may result in the denial
of access to, or detention in, some ports. The United States Coast Guard (USCG) and European Union (EU) authorities have
indicated that vessels not in compliance with the ISM Code by the applicable deadlines will be prohibited from trading in United
States and EU ports, as the case may be.
Pollution Control and Liability Requirements
Many countries have ratified and follow the liability plan adopted by the IMO and set out in the International Convention on
Civil Liability for Oil Pollution Damage of 1969, as from time to time amended (CLC), although the United States is not a party.
Under the CLC and depending on whether the country in which the damage results is a party to the 1992 Protocol to the CLC, a
vessels registered owner is strictly liable, subject to certain affirmative defenses, for pollution damage caused in the territorial
waters of a contracting state by discharge of persistent oil. The limits on liability outlined in the 1992 Protocol use the
International Monetary Fund currency unit of Special Drawing Rights (SDR). The limits on liability have since been increased.
The right to limit liability is forfeited under the CLC where the spill is caused by the ship owners personal
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fault and under the 1992 Protocol where the spill is caused by the ship owners personal act or omission or by intentional or
reckless conduct. Vessels trading with states that are parties to these conventions must provide evidence of insurance covering the
liability of the owner. In jurisdictions where the CLC has not been adopted, various legislative schemes or common law govern,
and liability is imposed either on the basis of fault or in a manner similar to that of the CLC. We believe that our protection and
indemnity insurance will cover the liability under the plan adopted by the IMO.
The IMO adopted the International Convention on Civil Liability for Bunker Oil Pollution Damage of 2001 (the Bunker
Convention), to impose strict liability on ship owners for pollution damage in jurisdictional waters of ratifying states caused by
discharges of bunker fuel. The Bunker Convention, which became effective on November 21, 2008, requires registered owners of
ships over 1,000 gross tons to maintain insurance, or other financial security, for pollution damage in an amount equal to the
limits of liability under the applicable national or international limitation regime (but not exceeding the amount calculated in
accordance with the Convention on Limitation of Liability for Maritime Claims of 1976, as amended). With respect to non-
ratifying states, liability for spills or releases of oil carried as fuel in a ships bunkers typically is determined by the national or
other domestic laws in the jurisdiction where the events or damages occur.
In 1996, the IMO International Convention on Liability and Compensation for Damage in Connection with the Carriage of
Hazardous and Noxious Substances by Sea (HNS), was adopted and subsequently amended by the 2010 Protocol. If it enters into
force, the HNS Convention will provide for compensation to be paid out to victims of accidents involving HNS, such as
chemicals. The HNS Convention introduces strict liability for the ship-owner and covers pollution damage as well as the risks of
fire and explosion, including loss of life or personal injury and damage to property. HNS are defined by reference to lists of
substances included in various IMO Conventions and Codes and include oils, other liquid substances defined as noxious or
dangerous, liquefied gases, liquid substances with a flashpoint not exceeding 60C, dangerous, hazardous and harmful materials
and substances carried in packaged form, solid bulk materials defined as possessing chemical hazards, and certain residues left by
the previous carriage of HNS. The HNS Convention introduces strict liability for the ship-owner and a system of compulsory
insurance and insurance certificates. However, the HNS Convention lacked the ratifications required to come into force. In April
2010, a consensus at the Diplomatic Conference convened by the IMO adopted the 2010 Protocol. Under the 2010 Protocol, if
damage is caused by bulk HNS, compensation would first be sought from the ship-owner. The 2010 Protocol has not yet entered
into effect. It will enter into force 18 months after the date on which certain consent and administrative requirements are satisfied.
While a majority of the necessary number of states has indicated their consent to be bound by the 2010 Protocol, the required
minimum has not been met.
In addition, the IMO adopted an International Convention for the Control and Management of Ships Ballast Water and Sediments
(BWM Convention) in February 2004. The BWM Conventions implementing regulations call for a phased introduction of
mandatory ballast water exchange requirements, to be replaced in time with mandatory concentration limits. The BWM
Convention will not become effective until 12 months after it has been adopted by 30 states, the combined merchant fleets of
which represent not less than 35% of the gross tonnage of the worlds merchant shipping. To date, the BWM Convention has not
yet been ratified but proposals regarding its implementation have recently been submitted to the IMO. Many of the
implementation dates in the BWM Convention have already passed, so that once the BWM Convention enters into force, the
period of installation of mandatory ballast water exchange requirements would be extremely short, with several thousand ships a
year needing to install ballast water management systems (BWMS). For this reason, on December 4, 2013, the IMO Assembly
passed a resolution revising the application dates of the BWM Convention so that they are triggered by the entry into force date
and not the dates originally in the BWM Convention. This, in effect, makes all vessels constructed before the entry into force date
existing vessels and allows for the installation of a BWMS on such vessels at the first renewal survey following entry into force
of the convention. Furthermore, in October 2014, the MEPC met and adopted additional resolutions concerning the BWM
Conventions implementation. Once mid-ocean ballast exchange or ballast water treatment requirements become mandatory, the
cost of compliance could increase for ocean carriers and the costs of ballast water treatments may be material. However, many
countries already regulate the discharge of the ballast water carried by vessels from country to country to prevent the introduction
of invasive and harmful species via such discharges. The United States, for example, requires vessels entering its waters from
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another country to conduct mid-ocean ballast exchange, or undertake some alternative measure and to comply with certain
reporting requirements. Although we do not believe that the costs of such compliance would be material, it is difficult to predict
the overall impact of such requirements on our operations.
The IMO continues to review and introduce new regulations. It is impossible to predict what additional regulations, if any, may be
passed by the IMO and what effect, if any, such regulations might have on our operations.
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The 2010 Deepwater Horizon oil spill in the Gulf of Mexico may also result in additional regulatory initiatives or statutes,
including the raising of liability caps under OPA. For example, in February 2014 the United States Bureau of Ocean Energy
Management proposed a rule increasing the limits of liability of damages for off-shore facilities under OPA based on inflation. On
August 15, 2012, the Unites States Bureau of Safety and Environmental Enforcement (BSEE) issued a final drilling safety rule
for offshore oil and gas operations that strengthens the requirements for safety equipment, well control systems, and blowout
prevention practices. In December 2015, the BSEE announced a new pilot inspection program for offshore facilities. Furthermore,
in April 2015, it was announced that new regulations are expected to be imposed in the United States regarding offshore oil and
gas drilling. Compliance with any new requirements of OPA may substantially impact our cost of operations or require us to incur
additional expenses to comply with any new regulatory initiatives or statutes.
We have and expect to maintain pollution liability coverage insurance in the amount of $1 billion per incident for each of our
vessels. If the damages from a catastrophic spill were to exceed our insurance coverage or if our insurance providers were to not
respond, it could have a material adverse effect on our business, financial condition, results of operations and cash flows.
The United States Clean Water Act (CWA) prohibits the discharge of oil or hazardous substances in United States navigable
waters unless authorized by a duly-issued permit or exemption, and imposes strict liability in the form of penalties for any
unauthorized discharges. The CWA also imposes substantial liability for the costs of removal and remediation and damages and
complements the remedies available under OPA and CERCLA. In addition, many U.S. states that border a navigable waterway
have enacted environmental pollution laws that impose strict liability on a person for removal costs and damages resulting from a
discharge of oil or a release of a hazardous substance. These laws may be more stringent than United States federal law.
The EPA and USCG have enacted rules relating to ballast water discharge, compliance with which requires the installation of
equipment on our vessels to treat ballast water before it is discharged or the implementation of other port facility disposal
arrangements or procedures at potentially substantial cost, or otherwise restrict our vessels from entering United States waters.
The EPA regulates the discharge of ballast and bilge water and other substances in United States waters under the CWA. The EPA
regulations require vessels 79 feet in length or longer (other than commercial fishing vessels and recreational vessels) to comply
with a permit that regulates ballast water discharges and other discharges incidental to the normal operation of certain vessels
within United States waters the Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP). For a
new vessel delivered to an owner or operator after September 19, 2009 to be covered by the VGP, the owner must submit a Notice
of Intent at least 30 days before the vessel operates in United States waters. In March 2013 the EPA re-issued the VGP for another
five years, and the new VGP took effect in December 2013. The VGP focuses on authorizing discharges incidental to operations of
commercial vessels and the 2013 VGP contains ballast water discharge limits for most vessels to reduce the risk of invasive species
in United States waters, more stringent requirements for exhaust gas scrubbers and the use of environmentally acceptable
lubricants.
USCG regulations adopted and proposed for adoption under the U.S. National Invasive Species Act (NISA), also impose
mandatory ballast water management practices for all vessels equipped with ballast water tanks entering or operating in United
States waters, which require the installation of equipment on our vessels to treat ballast water before it is discharged or the
implementation of other port facility disposal arrangements or procedures, or otherwise restrict our vessels from entering United
States waters. The USCG must approve any technology before it is placed on a vessel, but has not yet approved the technology
necessary for vessels to meet the foregoing standards.
However, as of January 1, 2014, vessels became technically subject to the phasing-in of these standards. As a result, the USCG has
provided waivers to vessels which cannot install the as-yet unapproved technology. The EPA, on the other hand, has taken a
different approach to enforcing ballast discharge standards under the VGP. In December 2013, the EPA issued an enforcement
response policy in connection with the new VGP in which the EPA indicated that it would take into account the reasons why
vessels do not have the requisite technology installed, but will not grant any waivers.
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It should also be noted that in October 2015, the Second Circuit Court of Appeals issued a ruling that directed the EPA to redraft
the sections of the 2013 VGP that address ballast water. However, the Second Circuit stated that 2013 VGP will remains in effect
until the EPA issues a new VGP. It presently remains unclear how the ballast water requirements set forth by the EPA, the USCG,
and IMO BWM Convention, some of which are in effect and some which are pending, will co-exist.
Compliance with the EPA and the USCG regulations could require the installation of equipment on our vessels to treat ballast
water before it is discharged or the implementation of other port facility disposal arrangements or procedures at potentially
substantial cost, and/or otherwise restrict our vessels from entering United States waters.
European Union Regulations
In October 2009, the EU amended a directive to impose criminal sanctions for illicit ship-source discharges of polluting
substances, including minor discharges, if committed with intent, recklessly or with serious negligence and the discharges
individually or in the aggregate result in deterioration of the quality of water. Aiding and abetting the discharge of a polluting
substance may also lead to criminal penalties. Member States were required to enact laws or regulations to comply with the
directive by the end of 2010. Criminal liability for pollution may result in substantial penalties or fines and increased civil
liability claims.
From January 2011, new EU legislation came into effect which bans from EU member states waters manifestly sub-standard
vessels (vessels which have been detained twice by EU port authorities) and created obligations on EU member port states to
inspect vessels using EU member ports annually, as well as increasing surveillance of vessels posing a high risk to maritime safety
or the marine environment. The legislation also gave the EU port authorities great powers and control over classification societies,
including the ability to request a suspension or revocation of any negligent societies continuing to have a right to retain their
classification authority. In addition, new legislation also came into effect in January 2011 which introduced a ranking system
displaying shipping companies which had low safety records. These records would be published on a public website updated
daily. This ranking would be based upon the results of technical inspections carried out vessels and those shipping companies
with positive safety records would be rewarded by being subjected to fewer inspections and in turn those shipping companies with
safety or technical failings or shortcomings would be subjected to more frequent inspections.
The EU has adopted new low sulphur fuel legislation which came into effect from January 2015. This requires vessels to only burn
fuel with a sulphur content which does not exceed 0.1% whilst they are in the territorial waters of EU member states, or EU
exclusive economic zones, pollution control zones, or Sulphur Oxide Emissions Control Areas (SOx Emissions Control Areas).
The IMO designated ECAs in other jurisdictions, such as the United States, and similar regulations also came into effect in January
2015, as discussed above under International Maritime Organization Air Emissions.
Recently, the EU has adopted regulations in relation to recycling and management of hazardous materials on all ships. Parts of
such regulations concerning carrying statements of compliance and an inventory of hazardous materials, became effective starting
on December 31, 2015 and EU newbuilds must be complaint by December 31, 2018 (certain provisions also come into effect
between December 31, 2014 and December 31, 2020 respectively). These recycling regulations apply to any vessels which are
flagged under an EU member. None of our vessels are flagged under an EU member state. However, even though a vessel is flagged
in a country outside of the EU, the vessel will still have to keep a record on-board an inventory of any hazardous materials on
vessels and be able to submit to the relevant authorities a copy of a statement of compliance verifying this inventory.
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International negotiations are continuing with respect to a successor to the Kyoto Protocol, which set emission reduction targets
through 2012 and has been extended with new targets through 2020 pending negotiation of a new climate change treaty that
would take effect in 2020. Restrictions on shipping emissions may be included in any new treaty. In December 2009, more than 27
nations, including the United States and China, signed the Copenhagen Accord. The 2015 United Nations Convention on Climate
Change Conference in Parties did not result in an agreement that directly limited greenhouse gas emissions from ships.
As of January 1, 2013, all new ships must comply with two new sets of mandatory requirements to address greenhouse gas
emissions from ships, which were adopted by MEPC in July 2011. Currently operating ships are required to develop SEEMPs and
minimum energy efficiency levels per capacity mile, outlined in the EEDI, apply to new ships. These requirements could cause us
to incur additional compliance costs.
In 2015, the European Parliament and Council of Ministers adopted a regulation that large ships (over 5,000 gross tons) calling at
EU ports from January 2018 collect and publish data on carbon dioxide emissions and other information requiring. In the United
States, the EPA has issued a finding that greenhouse gases endanger public health and safety and has adopted regulation to limit
greenhouse gas emissions from certain mobile sources and large stationary sources. The EPA enforces both the United States Clean
Air Act (CAA) and the international standards found in Annex VI of MARPOL concerning marine diesel engines, their
emissions, and the sulphur content in marine fuel. Other federal and state regulations relating to the control of greenhouse gas
emissions may follow, including the climate change initiatives that are being considered in the U.S. Congress. In addition, the
IMO is evaluating various mandatory measures to reduce greenhouse gas emissions from international shipping, including market-
based instruments. Any passage of climate change legislation or other regulatory initiatives by the EU, United States, IMO or other
countries where we operate, or any treaty adopted at the international level to succeed the Kyoto Protocol, that restrict emissions
of greenhouse gases could require us to make significant financial expenditures, including capital expenditures to upgrade our
vessels, that we cannot predict with certainty at this time. Even in the absence of climate control legislation and regulations, our
businesses may be materially affected to the extent that climate change may result in sea level changes or more intense weather
events.
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on-board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on
shore;
the development of vessel security plans;
ship identification number to be permanently marked on a vessels hull;
a continuous synopsis record kept onboard showing a vessels history, including the name of the ship and of the state
whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ships identification
number, the port at which the ship is registered and the name of the registered owners and their registered address; and
compliance with flag state security certification requirements.
Ships operating without a valid certificate may be detained at port until it obtains an ISSC, or it may be expelled from port, or
refused entry at port.
The USCG regulations, intended to align with international maritime security standards, exempt from MTSA vessel security
measures non-U.S. vessels that have on board, as of July 1, 2004, a valid ISSC attesting to the vessels compliance with SOLAS
security requirements and the ISPS Code. We, together with our technical managers, have implemented the various security
measures addressed by the MTSA, SOLAS and the ISPS Code.
Inspection by Classification Societies
Every oceangoing vessel must be classed by a classification society. The classification society certifies that the vessel is in-
class, signifying that the vessel has been built and maintained in accordance with the rules of International Association of
Classification Standards and complies, as appointed, with applicable rules and regulations of the vessels country of registry and
the international conventions of which that country is a member. In addition, where surveys are required by international
conventions and corresponding laws and ordinances of a flag state, the classification society will undertake them on application
or by official order, acting on behalf of the authorities concerned.
The classification society also undertakes on request other surveys and checks that are required by regulations and requirements of
the flag state. These surveys are subject to agreements made in each individual case and/or to the regulations of the country
concerned.
For maintenance of the class, regular and extraordinary surveys of hull, machinery, and any special equipment classed are required
to be performed as follows:
Annual Surveys. For seagoing ships, annual surveys are conducted for the hull and the machinery, including the electrical
plant and, where applicable, for special equipment classed, within three months before or after each anniversary date of the
date of commencement of the class period indicated in the certificate.
Intermediate Surveys. Extended annual surveys are referred to as intermediate surveys and typically are conducted two
and one-half years after commissioning and each class renewal. Intermediate surveys may be carried out on the occasion of
the second or third annual survey.
Class Renewal or Special Surveys. Class renewal surveys, also known as special surveys, are carried out for the ships hull,
machinery, including the electrical plant and for any special equipment classed, at the intervals indicated by the character
of classification for the hull. At the special survey, the vessel is thoroughly examined, including audio-gauging to
determine the thickness of the steel structures. Should the thickness be found to be less than class requirements, the
classification society would prescribe steel renewals. The classification society may grant a one-year grace period for
completion of the special survey. Substantial amounts of money may have to be spent for steel renewals to pass a special
survey if the vessel experiences excessive wear and tear. In lieu of the special survey every four or five years, depending on
whether a grace period was granted, a ship owner has the option of arranging with the classification society for the vessels
hull or machinery to be inspected on a continuous survey cycle, in which every part of the vessel would
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be surveyed within a five year cycle. At an owners application, the surveys required for class renewal may be split
according to an agreed schedule to extend over the entire period of class. This process is referred to as continuous class
renewal.
All areas subject to survey as defined by the classification society are required to be surveyed at least once per class period, unless
shorter intervals between surveys are prescribed elsewhere. The period between two subsequent surveys of each area must not
exceed five years.
Vessels have their underwater parts inspected every 30 to 36 months. Depending on the vessels classification status and
constructed notation and other factors, this inspection can often be done afloat with minimal disruption to the vessels commercial
deployment. However, vessels are required to be drydocked, meaning physically removed from the water, for inspection and
related repairs at least once every five years from delivery. If any defects are found, the classification surveyor will issue a
condition of class or recommendation which must be rectified by the ship owner within prescribed time limits.
Most insurance underwriters make it a condition for insurance coverage that a vessel be certified as in-class by a classification
society which is a member of the International Association of Classification Societies (IACS). All our vessels are certified as
being in-class by American Bureau of Shipping and Lloyds Register. In December 2013 the IACS adopted new harmonized
Common Rules, which apply to oil tankers and bulk carriers to be constructed on or after July 1, 2015. All new and second-hand
vessels that we purchase must be certified prior to their delivery to us. If the vessel is not certified on the scheduled date of closing,
we have no obligation to take delivery of the vessel.
In addition to the classification inspections, many of our customers regularly inspect our vessels as a precondition to chartering
them for voyages. We believe that our well-maintained, high-quality vessels provide us with a competitive advantage in the
current environment of increasing regulation and customer emphasis on quality.
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engine breakdown and other insured named perils up to an agreed amount per vessel. Our war risks insurance covers the risks of
particular average and actual or constructive total loss from confiscation, seizure, capture, vandalism, sabotage, and other war-
related named perils. We have also arranged coverage for increased value for each vessel. Under this increased value coverage, in
the event of total loss of a vessel, we will be able to recover amounts in excess of those recoverable under the hull and machinery
policy in order to compensate for additional costs associated with replacement of the vessel. Each vessel is covered up to at least
its fair market value at the time of the insurance attachment and is subject to a fixed deductible per accident or occurrence, but
excluding actual or constructive total loss.
Our current protection and indemnity insurance coverage for pollution is $1.0 billion per vessel per incident. We are a member of
a P&I Club that is a member of the International Group of P&I Clubs (International Group). The P&I Clubs that comprise the
International Group insure approximately 90% of the worlds commercial tonnage and have entered into a pooling agreement to
reinsure each associations liabilities.
Although the P&I Clubs compete with each other for business, they have found it beneficial to pool their larger risks under the
auspices of the International Group. This pooling is regulated by a contractual agreement which defines the risks that are to be
pooled and exactly how these risks are to be shared by the participating P&I Clubs. The pool provides a mechanism for sharing all
claims in excess of $10.0 million up to approximately $7.5 billion. We are subject to calls payable to the associations based on its
claim record, as well as the claim records of all other members of the individual associations and members of the pool of P&I Clubs
comprising the International Group.
Exchange Controls
Under Marshall Islands law, there are currently no restrictions on the export or import of capital, including foreign exchange
controls or restrictions that affect the remittance of dividends, interest or other payments to non-resident holders of our common
shares.
C. Organizational Structure
Please see Item 4.A (Information on the Company History and Development of the Company) in this Annual Report for
information about our organizational structure. We have 45 wholly owned subsidiaries, a list of which is included as Exhibit 8.1
to this Annual Report.
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(1) Hire rate refers to the basic payment from the charterer for the use of the vessel.
(2) Voyage expenses are all expenses related to a particular voyage, including any bunker fuel expenses, port fees, cargo loading
and unloading expenses, canal tolls and agency fees.
(3) Vessel operating expenses are costs of operating a vessel that are incurred during a charter, including costs of crewing, repairs
and maintenance, insurance, stores, lube oils, communication expenses, and technical management fees.
(4) Off-hire refers to the time a vessel is not available for service, due primarily to scheduled and unscheduled repairs or
drydocking.
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A. Operating Results
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Commercial Pools. To increase vessel utilization and thereby revenues, we participate in commercial pools with other ship
owners of similar modern, well-maintained vessels. By operating a large number of vessels as an integrated transportation system,
commercial pools offer customers greater flexibility while achieving scheduling efficiencies. Pools typically employ experienced
commercial charterers and operators who have close working relationships with customers and brokers, while technical
management is performed by each ship owner. Pools negotiate charters with customers primarily in the spot market. The size and
scope of these pools enhance utilization rates for pool vessels by securing backhaul voyages and contracts of affreightment, which
may generate higher effective TCE revenues than otherwise might be obtainable in the spot market, while providing a higher level
of service offerings to customers.
Factors You Should Consider When Evaluating Our Results
We face a number of risks associated with our business and industry and must overcome a variety of challenges to utilize our
strengths and implement our business strategy. These risks include, among others: the highly cyclical tanker industry; partial
dependence on spot charters; fluctuating charter values; changing economic, political and governmental conditions affecting our
industry and business; material changes in applicable laws and regulations; level of performance by counterparties, particularly
charterers; acquisitions and dispositions; increased operating expenses; increased capital expenditures; taxes; maintaining
customer relationships; maintaining sufficient liquidity; financing availability and terms; and management turnover.
Ship-owners base economic decisions regarding the deployment of their vessels upon actual and anticipated TCE rates, and
industry analysts typically measure rates in terms of TCE rates. This is because under time charters the customer typically pays the
voyage expenses, while under voyage charters, also known as spot market charters, the shipowner usually pays the voyage
expenses. Accordingly, the discussion of revenue below focuses on TCE rates where applicable.
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Operating Results
The following tables present our operating results for the years ended December 31, 2015 and 2014.
Statement of Operations for the Year Ended December 31, 2015 and December 31, 2014
Year Ended
INCOME STATEMENT DATA Dec. 31, 2015 Dec 31, 2014 Variance Variance (%)
REVENUE
Revenue $157,882,259 67,326,634 90,555,625 135%
OPERATING EXPENSES
Commissions and voyage related costs 30,137,173 7,004,045 (23,133,128) (330)%
Vessel operating expenses 46,416,510 29,447,876 (16,968,634) (58)%
Depreciation 24,157,022 14,854,885 (9,302,137) (63)%
Amortization of deferred dry dock
expenditure 2,120,974 2,031,100 (89,874) (4)%
General and administrative expenses 10,748,622 8,178,666 (2,569,956) (31)%
Total operating expenses 113,580,301 61,516,572 (52,063,729) (85)%
Profit/(loss) from operations 44,301,958 5,810,062 38,491,896 663%
Interest expense and finance costs (12,282,704) (4,119,283) (8,163,421) (198)%
Interest income 15,571 16,444 (873) (5)%
Profit/(loss) before taxes 32,034,825 1,707,223 30,327,602 1,776%
Income tax (79,860) (46,749) (33,111) (71)%
Net profit/(loss) $ 31,954,965 1,660,474 30,294,491 1,824%
Revenue. Revenue for the year ended December 31, 2015 was $157.9 million, an increase of $90.6 million from $67.3 million for
the year ended December 31, 2014. The increase is due to an increase in the average number of owned vessels to 19.69 for 2015
from 12.1 for 2014, improving market conditions and an increase in earnings per day generated by vessels employed in the spot
market. We had eight vessels and three vessels employed under direct spot chartering arrangements as at December 31, 2015 and
2014, respectively. As discussed above, under direct spot chartering arrangements, revenue is recognized on a gross charter basis,
while under time chartering and pooling arrangements, the charterer typically pays voyage expenses and revenue is recognized on
a net basis.
Commissions and voyage related costs. Commissions and voyage related costs were $30.1 million for the year ended December
31, 2015, as compared to $7.0 million for the year ended December 31, 2014. This increase is primarily due to 2,781 additional
revenue days in 2015 as compared to 2014, in line with the additional vessel deliveries following December 31, 2014. As
discussed above, under a direct spot chartering arrangement, all voyage expenses are borne by us as opposed to the charterer,
while under time chartering and pooling arrangements, the charterer typically pays voyage expenses.
TCE rate. The TCE rate for our fleet was $18,309 per day for the year ended December 31, 2015, an increase of $3,916 per day
from $14,393 per day for the year ended December 31, 2014.
Vessel operating expenses. Vessel operating expenses were $46.4 million for the year ended December 31, 2015, an increase of
$17.0 million from $29.4 million for the year ended December 31, 2014. This increase is primarily due to an increase in the
number of vessels in operation for 2015. Due to the nature of this expenditure, vessel operating expenses are prone to fluctuations
between periods. Average operating costs per vessel per day, including technical management fees, were $6,333 for the year ended
December 31, 2015, as compared to $6,556 for the year ended December 31, 2014.
Depreciation. Depreciation expense for the year ended December 31, 2015 was $24.2 million, an increase of $9.3 million from
$14.9 million for the year ended December 31, 2014. The increase is due to an increase in the average number of owned vessels to
19.69 for 2015 from 12.1 for 2014.
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Amortization of deferred dry dock expenditure. Amortization of deferred dry dock expenditure for the year ended December 31,
2015 was $2.1 million, as compared to $2.0 million for the year ended December 31, 2014. This increase is due to the timing of
scheduled drydockings occurring across the fleet. The capitalized costs of drydockings for a given vessel are depreciated on a
straight line basis to the next scheduled drydocking of the vessel.
General and administrative expenses. General and administrative expenses for the year ended December 31, 2015 were $10.7
million, as compared to $8.2 million for the year ended December 31, 2014. The increase reflects additional costs associated with
operating a growing fleet, along with general and administrative expenses being prone to fluctuations between periods.
Interest expense and finance costs. Interest expense and finance costs (which include loan interest, capital lease interest,
amortization of deferred financing fees and are net of capitalized interest) for the year ended December 31, 2015 were $12.3
million, as compared to $4.1 million for the year ended December 31, 2014. Cash interest expense increased by $5.9 million to
$13.0 million for 2015 from $7.1 million for 2014. This was the result of an increase in the average debt balance following the
delivery of ten vessels since December 31, 2015. Capitalized interest, which relates to vessels under construction, amounted to
$2.4 million for 2015, as compared to $3.9 million for 2014. Amortization of deferred financing charges for 2015 was $1.7
million, compared to $0.9 million for 2014.
Statement of Operations for the Year Ended December 31, 2014 and December 31, 2013
Year Ended
INCOME STATEMENT DATA Dec 31, 2014 Dec 31, 2013 Variance Variance (%)
REVENUE
Revenue $67,326,634 35,867,356 31,459,278 87.7%
OPERATING EXPENSES
Commissions and voyage related costs 7,004,045 2,523,842 (4,480,203) (177.5)%
Vessel operating expenses 29,447,876 18,215,487 (11,232,389) (61.7)%
Depreciation 14,854,885 8,388,208 (6,466,677) (77.1)%
Amortization of deferred dry dock expenditure 2,031,100 1,420,814 (610,286) (43.0)%
General and administrative expenses 8,178,666 5,669,935 (2,508,731) (44.2)%
Total operating expenses 61,516,572 36,218,286 (25,298,286) (69.8)%
Profit/(loss) from operations 5,810,062 (350,930) 6,160,992 1775.6%
Interest expense and finance costs (4,119,283) (3,464,006) (655,277) (18.9)%
Interest income 16,444 6,059 10,385 171.4%
Profit/(loss) before taxes 1,707,223 (3,808,877) 5,516,100 144.8%
Income tax (46,749) (33,726) (13,023) (38.6)%
Net profit/(loss) $ 1,660,474 (3,842,603) 5,503,077 143.2%
Revenue. Revenue for the year ended December 31, 2014 was $67.3 million, an increase of $31.4 million from $35.9 million for
the year ended December 31, 2013. Revenue days on owned vessels increased by 1,631 days from 2,649 days for the year ended
December 31, 2013 to 4,280 days for the year ended December 31, 2014. The increase primarily relates to the deliveries of six
vessels (the Ardmore Seavantage, Ardmore Seamariner, Ardmore Seavanguard, Ardmore Endeavour, Ardmore Sealifter and
Ardmore Sealeader) which commenced trading on January 18, February 1, February 17, June 25, July 22 and August 21, 2014
respectively. In addition, three vessels (the Ardmore Endeavour, Ardmore Sealifter and Ardmore Sealeader) were employed under
a spot chartering arrangement, where voyage expenses are borne directly by us and, thus, revenue is recognized on a gross freight
basis. Fleet TCE rates increased in the year ended December 31, 2014, to $14,393 per day as compared to $12,850 per day for the
year ended December 31, 2013.
TCE rate. The TCE rate for our fleet was $14,393 per day for the year ended 31 December, 2014, an increase of $1,543 per day
from $12,850 for the year ended 31 December, 2014.
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Commissions and voyage related costs. Commissions and voyage related costs for the year ended December 31, 2014 were $7.0
million, an increase of $4.5 million from $2.5 million for the year ended December 31, 2013. This increase is due to additional
revenue days as a result of the vessel deliveries in 2014. The employment of three recently acquired vessels under spot chartering
arrangement also increased the commissions and voyage related costs. Under a spot chartering arrangement, all voyage expenses
are borne by us, as opposed to the charterer.
Vessel operating expenses. Vessel operating costs were $29.4 million for the year ended December 31, 2014, an increase of $11.2
million from $18.2 million for the year ended December 31, 2013. Vessel operating expenses are based primarily on the number of
operating days in the period. Operating days were 4,402 days for the year ended December 31, 2014 as compared to 2,703 days for
the year ended December 31, 2013. Fleet operating costs per day, including technical management fees, were $6,556 for the year
ended December 31, 2014, as compared to $6,531 for the year ended December 31, 2013
Depreciation. Depreciation expense was $14.9 million for the year ended December 31, 2014, an increase of $6.5 million from
$8.4 million for the year ended December 31, 2013. This increase is a result of the vessel deliveries in 2014, with the average
number of owned vessels for the year ended December 31, 2014 being 12.1 as compared to 7.4 for the year ended December 31,
2013.
Amortization of deferred drydock expenditure. Amortization of deferred drydock expenditure for the year ended December 31,
2014 was $2.0 million, an increase of $0.6 million from $1.4 million for the year ended December 31, 2013. This increase is
primarily due to scheduled drydockings occurring across the fleet in 2014.
General and administrative expenses. General and administrative expenses were $8.2 million for the year ended December 31,
2014, as compared to $5.7 million for the year ended December 31, 2013. This increase was primarily the result of an increase in
non-cash, share based compensation expense included in general and administrative expenses from $0.6 million for the year
ended December 31, 2013 to $1.4 million for the year ended December 31, 2014, and increased expenses as a consequence of
being a public company for a full year in 2014. A significant portion of our general and administrative costs are incurred in Euros.
These expenses are susceptible to foreign currency movements between U.S. dollars and Euros. However, we do not expect the
impact of any fluctuations in foreign currency to have a material impact on us.
Interest expense. Interest expense for the year ended December 31, 2014 was $4.1 million as compared to $3.5 million for the year
ended December 31, 2013. Interest costs on senior debt were $4.9 million for the year ended December 31, 2014, an increase of
$1.8 million from $3.1 million for the year ended December 31, 2013. Interest incurred on capital leases was $2.2 million for the
year ended December 31, 2014 as compared to $1.7 million for the year ended December 31, 2013. Amortized deferred finance
fees for the year ended December 31, 2014 were $0.9 million, as compared to $0.8 million for the year ended December 31, 2013,
primarily due to higher borrowing amounts related to additional vessels.
We capitalize interest costs that are attributable to amounts advanced for vessels under construction. Where a loan is directly
attributable to vessels under construction, we capitalize this interest in full. Where we have not financed the advances for vessels
under construction with a loan, we attribute capitalized interest to these amounts based on the weighted average interest rate for
the period (capitalized interest). Total capitalized interest was $3.9 million for the year ended December 31, 2014, an increase of
$1.8 million from $2.1 million for the year ended December 31, 2013. Capitalized interest increased in 2014 in line with deposits
paid for Ardmores current vessels on order.
B. Liquidity and Capital Resources
Our primary sources of liquidity are cash and cash equivalents, cash flows provided by our operations, our undrawn credit
facilities and capital raised through financing transactions. As at December 31, 2015, our total cash and cash equivalents were
$40.1 million, a decrease of $19.8 million from $59.9 million as at December 31, 2014, following payments made for vessels
under construction. We believe that our working capital, together with expected cash flows from operations and availability under
credit facilities, will be sufficient for our present requirements.
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Our short-term liquidity requirements include the payment of operating expenses, drydocking expenditures, debt servicing costs,
dividends on our shares of common stock, scheduled repayments of long-term debt, as well as funding our other working capital
requirements. Our short-term and spot charters, including participating in spot charter pooling arrangements, contribute to the
volatility of our net operating cash flow, and thus our ability to generate sufficient cash flows to meet our short-term liquidity
needs. Historically, the tanker industry has been cyclical, experiencing volatility in profitability and asset values resulting from
changes in the supply of, and demand for, vessel capacity. In addition, tanker spot markets historically have exhibited seasonal
variations in charter rates. Tanker spot markets are typically stronger in the winter months as a result of increased oil consumption
in the northern hemisphere and unpredictable weather patterns that tend to disrupt vessel scheduling. Time charters provide
contracted revenue that reduces the volatility (as rates can fluctuate within months) and seasonality from revenue generated by
vessels that operate in the spot market. Commercial pools reduce revenue volatility because they aggregate the revenues and
expenses of all pool participants and distribute net earnings to the participants based on an agreed upon formula. Spot charters
preserve flexibility to take advantage of increasing rate environments, but also expose the ship-owner to decreasing rate
environments.
Our long-term capital needs are primarily for capital expenditures and debt repayment. Generally, we expect that our long-term
sources of funds will be cash balances, long-term bank borrowings and other debt or equity financings. We expect that we will rely
upon internal and external financing sources, including, cash balances, bank borrowings and the issuance of debt and equity
securities, to fund acquisitions and expansion capital expenditures.
Our credit facilities and capital leases are described in Notes 2 (Debt) and 3 (Capital leases) to our consolidated financial
statements included in Item 18 of this Annual Report. Our financing facilities contain covenants and other restrictions we believe
are typical of debt financing collateralized by vessels, including those that restrict the relevant subsidiaries from incurring or
guaranteeing additional indebtedness, granting certain liens, and selling, transferring, assigning or conveying assets. Our
financing facilities do not impose a restriction on dividends, distributions, or returns of capital unless an event of default has
occurred, is continuing or will result from such payment. Our financing facilities require us to maintain various financial
covenants. Should we not meet these financial covenants or other covenants, the lenders may declare our obligations under the
agreements immediately due and payable, and terminate any further loan commitments, which would significantly affect our
short-term liquidity requirements. As at December 31, 2015, we were in compliance with all covenants relating to our financing
facilities.
Cash Flow Data for the Years Ended December 31, 2015, 2014 and 2013
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For the year ended December 31, 2014, cash flow provided by operating activities was $12.4 million. Net profit (after adding back
depreciation, amortization and other non-cash items) resulted in a cash inflow of $20.8 million. Changes in operating assets and
liabilities resulted in an outflow of $3.5 million and drydock payments were $4.9 million.
For the year ended December 31, 2013, cash flow provided by operating activities was $8.1 million. Net profit (after adding back
depreciation, amortization and other non-cash items) resulted in a cash inflow of $7.3 million. Changes in operating assets and
liabilities contributed an inflow of $1.1 million and drydock payments were $0.3 million.
Cash used by investing activities
For the year ended December 31, 2015, net cash used in investing activities was $232.9 million. Payments for the completion of
vessels under construction, along with vessel equipment, were $232.5 million for 2015. Payments for office equipment, and
fixtures and fittings during the year were $0.4 million.
For the year ended December 31, 2014, net cash used in investing activities was $209.7 million. Investment in second-hand
vessels, the completion of vessels and vessel equipment was $152.2 million. Payments made during the year for vessels still under
construction at December 31, 2014 were $57.5 million. In addition to these outflows, we spent $0.06 million on other assets for
the year ended December 31, 2014, which primarily relates to expenditure on IT infrastructure and further office fit out.
For the year ended December 31, 2013, net cash used in investing activities was $144.6 million. Investment in second-hand
vessels, the completion of vessels and vessel equipment was $63.5 million. Payments for vessels still under construction at
December 31, 2013 were $81.1 million, due to new orders placed within the year. In addition to these outflows, we spent $0.07
million on other assets for the year ended December 31, 2013, which primarily relates to expenditure on IT infrastructure and
further office fit out.
Cash provided by financing activities
For the year ended December 31, 2015, the net cash provided by financing activities was $175.4 million. Drawdowns of long-term
debt amounted to $216.5 million and repayments of debt amounted to $24.8 million. Total principal repayments of the capital
lease arrangement were $1.7 million. We also incurred payments of $1.6 million relating to deferred finance charges for loan
facilities, and for commitment fees payable in respect of other financing committed for vessels which were under construction.
Quarterly cash dividends paid were $13 million for the period.
For the year ended December 31, 2014, the net cash provided by financing activities was $200.3 million. Drawdowns of senior
debt totalled $128.6 million and repayments of senior debt totalled $12.8 million. Repayments of the capital lease arrangement
amounted to $1.6 million in 2014. We also incurred $5.7 million of deferred finance charges for senior loan facilities, along with
commitment fees payable in respect of financing committed for vessels under construction. Gross proceeds from our equity public
offering in March 2014 were $108.7 million, which was partially offset by $6 million of offering related expenses. Quarterly
dividends paid during 2014 were $9.6 million. Payments for repurchases of our common shares pursuant to our share repurchase
plan were $1.3 million.
For the year ended December 31, 2013, the net cash provided by financing activities was $178.0 million. Drawdowns of senior
debt totalled $47.0 million and repayments of senior debt totalled $25.3 million. Total proceeds and repayments of a capital lease
arrangement amounted to $31.5 million and $1.1 million respectively. We also incurred $1.3 million of deferred finance charges
for a senior loan facility that had not been drawn down at year end, along with commitment fees payable in respect of other
financing committed for vessels under construction. Gross proceeds from our IPO amounted to $140.0 million, which was offset by
$11.6 million of IPO related expenses. We paid a total dividend on November 20, 2013 of $1.2 million with respect to the quarter
ended September 30, 2013.
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Capital Expenditures
Drydock
Three of our vessels completed drydock surveys in 2015. The drydocking schedule for our vessels that were in operation as of
December 31, 2015 is as follows:
Dividends
On each of February 18, May 15 and August 14, 2015 we paid a cash dividend of $0.10 per share of our common stock for the
quarters ended December 31, 2014, March 31, 2015 and June 30, 2015, respectively.
On April 2, 2015, we introduced our Dividend Reinvestment Plan. The plan allows existing shareholders to purchase additional
common shares by automatically reinvesting all or any portion of the cash dividends paid on common shares held by the plan
participant.
On September 8, 2015, we announced a change to our dividend policy to a constant payout ratio policy. Under the new policy we
expect to pay out as dividends on a quarterly basis 60% of Earnings from Continuing Operations (which represents our earnings
per share reported under U.S. GAAP as adjusted for unrealized and realized gains and losses and extraordinary items).
On October 27, 2015, Ardmores Board of Directors announced a cash dividend of $0.31 per share for the quarter ended September
30, 2015. The dividend was paid on November 16, 2015 to all shareholders of record on November 6, 2015.
On February 3, 2016, Ardmores Board of Directors declared a cash dividend of $0.13 per share for the quarter ended December 31,
2015. The dividend was payable on February 29, 2016 to all shareholders of record on February 16, 2016.
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D. Trend Information
Our results of operations depend primarily on the charter hire rates that we are able to realize for our vessels, which primarily
depend on the demand and supply dynamics characterizing the tanker market at any given time. The oil tanker industry has been
highly cyclical in recent years, experiencing volatility in charter hire rates and vessel values resulting from changes in the supply
of and demand for crude oil and tanker capacity. For other trends affecting our business, please see the other discussions above in
this Item 4 Information on the Company Business Overview The International Product and Chemical Tanker Industry
and Item 5 Operating and Financial Review and Prospects.
(1) The interest expense on our loans is variable and based on LIBOR. The amounts in the above schedule were calculated using
an interest swap rate of 0.62% plus a margin of 2.55%, which is the weighted average margin on our senior loan facilities.
Critical Accounting Estimates
In the application of our accounting policies, which are prepared in conformity with U.S. GAAP, we are required to make
judgments, estimates and assumptions about the carrying amounts of assets and liabilities, and revenues and expenses that are not
readily apparent from other sources. The estimates and associated assumptions are based on historical experience and other factors
that are considered to be relevant. Actual results may differ from these estimates. The estimates and underlying assumptions are
reviewed on an ongoing basis. Revisions to accounting estimates are recognized in the period in which the estimate is revised if
the revision affects only that period, or in the period of the revision and future periods if the revision affects both current and
future periods.
The significant judgments and estimates are as follows:
Revenue recognition. If a time charter agreement exists, the rate is fixed or determinable, service is provided and collection of the
related revenue is reasonably assured, then we recognize revenues over the term of the time charter. We do not recognize revenue
during days the vessel is offhire. Where the time charter contains a profit or loss sharing arrangement, the profit or loss is
recognized based on amounts earned or incurred as of the reporting date.
Revenues and voyage expenses of our vessels operating in commercial pooling arrangements are pooled with the revenues and
voyage expenses of other pool participants. The resulting net pool revenues, calculated on the time charter equivalent basis, are
allocated to the pool participants according to an agreed upon formula. The formulas used to allocate net pool revenues vary
among different pools but generally allocate revenues to pool participants on the basis of the number of days a vessel operates in
the pool with weighted adjustments made to reflect the vessels differing capacities and performance capabilities. We account for
our vessels share
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of net pool revenue on the allocated time charter equivalent on a monthly basis. Net pool revenues due from the pool are included
in trade receivables.
Revenues from voyage charters on the spot market are recognized ratably on a discharge-to-discharge basis (i.e. from when cargo
is discharged (unloaded) at the end of one voyage to when it is discharged after the next voyage), provided an agreed irrevocable
charter between us and the charterer is in existence, the charter rate is fixed or determinable and collectability is reasonably
assured. Revenue under voyage charters is not recognized until a charter has been agreed, even if the vessel has discharged its
previous cargo and is proceeding to an anticipated port of loading.
Shares-Based Compensation. We grant share-based payment awards, such as restricted stock units, as incentive-based
compensation to certain employees. We granted Stock Appreciation Rights (SARs) to certain employees and officers in August
2013, March 2014, June 2014 and March 2015. We measure the cost of equity-settled transactions with employees by reference to
the fair value of the equity instruments at the date on which they are granted, which we calculate according to the Financial
Accounting Standards Board (FASB) Accounting Standards Codification Topic No. 718, Compensation Stock Compensation
(ASC 718). Estimating fair value for share-based payment transactions requires determining the most appropriate valuation
model, which is dependent on the terms and conditions of the grant. This estimate also requires determining the most appropriate
inputs to the valuation model, including the expected life of the award, volatility and dividend yield, and making certain other
assumptions about the award.
Depreciation. Vessels are depreciated on a straight-line basis over their estimated useful economic life from the date of initial
delivery from the shipyard. The useful life of our vessels is estimated at 25 years from the date of initial delivery from the shipyard.
Depreciation is based on cost less estimated residual scrap value. Residual scrap value is estimated as the lightweight tonnage of
each vessel multiplied by the estimated scrap value per ton. The estimated scrap value is reviewed each year.
Vessel impairment. Vessels and equipment that are held and used are assessed for impairment when events or circumstances
indicate the carrying amount of the asset may not be recoverable. When such indicators are present, a vessel to be held and used is
tested for recoverability by comparing the estimate of future undiscounted net operating cash flows expected to be generated by
the use of the vessel over its remaining useful life and its eventual disposition to its carrying amount. An impairment charge is
recognized if the carrying value is in excess of the estimated future undiscounted net operating cash flows. The impairment loss is
measured based on the excess of the carrying amount over the fair market value of the asset.
Net operating cash flows are determined by applying various assumptions regarding future revenues net of commissions, operating
expenses, scheduled drydockings, expected offhire and scrap values. These assumptions are based on historical trends as well as
future expectations. Specifically, in estimating future charter rates, management takes into consideration rates currently in effect
for existing time charters and estimated daily time charter equivalent rates for each vessel class for the unfixed days over the
estimated remaining lives of each of the vessels. The estimated daily time charter equivalent rates used for unfixed days are based
on a combination of internally forecasted rates that are consistent with forecasts provided to senior management and our board of
directors, and the trailing 10-year historical average one-year time charter rates, based on average rates published by maritime
researchers. Recognizing that rates tend to be cyclical, and subject to significant volatility based on factors beyond our control,
and management believes the use of estimates based on the combination of internally forecasted rates and 10-year historical
average rates calculated as of the reporting date to be reasonable. Estimated outflows for operating expenses and drydocking
requirements are based on historical and budgeted costs and are adjusted for assumed inflation. Utilization is based on historical
levels achieved and estimates of a residual value are consistent with scrap rates used in managements evaluation of scrap value.
Although management believes that the assumptions used to evaluate potential impairment are reasonable and appropriate at the
time they were made, such assumptions are highly subjective and likely to change, possibly materially, in the future. There can be
no assurance as to how long charter rates and vessel values will remain at their current levels or whether they will improve by a
significant degree. If charter rates were to be at depressed levels, future assessments of vessel impairment would be adversely
affected.
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In recent years, the market values of vessels have experienced particular volatility, with substantial declines in many of the
charter-free market values, or basic market values, of various vessel classes. As a result, our vessels may have declined below those
vessels carrying values, even though we did not impair those vessels carrying values under our impairment accounting policy.
This is due to our belief that future undiscounted cash flows expected to be earned by such vessels over their operating lives
would exceed such vessels carrying amounts.
Our estimates of basic market value assume that our vessels are all in good and seaworthy condition without the need for repair
and, if inspected, that they would be certified in class without notations of any kind. Our estimates are based on the estimated
market values for our vessels that we have received from independent ship brokers, reports by industry analysts and data providers
that focus on our industry and related dynamics affecting vessel values, and news and industry reports of similar vessel sales.
Vessel values are highly volatile and as such, our estimates may not be indicative of the current or future basic market value of our
vessels or prices that we could achieve if we were to sell them.
The table below indicates the carrying value of each of our owned vessels as of December 31, 2015 and 2014, at which time we
were not holding any of the vessels listed in the table below as held for sale. We believe that the future undiscounted cash flows
expected to be earned by those vessels of our fleet that have experienced a decline in charter-free market value below such vessels
carrying value over their operating lives would exceed such vessels carrying values as of December 31, 2015, and, accordingly,
have not recorded an impairment charge.
Carrying value includes, as applicable, drydock, upgrades, capitalized interest, supervision fees and other newbuilding pre-
delivery costs. Deposits paid, or costs incurred, in relation to the acquisition of second-hand vessels are not presented in the table
below.
Carrying Value as at
Built DWT Dec 31, 2015 Dec 31, 2014
Ardmore Seavaliant 2013 49,998 $ 35,603,953 37,029,009
Ardmore Seaventure 2013 49,998 36,252,463 37,706,584
Ardmore Seavantage 2014 49,997 37,537,599 39,006,544
Ardmore Seavanguard 2014 49,998 37,672,893 39,142,171
Ardmore Sealion 2015 49,999 35,129,760
Ardmore Seafox 2015 49,999 35,169,232
Ardmore Seawolf 2015 49,999 35,597,458
Ardmore Seahawk 2015 49,999 36,044,048
Ardmore Endeavour 2013 49,997 34,181,654 35,497,737
Ardmore Seafarer 2004 45,744 19,931,834 21,531,464
Ardmore Seatrader 2002 47,141 18,570,440 18,820,205
Ardmore Seamaster 2004 45,840 20,210,571 21,990,046
Ardmore Seamariner 2006 45,726 20,776,068 22,421,449
Ardmore Sealeader 2008 47,463 22,368,373 23,449,705
Ardmore Sealifter 2008 47,472 21,816,947 22,831,489
Ardmore Dauntless 2015 37,764 35,805,905
Ardmore Defender 2015 37,791 35,913,200
Ardmore Centurion 2005 29,006 19,345,625 19,044,680
Ardmore Cherokee 2015 25,215 30,678,967
Ardmore Cheyenne 2015 25,217 30,916,192
Ardmore Chinook 2015 25,217 31,203,225
Ardmore Chippewa 2015 25,217 31,632,901
Ardmore Calypso 2010 17,589 18,783,238 19,719,305
Ardmore Capella 2010 17,567 18,300,747 17,657,252
Total $ 699,443,292 375,847,640
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We estimate that the aggregate carrying value of these vessels exceeded their aggregate basic market value by approximately
$12.2 million as of December 31, 2015 and $16.4 million as at December 31, 2014. We believe that eight of our vessels carrying
values exceeded the basic market value as of December 31, 2015 and that three of our vessels carrying value exceeded the basic
market value as of December 31, 2014. We did not record an impairment of any vessels due to our impairment accounting policy,
as future undiscounted cash flows expected to be earned by such vessels over their operating lives exceeded the vessels carrying
amounts. In addition to carrying out our impairment analysis, we performed a sensitivity analysis for a 10% reduction in
forecasted vessel utilization and a 10% reduction in time charter rates and, in each scenario, the future undiscounted cash flows
significantly exceeded the carrying value of each of our vessels.
Contingencies. Claims, suits and complaints arise in the ordinary course of our business. We provide for contingent liabilities
when (i) it is probable that a liability has been incurred at the date of the financial statements and (ii) the amount of the loss can be
reasonably estimated.
Financial instruments. We believe that the carrying values of cash and cash equivalents, trade receivables and trade payables
reported in the consolidated balance sheet for those financial instruments are reasonable estimates of their fair values due to their
short-term nature. The fair values of long-term debt approximate the recorded values due to the variable interest rates payable.
Recent Accounting Pronouncements
Please see Note 2.4 Recent accounting pronouncements to our consolidated financial statements included in Item 18 of this
Annual Report for a description of recently issued accounting pronouncements that may apply to us.
G. Safe Harbor
Forward-looking information discussed in this Item 5 includes assumptions, expectations, projections, intentions and beliefs
about future events. These statements are intended as forward-looking statements. We caution that assumptions, expectations,
projections, intentions and beliefs about future events may and often do vary from actual results and the differences can be
material. Please see the section entitled Forward-Looking Statements at the beginning of this Annual Report.
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Albert Enste has served as a director of Ardmore since its IPO in August 2013. Mr. Enste currently serves as an active partner and
Managing Director of both Enste & American Investors Holding Gmbh and Federnfabrik Schmid AG. He also currently serves on
the boards of People Guard USA and Federnfabrik Schmid AG Switzerland. Between 2006 and 2011, Mr. Enste served as the Vice
President and General Manager of International Business at Electro-Motive Diesel, Inc. From 2000 to 2001, Mr. Enste headed
worldwide locomotive sales as Vice President of Locomotives at DaimlerChrysler Rail Systems ADtranz and continued to hold
this position, as well as that of Senior Director until 2006 with Bombardier Transportation after they acquired DaimlerChrysler
Rail Systems ADtranz. Mr. Enste holds a Master of Engineering from the Technical University of Munich.
Anthony Gurnee has been our President, Chief Executive Officer and a director of Ardmore since 2010. Between 2006 and 2008,
he was the Chief Executive Officer of Industrial Shipping Enterprises, Inc., a containership and chemical tanker company, and
Chief Operating Officer of MTM Group, an operator of chemical tankers. From 1992 to 1997, he was the Chief Financial Officer of
Teekay Corporation, where he led the companys financial restructuring and initial public offering. Mr. Gurnee began his career as
a financier with Citicorp, and he served for six years as a surface line officer in the US Navy, including a tour with naval
intelligence. He is a graduate of the US Naval Academy and earned an MBA at Columbia Business School, is a CFA charter
holder, and a fellow of the Institute of Chartered Shipbrokers.
Reginald Jones is our Chairman and a director. Mr. Jones has been the Chairman and a director of Ardmore since 2010. Mr. Jones
is a co-founder and Managing Partner of Greenbriar Equity Group LLC. Prior to founding Greenbriar in 1999, Mr. Jones spent 13
years at Goldman, Sachs & Co., where he was a Managing Director and Group Head of global transportation investment banking.
During his time there, Mr. Jones managed a number of the firms largest corporate clients and led the execution of significant
transactions related to mergers and acquisitions, equity and debt financings, leveraged buyouts, recapitalizations, and principal
investments. Prior to Goldman Sachs, he worked as a consultant at Bain & Company. Mr. Jones earned a BA from Williams
College and an MBA from the Harvard Business School.
Niall McComiskey is a director of the Company. Mr. McComiskey was appointed as a director of Ardmore in March 2011. Mr.
McComiskey is also a Director at Greenbriar Equity Group LLC. Prior to joining Greenbriar, Mr. McComiskey was a Vice
President at HSH Nordbank AG from 2004 to 2006, where he led many of the firms investment activities in the transportation
sector. Previously, Mr. McComiskey worked in the Mergers and Acquisitions Group at Deutsche Bank AG. Mr. McComiskey
holds a BA in economics from Yale University. He also serves as a director of Grakon International, Inc.
Robert McIlwraith has served as a director of Ardmore since its IPO in August 2013. Mr. McIlwraith has been an owner of
Redwood Management Consultants since April 2011 and has served as Chairman of the Exeter Initiative for Science and
Technology (ExIST) since June 2011. He has also served as Chairman of the Trustees of AmSafe Bridport Pension Scheme since
2000, has been teaching Accounting and Finance and Management Studies at INTO University of Exeter since January 2011,
became a chamber member at the Exeter Chamber of Commerce and Industry in April 2013, and has served as a Trustee of
Sidmouth Hospiscare since 2011. He previously served as the President of Align Aerospace France from October 2011 to August
2012 and as a Managing Director and Executive Vice President for the global aerospace and defense business Amsafe from 1998
to 2011. Mr. McIlwraith earned his Bachelors degree in Mechanical Engineering from Cardiff University and is a Chartered
Engineer and a Member of the Institution of Mechanical Engineers.
Curtis McWilliams was appointed as a director by the board of directors in January 2016. Mr. McWilliams is a real estate industry
veteran with over 25 years of experience in finance and real estate. He currently serves as a member of the Ashford Hospitality
Prime, Inc. Board of Directors. He retired from his position as President and Chief Executive Officer of CNL Real Estate Advisors,
Inc. in 2010 after serving in the role since 2007. Mr. McWilliams was also the President and Chief Executive Officer of Trustreet
Properties Inc. from 1997 to 2007, and a director of the company from 2005 to 2007. He served on the Board of Directors and as
the Audit Committee Chairman of CNL Bank from 1999 to 2004 and has over 13 years of investment banking experience at
Merrill Lynch & Co. Mr. McWilliams has a Master's degree in Business, with a
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concentration in Finance, from the University of Chicago Graduate School of Business, and a Bachelor of Science in Engineering
in Chemical Engineering from Princeton University.
Gernot Ruppelt is our Senior Vice President, Chartering and Business Development. Mr. Ruppelt joined Ardmore as Director,
Chartering and Business Development in 2013 and was appointed to his current position as Senior Vice President in December
2014. Mr. Ruppelt brought to Ardmore 12 years of commercial experience in the maritime business. From 2008 to 2013, he
worked as a Tanker Broker at Poten & Partners, New York. During his time at Poten & Partners, Mr. Ruppelt brokered longer term
deals for crude oil, product and chemical tankers working on behalf of ship-owners and operators, oil traders, refineries and oil
companies. From 2001 to 2008 he worked for Maersk Broker and AP Moller Maersk in Copenhagen, Singapore and Germany.
As a broker at Maersk, Mr. Ruppelt concluded container ship contracts for third party business, and he also spent several years at
Maersks liner organization, most recently as Trade Manager for their Pacific Eastbound trade. He is a member of the Institute of
Chartered Shipbrokers in London. He also completed the two-year Maersk International Shipping Education program and
graduated from Hamburg Shipping School.
Peter Swift has served as a director of Ardmore since its IPO in August 2013. Dr. Swift has had a distinguished career spanning 45
years in the maritime industry, and is presently serving in non-profit and charitable directorships, including acting as the
Chairman of the Maritime Piracy Humanitarian Response Programme, as a Member for both the American Bureau of Shipping and
the IMO Committee of the Royal Institution of Naval Architects, and as a Director of the Maritime Industry Foundation. Dr. Swift
was previously the Managing Director of INTERTANKO from 2000 to 2010 and a Director of Seascope Shipping Limited from
1999 to 2001. He was employed by Royal Dutch Shell from 1975 to 1999 in a range of commercial and technical roles. Dr. Swift
holds a PhD in Transport Economics, an MS in Engineering degree from the University of Michigan, and a BS in Naval
Architecture from the University of Durham. He is a Chartered Engineer and a Fellow of the Royal Institution of Naval Architects.
Paul Tivnan has been Senior Vice President, Chief Financial Officer, Secretary and Treasurer of Ardmore since June 2010. Mr.
Tivnan joined Ardmore in June 2010 and was appointed Chief Financial Officer in December 2012. From 2002 to 2010, he was
employed at Ernst & Young, most recently, as a Senior Executive in the Financial Services Tax Advisory department specialising
in international tax and corporate structuring. He was a participant in Ernst & Youngs Accelerated Leadership Program from 2008
to 2010. Mr Tivnan holds a BA in Accounting and Finance and an MBS in Accounting each from Dublin City University. He is an
Associate of the Institute of Chartered Accountants of Ireland, an Associate of the Irish Taxation Institute and a member of the
Institute of Chartered Shipbrokers.
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is not deemed to exceed five times (i.e., 500%) the per share exercise price of the SAR. Any appreciation in excess of four times the
per share exercise price of the SAR will be disregarded for purposes of calculating the amount payable under the SAR.
As at December 31, 2015 there had been four issuances of SARs: August 2013 (1,078,125 units), March 2014 (22,118 units), June
2014 (5,595 units). There was an additional issuance on March 2015 (37,797 units). The first SARs awards vest and become
exercisable ratably over five years from the date of grant of the SAR award (i.e., 20% of the shares covered by the SAR award vest
on each of the first five anniversaries of the grant date), and the second, third and fourth SAR awards are scheduled to vest and
become exercisable ratably over three years from the date of grant of the SAR award (i.e., 33% of the shares covered by the SAR
award vest on each of the first three anniversaries of the grant date), subject to, and conditioned upon, the grantees continued
service as an employee, officer or director of us or one of our subsidiaries or affiliates. However, no portion of a SAR award will be
exercisable prior to July 31, 2016 unless the fair market value of a share of our common stock is equal to more than two times the
SARs per share exercise price and has remained above such amount for 30 consecutive days. The SAR awards may receive
accelerated vesting in cases of termination of service due to death or disability or in connection with a change of control of the
Company. The SAR awards have a term of seven years from the date of grant and in no event will the SAR be exercisable to any
extent following the seventh anniversary of the grant date. The SAR awards are subject to adjustment in the event of certain
changes in capitalization or other significant corporate events, as more fully set forth in the equity incentive plan document.
Please see Note 18 Share based compensation to our consolidated financial statements included in this Annual Report for
additional information about the SAR awards.
C. Board Practices
Our board of directors currently consists of eight directors, five of whom, Brian Dunne, Peter Swift, Alan Robert McIlwraith, Albert
Enste, and Curtis McWilliams have been determined by our board of directors to be independent under the rules of the New York
Stock Exchange and the rules and regulations of the SEC. Our Audit Committee consists of Brian Dunne, as Chairman, Alan
Robert McIlwraith, Niall McComiskey and Curtis McWilliams. Our board of directors has determined that Mr. Dunne qualifies as
an audit committee financial expert as such term is defined under SEC rules. Mr. McComiskey, a non-independent member of
our board of directors, is an observer and does not have voting rights on the Audit Committee. The Audit Committee, among other
things, reviews our external financial reporting, engages our external auditors, and oversees our financial reporting procedures and
the adequacy of our internal accounting controls. The Nominating and Corporate Governance Committee consists of Reginald
Jones (a non-independent member of our board of directors) as Chairman, Niall McComiskey and Brian Dunne. The Nominating
and Corporate Governance Committee is responsible for recommending to the board of directors nominees for director and
directors for appointment to board committees and advising the board with regard to corporate governance practices. The
Compensation Committee consists of Reginald Jones, as Chairman, Peter Swift and Albert Enste. The Compensation Committee
oversees our equity incentive plan and recommends director and senior employee compensation. Our shareholders may also
nominate directors in accordance with the procedures set forth in our bylaws.
D. Employees
As of December 31, 2015, approximately 772 seagoing staff serve on the vessels that we manage and approximately 30 staff serve
on shore. This is compared with approximately 580 seafarers and approximately 22 staff on shore as of December 31, 2014 and
reflects the growth in our fleet. Many of our seafarers employed by our ship managers are unionized under various jurisdictions
and are employed under various collective bargaining agreements which does expose us to a risk of potential labor unrest at times
when those collective bargaining agreements are being re-negotiated.
We have entered into employment agreements with four of our executives: Anthony Gurnee, our President and Chief Executive
Officer; Paul Tivnan, our Senior Vice President and Chief Financial Officer; Mark Cameron, our Executive Vice President and
Chief Operating Officer; and Gernot Ruppelt, our Senior Vice President of Chartering and Business Development. These
employment agreements became effective as of August 1, 2013 and terminate in accordance with the terms of such agreements.
Pursuant to the terms of their respective
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employment agreements, our executive officers are prohibited from disclosing or unlawfully using any of our material confidential
information. The employment agreements also include one year non-solicitation and one year non-compete clauses following the
cessation of the employees employment with us.
The employment agreements require that we maintain director and officer insurance and that we indemnify and hold the employee
harmless against all expenses, liability and loss (including reasonable and necessary attorneys fees, judgments, fines and amounts
paid in settlement) in connection with any threatened or pending action, suit or proceeding, to which the employee is a party or is
threatened to be made a party as a result of the employees employment with us. The indemnification provisions exclude fraud,
willful misconduct or criminal activity on the employees behalf.
E. Share Ownership
The total amount of common stock owned by all of our officers and directors as a group is set forth below in Item 7. Major
Shareholders and Related Party Transactions A. Major Shareholders.
Item 7. Major Shareholders and Related Party Transactions
A. Major Shareholders
The following table sets forth information regarding beneficial ownership, as of March 15, 2016 (except as otherwise noted), of
our common stock by:
each person or entity known by us to beneficially own 5% or more of our common stock; and
all our current directors and executive officers and senior management as a group.
The information provided in the table is based on information filed with the SEC and information provided to us.
The number of shares beneficially owned by each person, entity, director, executive officer or other member of senior management
is determined under SEC rules and the information is not necessarily indicative of beneficial ownership for any other purpose.
Under SEC rules, a person or entity beneficially owns any shares as to which the person or entity has or shares voting or
investment power. In addition, a person or entity beneficially owns any shares that the person or entity has the right to acquire as
of the date 60 days after March 15, 2016) through the exercise of any stock option or other right; however, any such share are not
deemed outstanding for the purpose of computing the percentage ownership of any other person. Unless otherwise indicated, each
person or entity has sole voting and investment power (or shares such powers with his or her spouse) with respect to the shares set
forth in the following table.
Number of Percentage of
Common Shares Common Shares
Beneficially Beneficially
Name of Beneficial Owner Owned Owned(1)
GA Holdings LLC (2) 4,348,798 16.8%
Donald Smith & Co. Inc.(3) 2,620,958 10.1%
FMR LLC (4) 2,166,847 8.4%
Royce & Associates, LLC (5) 1,339,503 5.2%
All directors, executive officers and senior management, as a group (6) * *
(1) Based on 25,913,237 shares of common stock outstanding on March 15, 2016.
(2) This information is based on the Schedule 13G filed with the SEC on February 2, 2016, as updated to reflect their participation
in our dividend reinvestment plan. Approximately 98.6% of the limited company interests in GA Holdings LLC are owned by
private investment funds managed by affiliates of Greenbriar Equity Group, LLC. Such entities and their control persons, Joel
S. Beckman, Reginald L. Jones III (an Ardmore director) and Gerald Greenwald, have shared voting and investment power with
respect to shares of the company held by GA Holdings LLC.
(3) This information is based on the Schedule 13G filed with the SEC on February 10, 2016, which indicates that the common
shares are beneficially owned by Donald Smith & Co., Inc., Donald Smith Long/Short Equities Fund, L.P. and Jon Hartsel.
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(4) This information is based on the Schedule 13G filed with the SEC on February 12, 2016, which indicates that the common
shares are beneficially owned by FMR LLC, Abigail Pl Johnson and, with respect to 1,498,729 shares, Fidelity Small Cap
Stock Fund.
(5) This information is based on the Schedule 13G filed with the SEC on February 8, 2016.
(6) Excludes shares owned by GA Holdings LLC and which may be deemed beneficially owned by our director Reginald L. Jones
III as described in footnote 2 above.
* Less than 1% of outstanding shares of our common stock.
As of March 15, 2016, we had one shareholder of record located in the United States, which was CEDE & CO., a nominee of The
Depository Trust Company, which held an aggregate of 21,564,439 shares of our common stock, representing approximately 83%
of our outstanding shares of common stock. We believe that the shares held by CEDE & CO. include shares of common stock
beneficially owned by both holders in the United States and non-U.S. beneficial owners. We are not aware of any arrangements the
operation of which may at a subsequent date result in our change of control.
B. Related Party Transactions
Two members of our board of directors, Reginald Jones and Niall McComiskey, are affiliated with our largest shareholder, GA
Holdings LLC. Anthony Gurnee, our chief executive officer and a member of our board of directors, is the beneficial owner of
2.43% of the outstanding equity interests of GA Holdings LLC. Any transaction involving the payment of compensation to a
director or officer in connection with their duties to Ardmore are not related party transactions. Please see Item 6.A Directors,
Senior Management and Employees-Directors and Senior Management.
Ardmore Shipping Corporation was incorporated under the laws of the Republic of the Marshall Islands in May 2013. We
commenced business operations through our predecessor company, Ardmore Shipping LLC, in April 2010. In August 2013, we
completed our IPO of shares of our common stock. Prior to our IPO, GA Holdings LLC, who was our sole shareholder, exchanged
its 100% interest in Ardmore Shipping LLC for 8,049,500 shares of Ardmore Shipping Corporation, and Ardmore Shipping LLC
became a wholly owned subsidiary of Ardmore Shipping Corporation. In November 2015, GA Holdings LLC sold 4,000,000 of its
shares of our common stock in an underwritten public offering. As of December 31, 2015, GA Holdings LLC held 4,279,525 shares
of our common stock, or approximately 16.25% of our outstanding common stock.
In 2013, during the period prior to our IPO, we paid $175,000 to Greenbriar Equity Group LLC in respect of consulting services
provided to us. Greenbriar Equity Group LLC manages funds with an investment in GA Holdings LLC, our largest shareholder.
C. Interest of Experts and Council
Not applicable.
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Legal Proceedings
Although we may, from time to time, be involved in litigation and claims arising out of our operations in the normal course of
business, we are not at present party to any legal proceedings or aware of any proceedings against us, or contemplated to be
brought against us, that would have a material effect on our business, financial position, results of operations or liquidity. We
maintain insurance policies with insurers in amounts and with coverage and deductibles as our board of directors believes are
reasonable and prudent. We expect that these claims would be covered by insurance, subject to customary deductibles. Those
claims, even if lacking merit, could result in the expenditure of significant financial and managerial resources.
Dividend Policy
Under our new dividend policy established in September 2015, we expect to pay our shareholders quarterly dividends of 60%
of our Earnings from Continuing Operations, which represents our earnings per share reported under U.S. GAAP as adjusted for
unrealized and realized gains and losses and extraordinary items. Our board of directors may review and amend our dividend
policy from time to time in light of our plans for future growth and other factors. In addition, our ability to pay dividends will be
subject to the amount of cash reserves established by our board of directors for the conduct of our business, restrictions in our
credit facilities and the provisions of the laws of the Marshall Islands, as well as the other limitations set forth in the section of this
Annual Report entitled Risk Factors.
B. Significant Changes
Not Applicable.
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C. Markets
Shares of our common stock trade on the New York Stock Exchange under the symbol ASC.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
Item 10. Additional Information
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
Our Amended and Restated Articles of Incorporation and Amended and Restated Bylaws have been filed as Exhibits 3.1 and
3.2, respectively, to Form F-1/A (Registration Number 333-189714), declared effective by the Securities and Exchange
Commission on July 31, 2013. The information contained in these exhibits is incorporated by reference into this Annual Report.
The rights, preferences and restrictions attaching to our shares of common stock are described in the section entitled
Description of Capital Stock of our Registration Statement on Form F-3/A (File No. 333-206501), filed with the SEC on
September 24, 2015, and hereby incorporated by reference into this Annual Report.
There are no limitations on the rights to own our securities, including the rights of non-resident or foreign shareholders to hold
or exercise voting rights on the securities, imposed by the laws of the Republic of The Marshall Islands or by our Articles of
Incorporation or Bylaws.
C. Material Contracts
Attached or incorporated by reference as exhibits to this Annual Report are the contracts we consider to be both material and
not entered into in the ordinary course of business. Descriptions are included in Note 9 (Debt) to our consolidated financial
statements included in this Annual Report with respect to our credit facilities. Other than these contracts, we have not entered into
any other material contracts in the two years immediately preceding the date of this Annual Report, other than contracts entered
into in the ordinary course of business.
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D. Exchange Controls
Under Marshall Islands law, there are currently no restrictions on the export or import of capital, including foreign exchange
controls or restrictions that affect the remittance of dividends, interest or other payments to non-resident holders of our common
shares.
E. Taxation of Holders
The following is a discussion of the material Marshall Islands and U.S. federal income tax considerations that may be relevant
to us and our shareholders. This discussion does not purport to deal with the tax consequences of owning common stock to all
categories of investors, some of which, such as dealers in securities or commodities, financial institutions, insurance companies,
tax-exempt organizations, U.S. expatriates, persons liable for the alternative minimum tax, persons who hold common stock as part
of a straddle, hedge, conversion transaction or integrated investment, U.S. Holders whose functional currency is not the United
States dollar and investors that own, actually or under applicable constructive ownership rules, 10% or more of the Companys
common stock, may be subject to special rules. This discussion deals only with holders who hold the common stock as a capital
asset. You are encouraged to consult your own tax advisors concerning the overall tax consequences arising in your own
particular situation under U.S. federal, state, local or foreign law of the ownership of common stock.
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constructively under specified share attribution rules, on more than half the days during the taxable year by persons who each own
5% or more of the vote and value of such class of outstanding stock (5% Override Rule).
For purposes of being able to determine the persons who actually or constructively own 5% or more of the vote and value of
our common shares (5% Shareholders) the Treasury Regulations permit us to rely on those persons that are identified on
Schedule 13G and Schedule 13D filings with the United States Securities and Exchange Commission, as owning 5% or more of
our common shares. The Treasury Regulations further provide that an investment company which is registered under the
Investment Company Act of 1940, as amended, will not be treated as a 5% Shareholder for such purposes.
In the event the 5% Override Rule is triggered, the Treasury Regulations provide that the 5% Override Rule will nevertheless
not apply if we can establish that within the group of 5% Shareholders, qualified shareholders (as defined for purposes of Section
883) own sufficient number of shares to preclude non-qualified shareholders in such group from owning 50% or more of our
common shares for more than half the number of days during the taxable year.
We believe that we satisfy the Publicly-Traded Test for the 2015 taxable year and were not subject to the 5% Override Rule,
and we intend to take that position on our 2015 U.S. federal income tax returns. However, there are factual circumstances beyond
our control that could cause us to lose the benefit of the Section 883 exemption for any future taxable year. For example, there is a
risk that we could no longer qualify for Section 883 exemption for a particular taxable year if one or more 5% Shareholders were
to own 50% or more of our outstanding common shares on more than half the days of the taxable year. Under these circumstances,
we would be subject to the 5% Override Rule and we would not qualify for the Section 883 exemption unless we could establish
that our shareholding during the taxable year was such that non-qualified 5% Shareholders did not own 50% or more of our
common shares on more than half the days of the taxable year. Under the Treasury Regulations, we would have to satisfy certain
substantiation requirements regarding the identity of our shareholders. These requirements are onerous and there is no assurance
that we would be able to satisfy them. Given the factual nature of the issues involved, we can give no assurances in regards to our
or our subsidiaries qualification for the Section 883 exemption.
Taxation in Absence of Section 883 Exemption
If the benefits of Section 883 are unavailable, our U.S. source shipping income would be subject to a 4% tax imposed by
Section 887 of the Code on a gross basis, without the benefit of deductions, or the 4% gross basis tax regime, to the extent that
such income is not considered to be effectively connected with the conduct of a United States trade or business, as described
below. Since under the sourcing rules described above, no more than 50% of our shipping income would be treated as being U.S.
source shipping income, the maximum effective rate of U.S. federal income tax on our shipping income would never exceed 2%
under the 4% gross basis tax regime.
To the extent our U.S. source shipping income is considered to be effectively connected with the conduct of a U.S. trade or
business, as described below, any such effectively connected U.S. source shipping income, net of applicable deductions, would
be subject to U.S. federal income tax, currently imposed at rates of up to 35%. In addition, we would generally be subject to the
30% branch profits tax on earnings effectively connected with the conduct of such trade or business, as determined after
allowance for certain adjustments, and on certain interest paid or deemed paid attributable to the conduct of our U.S. trade or
business.
Our United States source shipping income would be considered effectively connected with the conduct of a United States
trade or business only if:
we have, or are considered to have, a fixed place of business in the United States involved in the earning of U.S. source
shipping income; and
substantially all of our U.S. source shipping income is attributable to regularly scheduled transportation, such as the
operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points
for voyages that begin or end in the United States.
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We do not intend to have, or permit circumstances that would result in having, any vessel sailing to or from the United States
on a regularly scheduled basis. Based on the foregoing and on the expected mode of our shipping operations and other activities,
it is anticipated that none of our U.S. source shipping income will be effectively connected with the conduct of a U.S. trade or
business.
United States Taxation of Gain on Sale of Vessels
Regardless of whether we qualify for an exemption under Section 883, we will not be subject to U.S. federal income tax with
respect to gain realized on a sale of a vessel, provided the sale is considered to occur outside of the United States under U.S.
federal income tax principles. In general, a sale of a vessel will be considered to occur outside of the United States for this purpose
if title to the vessel, and risk of loss with respect to the vessel, pass to the buyer outside of the United States. It is expected that any
sale of a vessel by us will be considered to occur outside of the United States.
U.S. Federal Income Taxation of United States Holders
As used herein, the term U.S. Holder means a holder that for U.S. federal income tax purposes is a beneficial owner of our
common shares and is an individual U.S. citizen or resident, a U.S. corporation or other U.S. entity taxable as a corporation, an
estate the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a court within the United
States is able to exercise primary jurisdiction over the administration of the trust and one or more U.S. persons have the authority
to control all substantial decisions of the trust.
If a partnership holds the common shares, the tax treatment of a partner will generally depend upon the status of the partner
and upon the activities of the partnership. If you are a partner in a partnership holding the common shares, you are encouraged to
consult your tax advisor.
Distributions
Subject to the discussion of passive foreign investment companies below, any distributions made by us with respect to our
common shares to a U.S. Holder will generally constitute dividends to the extent of our current or accumulated earnings and
profits, as determined under U.S. federal income tax principles. Distributions in excess of such earnings and profits will be treated
first as a non-taxable return of capital to the extent of the U.S. Holders tax basis in our common shares and thereafter as capital
gain. Because we are not a U.S. corporation, U.S. Holders that are corporations will not be entitled to claim a dividends received
deduction with respect to any distributions they receive from us. Dividends paid with respect to our common shares will generally
be treated as foreign source dividend income and will generally constitute passive category income for purposes of computing
allowable foreign tax credits for U.S. foreign tax credit purposes.
Subject to applicable limitations, including a holding period requirement, dividends paid on our common shares to certain
non-corporate U.S. Holders will generally be treated as qualified dividend income that is taxable to such U.S. Holders at
preferential tax rates provided that (1) the common shares are readily tradable on an established securities market in the U.S. (such
as the NYSE, on which our common shares are traded); and (2) we are not a passive foreign investment company for the taxable
year during which the dividend is paid or the immediately preceding taxable year (which, as discussed below, we do not believe
that we are or will be for any future taxable years).
There is no assurance that any dividends paid on our common shares will be eligible for these preferential rates in the hands of
such non-corporate U.S. Holders, although, as described above, we expect such dividends to be so eligible provided an eligible
non-corporate U.S. Holder meets all applicable requirements. Any dividends paid by us which are not eligible for these
preferential rates will be taxed as ordinary income to a non-corporate U.S. Holder.
Special rules may apply to any extraordinary dividend generally, a dividend in an amount which is equal to or in excess
of 10% of a shareholders adjusted tax basis in a common share paid by us. If we pay an extraordinary dividend on our
common shares that is treated as qualified dividend income, then any loss derived by certain non-corporate U.S. Holders from
the sale or exchange of such common shares will be treated as long term capital loss to the extent of such dividend.
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election to treat us as a Qualified Electing Fund (QEF election). As an alternative to making a QEF election, a United States
Holder should be able to make a mark-to-market election with respect to our common shares, as discussed below. A United
States holder of shares in a PFIC will be required to file an annual information return on IRS Form 8621 containing information
regarding the PFIC as required by applicable Treasury Regulations.
Taxation of United States Holders Making a Timely QEF Election
If a United States Holder makes a timely QEF election, which United States Holder we refer to as an Electing Holder, the
Electing Holder must report for United States federal income tax purposes its pro rata share of our ordinary earnings and net capital
gain, if any, for each of our taxable years during which we are a PFIC that ends with or within the taxable year of the Electing
Holder, regardless of whether distributions were received from us by the Electing Holder. No portion of any such inclusions of
ordinary earnings will be treated as qualified dividend income. Net capital gain inclusions of certain non-corporate United
States Holders would be eligible for preferential capital gains tax rates. The Electing Holders adjusted tax basis in the common
shares will be increased to reflect any income included under the QEF election. Distributions of previously taxed income will not
be subject to tax upon distribution but will decrease the Electing Holders tax basis in the common shares. An Electing Holder
would not, however, be entitled to a deduction for its pro rata share of any losses that we incur with respect to any taxable year. An
Electing Holder would generally recognize capital gain or loss on the sale, exchange or other disposition of our common shares. A
U.S. Holder would make a timely QEF election for our common shares by filing one copy of IRS Form 8621 with its United States
federal income tax return for the first year in which it held such shares when we were a PFIC. If we determine that we are a PFIC for
any taxable year, we would provide each United States Holder with all necessary information in order to make the QEF election
described above.
Taxation of United States Holders Making a Mark-to-Market Election
Alternatively, if we were to be treated as a PFIC for any taxable year and, as we anticipate will be the case, our shares are
treated as marketable stock, a United States Holder would be allowed to make a mark-to-market election with respect to our
common shares, provided the United States Holder completes and files IRS Form 8621 in accordance with the relevant instructions
and related Treasury Regulations. If that election is made, the United States Holder generally would include as ordinary income in
each taxable year the excess, if any, of the fair market value of the common shares at the end of the taxable year over such Holders
adjusted tax basis in the common shares. The U.S. Holder would also be permitted an ordinary loss in respect of the excess, if any,
of the U.S. Holders adjusted tax basis in the common shares over its fair market value at the end of the taxable year, but only to
the extent of the net amount previously included in income as a result of the mark-to-market election. A U.S. Holders tax basis in
its common shares would be adjusted to reflect any such income or loss amount recognized. In a year when we are a PFIC, any gain
realized on the sale, exchange or other disposition of our common shares would be treated as ordinary income, and any loss
realized on the sale, exchange or other disposition of the common shares would be treated as ordinary loss to the extent that such
loss does not exceed the net mark-to-market gains previously included by the U.S. Holder.
Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election
If we were to be treated as a PFIC for any taxable year, a U.S. Holder who does not make either a QEF election or a mark-to-
market election for that year, whom we refer to as a Non-Electing Holder, would be subject to special rules with respect to (i)
any excess distribution (i.e., the portion of any distributions received by the Non-Electing Holder on the common shares in a
taxable year in excess of 125% of the average annual distributions received by the Non-Electing Holder in the three preceding
taxable years, or, if shorter, the Non-Electing Holders holding period for the common shares), and (ii) any gain realized on the
sale, exchange or other disposition of our common shares. Under these special rules:
the excess distribution or gain would be allocated ratably over the Non-Electing Holders aggregate holding period for the
common shares;
the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a
PFIC, would be taxed as ordinary income and would not be qualified dividend income; and
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the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the
applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with
respect to the resulting tax attributable to each such other taxable year.
U.S. Federal Income Taxation of Non-U.S. Holders
As used herein, the term Non-U.S. Holder means a holder that, for U.S. federal income tax purposes, is a beneficial owner of
common shares (other than a partnership) that is not a U.S. Holder.
If a partnership holds our common shares, the tax treatment of a partner will generally depend upon the status of the partner
and upon the activities of the partnership. If you are a partner in a partnership holding our common shares, you are encouraged to
consult your tax advisor.
Dividends on Common Shares
A Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax on dividends received from us with
respect to our common shares, unless that income is effectively connected with the Non-U.S. Holders conduct of a trade or
business in the United States.
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reporting and backup withholding generally will not apply to that payment. However, U.S. information reporting requirements,
but not backup withholding, will apply to a payment of sales proceeds, even if that payment is made outside the U.S., if a Non-U.S.
Holder sells our common shares through a non-U.S. office of a broker that is a U.S. person or has some other contacts with the U.S.
Such information reporting requirements will not apply, however, if the broker has documentary evidence in its records that the
Non-U.S. Holder is not a U.S. person and certain other conditions are met, or the Non-U.S. Holder otherwise establishes an
exemption.
Backup withholding is not an additional tax. Rather, a refund may generally be obtained of any amounts withheld under
backup withholding rules that exceed the taxpayers U.S. federal income tax liability by filing a timely refund claim with the IRS.
Individuals who are U.S. Holders (and to the extent specified in applicable Treasury regulations, Non-U.S. Holders and certain
U.S. entities) who hold specified foreign financial assets (as defined in Section 6038D of the Code) are required to file IRS Form
8938 with information relating to the asset for each taxable year in which the aggregate value of all such assets exceeds $75,000 at
any time during the taxable year or $50,000 on the last day of the taxable year (or such higher dollar amount as prescribed by
applicable Treasury Regulations). Specified foreign financial assets would include, among other assets, our common shares, unless
the common shares are held in an account maintained with a U.S. financial institution. Substantial penalties apply to any failure to
timely file IRS Form 8938, unless the failure is shown to be due to reasonable cause and not due to wilful neglect. Additionally, in
the event an individual U.S. Holder (and to the extent specified in applicable Treasury Regulations, a Non-U.S. Holder or a U.S.
entity) that is required to file IRS Form 8938 does not file such form, the statute of limitations on the assessment and collection of
U.S. federal income taxes of such holder for the related tax year may not close until three years after the date that the required
information is filed. U.S. Holders (including U.S. entities) and Non-U.S. Holders are encouraged to consult their own tax advisors
regarding their reporting obligations in respect of our common shares.
F. Dividends and Paying Agents
Not applicable.
G. Statements by Experts
Not applicable.
H. Documents on Display
Documents concerning us that are referred to herein may be inspected at our principal executive offices at Cumberland House,
1 Victoria Street, 5 th Floor, Hamilton, HM11, Bermuda. We file reports and other information with the SEC. These materials,
including this Annual Report and the accompanying exhibits, may be inspected and copied at the public facilities maintained by
the SEC at 100 F Street, N.E., Washington, D.C. 20549, or from the SECs website at www.sec.gov. You may obtain information on
the operation of the public reference room by calling 1 (800) SEC-0330 and you may obtain copies at prescribed rates.
I. Subsidiary Information
Not applicable.
Item 11. Quantitative and Qualitative Disclosures about Market Risks
Please see Note 11 Risk management to our consolidated financial statements included in this Annual Report for a
description of risk management that may apply to us.
Inflation
We do not expect inflation to be a significant risk to direct expenses in the current and foreseeable economic environment.
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PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies
None.
Item 14. Material Modifications to the Rights of Shareholders and Use of Proceeds
None.
Item 15. Controls and Procedures
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Item 16 Reserved
Item 16.A Audit Committee Financial Expert
Our audit committee consists of Mr. Brian Dunne, Mr. Niall McComiskey, Mr. Alan Robert McIlwraith and Mr. Curtis
McWilliams. Each member of our audit committee is financially literate under the current listing standards of the New York Stock
Exchange and the SEC, and our board of directors has determined that Mr. Brian Dunne qualifies as an audit committee financial
expert, as such term is defined by the SEC.
Item 16.B Code of Ethics
We have adopted a code of conduct and ethics applicable to our directors, chief executive officer, chief financial officer,
principal accounting officer and other key management personnel. The code is available for review on our website at
www.ardmoreshipping.com.
Item 16.C Principal Accountant Fees and Services
Audit Fees
Our principal accountants for the fiscal years 2015 and 2014 were Ernst & Young. The audit fees for the audit of the years
ended December 31, 2015 and 2014 were $0.4 million for each such period.
Audit-Related Fees
There were no audit-related fees billed by our principal accountants in 2015 or 2014.
Tax Fees
There were no tax fees billed by our principal accountants in 2015 or 2014.
All Other Fees
There were no other fees billed by our principal accountants in 2015 or 2014.
Audit Committee
The Audit Committee is responsible for the appointment, replacement, compensation, evaluation and oversight of the work of
the independent auditors. As part of this responsibility, the audit committee pre-approves the audit and non-audit services
performed by the independent auditors in order to assure that they do not impair the auditors independence. The Audit
Committee has adopted a policy which sets forth the procedures and the conditions pursuant to which services proposed to be
performed by the independent auditors may be pre-approved.
The Audit Committee separately pre-approved all engagements and fees paid to our principal accountants in 2015 and 2014.
Item 16.D Exemptions from the Listing Standards for Audit Committees
Mr. Niall McComiskey, who serves on the Audit Committee of our Board of Directors as an observer, is affiliated with GA
Holdings LLC, our largest shareholder. As an observer, Mr. McComiskey does not have voting rights on the Audit Committee. He
is neither the chair of the Audit Committee nor an executive officer of Ardmore. Accordingly, we rely on the exemption provided
in Rule 10A-3(b)(1)(iv)(D) of the Exchange Act for Mr. McComiskeys service on the Audit Committee. We do not believe that
Mr. McComiskeys affiliation with GA Holdings LLC materially adversely affects the ability of the Audit Committee to act
independently or to satisfy the other requirements relating to audit committees contained in Rule 10A-3 under the Exchange Act.
Item 16.E Purchases of Equity Securities by the Issuer and Affiliated Purchasers
On November 4, 2014, we announced that our board of directors approved a share repurchase plan with authorization to buy
up to $20 million of shares of the Companys common stock for up to three years from November 12, 2014. We may repurchase
these shares in the open market or in privately negotiated
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transactions, at times and prices that are considered to be appropriate by us, but we are not obligated under the terms of the
program to repurchase any shares, and at any time we may suspend, delay or discontinue the share repurchase plan. During the
year ended December 31, 2015, we repurchased no shares of our common stock.
Item 16.F Change in Registrants Certifying Accountant
Not applicable.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the hereby certifies that it meets all of the requirements for
filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
ARDMORE SHIPPING CORPORATION
By:/s/ Anthony Gurnee
Anthony Gurnee
Chief Executive Officer
(Principal Executive Officer)
Date: April 6, 2016
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Dublin, Ireland
April 6, 2016
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1. Overview
1.1. Background
Ardmore Shipping Corporation (NYSE: ASC) (ASC) and subsidiaries (collectively Ardmore or the Company) provides
seaborne transportation of petroleum products and chemicals worldwide to oil majors, national oil companies, oil and chemical
traders, and chemical companies, with its modern, fuel-efficient fleet of mid-size product and chemical tankers. As at December 31,
2015 Ardmore had 24 vessels in operation. The average age of Ardmores operating fleet at December 31, 2015 was 4.1 years.
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1.3. Vessels
Ardmores fleet as of December 31, 2015 comprises the following:
Vessel Name Type Dwt IMO Built Country Flag Specification
Ardmore Seavaliant Product/Chemical 49,998 2/3 Feb-13 Korea MI Eco-design
Ardmore Seaventure Product/Chemical 49,998 2/3 Jun-13 Korea MI Eco-design
Ardmore Seavantage Product/Chemical 49,997 2/3 Jan-14 Korea MI Eco-design
Ardmore Seavanguard Product/Chemical 49,998 2/3 Feb-14 Korea MI Eco-design
Ardmore Sealion Product/Chemical 49,999 2/3 May-15 Korea MI Eco-design
Ardmore Seafox Product/Chemical 49,999 2/3 Jun-15 Korea MI Eco-design
Ardmore Seawolf Product/Chemical 49,999 2/3 Aug-15 Korea MI Eco-design
Ardmore Seahawk Product/Chemical 49,999 2/3 Nov-15 Korea MI Eco-design
Ardmore Endeavour Product/Chemical 49,997 2/3 Jul-13 Korea MI Eco-design
Ardmore Seafarer Product/Chemical 45,744 3 Aug-04 Japan MI Eco-mod
Ardmore Seatrader Product 47,141 Dec-02 Japan MI Eco-mod
Ardmore Seamaster Product/Chemical 45,840 3 Sep-04 Japan MI Eco-mod
Ardmore Seamariner Product 45,726 Oct-06 Japan MI Eco-mod
Ardmore Sealeader Product 47,463 Aug-08 Japan MI Eco-mod
Ardmore Sealifter Product 47,472 Jul-08 Japan MI Eco-mod
Ardmore Dauntless Product/Chemical 37,764 2 Feb-15 Korea MI Eco-design
Ardmore Defender Product/Chemical 37,791 2 Feb-15 Korea MI Eco-design
Ardmore Centurion Product/Chemical 29,006 2 Nov-05 Korea MI Eco-mod
Ardmore Cherokee Product/Chemical 25,215 2 Jan-15 Japan MI Eco-design
Ardmore Cheyenne Product/Chemical 25,217 2 Mar-15 Japan MI Eco-design
Ardmore Chinook Product/Chemical 25,217 2 Jul-15 Japan MI Eco-design
Ardmore Chippewa Product/Chemical 25,217 2 Nov-15 Japan MI Eco-design
Ardmore Calypso Product/Chemical 17,589 2 Jan-10 Korea MI Eco-mod
Ardmore Capella Product/Chemical 17,567 2 Jan-10 Korea MI Eco-mod
TOTAL 24 969,953
2015 Vessel Deliveries and Acquisitions
On January 6, 2015, Ardmore took delivery of the Ardmore Cherokee (Hull N-2062), a 25,215 Dwt Eco-design product and
chemical tanker, and on March 27, 2015, Ardmore took delivery of the Ardmore Cheyenne (Hull N-2063), a 25,217 Dwt Eco-
design product and chemical tanker. Both vessels were constructed at Fukuoka Shipbuilding, Japan and following delivery, the
Ardmore Cherokee was employed in a pool and the Ardmore Cheyenne was employed on a time charter.
On February 13, 2015, Ardmore took delivery of the Ardmore Dauntless (Hull H-2480), a 37,764 Dwt Eco-design product and
chemical tanker, and on February 25, 2015, Ardmore took delivery of the Ardmore Defender (Hull H-2481), a 37,791 Dwt Eco-
design product and chemical tanker. Both vessels were constructed at Hyundai Mipo Dockyard in Korea and following delivery,
both vessels commenced employment in a pool.
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1. Overview (continued)
On May 26, 2015, Ardmore took delivery of the Ardmore Sealion (Hull S-1162), a 49,999 Dwt Eco-design IMO3 product and
chemical tanker, and on June 25, 2015, Ardmore took delivery of the Ardmore Seafox (Hull S-1163), a 49,999 Dwt Eco-design
IMO3 product and chemical tanker. Both vessels were constructed at SPP Shipbuilding in South Korea and following delivery,
both vessels commenced employment in a pool with a leading oil trader.
On July 17, 2015, Ardmore took delivery of the Ardmore Chinook (Hull N-2065), a 25,217 Dwt Eco-design IMO2 product and
chemical tanker. The vessel was constructed at Fukuoka Shipbuilding, Japan and following delivery, the Ardmore Chinook was
employed on a time charter.
On August 13, 2015, Ardmore took delivery of the Ardmore Seawolf (Hull S-1171), a 49,999 Dwt Eco-design IMO 2/3 product
and chemical tanker. The vessel was constructed by SPP Shipbuilding in Korea and following delivery, the Ardmore Seawolf
commenced employment in a pool with a major oil trader.
On November 13, 2015, Ardmore took delivery of the Ardmore Chippewa (N-2067), a 25,217 Dwt Eco-design IMO 2 product and
chemical tanker. The vessel was constructed by Fukuoka Shipbuilding, Japan and, following delivery, the Ardmore Chippewa
commenced employment on a one-year time charter.
On November 16, 2015, Ardmore took delivery of the Ardmore Seahawk (S-1172), a 49,999 Dwt Eco-design IMO 2/3 product and
chemical tanker. The vessel was constructed by SPP Shipbuilding, Korea and, following delivery, the Ardmore Seahawk
commenced employment in a pool.
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2.11. Inventories
Inventories consist of bunkers, lubricating oils and other consumables on board the Companys vessels. Inventories are valued at
the lower of cost or market value on a first-in first-out basis. Cost is based on the normal levels of cost and comprises the cost of
purchase, being the suppliers invoice price with the addition of charges such as freight or duty where appropriate.
2.12. Vessels
Vessels are recorded at their cost less accumulated depreciation. Vessel cost comprises acquisition costs directly attributable to the
vessel and the expenditures made to prepare the vessel for its initial voyage. Vessels are depreciated on a straight-line basis over
their estimated useful economic life from the date of
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2.13. Impairment
Vessels and equipment that are held and used are assessed for impairment when events or circumstances indicate the carrying
amount of the asset may not be recoverable. When such indicators are present, a vessel to be held and used is tested for
recoverability by comparing the estimate of future undiscounted net operating cash flows expected to be generated by the use of
the vessel over its remaining useful life and its eventual disposition to its carrying amount. Net operating cash flows are
determined by applying various assumptions regarding future revenues net of commissions, operating expenses, scheduled dry-
dockings, expected offhire and scrap values, and taking into account historical revenue data and published forecasts on future
world economic growth and inflation. An impairment charge is recognized if the carrying value is in excess of the estimated future
undiscounted net operating cash flows. The impairment loss is measured based on the excess of the carrying amount over the fair
market value of the asset.
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2.22. Contingencies
Claims, suits and contingencies arise in the ordinary course of Ardmores business. Ardmore provides for these contingencies
when (i) it is probable that a liability has been incurred at the date of the financial statements and (ii) the amount of the loss can be
reasonably estimated. Disclosure in the notes to the financial statements is required for contingencies that do not meet both these
conditions if there is a reasonable possibility that a liability may have been incurred at the balance sheet date. Any such matters
that should be disclosed, or for which a provision should be established in the accompanying consolidated financial statements,
are discussed in Note 20 to the consolidated financial statements.
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As at
Dec 31, 2015 Dec 31, 2014
Cash and cash equivalents 40,109,382 59,879,596
Ardmore is required to maintain a minimum cash balance in accordance with its long-term debt facility agreement (see Note 9).
6. Receivables, trade
There was a provision for doubtful accounts of $58,430 as at December 31, 2015 (2014: $146,493). The maximum amount of loss
due to the credit risk is the full amount of trade receivables. All trade receivables are current. The carrying value of receivables
approximates their fair value.
7. Working capital advances
At the balance sheet date, all potentially uncollectible working capital advances are assessed individually for purposes of
determining the appropriate provision for doubtful accounts. There was no provision for doubtful advances at December 31, 2015
(2014: $0).
8. Non-current assets
The scrap value of the vessels is estimated at $300 (2014: $300) per lightweight ton. Interest capitalized in relation to vessels
under construction during the year ended December 31, 2015 totaled $2,423,717 (2014: $3,936,843). Vessels, which are owned
and operated by Ardmore, have been provided as collateral
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9. Debt (continued)
tranche was drawn down in December, 2014 in advance of a vessel delivered in January, 2015. This tranche matures in 2021. The
second tranche was drawn down in March 2015 in advance of a vessel delivered that month. This tranche matures in 2022. Interest
is calculated on each tranche at a rate of 3.05% above LIBOR. Principal repayments on loans are made on a quarterly basis, with a
balloon payment payable with the final instalment.
Long-term debt financial covenants
Ardmores long-term debt facilities described above include certain covenants. The financial covenants require that ASC:
maintain minimum solvency of not less than 30%;
maintain corporate leverage of less than 75%;
maintain minimum cash and cash equivalents based on the number of vessels owned and chartered-in and 5% of
outstanding debt. The required minimum cash balance as of December 31, 2015 was $20.8 million;
ensure that the aggregate fair market value of the applicable vessels plus any additional collateral is, depending on the
facility, no less than 125% to 150% of the debt outstanding for the facility;
maintain a corporate net worth of not less than $150 million;
maintain positive working capital, excluding balloon maturities; and
maintain at all times a ratio of EBITDA plus a portion of cash in excess of Ardmores minimum liquidity to total interest
expense of at least 2.25:1.
Ardmore is in full compliance with all of its loan covenants as of December 31, 2015.
10. Capital leases
On March 28, 2013, two of ASCs subsidiaries entered into an agreement, which took effect on April 2, 2013, for the sale and
leaseback (under a capital lease arrangement) of the Ardmore Calypso and Ardmore Capella. This transaction was treated as a
financing transaction. As part of this arrangement, the senior debt outstanding on the vessels of $17.9 million was repaid in full on
April 2, 2013. The capital leases were scheduled to expire in 2018 and include a mandatory purchase obligation to repurchase the
vessels, as well as a purchase option which Ardmore could elect to exercise at an earlier date. ASCs subsidiary, ASLLC, has
provided a guarantee in respect of this financing arrangement.
In October 2015, Ardmore exercised its option to purchase the Ardmore Calypso and Ardmore Capella, and agreed terms for the
onward sale of these vessels. The en bloc sale price for the two vessels is $38.5 million, and the vessels are expected to be
delivered to the buyers in the second quarter of 2016. No impairment charge has been recognized in respect of these vessels.
Ardmore has reclassified these two vessels as vessels held for sale, effective November 2015 and no longer depreciate these
vessels.
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As at
Dec 31, 2015 Dec 31, 2014
Current portion of capital lease obligations 27,097,348 1,702,981
Current portion of deferred finance fees (325,437) (81,905)
Non-current portion of capital lease obligations 27,097,348
Non-current portion of deferred finance fees (280,703)
Total capital lease obligations 26,771,911 28,437,721
The future minimum lease payments required under the capital leases at December 31, 2015, are as follows:
As at
Dec 31, 2015
2016 27,617,130
Total minimum lease payments 27,617,130
Less amount representing interest (519,782)
Less amounts representing deferred finance fees (325,437)
Net minimum lease payments 26,771,911
Assets recorded under capital leases are included in vessels held for sale and consist of the following at December 31, 2015:
As at
Dec 31, 2015 Dec 31, 2014
Vessels held for sale 37,083,985
Vessels & Equipment 41,882,229
Accumulated Depreciation (5,639,034)
37,083,985 36,243,195
F-22
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TABLE OF CONTENTS
F-23
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TABLE OF CONTENTS
F-24
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TABLE OF CONTENTS
F-25
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TABLE OF CONTENTS
Period TOTAL
2016 1,027,447
2017 333,360
2018 106,198
1,467,005
F-26
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TABLE OF CONTENTS
21.1. Dividend
On February 3, 2016, Ardmore announced that its Board of Directors declared a cash dividend of $0.13 per share for the quarter
ended December 31, 2015. The cash dividend was paid on March 1, 2016 to all shareholders of record on February 16, 2016.
21.2. Refinancing
During the first quarter of 2016, Ardmore completed a refinancing of substantially all outstanding debt.
The first facility consists of $213 million of funded debt from ABN AMRO and DVB Bank, including an incremental commitment
of $20 million to fund future acquisitions. The second facility consists of $151 million of funded debt from Nordea Bank and
SEB. The third facility consists of $64 million of funded debt from Credit Agricole Corporate and Investment Bank, comprising
$39 million to refinance two existing vessels, plus a $25 million commitment for additional financing.
The covenants and other conditions on all facilities are consistent with those of the Companys prior credit facilities.
In line with GAAP, the current versus non-current classification of long term debt at the balance sheet date has been amended to
consider the payments under the refinanced debt. This resulted in a reclassification from current liabilities to non-current
liabilities of $8.8 million.
21.3 Repurchase of common stock
In line with the approved share repurchase plan Ardmore repurchased 366,347 shares for a weighted average price of $8.20 per
share (including fees and commission of $0.03 per share), amounting to $3.0 million since December 31, 2015.
F-27
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TABLE OF CONTENTS
F-28
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Exhibit 4.2
$212,650,000
and
and
and
and
and
and
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and
and
FACILITY AGREEMENT
relating to
the re financing of m.t.s ARDMORE SEAVENTURE, ARDMORE SEALEADER, ARDMORE SEALION,
ARDMORE SEAFARER, ARDMORE SEAVALIANT, ARDMORE SEAVANTAGE, ARDMORE CENTURION, ARDMORE SEAMASTER,
ARDMORE SEALIFTER, ARDMORE ENDEAVOUR, ARDMORE SEAVANGUARD and the financing of an additional ship
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Index
Clause Page
Section 1 Interpretation 2
1 Definitions and Interpretation 2
Section 2 The Facility 24
2 The Facility 24
3 Purpose 25
4 Conditions of Utilisation 25
Section 3 Utilisation 27
5 Utilisation 27
Section 4 Repayment, Prepayment and Cancellation 30
6 Repayment 30
7 Payment and Cancellation 31
Section 5 Costs of Utilisation 36
8 Interest 36
9 Interest Periods 38
10 Changes to the Calculation of Interest 39
11 Fees 41
Section 6 Additional Payment Obligations 42
12 Tax Gross Up and Indemnities 42
13 Increased Costs 45
14 Other Indemnities 47
15 Mitigation by the Finance Parties 50
16 Costs and Expenses 50
Section 7 Guarantees and Joint and Several Liability of Borrowers 51
17 Guarantee and Indemnity Guarantors 51
18 Joint and Several Liability of the Guarantors 53
19 Joint and Several Liability of the Borrowers 55
Section 8 Guarantee and Indemnity - Hedge Guarantors 57
20 Guarantee and Indemnity Hedge Guarantors 57
Section 9 Representations, Undertakings and Events of Default 60
21 Representations 60
22 Information Undertakings 66
23 Financial Covenants 69
24 General Undertakings 71
25 Insurance Undertakings 78
26 Ship Undertakings 83
27 Security Cover 88
28 Application of Earnings 90
29 Events of Default 90
Section 10 Changes to Parties 95
30 Changes to the Lenders 95
31 Changes to the Obligors 100
Section 11 The Finance Parties 101
32 The Facility Agent and the Mandated Lead Arrangers 101
33 The Security Agent 108
34 Conduct of Business by the Finance Parties 118
35 Contractual Recognition of Bail-In 118
36 Sharing Among the Finance Parties 119
Section 12 Administration 121
37 Payment Mechanics 121
38 Set-Off 124
39 Notices 125
40 Calculations and Certificates 126
41 Partial Invalidity 127
42 Remedies and Waivers 127
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43 Settlement or Discharge Conditional 127
44 Irrevocable Payment 127
45 Amendments and Waivers 127
46 Confidentiality 129
47 Counterparts 133
Section 13 Governing Law and Enforcement 134
48 Governing Law 134
49 Enforcement 134
Schedules
Execution
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THIS AGREEMENT is made on January 2016
PARTIES
(1) BAILEY SHIPCO LLC, DOVER SHIPCO LLC, FAIR ISLE SHIPCO LLC, FASTNET SHIPCO LLC, FITZROY SHIPCO LLC, FORTH
SHIPCO LLC, ROCKALL SHIPCO LLC, SHANNON SHIPCO LLC, SOLE SHIPCO LLC, TRAFALGAR SHIPCO LLC, VIKING SHIPCO
LLC, and HEBRIDES SHIPCO LLC, each a limited liability company formed in the Republic of the Marshall Islands whose registered address is at
The Trust Company of the Marshall Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as joint
and several borrowers (together the "Borrowers" and each a "Borrower")
(2) ARDMORE SHIPPING LLC, a limited liability company formed in the Republic of the Marshall Islands whose registered office is at The Trust
Company of the Marshall Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as a guarantor (the
"Corporate Guarantor")
(3) ARDMORE SHIPPING CORPORATION, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at The Trust
Company of the Marshall Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as a guarantor (the
"Parent Guarantor")
(4) THE COMPANIES listed in Part A of Schedule 1 (The Parties) as hedge guarantors (the "Hedge Guarantors")
(5) ABN AMRO BANK N.V., and DVB BANK AMERICA N.V. as mandated lead arrangers (the "Mandated Lead Arrangers")
(6) ABN AMRO BANK N.V. and DVB BANK AMERICA N.V. as bookrunners (the "Bookrunners")
(7) THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the "Original Lenders")
(8) THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as hedge counterparties (the "Hedge Counterparties")
(9) ABN AMRO BANK N.V. , acting in such capacity through its office at Daalsesingel 71, 3511 SW Utrecht, The Netherlands as agent for the other
Finance Parties (the "Facility Agent")
(10) ABN AMRO BANK N.V. , acting in such capacity through its office at Daalsesingel 71, 3511 SW Utrecht, The Netherlands as security agent for the
Secured Parties (the "Security Agent")
BACKGROUND
(A) The Lenders have agreed to make available to the Borrowers a facility of up to $212,650,000 for the purposes of (i) refinancing certain senior and
junior loans secured by the Existing Ships by way of a loan in a principal amount not exceeding 65 per cent. of the Fair Market Value of the
Existing Ships and (ii) financing part of acquisition costs of Ship L by way of a loan in a principal amount not exceeding the lower of (i) 60 per cent.
of the Fair Market Value of Ship L and (ii) $20,400,000.
(B) The Hedge Counterparties may enter into interest rate swap transactions with the Borrowers from time to time to hedge the Borrowers exposure
under this Agreement to interest rate fluctuations.
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SECTION 1
INTERPRETATION
1.1 Definitions
In this Agreement:
"Account Bank" means Nordea Bank AB, London Branch acting through its office at 55 Basinghall Street, London, EC2V 5NB, England or any
other bank acceptable to the Majority Lenders.
"Account Security" means a document creating Security over any Earnings Account in agreed form.
"Advance" means a borrowing of all or part of the Facility under this Agreement.
"Affected Lender" has the meaning given to it in Clause 10.2 (Market disruption).
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding
Company.
"Approved Brokers" means such insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, war risks
and protection and indemnity risks associations as have been approved by the Facility Agent, acting with the authorisation of the Majority Lenders
in writing in advance.
(a) in relation to an Existing Ship, as at the date of this Agreement, the classification in relation to that Existing Ship specified in Schedule 8
(Ships)with the classification in relation to that Ship specified in Schedule 8 (Ships) or the equivalent classification with another Approved
Classification Society; and
(b) in the case of Ship L, a classification approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
"Approved Classification Society" means, in relation to a Ship, as at the date of this Agreement, either Lloyd's Register of Shipping or American
Bureau of Shipping or any other classification society approved in writing by the Facility Agent acting with the authorisation of the Majority
Lenders and which authorisation shall not be withheld in the case of any classification society which is a member of the International Association of
Classification Societies.
"Approved Commercial Manager" means, in relation to a Ship, Ardmore Shipping (Bermuda) Limited, Frontline Management AS, the Corporate
Guarantor, an Affiliate of the Corporate Guarantor, or any other person approved in writing by the Facility Agent acting with the authorisation of the
Majority Lenders, as the commercial manager of that Ship and, for the avoidance of doubt, this shall include Mansel Ltd. as the pool manager under
the Pool Agreement or any pool manager under another pool agreement in relation to the Ships which may be approved by the Facility Agent acting
with the authorisation of the Majority Lenders.
"Approved Flag" means, in relation to a Ship, Marshall Islands, or such other flag approved in writing by the Facility Agent acting with the
authorisation of all the Lenders.
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"Approved Manager" means, in relation to a Ship, the Approved Commercial Manager or the Approved Technical Manager of that Ship.
"Approved Technical Manager" means in relation to a Ship, Univan Ship Management Ltd, Thome Ship Management Pte. Ltd., Ardmore Shipping
(Bermuda) Limited and its Subsidiaries or any other person approved in writing by the Facility Agent acting with the authorisation of the Majority
Lenders, as the technical manager of that Ship.
"Approved Valuer" means, in relation to a Ship, at any time during the Security Period, any of the firms listed in Schedule 9 (List of Approved
Valuers) or any other firm or firms of shipbrokers approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
"Assignment Agreement" means an agreement substantially in the form set out in Schedule 6 (Form of Assignment Agreement) or any other form
agreed between the relevant assignor and assignee.
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, legalisation or registration.
"Availability Period" means the period from and including the date of this Agreement to and including:
(b) in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed
Utilisation Date.
"Available Facility" means the aggregate for the time being of each Lenders Available Commitment.
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of
Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant
implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.
(a) the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in the Loan or
Unpaid Sum to the last day of the current Interest Period in relation to the Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period;
exceeds
(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it
on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
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"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Cork, Curacao, Rotterdam
and New York.
"Charged Property" means all of the assets which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Charter" means, in relation to a Ship, any charter relating to that Ship, or other contract for its employment, whether or not already in existence.
"Closing Date" means the earlier of (i) the date on which all conditions precedent are satisfied pursuant to Part A of Schedule 2 ( Conditions
Precedent) or (ii) 31 January 2016.
"Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part B of Schedule 1 (The Parties)
and the amount of any other Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
"Compliance Certificate" means a certificate in the form set out in Schedule 7 (Form of Compliance Certificate) or in any other form agreed
between the Parent Guarantor and the Facility Agent.
"Confidential Information" means all information relating to any Transaction Obligor, the Group, the Finance Documents or the Facility of which a
Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to,
or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of
its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but excludes information that:
(i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 46
(Confidentiality)); or
(ii) is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
(iii) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is
lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected
with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not
otherwise subject to, any obligation of confidentiality.
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"Confidentiality Undertaking" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from time to
time or in any other form agreed between the Borrowers and the Facility Agent.
"Corresponding Debt" means any amount, other than any Parallel Debt, which an Obligor owes to a Secured Party under or in connection with the
Finance Documents.
(a) which has failed to make available the relevant proportion of its Commitment in respect of any part of the Loan or has given notice to the
Facility Agent that it will not make such amount available by the Utilisation Date pursuant to Clause 5.4 (Lenders participation); or
(c) with respect to which an Insolvency Event has occurred and is continuing,
(ii) the Lender is disputing in good faith whether it is contractually obliged to make the relevant payment.
"Delegate" means any delegate, agent, attorney, co-trustee or other person appointed by the Security Agent.
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate
in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other, Party:
(i) from performing its payment obligations under the Finance Documents; or
(ii) from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
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"Document of Compliance" has the meaning given to it in the ISM Code.
"dollars" and "$" mean the lawful currency, for the time being, of the United States of America.
"Earnings" means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Borrower or
the Security Agent and which arise out of the use or operation of that Ship, including (but not limited to):
(a) the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled or shared with any other
person:
(ii) compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire;
(v) damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that
Ship;
(vi) all moneys which are at any time payable under any Insurances in relation to loss of hire;
(vii) all monies which are at any time payable to a Borrower in relation to general average contribution; and
(b) if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (vi) of paragraph (a) above are
pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is
attributable to that Ship.
(a) an account in the name of that Borrower with the Account Bank designated "Earnings Account"; or
(b) any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank)
which is designated by the Facility Agent as the Earnings Account of that Borrower for the purposes of this Agreement.
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Environmental Approval" means any present or future permit, ruling, variance or other Authorisation required under Environmental Laws.
"Environmental Claim" means any claim by any governmental, judicial or regulatory authority or any other person which arises out of an
Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim" includes a
claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-
up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend
certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Environmental Incident" means:
(a) any release, emission, spill or discharge into any Ship or into or upon the air, sea, land or soils (including the seabed) or surface water of
Environmentally Sensitive Material within or from any Ship; or
(b) any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils
(including the seabed) or surface water from a vessel other than any Ship and which involves a collision between any Ship and such other
vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to
be arrested, attached, detained or injuncted and/or a Ship and/or any Obligor and/or any operator or manager of a Ship is at fault or
allegedly at fault or otherwise liable to any legal or administrative action; or
(c) any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or
soils (including the seabed) or surface water otherwise than from a Ship and in connection with which a Ship is actually or potentially liable
to be arrested and/or where any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any
legal or administrative action, other than in accordance with an Environmental Approval.
"Environmental Law" means any present or future law relating to pollution or protection of human health or the environment, to conditions in the
workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened
releases of Environmentally Sensitive Material.
"Environmentally Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including
any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person)
from time to time.
"Event of Default" means any event or circumstance specified as such in Clause 29 (Events of Default).
"Existing Ships" means each of Ship A, Ship B, Ship C, Ship D, Ship E, Ship F, Ship G, Ship H, Ship I, Ship J and Ship K.
"Facility" means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than 5 Business Days written notice) as the office or offices through which it will perform its obligations under this
Agreement.
"Fair Market Value" means, in relation to a Ship, at any date, the market value of that Ship shown by the arithmetic average of two valuations each
prepared:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) with or without physical inspection of that Ship or vessel (as the Facility Agent may require); and
(d) on the basis of a sale for prompt delivery for cash on normal arms length commercial terms as between a willing seller and a willing buyer,
free of any Charter,
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
"FATCA" means:
(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other
jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal
Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
(a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain
other payments from sources within the US), 1 July 2014;
(b) in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the
disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
(c) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January
2019,
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any
change in FATCA after the date of this Agreement.
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Facility Agent and the Borrowers or Guarantor
setting out any of the fees referred to in Clause 11 (Fees).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(e) any General Assignment;
(k) any other document (whether or not it creates Security) which is executed as security for, or for the purpose of establishing any priority or
subordination arrangement in relation to, the Secured Liabilities; or
(l) any other document designated as such by the Facility Agent and the Borrowers.
"Finance Party" means the Facility Agent, the Security Agent, a Mandated Lead Arranger, a Bookrunner, a Lender or a Hedge Counterparty.
(a) moneys borrowed and debit balances at banks or other financial institutions;
(b) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance
or capital lease;
(e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement)
having the commercial effect of a borrowing or otherwise classified as borrowing under GAAP;
(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
(h) any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other
instrument issued by a bank or financial institution;
(i) any amount raised by the issue of shares which are redeemable (other than at the option of the Issuer) before the Termination Date or are
otherwise classified as borrowings under GAAP; and
(j) the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above without
duplication.
"GAAP" means generally accepted accounting principles in the United States of America.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"General Assignment" means, in relation to a Ship, the general assignment creating Security over that Ships Earnings, its Insurances and any
Requisition Compensation in relation to that Ship and any charter entered into or to be entered into with a term exceeding or capable of exceeding
14 months and any supporting guarantee in relation to such charter in agreed form.
"Group" means, at any time, the Parent Guarantor and its Subsidiaries at that time.
"Hedging Agreement" means any master agreement, confirmation, transaction, schedule, off-balance sheet instrument or other agreement in agreed
form entered into or to be entered into by a Borrower or the Borrowers for the purpose of hedging interest payable under this Agreement.
"Hedging Agreement Assignment " means, in relation to a Borrower, a first assignment of that Borrowers rights and interests in any Hedging
Agreement, in agreed form.
"Hedging Close Out Liabilities" means, as at any relevant date, the aggregate amount certified by each Hedge Counterparty to the Facility Agent as
the net aggregate amount in dollars which would be payable by any Borrower under the Hedging Agreements to which it is a party at the relevant
determination date as a result of termination or closing out under such Hedging Agreements.
"Hedging Prepayment Proceeds" means any amount payable to a Borrower as a result of termination or closing out under a Hedging Agreement.
"Holding Company" means, in relation to a person, any other person in relation to which it is a Subsidiary.
"Indemnified Person" has the meaning given to it in Clause 14.2 (Other indemnities).
(a) all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in
relation to that Ship, the Earnings or otherwise in relation to that Ship whether before, on or after the date of this Agreement; and
(b) all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium
and any rights in relation to any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of
this Agreement.
"Interest Period" means, in relation to an Advance, the Loan or any part of the Loan, each period determined in accordance with Clause 9 (Interest
Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
"Interpolated Screen Rate" means, in relation to LIBOR for an Advance, the Loan, any part of the Loan or any Unpaid Sum, the rate (rounded to the
same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
(a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that
Advance, the Loan, that part of the Loan or that Unpaid Sum; and
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Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that
Advance, the Loan, that part of the Loan or that Unpaid Sum,
each as of the Specified Time on the Quotation Day for the currency of that Advance, the Loan, that part of the Loan or that Unpaid Sum.
"ISM Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (including the
guidelines on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to
time.
"ISPS Code" means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organizations (IMO)
Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"ISSC" means an International Ship Security Certificate issued under the ISPS Code.
"Lender" means:
(b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 30 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with this Agreement.
"LIBOR" means, in relation to any Advance, the Loan, any part of the Loan or any Unpaid Sum:
(b) (if no Screen Rate is available for the Interest Period of that Advance, the Loan, that part of the Loan or that Unpaid Sum), the applicable
Interpolated Screen Rate; or
(c) if:
(i) no Screen Rate is available for the currency of that Advance, the Loan, that part of the Loan or that Unpaid Sum); or
(ii) no Screen Rate is available for the Interest Period of that Advance, the Loan, that part of the Loan or that Unpaid Sum and it is not
possible to calculate an Interpolated Screen Rate for that Advance, the Loan, that part of the Loan or that Unpaid Sum,
as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for dollars for that Advance, the Loan, that part of the
Loan or that Unpaid Sum and for a period equal in length to the Interest Period of that Advance, the Loan, that part of the Loan or that Unpaid Sum
and, if any such rate is below zero, LIBOR shall be deemed to be zero.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
11
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Loan" means the loan to be made available under the Facility or the aggregate principal amount outstanding for the time being of the borrowings
under the Facility.
"Major Casualty" means, in relation to a Ship, any casualty to that Ship in relation to which the claim or the aggregate of the claims against all
insurers, before adjustment for any relevant franchise or deductible, exceeds $500,000 or the equivalent in any other currency.
(a) if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66 per cent. of the Total Commitments;
or
(b) at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66 per cent. of the amount of the Loan then
outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before
repayment or prepayment in full aggregate more than 66 per cent. of the Loan immediately before such repayment.
"Managers Undertaking" means, in relation to a Ship, the letter of undertaking from its Approved Technical Manager and the letter of undertaking
from its Approved Commercial Manager subordinating the rights of such Approved Technical Manager and such Approved Commercial Manager
respectively against that Ship and the relevant Borrower to the rights of the Finance Parties in agreed form.
"Mandatory Costs" has the meaning given to it in Clause 14.3 (Mandatory Cost);
"Market Disruption Event" has the meaning given to it in Clause 10.2 (Market disruption).
"Material Adverse Effect" means, in the reasonable opinion of the Majority Lenders, a material adverse effect on:
(a) the business, operations, property, condition (financial or otherwise) or prospects of any member of the Group or the Group as a whole; or
(b) the ability of any Transaction Obligor to perform its obligations under any Finance Document; or
(c) the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the
Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
"Membership Interests Security" means, in relation to a Borrower, a document creating Security in respect of the membership interests in that
Borrower in agreed form.
"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day
in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business
Day in that calendar month; and
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Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"Mortgage" means, in relation to a Ship, a first preferred or priority ship mortgage (as applicable for the Approved Flag of that Ship) and, if as
applicable for the Approved Flag of the Ship, a deed of covenant collateral to the said mortgage in agreed form.
"Non-Consenting Lender" means any Lender which does not and continues not to consent or agree to a request of the Borrowers or the Facility
Agent (at the request of the Borrowers) to give a consent in relation to, or to agree to a waiver or amendment of, any provision of the Finance
Documents when:
(a) the consent, waiver or amendment in question requires the approval of all of the Lenders; and
(b) Lenders whose commitments aggregate more than 66 per cent. of the Total Commitments have consented or agreed to such waiver or
amendment.
"Obligor" means a Borrower, a Hedge Guarantor, the Parent Guarantor or the Corporate Guarantor.
"Operating Costs" means, in relation to a Ship, the costs and expenses in respect of the technical and commercial operation, insurance, repair and
maintenance of that Ship, all payments due under each of the management agreements for that Ship and any other day-to-day running costs in
relation to that Ship (including Voyage Expenses but not including any dry docking or special survey costs).
"Original Financial Statements" means in relation to the Parent Guarantor, the unaudited consolidated financial statements of the Group for its
financial year ended 31 December 2014.
"Overseas Regulations" means the Overseas Companies Regulations 2009 (SI 2009/1801).
"Parallel Debt" means any amount which an Obligor owes to the Security Agent under Clause 33.2 (Parallel Debt (Covenant to pay the Security
Agent)).
(b) the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 14 months;
(c) which is entered into on bona fide arms length terms at the time at which that Ship is fixed; and
(d) in relation to which not more than two months hire is payable in advance,
and any other charter which is approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
13
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Permitted Financial Indebtedness" means :
(b) any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents in a manner and on
terms satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders); and
(c) any Financial Indebtedness reasonably incurred in connection with the normal commercial operation of the Ship.
(b) any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances, any netting or right of pledge under the general base conditions of a Lender and any right of
pledge and set off in connection with permitted cash pool arrangements;
(c) liens for unpaid masters and crews wages in accordance with usual maritime practice;
(e) liens for masters disbursements incurred in the ordinary course of trading, provided such liens do not secure amounts more than 30 days
overdue; and
(f) any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship and not as
a result of any default or omission by any Borrower, provided such liens do not secure amounts more than 30 days overdue (unless the
overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause
26.14 (Restrictions on chartering, appointment of managers etc.).
(a) the pool agreement entered into in relation to the pool managed by Mansel Ltd. in which Fair Isle Shipco LLC is a participant; and
"Potential Event of Default" means any event or circumstance specified in Clause 29 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"Prohibited Person" means any person (whether designated by name or by reason of being included in a class of persons) against whom Sanctions
are directed.
"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period
unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant
Interbank Market on more than one day, the Quotation Day will be the last of those days).
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Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its
request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in dollars for
the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for
that period.
"Reference Banks" means the principal London offices of Barclays Bank plc, HSBC Bank plc and Lloyds Bank plc or such other banks as may be
appointed by the Facility Agent in consultation with the Borrowers.
"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment
adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment
adviser is an Affiliate of the investment manager or investment adviser of the first fund.
(b) any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created,
under the Finance Documents to which it is a party is situated;
(d) the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance
Documents to which it is a party.
"Repayment Date" means each date on which a Repayment Instalment is required to be paid under Clause 6.1 (Repayment of Loan).
"Repayment Instalment" has the meaning given to it in Clause 6.1 (Repayment of Loan).
"Repeating Representation" means each of the representations set out in Clause 21 (Representations) except Clause 21.10 (Insolvency) and Clause
21.12 (Deduction of Tax) and any representation of any Transaction Obligor made in any other Finance Document that is expressed to be a
"Repeating Representation" or is otherwise expressed to be repeated.
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
(a) 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 year without any right to an extension) unless it is within 30 days redelivered to the full control of the relevant Borrower; and
15
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) any arrest, capture, seizure or detention of that Ship (including any hijacking or theft) unless it is within 30 days redelivered to the full
control of the relevant Borrower.
"Requisition Compensation" includes all compensation or other moneys payable by reason of any Requisition.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"Restricted Person" means a person that is (i) listed on, or owned or controlled by a person listed on any Sanctions List; (ii) located in, incorporated
under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is
the target of country-wide Sanctions; or (iii) otherwise a target of Sanctions.
"Safety Management Certificate" has the meaning given to it in the ISM Code.
"Safety Management System" has the meaning given to it in the ISM Code.
"Sanctions" means any economic or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by :
(c) the European Union or its Member States, including without limitation, the United Kingdom;
(d) any country to which any Obligor, or any other member of the Group or any Affiliate of any of them is bound; or
(e) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets
Control of the US Department of Treasure ("OFAC"), the United States Department of State, and her Majestys Treasury ("HMT") (together
"Sanctions Authorities").
"Sanctions List" means the "Specially Designated Nationals and Blocked Persons" list issued by OFAC, the "Consolidated List of Financial
Sanctions Targets and Investment Ban List" issued by HMT, or any similar list issued or maintained or made public by any of the Sanctions
Authorities.
"Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes
over the administration of that rate) for dollars for the relevant period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any
replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time
to time in place of Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the
relevant rate after consultation with the Borrowers.
"Secured Liabilities" means all present and future obligations and liabilities, (whether actual or contingent and whether owed jointly or severally or
in any other capacity whatsoever) of each Transaction Obligor to any Secured Party under or in connection with each Finance Document.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Secured Party" means each Finance Party from time to time party to this Agreement and any Receiver or Delegate.
"Security" means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the
effect of conferring security.
"Security Period" means the period starting on the date of this Agreement and ending on the date on which the Facility Agent is satisfied that there
is no outstanding Commitment in force and that the Secured Liabilities have been irrevocably and unconditionally paid and discharged in full.
(a) the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that
Transaction Security;
(b) all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security
Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed
to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
(c) the Security Agents interest in any turnover trust created under the Finance Documents;
(d) any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is
required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
except:
(i) rights intended for the sole benefit of the Security Agent; and
(ii) any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained
in accordance with the provisions of this Agreement.
"Selection Notice" means a notice substantially in the form set out in Part B of Schedule 3 (Requests) given in accordance with Clause 9 (Interest
Periods).
"Ship A" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship B" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship C" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship D" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship E" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship F" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship G" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship H" means the Ship described as such in further details in Schedule 8 (Ships).
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Ship I" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship J" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship K" means the Ship described as such in further details in Schedule 8 (Ships).
"Ship L" means an MR tanker to be acquired by Hebrides Shipco LLC and registered in its ownership on an Approved Flag, built in either Japan or
Korea and being not more than seven years old on the Utilisation Date of Tranche L and being in all respects satisfactory to the Lenders.
"Ship" means Ship A, Ship B, Ship C, Ship D, Ship E, Ship F, Ship G, Ship H, Ship I, Ship J, Ship K or Ship L.
"Subsidiary" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Third Parties Act" has the meaning given to it in Clause 1.5 (Third party rights).
"Total Commitments" means the aggregate of the Commitments, being a maximum of $212,650,000 at the date of this Agreement.
(a) actual, constructive, compromised, agreed or arranged total loss of that Ship; or
(a) in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
(b) in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
(i) the date on which a notice of abandonment is given to the insurers; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ships insurers in
which the insurers agree to treat that Ship as a total loss; and
(c) in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event
constituting the total loss occurred.
"Tranche" means Tranche A, Tranche B, Tranche C, Tranche D, Tranche E, Tranche F, Tranche G, Tranche H, Tranche I, Tranche J, Tranche K and
Tranche L.
"Tranche A" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship A.
"Tranche B" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship B.
"Tranche C" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship C.
"Tranche D" means that part of the Loan made or to be made available to the Borrowers to finance up 65 per cent. of the Fair Market Value of Ship
D.
"Tranche E" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship E.
"Tranche F" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship F.
"Tranche G" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship G.
"Tranche H" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship H.
"Tranche I" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of Ship
I.
"Tranche J" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of Ship
J.
"Tranche K" means that part of the Loan made or to be made available to the Borrowers to finance up to 65 per cent. of the Fair Market Value of
Ship K.
"Tranche L" means that part of the Loan made or to be made available to the Borrowers to finance the lower of (i) 60 per cent. of the Fair Market
Value of Ship L and (ii) $20,400,000.
(c) any other document designated as such by the Facility Agent and the Borrower.
"Transaction Obligor" means an Obligor, an Approved Manager which is a member of the Group or any other person, except a Finance Party who
executes a Finance Document.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Transaction Security" means the Security created or intended to be created in favour of the Security Agent pursuant to the Finance Documents.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) or any other form agreed
between the Facility Agent and the Borrowers.
(a) the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
(b) the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.
(a) a Borrower which is resident for tax purposes in the United States; or
(b) an Obligor some or all of whose payments under the Finance Documents are from sources within the United States for US federal income tax
purposes.
"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Advance is to be made.
"Utilisation Request" means a notice substantially in the form set out in Part A of Schedule 3 (Requests).
"VAT" means:
(a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive
2006/112); and
(b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such
tax referred to in paragraph (a) above, or imposed elsewhere.
"Voyage Expenses" means, in relation to a Ship, expenses and disbursements incurred by a Borrower or an Approved Manager in respect of that Ship
for port dues, canal dues, pilotage, towage and other charges and/or taxes customarily charged to that Ship under a normal voyage charter together
with the cost of repositioning for the next voyage and the cost of bunker fuel and lubrication oil consumed on such voyage or in repositioning and
including insurance premiums and reimbursement where applicable.
"Write-down and Conversion Powers" means in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to
time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule.
1.2 Construction
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) the "Account Bank", any "Mandated Lead Arranger", any "Bookrunner", the "Facility Agent", any "Finance Party", any "Hedge
Counterparty", any "Lender", any "Obligor", any "Party", any "Secured Party", the "Security Agent", any "Transaction Obligor" or any
other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or
obligations under the Finance Documents;
(ii) "assets" includes present and future properties, revenues and rights of every description;
(iii) "contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
(v) "expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including
VAT;
(vi) a "Finance Document" or "Transaction Document" or any other agreement or instrument is a reference to that Finance Document or
Transaction Document or other agreement or instrument as amended or novated;
(vii) "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present
or future, actual or contingent;
(viii) "law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or
resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
(ix) "proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application
for a provisional or protective measure;
(x) a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint
venture, consortium or partnership (whether or not having separate legal personality);
(xi) a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or
organisation;
(xiv) any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal
concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that
jurisdiction to the English legal term;
(xv) words denoting the singular number shall include the plural and vice versa; and
(xvi) "including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in
connection with which they are used.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the
Finance Documents.
(c) Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance
Document has the same meaning in that Finance Document or notice as in this Agreement.
(d) A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
In this Agreement:
"approved" means, for the purposes of Clause 25 (Insurance Undertakings), approved in writing by the Facility Agent;
"excess risks" means, in respect of a Ship, the proportion of claims for general average, salvage and salvage charges not recoverable under the hull
and machinery policies in respect of that Ship in consequence of its insured value being less than the value at which that Ship is assessed for the
purpose of such claims;
"obligatory insurances" means all insurances effected, or which any Borrower is obliged to effect, under Clause 25 (Insurance Undertakings) or any
other provision of this Agreement or of another Finance Document;
"policy" includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;
"protection and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution
risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and
machinery policies by reason of the incorporation in them of clause 1 of the Institute Time Clauses (Hulls) (1/10/82) or clause 8 of the Institute Time
Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision; and
"war risks" includes the risk of mines and all risks excluded by clause 23 of the Institute Time Clauses (Hulls)(1/10/83) or clause 24 of the Institute
Time Clauses (Hulls) (1/11/1995).
References in Clause 1.1 (Definitions) to any Finance Document being in "agreed form" are to that Finance Document:
(a) in a form attached to a certificate dated the same date as this Agreement (and signed by each Borrower and the Facility Agent); or
(b) in any other form agreed in writing between each Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where
Clause 45.2 (All Lender matters) applies, all the Lenders.
(a) Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third
Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at
any time.
(c) Any Receiver, Delegate or any other person described in paragraph (d) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 32.10 (Exclusion
of liability) or Clause 33.15 (No proceedings) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of
this Agreement which expressly confers rights on it.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 2
THE FACILITY
2 THE FACILITY
Subject to the terms of this Agreement, the Lenders make available to the Borrowers a dollar term loan facility in 12 Tranches in an aggregate
amount not exceeding the Total Commitments.
(a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
(d) Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the
consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
(a) The Obligors may, prior to 31 December 2016, request by written notice to the Facility Agent an increase in the Total Commitments for the purpose
of financing the acquisition of an additional ship or ships provided always that the financial covenants set out in Clause 23 (Financial Covenants)
are complied with measured on a pro forma basis immediately prior to and following such increase in the Total Commitments and subject always to:
(i) such terms and conditions as the Lenders may require in relation to any such increase;
(iv) such amendments to the Finance Documents and such additional security and collateral documentation being executed in favour of the
Finance Parties to the satisfaction of the Facility Agent (acting on the instructions of all Lenders); and
(v) delivery to the Facility Agent of all of the conditions precedent which the Facility Agent would be entitled to receive pursuant to paragraph
(e) of Clause 4.2 (Further conditions precedent) mutatis mutandis.
(b) The Lenders may in their discretion agree to provide the increase in Total Commitments set out in paragraph (a) of Clause 2.3 (Increase commitment
option) but have no obligation to do so.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
3 PURPOSE
3.1 Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility only for the purpose stated in the preamble (Background) to this
Agreement.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4 CONDITIONS OF UTILISATION
The Borrowers may not deliver a Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part A
of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent.
The Lenders will only be obliged to comply with Clause 5.4 (Lenders participation) if on the date of the Utilisation Request and on the proposed
Utilisation Date and before the Advance is made available:
(c) no event described in paragraph (b) of Clause 7.5 (Mandatory prepayment on sale or Total Loss) has occurred in relation to the Ship in respect of
which such Advance is to be made;
(d) the provisions of paragraph (c) of Clause 10.3 (Alternative basis of interest or funding, suspension) do not apply;
(e) in the case of Tranches A to K which shall be advanced on the same day, the Facility Agent has received, or is satisfied it will receive when the
Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in form and substance
satisfactory to the Facility Agent; and
(f) in the case of Tranche L, the Facility Agent has received on or before the relevant Utilisation Date, or is satisfied it will receive when the Advance is
made available, all of the documents and other evidence listed in Part C of Schedule 2 (Conditions Precedent) in form and substance satisfactory to
the Facility Agent.
(a) The Facility Agent shall notify the Borrowers and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent
referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
(b) Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification
described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not
be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
4.4 Waiver of conditions precedent
If the Lenders, at their discretion, permit an Advance to be borrowed before any of the conditions precedent referred to in Clause 4.1 (Initial
conditions precedent) or Clause 4.2 (Further conditions precedent) has been satisfied, the Borrowers shall ensure that that condition is satisfied
within five Business Days after the relevant Utilisation Date or such later date as the Facility Agent, acting with the authorisation of the Lenders,
may agree in writing with the Borrowers.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 3
UTILISATION
5 UTILISATION
(a) The Borrowers may utilise the Facility or any part of it by delivery to the Facility Agent of a duly completed Utilisation Request not later than the
Specified Time.
(b) The Borrowers may not deliver more than one Utilisation Request in respect of a Tranche.
(a) Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the relevant Availability Period;
(ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
(iii) the proposed Interest Period complies with Clause 9 (Interest Periods).
(i) Tranche A must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship A;
(ii) Tranche B must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship B;
(iii) Tranche C must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship C;
(iv) Tranche D must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship D;
(v) Tranche E must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship E;
(vi) Tranche F must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship F;
(vii) Tranche G must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship G;
(viii) Tranche H must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship H;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ix) Tranche I must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship I;
(x) Tranche J must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship J;
(xi) Tranche K must be an amount which, on the proposed Utilisation Date, does not exceed 65 per cent. of the Fair Market Value of Ship K; and
(xii) Tranche L must be an amount which, on the proposed Utilisation Date, does not exceed the lower of (i) 60 per cent. of the Fair Market Value
of Ship L and (ii) $20,400,000.
(c) In addition, the aggregate amount of Tranches A to K shall not exceed an amount of the total indebtedness in relation to the Existing Ships on the
relevant Utilisation Date and being an amount of not more than $192,250,000.
(d) The amount of the proposed Advance must be an amount which, when aggregated with any previous Advances utilised under this Facility, is not
more than the Available Facility.
(e) The amount of the proposed Advance must be an amount which would not oblige the Borrowers to provide additional security or prepay part of the
Advance if the ratio set out in Clause 27 (Security Cover) were applied and notice was given by the Facility Agent under Clause 27.1 (Minimum
required security cover) immediately after the Loan was made.
(a) If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the Utilisation Date
through its Facility Office.
(b) The amount of each Lenders participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available
Facility immediately before making that Advance.
(c) The Facility Agent shall notify each Lender of the amount of each Advance and the amount of its participation in that Advance by the Specified
Time.
The Commitments in respect of any Tranche which are unutilised at the end of the Availability Period for such Tranche shall then be cancelled.
The Facility Agent shall, on each Utilisation Date, pay to, or for the account of, the relevant Borrower which is to utilise the Advance the amounts
which the Facility Agent receives from the Lenders in respect of the Advance. That payment shall be made in like funds as the Facility Agent
received from the Lenders in respect of the Advance to the account which the Borrowers specify in the relevant Utilisation Request.
A payment by the Facility Agent under Clause 5.6 ( Payment to third parties) to a person other than a Borrower shall constitute the making of the
relevant Advance and the Borrowers shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that
Lenders participation in that Advance.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
5.8 Prepositioning of funds
If, in respect of the Utilisation of any Advance, the Lenders, at the request of the Borrowers and on terms acceptable to all the Lenders and in their
absolute discretion, preposition funds with any bank, each Borrower and each Guarantor:
(a) agree to pay interest on the amount of the funds so prepositioned at the rate described in Clause 8.1 (Calculation of interest) on the basis of
successive interest periods of one day and so that interest shall be paid together with the first payment of interest on such Advance after the
Utilisation Date in respect of it or, if such Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and
(b) shall, without duplication, indemnify each Finance Party against any costs, loss or liability it may occur in connection with such arrangement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 4
6 REPAYMENT
(a) The Borrowers shall repay each Tranche on a linear quarterly basis reflecting a repayment profile whereby the Facility will be fully repaid once the
average age of the Ships is 15 years, each in an amount set out in Schedule 4 (Repayment Schedule), which includes an additional repayment of
$2,000,000 per annum for the first two years, the first repayment to be repaid on the date falling 3 Months after the Utilisation Date for that Tranche,
and the last on the Termination Date, together with a balloon instalment of all outstanding amounts relating to that Tranche repayable at the same
time as the last quarterly instalment,
(b) The quarterly instalments and balloon amounts listed in Schedule 4 (Repayment Schedule) are based on the amounts of the Tranches referred to as
Nominal Tranche Amounts in that schedule. If the amount of any Tranche is less than the Nominal Tranche Amount the Facility Agent shall
provide the Borrowers and Lenders with an amended repayment schedule,
(c) If a Ship is sold or becomes a Total Loss and the Security in respect of that Ship has been released, or a ship is added to the Facility pursuant to
Clause 2.3 (Increase commitment option), the repayment profile shall be recalculated by the Facility Agent based on the new average age of the
ships then financed under this Agreement on the basis of the 15 year full repayment profile, which shall include an additional repayment of
$2,000,000 per annum for the first two years,
(d) The Borrowers may request that the total quarterly repayments be apportioned over each Tranche in specific amounts subject to the consent of the
Majority Lenders, such consent not to be unreasonably withheld.
(e) The Borrowers may, at their option, but subject to the consent of the Facility Agent, acting with the approval of the Majority Lenders, such approval
not to be unreasonably withheld, synchronise the Repayment Dates of the Tranches by matching the Repayment Dates of any Tranche utilised under
this Agreement to the Repayment Dates of another Tranche.
(f) The Majority Lenders may, at their option, but subject to the consent of the Borrowers, such approval not to be unreasonably withheld, synchronise
the Repayment Dates of the Tranches by matching the Repayment Dates of any Tranche utilised under this Agreement to the Repayment Dates of
another Tranche.
On the Termination Date, the Borrowers shall additionally pay to the Facility Agent for the account of the Finance Parties all other sums then
accrued and owing under the Finance Documents.
6.3 Reborrowing
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7 PAYMENT AND CANCELLATION
7.1 Illegality
(a) If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in an Advance or the Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:
(i) that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
(ii) upon the Facility Agent notifying the Borrowers, the Commitment of that Lender will be immediately cancelled; and
(iii) the Borrowers shall repay that Lenders participation in the Loan on the last day of the Interest Period for the Loan occurring after the
Facility Agent has notified the Borrowers or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being
no earlier than the last day of any applicable grace period permitted by law).
(b) Any partial prepayment under this Clause 7.1 (Illegality) shall reduce pro rata the amount of each Repayment Instalment falling after that
prepayment by the amount prepaid.
(a) If, without the Lenders prior consent, any person or group of persons acting in concert gains control of the Parent Guarantor:
(i) the Parent Guarantor shall promptly notify the Facility Agent upon becoming aware of that event; and
(ii) irrespective of whether notice is given under Clause 7.2 (a)(i) (Change of control) above, if the Majority Lenders so require, the Facility
Agent shall, by no less than 30 days notice to the Borrowers, cancel the Facility and declare the Loan, together with accrued interest, and
all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all
such outstanding amounts will become immediately due and payable.
(i) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(A) cast, or control the casting of, more than 25 per cent. of the maximum number of votes that might be cast at a general meeting of
the Parent Guarantor; or
(B) appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent Guarantor; or
(C) give directions with respect to the operating and financial policies of the Parent Guarantor with which the directors or other
equivalent officers of the Parent Guarantor are obliged to comply; and/or
(ii) the holding (beneficially) of more than 25 per cent. of the issued share capital of the Parent Guarantor (excluding any part of that issued
share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); and/or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) the merger or consolidation of the Parent Guarantor; and/or
(c) For the purpose of paragraph (a) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal
or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Parent Guarantor by any of them, either directly or
indirectly, to obtain or consolidate control of the Parent Guarantor.
(a) The Borrowers may, if they give the Facility Agent not less than 15 Business Days (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of $500,000) of the Available Facility. Any cancellation under this Clause 7.3
(Voluntary and automatic cancellation) shall reduce the Commitments of the Lenders and the amount of each Tranche then unutilised rateably.
(b) The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the Loan is made
available.
(a) The Borrowers may, if they give the Facility Agent not less than 15 Business Days (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of
$500,000 or a multiple of that amount).
(b) The Loan may only be prepaid after the last day of the last Availability Period (or, if earlier, the day on which the Available Facility is zero)
Provided that any amount advanced to the Borrowers prior to the last day of the Availability Period may be prepaid subject to payment by the
Borrowers of any Breakage Costs and the other provisions of this Clause 7.4 (Voluntary prepayment of Loan).
(c) Any partial prepayment under this Clause 7.4 (Voluntary prepayment of Loan) shall be applied as follows:
(i) 50 per cent. of the amount prepaid shall reduce in inverse order of maturity the amount of each Repayment Instalment for the relevant
Tranche falling after that prepayment; and
(ii) 50 per cent. of the amount prepaid may be applied on a pro-rata basis towards satisfaction of the Repayment Instalments set out in Clause
6.1 (Repayment of Loan).
(d) Subject to Lenders consent, such consent not to be unreasonably withheld, the Borrowers may request to apply a voluntary prepayment towards full
or partial repayment of a particular Tranche and, in the case of a full repayment only, a release of the Ship securing that Tranche, Provided that the
security cover as determined pursuant to Clause 27.1 (Minimum required security cover) does not decrease by more than 2.5 per cent. and the
Facility Agent shall have the right to request the Borrowers to, and the Borrowers shall within 15 Business Days of such request, (i) provide
additional security acceptable to the Lenders and / or (ii) make a prepayment of the Loan so that the security cover does not decrease by more than
2.5 per cent.. Any such prepayment shall be applied first against the Tranche to which the ship relates and then pro rata against the remaining
Tranches and against each such remaining Tranche in inverse order of maturity. This sub-paragraph (d) is subject to payment by the Borrowers of
any Breakage Costs.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
7.5 Mandatory prepayment on sale or Total Loss
(a) If a Ship is sold or becomes a Total Loss, the Borrowers shall on the Relevant Date prepay the Tranche applicable to that Ship.
(b) On the Relevant Date, the Borrowers shall also prepay such part of the Loan as shall eliminate any shortfall arising if the ratio set out in Clause 27
(Security Cover) were applied immediately following the payment referred to in paragraph (a) above.
(c) The Borrowers shall ensure that after such sale or Total Loss, the minimum required security cover pursuant to Clause 27.1 (Minimum required
security cover) does not decrease by more than 2.5 per cent. and the Facility Agent shall have the right to request the Borrowers to, and the
Borrowers shall within 15 Business Days of such request, (i) provide additional security acceptable to the Lenders and / or (ii) make a prepayment of
the Loan so that the security cover does not decrease by more than 2.5 per cent.. Any such prepayment shall be applied pro rata against the Tranches
and against each Tranche in inverse order of maturity.
(d) Provided that no Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship after the prepayments referred to
in paragraph (a) and paragraph (b) above have been made together with all other amounts that are payable on any such prepayment pursuant to the
Finance Documents shall be paid to the Borrower that owned the relevant Ship.
(i) in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and
(A) the date falling 150 days after the Total Loss Date; and
(B) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
(f) Any partial prepayment of the Loan under this Clause 7.5 (Mandatory prepayment on sale or Total Loss) shall reduce in inverse order of maturity
the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
Any Hedging Prepayment Proceeds arising as a result of any cancellation or prepayment under this Agreement shall, following payment into the
Earnings Account in accordance with Clause 28.1 (Payment of Earnings), be applied on the last day of the Interest Period which ends on or after
such payment in, in prepayment of the Loan and shall reduce pro rata the amount of each Repayment Instalment falling after that prepayment by the
amount prepaid.
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up); or
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) any Lender claims indemnification from a Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs) ; or
(iii) the Facility Agent receives notification from an Affected Lender under paragraph (b)(iii) of Clause 10.2 (Market disruption),
(A) whilst in the case of paragraph (i) and (ii) above the circumstance giving rise to the requirement for that increase or
indemnification continues ; or
(B) whilst in the case of paragraph (iii) above the Market Disruption Event in relation to the Affected Lender continues,
give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lenders
participation in the Loan or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (e) below.
(b) On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Borrowers have given notice of cancellation under paragraph (a) above in relation to a
Lender (or, if earlier, the date specified the Borrowers in that notice), the Borrowers shall repay that Lenders participation in the Loan.
(d) Any partial prepayment under this Clause 7.7 (Right of replacement or repayment and cancellation in relation to a single Lender) shall reduce pro
rata the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
(e) The Borrowers may, in the circumstances set out in paragraph (a) above, on 10 Business Days prior notice to the Facility Agent and that Lender,
replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 30 (Changes to the
Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other
entity selected by the Borrowers which confirms its willingness to assume and does assume all the obligations of the transferring Lender in
accordance with Clause 30 (Changes to the Lenders) for a purchase price in cash or other cash payment payable at the time of the transfer equal to
the outstanding principal amount of such Lenders participation in the Loan and all accrued interest (to the extent that the Facility Agent has not
given a notification under Clause 30.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance
Documents.
(f) The replacement of a Lender pursuant to paragraph (e) above shall be subject to the following conditions:
(ii) neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender;
(iii) in no event shall the Lender replaced under paragraph (e) above be required to pay or surrender any of the fees received by such Lender
pursuant to the Finance Documents; and
(iv) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (e) above once it is satisfied that it has
complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that
transfer.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(g) A Lender shall perform the checks described in paragraph (f)(iv) above as soon as reasonably practicable following delivery of a notice referred to in
paragraph (e) above and shall notify the Facility Agent and the Borrowers when it is satisfied that it has complied with those checks.
7.8 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this Clause 7 (Payment and Cancellation) shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and
the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and amounts (if any) payable under the
Hedging Agreements in connection with that prepayment and, subject to any Break Costs, without premium or penalty.
(c) No Borrower may reborrow any part of the Facility which is prepaid.
(d) No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
(f) If the Facility Agent receives a notice under this Clause 7 (Payment and Cancellation) it shall promptly forward a copy of that notice to either the
Borrowers or the affected Lenders and/or Hedge Counterparties, as appropriate.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 5
COSTS OF UTILISATION
8 INTEREST
The rate of interest on the Loan or any part of the Loan for each Interest Period is the percentage rate per annum which is the aggregate of:
(a) The Borrowers shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period.
(b) If an Interest Period is longer than three Months, the Borrowers shall also pay interest then accrued on the Loan or the relevant part of the Loan on
the dates falling at three Monthly intervals after the first day of the Interest Period.
(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due
date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is two per cent. higher than the
rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of a Loan in the currency of the
Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent. Any interest accruing under this Clause 8.3 ( Default
interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
(b) If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan:
(i) the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the
Loan; and
(ii) the rate of interest applying to that Unpaid Sum during that first Interest Period shall be two per cent. higher than the rate which would have
applied if that Unpaid Sum had not become due.
(c) Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that
Unpaid Sum but will remain immediately due and payable.
The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
8.5 Hedging
(a) The Borrowers may enter into Hedging Agreements and shall after that date maintain such Hedging Agreements in accordance with this Clause 8.5
(Hedging).
(b) The Hedge Counterparties will in its sole discretion have a right of first refusal, pro rata based on their respective Commitments, to enter into a
Hedging Agreement with a Borrower but will not be obliged to do so.
(i) be with a Hedge Counterparty and each Hedge Counterparty shall also be a Lender;
(iii) have settlement dates coinciding with the Interest Payment Dates;
(v) provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination
Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and
(vi) provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
(d) The rights of each Borrower under the Hedging Agreements shall be assigned by way of security under a Hedging Agreement Assignment.
(e) The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
(f) Neither a Hedge Counterparty nor a Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of
the Facility Agent.
(g) Paragraph (f) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to
a conflict with any provision of this Agreement.
(h) If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any
repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrowers must promptly notify the Facility
Agent and must reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Hedge Counterparties
so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding.
(i) Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (h) above
will be apportioned as between those transactions pro rata.
(j) Subject to paragraph (m) below, neither a Hedge Counterparty nor a Borrower may terminate or close out any transactions in respect of any Hedging
Agreement (in whole or in part) except:
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) on the occurrence of an Illegality, (as such expression is defined in the relevant Hedging Agreement);
(iii) in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent makes a demand for repayment of the Loan but
irrespective as to whether such payment is made pursuant to that demand;
(iv) in the case of any other termination or closing out by a Hedge Counterparty or a Borrower, with the consent of the Facility Agent;
(v) if the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged
in full;
(vi) if an Obligor does not pay on the due date any amount payable pursuant to a Finance Document;
(k) If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under paragraph (j)(iii) above,
such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent.
(l) A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if a Borrower is in breach of its
payment obligations under any transaction in respect of that Hedging Agreement.
(m) Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by each Borrower pursuant to the relevant
Hedging Agreement Assignment of its rights under the Hedging Agreements to which it is party in favour of the Security Agent.
(n) Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect
of any amounts owing under any Hedging Agreement.
(o) The Security Agent shall not be liable for the performance of any of a Borrower's obligations under a Hedging Agreement.
9 INTEREST PERIODS
(a) The Borrowers may select the Interest Period for each Tranche in the Utilisation Request for that Tranche. Subject to paragraph (f) below, the
Borrowers may select each subsequent Interest Period in respect of each Tranche in a Selection Notice.
(b) Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrowers not later than the Specified Time.
(c) If the Borrowers fail to select an Interest Period in the Utilisation Request applicable to a Tranche or fail to deliver a Selection Notice to the Facility
Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will, subject to Clause 9.2 (Changes to Interest Periods) below,
be three Months.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) Subject to this Clause 9 (Interest Periods), the Borrowers may select an Interest Period of 3, 6, 9 or 12 Months or any other period agreed between the
Borrowers and the Facility Agent (acting on the instructions of all the Lenders).
(e) An Interest Period in respect of the Loan shall not extend beyond the Termination Date.
(f) In respect of a Repayment Instalment, an Interest Period for a part of the Loan equal to such Repayment Instalment shall end on the Repayment Date
relating to it if such date is before the end of the Interest Period then current.
(g) The first Interest Period for a Tranche shall start on the first Utilisation Date for that Tranche and each subsequent Interest Period shall start on the
last day of the preceding Interest Period.
(h) Except for the purposes of paragraph (f) above, each Tranche shall have one Interest Period only at any time.
(a) If after the Borrowers have selected and the Lenders have agreed an Interest Period longer than three months, any Lender notifies the Facility Agent
within two Business Days after the Specified Time relating to the relevant Utilisation Request or Selection Notice that it is not satisfied that deposits
in dollars for a period equal to the Interest Period will be available to it in the Relevant Interbank Market when the Interest Period commences, the
Facility Agent shall shorten the Interest Period to three months.
(b) If the Facility Agent makes any change to an Interest Period referred to in this Clause 9.2 (Changes to Interest Periods), it shall promptly notify the
Borrowers and the Lenders.
(c) The Borrowers may, at their option, but subject to the consent of the Facility Agent, acting with the approval of the Majority Lenders, such approval
not to be unreasonably withheld, synchronise the Interest Period s of the Tranches by matching the Interest Periods of any Tranche utilised under
this Agreement to the Interest Periods of another Tranche.
(d) The Majority Lenders may, at their option, but subject to the consent of the Borrowers, such approval not to be unreasonably withheld, synchronise
the Interest Periods of the Tranches by matching the Interest Periods of any Tranche utilised under this Agreement to the Interest Period s of another
Tranche.
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that
calendar month (if there is one) or the preceding Business Day (if there is not).
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply
a quotation by the Specified Time on the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
10.2 Market disruption
(a) If a Market Disruption Event occurs in relation to the Loan or any Advance for any Interest Period, then the rate of interest on each Lenders share of
the Loan or such Advance for the Interest Period shall be the rate per annum which is the sum of:
(ii) the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of
that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the
Loan or such Advance from whatever source it may reasonably select.
(i) at or about noon on the Quotation Day for the relevant Interest Period, LIBOR is to be determined by reference to the Reference Banks and
none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest
Period; or
(ii) before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a
Lender or Lenders (whose participations in the Loan exceed 30 per cent. of the Loan) that the cost to it or them of obtaining matching
deposits in the Relevant Interbank Market would be in excess of LIBOR; or
(iii) at least one Business Day before the start of an Interest Period, the Facility Agent receives notification from a Lender (the "Affected
Lender") that for any reason it is unable to obtain dollars in the Relevant Interbank Market in order to fund its participation in the Loan or
any Advance.
(a) If a Market Disruption Event occurs and the Facility Agent or the Borrowers so require, the Facility Agent and the Borrowers shall enter into
negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may
be) an alternative basis for funding.
(b) Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Borrowers, be
binding on all Parties.
(i) in circumstances falling within paragraph (b)(i) of Clause 10.2 (Market disruption) or paragraph(b)(ii) of Clause 10.2 (Market disruption),
the Lenders obligation to make that Advance; or
(ii) in circumstances falling within paragraph (b)(iii) of Clause 10.2 (Market disruption), the Affected Lenders obligation to participate in that
Advance,
shall be suspended while the circumstances giving rise to the Market Disruption Event continue.
(a) The Borrowers shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any
part of the Loan or Unpaid Sum being paid by a Borrower on a day other than the last day of an Interest Period for the Loan or Unpaid Sum.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they accrue.
11 FEES
(a) The Borrowers shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 40 per cent. of the Margin payable
quarterly in arrears on the undrawn and un-cancelled portion of the Loan from the date of this Agreement.
(b) If a Tranche or part of a Tranche is cancelled, the accrued commitment fee is payable on the cancelled amount of the relevant Lenders Commitment
at the time the cancellation is effective.
The Borrowers shall pay to the Facility Agent for distribution amongst the Lenders pro-rata their individual Commitments an arrangement fee
computed at the rate of one per cent. of the Total Commitments and at the times agreed in a Fee Letter.
(a) On the Closing Date, the Borrowers shall pay to the Bookrunners a structuring fee in the amount and at the times agreed in a Fee Letter.
(b) Upon the utilisation of the increase commitment option in Clause 2.3 (Increase commitment option) the Borrowers shall pay to the Bookrunners a
structuring fee in the amount and at the times agreed in a Fee Letter.
The Borrowers shall pay to the Security Agent for its account an agency fee in the amount and at the times agreed in a Fee Letter.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 6
12.1 Definitions
"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in
relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA
Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under
Clause 12.3 (Tax indemnity).
(b) Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the determination.
(c) This Clause 12 (Tax Gross Up and Indemnities) shall not apply to any Hedging Agreement.
(a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Borrowers shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis
of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a
payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrowers and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that
Tax Deduction within the time allowed and in the minimum amount required by law.
(e) Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax
Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party
that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
12.3 Tax indemnity
(a) The Borrowers shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.
(A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in
which that Finance Party is treated as resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance Partys Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(c) A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will
give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrowers.
(d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in
consequence of which that Tax Payment was received; and
(b) that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to be made by the Obligor.
The Borrowers shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability which that
Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
12.6 VAT
(a) All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the
consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject
to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such
Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the
same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly
provide an appropriate VAT invoice to that Party).
(b) If VAT is or becomes chargeable on any supply made by any Finance Party (the " Supplier") to any other Finance Party (the "Recipient") under a
Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an
amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of
that consideration):
(i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the
Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this
paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the
relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
(ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly,
following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent
that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or
indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part of it as represents VAT, save to
the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax
authority.
(d) Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include
(where appropriate and unless the context otherwise requires) a reference to any member of such group at such time.
(e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party
must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in
connection with such Finance Party's VAT reporting requirements in relation to such supply.
(a) Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
(ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party
reasonably requests for the purposes of that other Party's compliance with FATCA;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for
the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is
not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything,
which would or might in its reasonable opinion constitute a breach of:
(d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance
with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the
purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question
provides the requested confirmation, forms, documentation or other information.
(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA
Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate
the recipient of the payment for that FATCA Deduction.
(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such
FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrowers and the Facility Agent and the
Facility Agent shall notify the other Finance Parties.
13 INCREASED COSTS
(a) Subject to Clause 13.3 (Exceptions), the Borrowers shall, within three Business Days of a demand by the Facility Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:
(i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or
CRD IV.
(A) the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory
framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement,
standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the
Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
(B) the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology
and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in
November 2011, as amended, supplemented or restated; and
(C) any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
(A) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for
credit institutions and investment firms and amending regulation (EU) No. 648/2012;
(B) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit
institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and
repealing Directives 2006/48/EC and 2006/49/EC; and
(A) a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
(C) a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations under any Finance Document.
(a) A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the
claim, following which the Facility Agent shall promptly notify the Borrowers.
(b) Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased
Costs.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
13.3 Exceptions
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:
(c) compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
(d) compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);
(e) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
14 OTHER INDEMNITIES
(a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose
of:
(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Obligor shall, as an independent obligation, on demand, indemnify each Secured Party to which that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
(c) This Clause 14.1 (Currency indemnity) does not apply to any sum due to a Hedge Counterparty in its capacity as such.
(a) Each Obligor shall, on demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
(ii) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or
liability arising as a result of Clause 36 (Sharing Among the Finance Parties);
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) funding, or making arrangements to fund, its participation in an Advance requested by the Borrowers in a Utilisation Request but not made
by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that
Finance Party alone); or
(iv) the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers.
(b) Each Obligor shall, on demand, indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its
Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability
incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry,
in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security
constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, any Ship unless
such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
(c) Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or
liability incurred by each Indemnified Person in any jurisdiction:
(i) arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
(d) Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 ( Other indemnities) subject to
Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
Each Borrower shall, on demand by the Facility Agent, pay to the Facility Agent for the account of the relevant Lender, such amount which any
Lender certifies in a notice to the Facility Agent to be its good faith determination of the amount necessary to compensate it for complying with:
(a) in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements
having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in
respect of loans made from that Facility Office; and
(b) in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other
requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to
the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or
any of their functions),
Each Obligor shall, on demand, indemnify each Servicing Party against any reasonable cost, loss or liability incurred by that Servicing Party (acting
reasonably) as a result of:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) investigating any event which it reasonably believes is a Default;
(b) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; and
(c) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
Each Obligor shall, on demand, indemnify the Facility Agent against any reasonable cost, loss or liability incurred by the Facility Agent (otherwise
than by reason of the Facility Agent's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 37.11
(Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever
but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
(a) Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of
them:
(A) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately
authorised;
(B) the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
(C) the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and
Delegate by the Finance Documents or by law;
(D) any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance
Documents;
(E) any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
(F) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance
Documents.
(ii) acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or
the performance of the terms of this Agreement or the other Finance Documents (otherwise, in each case, than by reason of the relevant
Security Agents, Receivers or Delegates gross negligence or wilful misconduct).
(b) The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged
Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.6 (Indemnity to the Security Agent) and
shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
15 MITIGATION BY THE FINANCE PARTIES
15.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and
Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3 (Mandatory Cost) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
(a) Each Borrower shall, on demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 15.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
The Borrowers shall, on demand, pay the Facility Agent, the Security Agent and each Mandated Lead Arranger the amount of all reasonable costs
and expenses (including legal fees) reasonably incurred by any Secured Party in connection with the negotiation, preparation, printing, execution,
syndication and perfection of:
(a) this Agreement and any other documents referred to in this Agreement;
(c) any other Finance Documents executed after the date of this Agreement.
If:
(c) an Obligor requests, and the Security Agent agrees to, the release of all or any part of the Charged Property from the Transaction Security,
the Borrowers shall, on demand, reimburse each of the Facility Agent and the Security Agent for the amount of all reasonable costs and expenses
(including legal fees) reasonably incurred by each Secured Party in responding to, evaluating, negotiating or complying with that request or
requirement.
The Borrowers shall, on demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured
Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any
proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing those rights.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 7
(a) guarantees to each Finance Party punctual performance by each Obligor other than the Guarantors of all such other Obligors obligations under the
Finance Documents;
(b) undertakes with each Finance Party that whenever an Obligor other than the Guarantors do not pay any amount when due under or in connection
with any Finance Document, the Guarantors shall immediately on demand pay that amount as if it were the principal obligor; and
(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and
primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor other
than the Guarantors not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any
Finance Document on the date when it would have been due. The amount payable by the Guarantors under this indemnity will not exceed the
amount it would have had to pay under this Clause 17 (Guarantee and Indemnity Guarantors) if the amount claimed had been recoverable on the
basis of a guarantee.
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is
made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in
insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantors under this Clause 17 (Guarantee and
Indemnity Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of the Guarantors under this Clause 17 (Guarantee and Indemnity Guarantors) and in respect of any Transaction Security will not
be affected or discharged by an act, omission, matter or thing which, but for this Clause 17.4 (Waiver of defences), would reduce, release or prejudice
any of its obligations under this Clause 17 (Guarantee and Indemnity Guarantors) or in respect of any Transaction Security (without limitation
and whether or not known to it or any Secured Party) including:
(a) any time, waiver or consent granted to, or composition with, any Obligor or other person;
(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take
up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(e) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any
Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase
in any facility or the addition of any new facility under any Finance Document or other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
The Guarantors waive any right they may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any
Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 17 (Guarantee and
Indemnity Guarantors). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
17.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid
in full, each Secured Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf)
in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and
the Guarantors shall not be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from the Guarantors or on account of any Guarantors liability under this Clause
17 (Guarantee and Indemnity Guarantors).
All rights which the Guarantors at any time have (whether in respect of this guarantee, a mortgage or any other transaction) against any Borrower,
any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the
end of the Security Period and unless the Facility Agent otherwise directs, the Guarantors will not exercise any rights which they may have (whether
in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by the Guarantors of their obligations
under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17 (Guarantee and Indemnity
Guarantors):
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(a) to be indemnified by an Obligor;
(b) to claim any contribution from any third party providing security for, or any other guarantor of, any Obligors obligations under the Finance
Documents;
(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
(d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the
Guarantors have given a guarantee, undertaking or indemnity under Clause 17 (Guarantee and Indemnity Guarantors);
(f) to claim or prove as a creditor of any Obligor in competition with any Secured Party.
If the Guarantors receive any benefit, payment or distribution in relation to such rights they shall hold that benefit, payment or distribution to the
extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the
Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the
Facility Agent may direct for application in accordance with Clause 37 (Payment Mechanics).
This guarantee and any other Security given by the Guarantors is in addition to and is not in any way prejudiced by, and shall not prejudice, any
other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to
combine accounts in connection with the Finance Documents.
Clauses 17.2 (Continuing guarantee), 17.3 (Reinstatement), 17.4 (Waiver of defences), 17.5 (Immediate recourse), 17.6 (Appropriations), 17.7
(Deferral of Guarantors' rights) and 17.8 (Additional security) shall apply, with any necessary modifications, to any Security which the Guarantors
create (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
All liabilities and obligations of the Guarantors under this Agreement shall, whether expressed to be so or not, be joint and several.
(a) this Agreement being or later becoming void, unenforceable or illegal as regards the other Guarantor;
(b) any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with the other Guarantor;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) any Lender or the Security Agent releasing the other Guarantor or any Security created by a Finance Document; or
(d) any time, waiver or consent granted to, or composition with the other Guarantor or other person;
(e) the release of the other Guarantor or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
(f) 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, the other Guarantor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
(g) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the other Guarantor or any
other person;
(h) any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance
Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any
facility or the addition of any new facility under any Finance Document or other document or security;
(i) any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
Each Guarantor declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement
and the Finance Documents and no Guarantor shall, in any circumstances, be construed to be a surety for the obligations of the other Guarantor
under this Agreement.
(a) Subject to paragraph (b) below, during the Security Period no Guarantor shall:
(i) claim any amount which may be due to it from the other Guarantor whether in respect of a payment made under, or matter arising out of, this
Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
(ii) take or enforce any form of security from the other Guarantor for such an amount, or in any the way seek to have recourse in respect of such
an amount against any asset of the other Guarantor; or
(iii) set off such an amount against any sum due from it to the other Guarantor; or
(iv) prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Guarantor; or
(b) If during the Security Period, the Facility Agent, by notice to a Guarantor, requires it to take any action referred to in paragraph (a) above in relation
to the other Guarantor, that Guarantor shall take that action as soon as practicable after receiving the Facility Agents notice.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
18.5 Deferral of Guarantors rights
Until all amounts which may be or become payable by the Guarantors under or in connection with the Finance Documents have been irrevocably
paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it
of its obligations under the Finance Documents:
(b) to claim any contribution from the other Guarantor in relation to any payment made by it under the Finance Documents.
All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be joint and several.
(a) this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
(b) any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
(c) any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document; or
(d) any time, waiver or consent granted to, or composition with any other Borrower or other person;
(e) the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
(f) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any other Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
(g) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any
other person;
(h) any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance
Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any
facility or the addition of any new facility under any Finance Document or other document or security;
(i) any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(j) any insolvency or similar proceedings.
Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and
the Finance Documents and no Borrower shall, in any circumstances, be construed to be a surety for the obligations of any other Borrower under this
Agreement.
(a) Subject to paragraph (b) below, during the Security Period no Borrower shall:
(i) claim any amount which may be due to it from any other Borrower whether in respect of a payment made under, or matter arising out of, this
Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
(ii) take or enforce any form of security from any other Borrower for such an amount, or in any the way seek to have recourse in respect of such
an amount against any asset of any other Borrower; or
(iii) set off such an amount against any sum due from it to any other Borrower; or
(iv) prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or
(b) If during the Security Period, the Facility Agent, by notice to a Borrower, requires it to take any action referred to in paragraph (a) above in relation
to any other Borrower, that Borrower shall take that action as soon as practicable after receiving the Facility Agents notice.
Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably
paid in full and unless the Facility Agent otherwise directs, no Borrower will exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(b) to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 8
(a) guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Hedging Agreements;
(b) undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Hedging
Agreement, that Hedge Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and
(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and
primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not
paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on
the date when it would have been due. The amount payable by a Hedge Guarantor under this indemnity will not exceed the amount it would have
had to pay under this Clause 20 (Guarantee and Indemnity Hedge Guarantors) if the amount claimed had been recoverable on the basis of a
guarantee.
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Borrower under the Hedging Agreements,
regardless of any intermediate payment or discharge in whole or in part.
20.3 Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Borrower or any security for those obligations or otherwise) is
made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in
insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Hedge Guarantor under this Clause 20 (Guarantee
and Indemnity Hedge Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of each Hedge Guarantor under this Clause 20 (Guarantee and Indemnity Hedge Guarantors) (and in respect of any Transaction
Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 20.4 (Waiver of defences), would reduce,
release or prejudice any of its obligations under this Clause 20 (Guarantee and Indemnity Hedge Guarantors)) or in respect of any Transaction
Security (without limitation and whether or not known to it or any Secured Party) including:
(a) any time, waiver or consent granted to, or composition with, any Obligor or other person;
(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take
up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(e) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any
Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase
in any facility or the addition of any new facility under any Finance Document or other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
Each Hedge Guarantor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any
Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 20 (Guarantee and
Indemnity Hedge Guarantors).
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
20.6 Appropriations
Until all amounts which may be or become payable by the Borrowers under or in connection with the Hedging Agreements have been irrevocably
paid in full, each Secured Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf)
in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and
no Hedge Guarantor shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from any Hedge Guarantor or on account of any Hedge Guarantor's liability under
this Clause 20 (Guarantee and Indemnity Hedge Guarantors).
All rights which each Hedge Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against any
Borrower, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents
and until the end of the Security Period and unless the Facility Agent otherwise directs, no Hedge Guarantor will exercise any rights which it may
have (whether in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by it of its obligations
under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 20 (Guarantee and Indemnity
Hedge Guarantors):
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance
Documents;
(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
(d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any
Hedge Guarantor has given a guarantee, undertaking or indemnity under Clause 19 (Joint and Several Liability of the Borrowers);
(f) to claim or prove as a creditor of any Obligor in competition with any Secured Party.
If a Hedge Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the
extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the
Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the
Facility Agent may direct for application in accordance with Clause 37 (Payment Mechanics).
This guarantee and any other Security given by a Hedge Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice, any
other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to
combine accounts in connection with the Finance Documents.
Clauses 20.2 (Continuing guarantee), 20.3 (Reinstatement), 20.4 (Waiver of defences), 20.5 (Immediate recourse), 20.6 (Appropriations), 20.7
(Deferral of Hedge Guarantors rights) and 20.8 (Additional security) shall apply, with any necessary modifications, to any Security which a Hedge
Guarantor creates (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 9
21 REPRESENTATIONS
21.1 General
Each Obligor makes the representations and warranties set out in this Clause 21 (Representations) to each Finance Party on the date of this
Agreement.
21.2 Status
(a) In the case of each Borrower and the Corporate Guarantor, it is a limited liability company, duly formed and validly existing in good standing under
the law of its jurisdiction of incorporation and in the case of the Parent Guarantor it is a corporation, duly incorporated and validly existing in good
standing under the law of its jurisdiction of incorporation.
(b) It has the power to own its assets and carry on its business as it is being conducted.
(a) The aggregate membership interests expressed in terms of shares authorised to be issued by each Borrower is one hundred LLC shares, which shares
are uncertified.
(b) The legal title to and beneficial interest in the membership interests in each Borrower is held free of any Security or any other claim by the Corporate
Guarantor.
(c) None of the membership interests in any Borrower is subject to any option to purchase, pre-emption rights or similar rights.
(d) The legal title to and beneficial interest in the membership interests in the Corporate Guarantor is held free of any Security or any other claim by the
Parent Guarantor.
The obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable
obligations.
(a) Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration
create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended
to be created, be valid and effective.
(b) No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted
by it.
(c) The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first
ranking priority or such other priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking
security.
(d) No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.6 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and will not
conflict with:
(c) any agreement or instrument binding upon it or any member of the Group or any member of the Groups assets or constitute a default or termination
event (however described) under any such agreement or instrument.
(a) It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
(i) its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated
by those Transaction Documents; and
(ii) in the case of each Borrower, its registration of the Ship owned by it under its Approved Flag.
(b) No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the
Transaction Documents to which it is a party.
(a) to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
(b) to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
have been obtained or effected and are in full force and effect.
(a) The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
(b) Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction
Document will be recognised and enforced in its Relevant Jurisdictions.
21.10 Insolvency
No:
(a) corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 29.8 (Insolvency proceedings); or
has been taken or, to its knowledge, threatened in relation to a member of the Group; and none of the circumstances described in Clause 29.7
(Insolvency) applies to a member of the Group.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.11 No filing or stamp taxes
Under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with
any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the Finance
Documents to which it is a party or the transactions contemplated by those Finance Documents except any filing, recording or enrolling or any tax
or fee payable which is referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) and which will be made or paid
promptly after the date of the relevant Finance Document.
It is not required to make any deduction for or on account of a Tax Deduction from any payment it may make under any Finance Document to which
it is a party.
21.13 No default
(a) No Event of Default and, on the date of this Agreement and on each Utilisation Date, no Default is continuing or might reasonably be expected to
result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
(b) No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or
instrument which is binding on it or to which its assets are subject which might have a Material Adverse Effect.
(a) Any factual information provided by any member of the Group for the purposes of this Agreement was true and accurate in all material respects as at
the date it was provided or as at the date (if any) at which it is stated.
(b) The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of
reasonable assumptions.
(c) Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information
provided being untrue or misleading in any material respect.
(a) Its Original Financial Statements were prepared in accordance with GAAP consistently applied.
(b) Its Original Financial Statements give a true and fair view of its financial condition and operations (consolidated in the case of the Parent Guarantor)
during the relevant financial year.
(c) There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of
the Group, in the case of the Parent Guarantor) since 31 December 2014.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) Its most recent financial statements delivered pursuant to Clause 22.2 (Financial statements):
(i) have been prepared in accordance with Clause 22.4 (Requirements as to financial statements); and
(ii) give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition and operations (consolidated in the case of
the Guarantor) during the relevant financial year.
(e) Since the date of the most recent financial statements delivered pursuant to Clause 22.2 (Financial statements) there has been no material adverse
change in its business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the Guarantor).
Its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual
breach of the ISM Code or of the ISPS Code) of or before any court, arbitral body or agency have (to the best of its knowledge and belief (having
made due and careful enquiry)) been started or threatened against it.
(a) The Pool Agreement constitutes legal, valid, binding and enforceable obligations of the parties to it.
(b) The copy of the Pool Agreement delivered to the Facility Agent before the date of this Agreement is a true and complete copy.
(c) No material amendments or additions to the Pool Agreement have been agreed nor have any rights under the Pool Agreement been waived.
21.19 Valuations
(a) All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation delivered to the Facility Agent in accordance
with this Agreement was true and accurate as at the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
(b) It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such
Approved Valuer.
(c) There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such
information was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.20 No breach of laws
It has not breached any law or regulation which breach has had or could reasonably be expected to have a Material Adverse Effect.
21.21 No Charter
All Environmental laws relating to the ownership, operation and management of each Ship and the business of each member of the Group (as now
conducted and as reasonably anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied with.
No Environmental Claim has been made or threatened against any member of the Group or any Ship.
No Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
All requirements of the ISM Code and the ISPS Code as they relate to each Borrower each Approved Manager and each Ship have been complied
with.
(a) It is not and no other member of the Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Group is)
overdue in the payment of any amount in respect of Tax.
(b) No claims or investigations are being, or could reasonably be expected to be, made or conducted against it (or any other member of the Group) with
respect to Taxes.
No Borrower has any Financial Indebtedness outstanding other than as permitted by this Agreement.
No Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment to the
Registrar of Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Facility Agent sufficient details
to enable an accurate search against it to be undertaken by the Lenders at the Companies Registry.
It has good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its
business as presently conducted.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.30 Ownership
(a) On and from the Utilisation Date of Tranche A, Bailey Shipco LLC will be the sole legal and beneficial owner of Ship A, its Earnings and its
Insurances.
(b) On and from the Utilisation Date of Tranche B, Dover Shipco LLC will be the sole legal and beneficial owner of Ship B, its Earnings and its
Insurances.
(c) On and from the Utilisation Date of Tranche C, Fair Isle Shipco LLC will be the sole legal and beneficial owner of Ship C, its Earnings and its
Insurances.
(d) On and from the Utilisation Date of Tranche D, Fastnet Shipco LLC will be the sole legal and beneficial owner of Ship D, its Earnings and its
Insurances.
(e) On and from the Utilisation Date of Tranche E, Fitzroy Shipco LLC will be the sole legal and beneficial owner of Ship E, its Earnings and its
Insurances.
(f) On and from the Utilisation Date of Tranche F, Forth Shipco LLC will be the sole legal and beneficial owner of Ship F, its Earnings and its
Insurances.
(g) On and from the Utilisation Date of Tranche G, Rockall Shipco LLC will be the sole legal and beneficial owner of Ship G, its Earnings and its
Insurances.
(h) On and from the Utilisation Date of Tranche H, Shannon Shipco LLC will be the sole legal and beneficial owner of Ship H, its Earnings and its
Insurances.
(i) On and from the Utilisation Date of Tranche I, Sole Shipco LLC will be the sole legal and beneficial owner of Ship I, its Earnings and its Insurances.
(j) On and from the Utilisation Date of Tranche J, Trafalgar Shipco LLC is the sole legal and beneficial owner of Ship J, its Earnings and its Insurances.
(k) On and from the Utilisation Date of Tranche K, Viking Shipco LLC is the sole legal and beneficial owner of Ship K, its Earnings and its Insurances.
(l) On and from the Utilisation Date of Tranche L, Hebrides Shipco LLC is the sole legal and beneficial owner of Ship L, its Earnings and its Insurances.
(m) With effect on and from the date of its creation or intended creation, each Borrower will be the sole legal and beneficial owner of any other asset that
is the subject of any Transaction Security created or intended to be created by that Borrower.
For the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the "Regulation"), its centre of main
interest (as that term is used in Article 3(1) of the Regulation) is situated in Bermuda and it has no "establishment" (as that term is used in Article 2(h)
of the Regulation) in any other jurisdiction save as disclosed to, and agreed by, the Lenders.
No Obligor has a place of business in any countries other than as delivered to the Facility Agent in writing, and agreed to by the Lenders, on or
around the date of this Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.33 No employee or pension arrangements
No Obligor has any employees (other than as disclosed to the Lenders) or any liabilities under any pension scheme.
21.34 Sanctions
(ii) is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person; or
(b) No proceeds of any Advance or the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be
otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
21.36 Repetition
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of each
Utilisation Request and the first day of each Interest Period.
22 INFORMATION UNDERTAKINGS
22.1 General
The undertakings in this Clause 22 (Information Undertakings) remain in force throughout the Security Period unless the Facility Agent, acting with
the authorisation of the Majority Lenders (or, where specified, all the Lenders), may otherwise permit.
The Obligors shall ensure that there are provided to the Facility Agent in sufficient copies for all the Lenders:
(a) as soon as they become available, but in any event within 120 days after the end of each of its respective financial years the audited consolidated
financial statements of the Parent Guarantor for that financial year.
(b) as soon as the same become available, but in any event within 60 days after the end of each quarter of each of their respective financial years the
consolidated financial statement of the Parent Guarantor for that financial quarter year.
(a) The Parent Guarantor shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a) or (b) of Clause
22.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 23 (Financial
Covenants) as at the date as at which those financial statements were drawn up.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Each Compliance Certificate shall be signed by both one director and one senior officer of the Parent Guarantor.
(a) Each set of financial statements delivered by a Borrower pursuant to Clause 22.2 (Financial statements) shall be certified by a director or officer of
the relevant company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at the
date as at which those financial statements were drawn up.
(b) The Borrowers shall procure that each set of financial statements delivered pursuant to Clause 22.2 (Financial statements) is prepared using GAAP.
(c) The Borrowers shall procure that each set of financial statements of an Obligor delivered pursuant to Clause 22.2 (Financial statements) is prepared
using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial
Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in GAAP,
the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Facility Agent:
(i) a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon
which that Obligor's Original Financial Statements were prepared; and
(ii) sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine
whether Clause 23 (Financial Covenants) has been complied with and make an accurate comparison between the financial position
indicated in those financial statements and that Obligor's Original Financial Statements.
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the
basis upon which the Original Financial Statements were prepared.
Each Obligor shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):
(a) all material documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (including proceedings relating to
any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Group, and
which might have a Material Adverse Effect;
(iii) compliance of the Transaction Obligors with the terms of the Finance Documents;
(iv) the financial condition, business and operations of any member of the Group,
as any Finance Party (through the Facility Agent) may reasonably request.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
22.6 Notification of default
(a) Each Obligor shall, and shall procure that each other Transaction Obligor shall, notify the Facility Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by
another Obligor).
(b) Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to
remedy it).
(a) Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders
(the "Website Lenders") which accept this method of communication by posting this information onto an electronic website designated by the
Borrowers and the Facility Agent (the "Designated Website") if:
(i) the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by
this method;
(ii) both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated
Website; and
(iii) the information is in a format previously agreed between the relevant Obligor and the Facility Agent.
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Facility Agent shall notify the Obligors
accordingly and each Obligor shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In
any event each Obligor shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
(b) The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website
following designation of that website by the Obligors or any of them and the Facility Agent.
(c) An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
(iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;
(iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
(v) if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected
by any electronic virus or similar software.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
If an Obligor notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Obligors under this
Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that
the circumstances giving rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Obligors shall comply with any such request within 10 Business Days.
(a) If:
(i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of
this Agreement;
(ii) any change in the status of an Obligor after the date of this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior
to such assignment or transfer,
obliges a Finance Party (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the
request of any Finance Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by a Servicing
Party (for itself or on behalf of any other Finance Party) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for such Finance Party or, in the case of the event described in paragraph (iii) above, any prospective
new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws
and regulations pursuant to the transactions contemplated in the Finance Documents.
(b) Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Servicing Party (for itself) in order for that Servicing Party to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the
Finance Documents.
23 FINANCIAL COVENANTS
The Parent Guarantor shall at all times during the Security Period (save that in the case of paragraph (b) this shall apply from the first Utilisation Date
throughout the remainder of the Security Period) on a consolidated basis maintain:
(b) minimum Cash and Cash Equivalents of an amount the greater of:
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(d) an Adjusted Net Worth of not less than $150,000,000; and
(e) a ratio of EBITDA plus one third of cash in excess of minimum Cash and Cash Equivalents to Total Interest Expenses, computed on a trailing 4
quarter basis shall at all times exceed 2.25:1.0.
The financial covenants contained in this Clause 23.1 (Financial covenants) shall be tested semi-annually on the basis of the annual and semi-
annual financial statements provided under Clause 22.2 (Financial statements) and shall be confirmed in the relevant compliance certificate referred
to in Clause 22.3 (Compliance Certificate).
The expressions used in this Clause 23 (Financial Covenants) shall be construed in accordance with GAAP as applicable, or for the purposes of this
Agreement:
"Adjusted Net Worth" means at any relevant time the amount by which the Consolidated Adjusted Total Assets of the Group exceed Consolidated
Adjusted Total Liabilities of the Group.
(a) cash in hand or held with banks or financial institutions of the Parent Guarantor in Dollars or another currency freely convertible in Dollars,
which is free of any Security;
(b) any cash equivalent of the Parent Guarantor and/or its Subsidiaries; and
(c) any marketable securities of the Parent Guarantor and/or its Subsidiaries which is free of any Security,
(d) as stated in the most recent financial statements of the Group provided in accordance with Clause 22.2 (Financial statements) and
determined in accordance with GAAP.
"Consolidated Adjusted Total Assets" means the Total Assets adjusted as follows:
(a) By using the Market Values Adjusted Total Assets value for the Fleet Vessels; and
(b) By excluding intangible assets (including goodwill but not long-term contract revenue is acquired as part of a business combination).
"Consolidated Adjusted Total Liabilities" means the Total Consolidated Long Term Debt plus the Current Liabilities (excluding current portion
long term debt).
"Current Assets" means the current assets of the Parent Guarantor on a consolidated basis as stated in the most recent financial statements of the
Group provided in accordance with Clause 22.2 (Financial statements) and determined in accordance with GAAP.
"Current Liabilities" means the current liabilities of the Parent Guarantor on a consolidated basis as stated in the most recent financial statements of
the Group provided in accordance with Clause 22.2 (Financial statements) and determined in accordance with GAAP.
"EBITDA" means consolidated earnings before interest, taxes depreciation and amortisation.
"Financial Statements" means the financial statements of the Group provided in accordance with Clause 22.2 (Financial statements).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Fleet Vessels" means any ship (including the Ships) from time to time wholly owned, leased or chartered in by the Parent Guarantor (directly or
indirectly) (excluding vessels under construction and vessels chartered in for period shorter than 24 months) (each a "Fleet Vessel").
"Market Value Adjusted Total Assets" means, at any relevant time, the Total Assets adjusted to reflect the difference of the book value of the Fleet
Vessels (as evidenced in the most recent financial statements of the Group provided in accordance with Clause 22.2 (Financial statements)) and the
Fair Market Value of the Fleet Vessels.
"Solvency" means Adjusted Net Worth to Market Value Adjusted Total Assets.
"Working Capital" means the Current Assets less the Current Liabilities.
"Total Assets " means at any relevant time, the total assets of the Parent Guarantor on a consolidated basis as stated in the most recent financial
statements of the Group provided in accordance with Clause 22.2 (Financial statements)) and determined in accordance with GAAP.
"Total Consolidated Long Term Debt " means, at any relevant time, the amount of the total liabilities of the Parent Guarantor on a consolidated
basis (including without limitation any liability in respect of any lease or hire purchase contract) which would be included in the applicable
Financial Statements of the Parent Guarantor as total long term debt in accordance with GAAP including the current portion of long term debt.
"Total Interest Expenses" means, in respect of any period and at any relevant time, the aggregate (calculated on a consolidated basis of the Parent
Guarantor) of:
(a) the amounts charged and posted (or estimated to be charged and posted) as a current accrual accrued during such period by way of interest
on all financial indebtedness in accordance with GAAP; and
(b) net payments in relation to interest rate hedging arrangements in respect of financial indebtedness in accordance with GAAP (after
deducting net income in relation to such interest rate hedging arrangements).
In the event that the Parent Guarantor agrees to the incorporation of any additional financial covenants or financial covenants which are more
onerous than those contained in Clause 23.1 (Financial covenants) into any financial contract or financial document relating to any other senior
secured indebtedness of the Parent Guarantor, the Parent Guarantor shall immediately notify the Facility Agent and those financial covenants shall
be deemed to apply to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during
the currency of that financial contract or financial document. The Parent Guarantor shall enter into additional documentation as the Facility Agent
may reasonably require in respect of such incorporation.
24 GENERAL UNDERTAKINGS
24.1 General
The undertakings in this Clause 24 (General Undertakings) remain in force throughout the Security Period except as the Facility Agent, acting with
the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.2 Authorisations
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly:
(a) obtain, comply with and do all that is necessary to maintain in full force and effect; and
(b) supply certified copies to the Facility Agent of any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of the
Approved Flag at any time of each Ship to enable it to:
(i) perform its obligations under the Transaction Documents to which it is a party;
(ii) ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at
any time of each Ship of any Transaction Document to which it is a party; and
(iii) own and operate each Ship (in the case of the Borrowers).
Each Obligor shall, and shall procure that each other member of the Group and each Affiliate of any of them shall, comply in all respect with all laws
and regulations to which it may be subject, including Sanctions.
Each Obligor shall, and shall procure that each other Transaction Obligor will, and the Parent Guarantor shall ensure that each other member of the
Group will:
(b) obtain, maintain and ensure compliance with all requisite Environmental Approvals;
(c) implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
in relation to a member of the Group not including an Obligor only, where failure to do so has had or could reasonably be expected to have a
Material Adverse Effect.
Each Obligor shall, and shall procure that each other Transaction Obligor will, (through the Parent Guarantor), promptly upon becoming aware of the
same, inform the Facility Agent in writing of:
(a) any Environmental Claim against any member of the Group which is current, pending or threatened; and
(b) any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of
the Group,
where the claim against a member of the Group not including an Obligor, has had or could reasonably be expected to have a Material Adverse Effect.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.6 Taxation
(a) Each Obligor shall and shall procure that each other Transaction Obligor will pay and discharge all Taxes imposed upon it or its assets within the
time period allowed without incurring penalties unless and only to the extent that:
(ii) adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial
statements delivered to the Facility Agent under Clause 22.2 (Financial statements); and
(iii) such payment can be lawfully withheld and failure to pay those Taxes does not have or could not reasonably be expected to have a
Material Adverse Effect.
Each Obligor shall promptly inform the Facility Agent if it delivers to the Registrar particulars required under the Overseas Regulations of any UK
Establishment and it shall comply with any directions given to it by the Facility Agent regarding the recording of any Transaction Security on the
register which it is required to maintain under The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.
Each Obligor shall, and shall procure that each other Transaction Obligor will, ensure that at all times any unsecured and unsubordinated claims of a
Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors
except those creditors whose claims are mandatorily preferred by laws of general application to companies.
24.9 Title
(a) From the Utilisation Date of Tranche A, Bailey Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship A, its Earnings
and its Insurances;
(b) From the Utilisation Date of Tranche B, Dover Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship B, its Earnings
and its Insurances;
(c) From the Utilisation Date of Tranche C, Fair Isle Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship C, its
Earnings and its Insurances;
(d) From the Utilisation Date of Tranche D, Fastnet Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship D, its Earnings
and its Insurances;
(e) From the Utilisation Date of Tranche E, Fitzroy Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship E, its Earnings
and its Insurances;
(f) From the Utilisation Date of Tranche F, Forth Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship F, its Earnings
and its Insurances;
(g) From the Utilisation Date of Tranche G, Rockall Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship G, its
Earnings and its Insurances;
(h) From the Utilisation Date of Tranche H, Shannon Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship H, its
Earnings and its Insurances;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) From the Utilisation Date of Tranche I, Sole Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship I, its Earnings and
its Insurances;
(j) From the Utilisation Date of Tranche J, Trafalgar Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship J, its Earnings
and its Insurances;
(k) From the Utilisation Date of Tranche K, Viking Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship K, its Earnings
and its Insurances;
(l) From the Utilisation Date of Tranche L, Hebrides Shipco LLC shall hold the legal title to, and own the entire beneficial interest in Ship L, its
Earnings and its Insurances;
(m) With effect on and from its creation or intended creation, each Borrower shall hold the legal title to, and own the entire beneficial interest in any
other assets the subject of any Transaction Security created or intended to be created by it.
(a) No Obligor shall create or permit to subsist any Security over any of its assets which are the subject of the Security created or intended to be created
by the Finance Documents.
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Borrower or any
other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; or
(iii) enter into any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to any Permitted Security.
24.11 Disposals
(a) No Borrower shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell,
lease, transfer or otherwise dispose of any asset (including without limitation any Ship, its Earnings or its Insurances) and, for the avoidance of
doubt, this does not apply to the sale, lease, transfer or otherwise disposal of any ships other than the Ships financed under this Agreement.
(b) Paragraph (a) above does not apply to any charter of a Ship to which Clause 26.14 (Restrictions on chartering, appointment of managers etc.)
applies.
24.12 Merger
No Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction Provided that this restriction shall not
apply if there is no change of control of the Obligors and the Obligors are in compliance with Clause 7.2 (Change of control) after any such
amalgamation, demerger, merger, consolidation or corporate reconstruction.
(a) The Parent Guarantor shall procure that no substantial change is made to the general nature of the business of the Parent Guarantor or the Group from
that carried on at the date of this Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) No Borrower shall engage in any business other than the ownership and operation of its Ship.
The Borrowers shall not incur any Financial Indebtedness except for Permitted Financial Indebtedness.
24.15 Expenditure
No Borrower shall incur any expenditure, except for expenditure reasonably incurred in the ordinary course of owning, operating, maintaining and
repairing its Ship.
No Borrower shall:
(c) issue any membership interests except to the Corporate Guarantor and provided such new membership interests are made subject to the terms of the
relevant Membership Interests Security applicable to that Borrower immediately upon the issue thereof in a manner satisfactory to the Facility Agent
and the terms of that Membership Interests Security are complied with;
(d) appoint any further director or officer of that Borrower (unless the provisions of the Membership Interests Security applicable to that Borrower are
complied with).
24.17 Dividends
Each Obligor may make or pay any dividend or other distribution (in cash or in kind) in respect of its membership interests provided always that no
Default has occurred and is continuing or would result from the making of any such payment and for the avoidance of doubt, provided there is no
breach of Clause 23 (Financial Covenants) resulting from a payment of any such dividend.
24.18 Accounts
No Borrower shall open or maintain any account with any bank or financial institution except its Earnings Account and accounts with the Account
Bank, the Facility Agent or the Security Agent for the purposes of the Finance Documents.
No Borrower shall:
(a) be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is
Permitted Financial Indebtedness;
(b) give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or
enter into any document under which that Borrower assumes any liability of any other person other than any guarantee or indemnity given under the
Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) the Transaction Documents;
(ii) any other agreement expressly allowed under any other term of this Agreement; and
(d) enter into any transaction on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at
arms' length; or
(e) acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European
banks.
No Obligor shall and the Obligors shall procure that no other Transaction Obligor will, do (or fail to do) or cause or permit another person to do (or
omit to do) anything which could be expected to:
(a) make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents;
(b) cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable;
(c) cause any Transaction Document to cease to be in full force and effect;
(d) cause any Transaction Security to rank after, or lose its priority to, any other Security; and
(a) Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or
arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents
(including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent
may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)):
(i) to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to
be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other
Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any
rights, powers and remedies of the Security Agent, any Receiver or the Secured Parties provided by or pursuant to the Finance Documents or
by law;
(ii) to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in
any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
(iii) to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets
which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in
respect of which the Security has become enforceable; and/or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iv) to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any
other action relating to any item of the Security Property.
(b) Each Obligor shall, and shall procure that each other Transaction Obligor will, (and the Parent Guarantor shall procure that each member of the
Group will) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the
creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by
or pursuant to the Finance Documents.
(c) At the same time as a Transaction Obligor delivers to the Security Agent any document executed under this Clause 24.21 (Further assurance), that
Transaction Obligor shall deliver to the Security Agent a certificate signed by two of that Transaction Obligor's directors or officers which shall:
(i) set out the text of a resolution of that Transaction Obligor's directors specifically authorising the execution of the document specified by
the Security Agent; and
(ii) state that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of
directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors of officers and is valid
under that Transaction Obligor's articles of association or other constitutional documents.
24.22 Sanctions
(a) Each Obligor undertakes that it, and any other member of the Group or any Affiliate of any of them, or any director, officer, agent, employee or
person acting on behalf of the foregoing, is not a Restricted Person and does not act directly or indirectly on behalf of a Restricted Person.
(b) Each Obligor shall, and shall procure that each other member of the Group and each Affiliate of any of them shall, not use any revenue or benefit
derived from any activity or dealing with a Restricted Person in discharging any obligation due or owing to the Finance Parties.
(c) Each Obligor shall procure that no proceeds from any activity or dealing with a Restricted Person are credited to any bank account held with any
Finance Party in its name or in the name of any other member of the Group or any Affiliate of any of them.
(d) Each Obligor undertakes that it, and each other member of the Group and each Affiliate of any of them, has taken reasonable measures to ensure
compliance with Sanctions.
(e) Each Obligor shall, and shall procure that each other member of the Group shall, to the extent permitted by law promptly upon becoming aware of
them supply to the Facility Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any
Sanctions Authority.
(f) Each Obligor shall not accept, obtain or receive any goods or services from any Restricted Person, except (without limiting Clause 24.3 (Compliance
with laws)), to the extent relating to any warranties and/or guarantees given and/or liabilities incurred in respect of an activity or dealing with a
Restricted Person by an Obligor in accordance with this Agreement.
(g) Each Party acknowledges and agrees that the Obligors do not undertake under paragraphs (a) to (f) (inclusive) above in favour of any Lender
incorporated or having its registered office in the Federal Republic of Germany and no such Lender shall have any right thereunder and shall be
deemed not to be a party to the provisions of this Clause 24.22 (Sanctions).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.23 Use of proceeds
(a) The Obligors shall not, and shall procure that each other member of the Group and any Affiliate of any of them shall not, permit or authorise any
other person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the
Facility or other transactions contemplated by this Agreement to fund or facilitate trade, business or other activities: (i) involving or for the benefit
of any Restricted Person; or (ii) in any other manner that could result in any Obligor or a Finance Party being in breach of any Sanctions or
becoming a Restricted Person.
(b) Each Party acknowledges and agrees that the Obligors do not undertake under paragraph (a) above in favour of any Lender incorporated or having
its registered office in the Federal Republic of Germany and no such Lender shall have any right thereunder and shall be deemed not to be a party to
the provisions of this Clause 24.23 (Use of proceeds).
(a) No Obligor shall (and the Parent Guarantor shall ensure that no other member of the Group will) directly or indirectly use the proceeds of the Facility
for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act 0f 1977 or other similar legislation in
other jurisdictions.
(b) Each Obligor shall (and the Parent Guarantor shall ensure that each other member of the Group will):
(i) conduct its business in compliance with applicable anti-corruption laws; and
(ii) maintain policies and procedures designed to promote and achieve compliance with such laws.
No Obligor shall, without notice to the Lenders, whether by a document, by conduct, by acquiescence or in any other way:
(a) vary the terms of the Pool Agreement in any material respect;
(b) release, waive, suspend or subordinate or permit to be lost or impaired any interest or right of any kind which such Obligor has at any time to, in or in
connection with Pool Agreement or in relation to any matter arising out of or in connection with the Pool Agreement;
(d) rescind or terminate the Pool Agreement or treat itself as discharged or relieved from further performance of any of its obligations or liabilities under
the Pool Agreement.
25 INSURANCE UNDERTAKINGS
25.1 General
In respect of a Ship, the undertakings in this Clause 25 (Insurance Undertakings) shall apply and remain in force on and from the first Utilisation
Date in the case of the Existing Ships and the Utilisation Date of Tranche L in the case of Ship L and throughout the rest of the Security Period
except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
25.2 Maintenance of obligatory insurances
Each Borrower shall keep the Ship owned by it insured at its expense against:
(a) fire and usual marine risks (including hull and machinery, increased value and excess risks);
(d) any other risks against which the Facility Agent acting on the instructions of the Majority Lenders considers, having regard to practices and other
circumstances prevailing at the relevant time, it would be reasonable for that Borrower to insure and which are specified by the Facility Agent by
notice to that Borrower.
(a) in dollars;
(b) in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
(i) when aggregated with the insured values of the other Ships then subject to a Mortgage, 110 per cent. of the Loan; and
(c) in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic
protection and indemnity club entry and in the international marine insurance market;
(d) in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
(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.
In addition to the terms set out in Clause 25.3 (Terms of obligatory insurances), each Borrower shall procure that the obligatory insurances effected
by it shall:
(a) subject always to paragraph (b), name that Borrower as the sole named assured unless the interest of every other named assured is limited:
(i) in respect of any obligatory insurances for hull and machinery and war risks;
(A) to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
(B) to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of
any claims made against it); and
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(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 Agent (in such form as it requires) that any deductible shall be apportioned
between that Borrower and every other named assured in proportion to the gross claims made or paid by each of them and that it shall do all things
necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time
become payable in respect of the obligatory insurances;
(b) whenever the Facility Agent requires, name (or be amended to name) the Security Agent as additional named assured for its rights and interests,
warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent thereby
being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance Provided that this paragraph (b)
shall not apply to the protection and indemnity risks;
(c) name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
(d) provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off,
counterclaim or deductions or condition whatsoever;
(e) provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security
Agent or any other Finance Party; and
(f) provide that the Security Agent may make proof of loss if that Borrower fails to do so.
(a) at least 21 days before the expiry of any obligatory insurance effected by it:
(i) notify the Facility Agent of the Approved Brokers (or other insurers) and any protection and indemnity or war risks association through or
with which it proposes to renew that obligatory insurance and of the proposed terms of renewal; and
(ii) obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i) of paragraph (a) above;
(b) at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval
pursuant to paragraph (a) above; and
(c) procure that the approved brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected
shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
Each Borrower shall ensure that the Approved Brokers provide the Security Agent with:
(a) pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Brokers that:
(i) they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the
provisions of Clause 25.4 (Further protections for the Finance Parties);
(ii) they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable
clause;
(iii) they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
(iv) they will, if they have not received notice of renewal instructions from the relevant Borrower or its agents, notify the Security Agent not less
than 14 days before the expiry of the obligatory insurances;
(v) if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
(vi) they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory
insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien
on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not
cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and
(vii) they will arrange for a separate policy to be issued in respect of the Ship owned by that Borrower forthwith upon being so requested by the
Facility Agent.
Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provide the
Security Agent with:
(b) a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
(c) a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant
certifying authority in relation to that Ship.
Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are deposited with the Approved Brokers through which
the insurances are effected or renewed.
Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all
relevant receipts when so required by the Facility Agent or the Security Agent.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
25.10 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.
(a) No Borrower shall do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance
invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part.
(i) take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and
(without limiting the obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 25.6 (Copies of policies; letters of
undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has
not given its prior approval;
(ii) not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the
underwriters of the obligatory insurances;
(iii) make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the
protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of
America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
(iv) not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory
insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise)
which the insurers specify.
No Borrower shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
(a) not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
(b) do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at
any time become payable in respect of the obligatory insurances.
Each Borrower shall provide the Security Agent, at the time of each such communication, with copies of all written communications between that
Borrower and:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) the approved protection and indemnity and/or war risks associations; and
(i) that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of
additional premiums or calls; and
(ii) any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or
partly to the effecting or maintenance of the obligatory insurances.
Each Borrower shall promptly provide the Facility Agent (or any persons which it may designate) with any information which the Facility Agent (or
any such designated person) 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 25.16 (Mortgagee's interest, rights and additional perils
insurances) or dealing with or considering any matters relating to any such insurances,
and the Borrowers shall, forthwith upon demand, indemnify the Security Agent in respect of all fees and other expenses incurred by or for the
account of the Security Agent in connection with any such report as is referred to in paragraph (a) above.
(a) The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance mortgagees rights and a
mortgagee's interest additional perils insurance in such amounts (but not exceeding 110 per cent. of the Loan), on such terms, through such insurers
and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
(b) The Borrowers shall upon demand fully indemnify the Security Agent and the Lenders (as the case may be) in respect of all premiums and other
expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above
or dealing with, or considering, any matter arising out of any such insurance.
(c) The Borrowers shall have the right to present quotes from other brokers if such brokers are acceptable to the Facility Agent and to agree with the
Facility Agent on the broker to be used for arranging any insurance referred to in paragraph (a) above.
26 SHIP UNDERTAKINGS
26.1 General
In respect of a Ship, the undertakings in this Clause 26 (Ship Undertakings) shall apply and remain in force on and from the first Utilisation Date in
the case of the Existing Ships and the Utilisation Date of Tranche L in the case of Ship L and throughout the rest of the Security Period except as the
Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
26.2 Ships' names and registration
(a) keep that Ship registered in its name under an Approved Flag from time to time at its port of registration;
(b) not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
(i) that Ship being registered on an Approved Flag and remaining subject to Security securing the Secured Liabilities created by a first priority
or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first
priority Security) on substantially the same terms as the Mortgage on that Ship and on such other terms and in such other form as the
Facility Agent, acting with the authorisation of the Majority Lenders, shall approve or require; and
(ii) the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the
authorisation of the Majority Lenders, shall approve or require.
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; and
(b) so as to maintain the Approved Classification free of overdue recommendations and conditions affecting that Ship's class.
26.4 Modifications
No Borrower shall unless after consultation, and agreement, with the Facility Agent, make any modification or repairs to, or replacement of, any Ship
or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce
its value save for changes or modifications that are required to be made in order to satisfy updated rules and regulations from time to time applicable
to that Ship.
(a) Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any item of equipment installed on any Ship unless the
part or item so removed:
(i) is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;
(ii) is free from any Security in favour of any person other than the Security Agent; and
(iii) becomes, on installation on that Ship, the property of that Borrower and subject to the security constituted by the Mortgage on that Ship.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) A Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that
Borrower.
26.6 Surveys
Each Borrower shall submit the Ship owned by it regularly to all periodic or other surveys which may be required for classification purposes and, if
so required by the Facility Agent acting on the instructions of the Majority Lenders, provide the Facility Agent, with copies of all survey reports
and, in addition, the Facility Agent shall have the right to have a technical survey carried out at any time on each Ship and the Borrowers shall pay
the cost of 1 such survey of each Ship per year at the Facility Agent's request.
26.7 Inspection
(a) Each Borrower shall permit the Security Agent (acting through surveyors or other persons appointed by it for that purpose) to board the Ship owned
by it at all reasonable times to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities
for such inspections.
(b) If an Event of Default has occurred which is continuing, the Security Agent shall be permitted to conduct any number of inspections at any time at
the cost of the Borrowers.
(a) Each Borrower shall, in respect of the Ship owned by it, promptly discharge amounts due in respect of:
(i) all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its
Insurances;
(ii) all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
(iii) all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
(b) Each Borrower shall immediately and, forthwith upon receiving notice of the arrest of the Ship owned by it or of its detention in exercise or
purported exercise of any lien or claim, procure its release by providing bail or otherwise as the circumstances may require.
(ii) relating to the Ship owned by it, its ownership, employment, operation, management and registration,
including the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws of the Approved Flag;
(b) obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and
(c) without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner contrary
to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
26.10 ISPS Code
Without limiting paragraph (a) of Clause 26.9 (Compliance with laws etc.), each Borrower 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
(c) notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
In the event of hostilities in any part of the world (whether war is declared or not), no Borrower shall cause or permit any Ship to enter or trade to any
zone which is declared a war zone by any government or by that Ship's war risks insurers unless:
(a) that Ships war risks insurers have agreed to cover such transit or trade under the annual war risks policy on terms and conditions not less restrictive
than those already in place (it being understood the requirement for an additional premium does not constitute a restriction); or
(b) the prior written consent of the Security Agent acting on the instructions of the Majority Lenders has been given; and
(c) that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of
the Majority Lenders may require.
Without prejudice to Clause 22.5 (Information: miscellaneous) each Borrower shall, in respect of the Ship owned by it, promptly provide the
Facility Agent with any information which it requests regarding:
(b) the Earnings and payments and amounts due to its master and crew;
(c) any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it
in respect of that Ship;
(e) its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code,
and, upon the Facility Agent's request, provide copies of any current charter relating to that Ship, of any current guarantee of any such charter, the
Ship's Safety Management Certificate and any relevant Document of Compliance.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
26.13 Notification of certain events
Each Borrower shall, in respect of the Ship owned by it, immediately notify the Facility Agent by fax, confirmed forthwith by letter of:
(a) any casualty to that Ship which is or could reasonably be expected to be or to become a Major Casualty;
(b) any occurrence as a result of which that Ship has become or could reasonably be expected, by the passing of time or otherwise, to become a Total
Loss;
(d) any requirement or recommendation made in relation to that Ship by any insurer or classification society or by any competent authority which is not
immediately complied with;
(e) any arrest or detention of that Ship, any exercise or purported exercise of any lien on that Ship or the Earnings or any requisition of that Ship for
hire;
(g) any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident;
(h) any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Manager or otherwise in connection with
that Ship; or
(i) any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied
with,
and each Borrower shall keep the Facility Agent advised in writing on a regular basis and in such detail as the Facility Agent shall require as to that
Borrower's, any such Approved Manager's or any other person's response to any of those events or matters.
(b) enter into any time or consecutive voyage charter in respect of that Ship other than a Permitted Charter;
(c) appoint a manager of that Ship other than the Approved Commercial Manager and the Approved Technical Manager or agree to any alteration to the
terms of an Approved Manager's appointment;
(e) other than in the event of a scheduled drydocking put that Ship into the possession of any person for the purpose of work being done upon it in an
amount exceeding or likely to exceed $500,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and
in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
26.15 Notice of Mortgage
Each Borrower shall keep the relevant 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 relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of
that Ship a framed printed notice stating that that Ship is mortgaged by that Borrower to the Security Agent.
No Borrower shall enter into any agreement or arrangement for the sharing of any Earnings, except for any internal agreement between a Borrower
and Ardmore Shipping (Asia) Pte Ltd or pursuant to a time charter entered into by a Borrower with a third party which includes profit sharing
agreements, which, in any case, are on terms approved by the Lenders, or the Pool Agreement or any other pool that the Ships may be employed in
from time to time subject to the consent of the Facility Agent, acting with the authorisation of the Majority Lenders.
Each Borrower shall promptly provide the Facility Agent from time to time with evidence (in such form as the Facility Agent requires) that it is
complying with this Clause 26 (Ship Undertakings).
27 SECURITY COVER
Clause 27.2 (Provision of additional security; prepayment) applies if, on or after the Utilisation Date in respect of the Existing Ships or on or after
the Utilisation Date of Ship L, the Facility Agent notifies the Borrowers that:
(i) the aggregate Fair Market Value of each Ship then subject to a Mortgage and which has not become a Total Loss; plus
(ii) the net realisable value of additional Security previously provided under this Clause 27 (Security Cover),
(a) If the Facility Agent serves a notice on the Borrowers under Clause 27.1 (Minimum required security cover), the Borrowers shall, on or before the
date falling 15 Business Days after the date (the "Prepayment Date") on which the Facility Agent's notice is served, prepay such part of the Loan as
shall eliminate the shortfall.
(b) A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional
security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders,
(i) has a net realisable value at least equal to the shortfall; and
(ii) is documented in such terms as the Facility Agent may approve or require,
before the Prepayment Date; and conditional upon such security being provided in such manner, it shall satisfy such prepayment obligation.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
27.3 Value of additional vessel security
The net realisable value of any additional security which is provided under Clause 27.2 (Provision of additional security; prepayment) and which
consists of Security over a vessel shall be the Fair Market Value of the vessel concerned.
Any valuation under this Clause 27 (Security Cover) shall be binding and conclusive as regards each Borrower.
(a) Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 27 (Security Cover) with any information
which the Facility Agent or the shipbroker may request for the purposes of the valuation.
(b) If a Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on
any basis and assumptions which the shipbroker or the Facility Agent considers prudent.
Any prepayment pursuant to Clause 27.2 (Provision of additional security; prepayment) shall be:
(a) made in accordance with the relevant provisions of Clause 7 (Payment and Cancellation) but ignoring any restriction as to prepayments being made
on the last day of the Interest Period;
(i) 50 per cent. of the amount prepaid shall reduce in inverse order of maturity the amount of each Repayment Instalment for the relevant
Tranche falling after that prepayment; and
(ii) 50 per cent. of the amount prepaid shall be applied on a pro-rata basis towards satisfaction of the Repayment Instalments for the relevant
Tranche set out in Clause 6.1 (Repayment of Loan).
(a) Each Borrower shall provide the Facility Agent with valuations of the Ship owned by it or that will be owned by it on the relevant Utilisation Date
and any other vessel over which additional Security has been created in accordance with Clause 27.3 (Value of additional vessel security), from an
Approved Valuer, to enable the Facility Agent to determine the Fair Market Value of that Ship.
(b) The valuations referred to in this Clause 27.7 (Provision of valuations) are to be obtained:
(i) on or before the Utilisation Date in respect of the Ship to which such Utilisation Date relates (not to be obtained earlier than 30 days prior to
the Utilisation Date) and shown, in respect of such Ship when not on or before a Utilisation Date, in June and December of each year during
the Facility Period; or
(ii) at any other time requested by the Facility Agent in its absolute discretion.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) The valuations referred to in paragraph (b)(i) and (b)(ii) of Clause 27.7 (Provision of valuations) shall be at the Borrowers cost, but no more than
twice per year, unless the valuations provided under paragraph (b)(i) and (b)(ii) of Clause 27.7 (Provision of valuations) show a breach of Clause
27.1 (Minimum required security cover), in which case any additional valuations will be at the Borrowers cost.
(d) If the higher of the two valuations is more than 110 per cent. of the lower of the two valuations, a third valuation shall be carried out at Borrowers
cost and on the same terms as the first two valuations. The Fair Market Value of that Ship shall then be determined as the arithmetic average of the
three valuations.
28 APPLICATION OF EARNINGS
(a) subject only to the provisions of the General Assignment to which it is a party, all the Earnings in respect of the Ship owned by it are paid in to its
Earnings Account and applied as follows:
(i) first, towards payment of all Operating Costs and Voyage Expenses;
(ii) secondly, in or towards payment of any amounts then due and payable under this Agreement, except for principal and interest;
(iii) thirdly, in or towards payment of debt service obligations and compliance with any (financial) covenants pursuant to this Agreement;
(v) fifthly, whilst there is no Event of Default which is continuing, any surplus shall be released to the Borrowers.
Each Borrower may withdraw moneys from the Earnings Account in its name provided that no Default is continuing.
(a) comply with any requirement of the Facility Agent as to the location or relocation of its Earnings Account (or any of them); and
(b) execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-
off, consolidation or other rights in relation to) the Earnings Accounts.
29 EVENTS OF DEFAULT
29.1 General
Each of the events or circumstances set out in this Clause 29 (Events of Default) is an Event of Default except for Clause 29.17 (Acceleration) and
Clause 29.18 (Enforcement of security).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
29.2 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
A breach occurs of Clause 4.4 (Waiver of conditions precedent ), Clause 23 (Financial Covenants), Clause 24.9 (Title), Clause 24.10 (Negative
pledge), Clause 24.20 (Unlawfulness, invalidity and ranking; Security imperilled), Clause 24.22 (Sanctions), Clause 25.2 (Maintenance of
obligatory insurances), Clause 25.3 (Terms of obligatory insurances), Clause 25.5 (Renewal of obligatory insurances) or Clause 27 (Security
Cover).
(a) A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 29.2 (Non-payment)
and Clause 29.3 (Specific obligations)).
(b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of
the Facility Agent giving notice to the Borrowers or (if earlier) any Transaction Obligor becoming aware of the failure to comply.
29.5 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on
behalf of any Transaction Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading when made
or deemed to be made and which has had or could reasonably be expected to have a Material Adverse Effect.
(a) Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an
event of default (however described).
(c) Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of
default (however described).
(d) Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as
a result of an event of default (however described).
(e) No Event of Default will occur under this Clause 29.6 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is less than, in respect of each Borrower, $500,000 (or its equivalent in any other
currency) and in respect of each of the Corporate Guarantor or Parent Guarantor and other members of the Group, $5,000,000 (or its equivalent in
any other currency in aggregate).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
29.7 Insolvency
(a) An Obligor:
(i) is unable or admits inability to pay its debts as they fall due;
(ii) is deemed to, or is declared to, be unable to pay its debts under applicable law;
(iv) by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance
Party in its capacity as such) with a view to rescheduling any of its indebtedness.
(b) The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any
Event of Default caused by that moratorium.
(a) Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation
of any member of the Group which is not an Obligor;
(ii) a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
(iii) the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver,
administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Group or any of its
assets; or
(iv) enforcement of any Security over any assets of any member of the Group,
(b) Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days
of commencement.
Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of an
Obligor.
(a) It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable if that cessation
individually or together with any other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents.
(c) Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is
alleged by a party to it (other than a Finance Party) to be ineffective.
(d) Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
Any Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy.
Any Obligor suspends or ceases to carry on (or threatens to suspend or ceases to carry on) all or a material part of its business.
29.13 Expropriation
The authority or ability of any member of the Group to conduct its business is limited or wholly or substantially curtailed by any seizure,
expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other
person in relation to any member of the Group or any of its assets.
An Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Transaction Document or any of the
Transaction Security or evidences an intention to rescind or repudiate a Transaction Document or any Transaction Security.
29.15 Litigation
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in
relation to any of the Transaction Documents or the transactions contemplated in any of the Transaction Documents or against any member of the
Group or its assets which has or may have a Material Adverse Effect and, for the avoidance of doubt, this clause shall not apply to any proceeding or
dispute which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
Any event or circumstance occurs which has had or could reasonably be expected to have a Material Adverse Effect.
29.17 Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the Facility Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrowers:
(a) cancel the Total Commitments, whereupon they shall immediately be cancelled;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon it shall become immediately due and payable; and/or
(c) declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting
on the instructions of the Majority Lenders,
and the Facility Agent may serve notices under paragraphs (a), (b) and (c) above simultaneously or on different dates and the Security Agent may
take any action referred to in Clause 29.18 (Enforcement of security) if no such notice is served or simultaneously with or at any time after the
service of any of such notice.
On and at any time after the occurrence of an Event of Default which is continuing the Security Agent may, and shall if so directed by the Majority
Lenders, take any action which, as a result of the Event of Default or any notice served under Clause 29.17 (Acceleration), the Security Agent is
entitled to take under any Finance Document or any applicable law or regulation.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 10
CHANGES TO PARTIES
Subject to this Clause 30 (Changes to the Lenders), a Lender (the "Existing Lender") may:
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established
for the purpose of making, purchasing or investing in loans, securities or other financial assets (except for a hedge fund) (the "New Lender") but in
no event to a member of the Group or a holding company, or holding company acting in concert, of the Parent Guarantor.
(a) The consent of the Borrowers is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
(b) The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld or delayed. Each Borrower will be deemed to have
given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by that Borrower within that time.
(c) The consent of a Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to
any amount payable under Clause 14.3 (Mandatory Cost).
(i) receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and
substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would
have been under if it were an Original Lender; and
(ii) performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations
in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender
and the New Lender.
(e) A transfer will only be effective if the procedure set out in Clause 30.5 (Procedure for transfer) is complied with.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(f) If:
(i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment
to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13
(Increased Costs),
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
(g) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility
Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in
accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and
that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $5,000
unless the assignment or transfer is to an Affiliate of the Existing Lender.
(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
(iii) the performance and observance by any Transaction Obligor of its obligations under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
(b) Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
(i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each
Transaction Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction
Security; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout
the Security Period.
(i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 30
(Changes to the Lenders); or
(ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its
obligations under the Finance Documents or otherwise.
(a) Subject to the conditions set out in 30.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when
the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The
Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the
transfer to such New Lender.
(c) Subject to Clause 30.9 (Pro rata interest settlement), on the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance
Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against
one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and
Obligations");
(ii) each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same
in place of that Obligor and the Existing Lender;
(iii) the Facility Agent, the Security Agent, each Mandated Lead Arranger, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that
extent the Facility Agent, the Security Agent, the each Mandated Lead Arranger and the Existing Lenders shall each be released from
further obligations to each other under the Finance Documents; and
(a) Subject to the conditions set out in Clause 30.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph
(c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New
Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed
Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Assignment Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the
assignment to such New Lender.
(c) Subject to Clause 30.9 (Pro rata interest settlement), on the Transfer Date:
(i) the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction
Security expressed to be the subject of the assignment in the Assignment Agreement;
(ii) the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the
Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
(iii) the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
(d) Lenders may utilise procedures other than those set out in this Clause 30.6 (Procedure for assignment) to assign their rights under the Finance
Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 30.5 (Procedure for transfer), to obtain a
release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that they comply with the conditions set out in Clause 30.2 (Conditions of assignment or transfer).
The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the
Obligors a copy of that Transfer Certificate or Assignment Agreement.
In addition to the other rights provided to Lenders under this Clause 30 (Changes to the Lenders), each Lender may without consulting with or
obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all
or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
(a) any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
(b) in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of
obligations owed, or securities issued, by that Lender as security for those obligations or securities,
(i) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or
Security for the Lender as a party to any of the Finance Documents; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those
required to be made or granted to the relevant Lender under the Finance Documents.
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders
then (in respect of any transfer pursuant to Clause 30.5 (Procedure for transfer) or any assignment pursuant to Clause 30.6 (Procedure for
assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
(a) any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in
favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender
(without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the
next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
(b) The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
(i) when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
(ii) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 30.9 (Pro rata
interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts.
(a) The Borrowers may, at any time (other than where an Event of Default or a Potential Event of Default has occurred and is continuing) in respect of:
(i) a Lender whose costs of funds charged to the Borrowers are (in the Borrowers' reasonable opinion) materially higher than those of the other
Lenders generally;
by giving 10 Business Days' notice to the Facility Agent and that Lender (the "Outgoing Lender") replace the Outgoing Lender by requiring it to
(and the Outgoing Lender must) transfer in accordance with Clause 30.5 (Procedure for transfer) all (and not part only) of its rights and obligations
under this Agreement to a Lender or other bank (a "Replacement Lender") selected by the Borrowers and which is acceptable to the Facility Agent
(acting reasonably) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of the Outgoing Lender's
Contribution and all accrued interest, break costs and other amounts payable in relation to that Contribution under this Agreement and the other
Finance Documents.
(b) Any transfer of rights and obligations of an Outgoing Lender under this Clause is subject to the following conditions:
(i) neither the Facility Agent nor the Outgoing Lender will have any obligation to the Borrowers to find a Replacement Lender;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) the transfer must take place no later than 10 Business Days after the Borrowers' notice referred to above; and
(iii) in no event will the Outgoing Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Outgoing
Lender under this Agreement and the other Finance Documents.
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 11
(a) Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility
Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
(a) Subject to paragraph (b) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the
Facility Agent for that Party by any other Party.
(b) Without prejudice to Clause 30.7 (Copy of Transfer Certificate or Assignment Agreement to Borrowers), paragraph (a) above shall not apply to any
Transfer Certificate or to any Assignment Agreement.
(c) Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(d) If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the Finance Parties.
(e) If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the
Facility Agent or a Mandated Lead Arranger or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
(f) The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
Except as specifically provided in the Finance Documents, no Mandated Lead Arranger has any obligations of any kind to any other Party under, or
in connection with, any Finance Document.
(a) The Facility Agent shall not have any liability to any person in respect of its obligations and duties under this Agreement or the other Finance
Documents except as expressly set out in Clause 32.5 (Application of receipts), and as excluded or limited by Clauses 32.8 (Majority Lenders'
instructions), 32.9 (Responsibility for documentation), 32.10 (Exclusion of liability), 32.11 (Lenders' indemnity to the Facility Agent) and 32.19
(Full freedom to enter into transactions).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) The provisions of paragraph (a) above shall apply even if, notwithstanding and contrary to paragraph (a) above, any provision of this Agreement or
any other Finance Document by operation of law has the effect of constituting the Facility Agent as a fiduciary.
(c) Nothing in the Finance Documents constitutes the Facility Agent or either Mandated Lead Arranger a trustee of any other person.
(d) None of the Facility Agent, the Security Agent nor either Mandated Lead Arranger shall be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
Except as expressly stated to the contrary in any Finance Document, any moneys which the Facility Agent receives or recovers in its capacity as
Facility Agent shall be applied by the Facility Agent in accordance with Clause 37.5 (Application of receipts; partial payments).
The Facility Agent and either Mandated Lead Arranger may accept deposits from, lend money to, and generally engage in any kind of banking or
other business with, any member of the Group.
(i) any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify.
(b) The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 29.2 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by any Borrower (other than a Utilisation Request or a Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
(d) The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
(e) The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor either Mandated Lead Arranger is
obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a
fiduciary duty or duty of confidentiality.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
32.8 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the Facility Agent shall:
(i) exercise any right, power, authority or discretion vested in it as Servicing Party in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it
as a Servicing Party); and
(ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority
Lenders.
(b) Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance
Parties.
(c) The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the
instructions.
(d) In the absence of instructions from the Majority Lenders (or, if appropriate, the Lenders), the Facility Agent shall not be obliged to take any action
(or refrain from taking action) (even if it considers acting or not acting to be in the best interests of the Lenders). The Facility Agent may act (or
refrain from taking action) as it considers to be in the best interest of the Lenders.
(e) The Facility Agent is not authorised to act on behalf of a Lender or Hedge Counterparty (without first obtaining that Lender's or Hedge
Counterparty's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (e) shall not apply to any legal or
arbitration proceedings relating to the perfection, preservation or protection of rights under the Transaction Security or Finance Documents creating
Transaction Security.
(a) is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, either
Mandated Lead Arranger, an Obligor or any other person given in, or in connection with, any Transaction Document;
(b) is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Transaction Security or any
other agreement, arrangement or document entered into or made or executed in anticipation of, or in connection with, any Transaction Document or
the Transaction Security; or
(c) is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the
use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
(a) Without limiting paragraph (b) below (and without prejudice to the provisions of paragraph (e) of Clause 37.11 (Disruption to Payment Systems
etc.), the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document or the Transaction Security,
unless directly caused by its gross negligence or wilful misconduct.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim
it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance
Document and each officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 ( Third party rights) and the
provisions of the Third Parties Act.
(c) The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by it for that purpose.
(d) Nothing in this Agreement shall oblige the Facility Agent or either Mandated Lead Arranger to carry out any "know your customer" or other checks
in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and either Mandated Lead Arranger that it is solely
responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility
Agent or either Mandated Lead Arranger.
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Facility Agent (otherwise than by reason of its gross negligence or wilful misconduct) (or, in the case of any cost, loss
or liability pursuant to Clause 37.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any
other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the
Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
(a) The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers.
(b) Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority
Lenders may appoint a successor Facility Agent.
(c) If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of
resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
(d) The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions Facility Agent under the Finance
Documents.
(e) The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents
but shall remain entitled to the benefit of this Clause 32 (The Facility Agent and the Mandated Lead Arranger) and any other provisions of a Finance
Document which are expressed to limit or exclude its liability in acting as Facility Agent. Any successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(g) The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility
Agent shall resign in accordance with paragraph (b) above.
(h) The consent of any Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
(i) The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a
successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date
relating to any payment to the Facility Agent under the Finance Documents, either:
(i) the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Borrower or a Lender reasonably believes that
the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
(ii) the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be
(or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
(iii) the Facility Agent notifies the Borrowers and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt
Party on or after that FATCA Application Date;
(j) and (in each case) the Borrowers or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be
required if the Facility Agent were a FATCA Exempt Party, and the Borrowers or that Lender, by notice to the Facility Agent, requires it to resign.
32.13 Confidentiality
(a) In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.
(b) If information is received by a division or department of the Facility Agent other than that division or department responsible for complying with
the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the
Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
(a) Subject to Clause 30.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender or Hedge Counterparty at
the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting
through its Facility Office or, as the case may be, the Hedge Counterparty:
(i) entitled to or liable for any payment due under any Finance Document on that day; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance
Document made or delivered on that day,
unless it has received not less than five Business Days' prior notice from that Lender or Hedge Counterparty to the contrary in accordance with the
terms of this Agreement.
(b) Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost.
(c) Each Lender and each Hedge Counterparty shall supply the Facility Agent with any information that the Security Agent may reasonably specify
(through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender and
Hedge Counterparty shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
(d) Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to
be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication
by electronic mail or other electronic means is permitted under Clause 39.5 (Electronic communication)) electronic mail address and/or any other
information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose
attention communication is to be made) and be treated as notification of a substitute address, fax number, electronic mail address, department and
officer by that Lender for the purposes of Clause 39.2 (Addresses) and paragraph (a)(iii) of Clause 39.5 (Electronic communication) and the Facility
Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though
that person were that Lender.
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Finance
Document, each Lender and Hedge Counterparty confirms to the Facility Agent and each Mandated Lead Arranger that it has been, and will
continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under, or in connection with, any
Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction
Security;
(c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection
with, any Finance Document or the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(d) the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in
connection with, any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
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(e) the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security
or the existence of any Security affecting the Charged Property.
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent shall (in
consultation with the Borrowers) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.
Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Servicing Parties), Clause 16 (Costs and Expenses) and Clause 32.11
(Lenders' indemnity to the Facility Agent) shall include the reasonable cost of utilising the Facility Agent's management time or other resources to
the extent that this relates to extraordinary matters, such as requests for waivers or amendments and/or a potential Default or Event of Default, and
the reasonable compensation payable to the Facility Agent for such use of its management time shall, upon the Facility Agents request, be agreed
between the Borrowers, the Lenders and the Facility Agent and will be payable by the Borrowers in addition to any fee paid or payable to the
Facility Agent under Clause 11 (Fees).
If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an
amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance
Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party
shall be regarded as having received any amount so deducted.
Notwithstanding any rule of law or equity to the contrary, the Facility Agent shall be absolutely entitled:
(a) to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any
person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction,
whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such
Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
(b) to deal in and enter into and arrange transactions relating to:
(i) any securities issued or to be issued by any Transaction Obligor or any other person; or
(ii) any options or other derivatives in connection with such securities; and
(c) to provide advice or other services to any Borrower or any person who is a party to, or referred to in, a Finance Document,
and, in particular, the Facility Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such
transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation)
any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings,
transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived
from the dealings transactions or other matters.
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33 THE SECURITY AGENT
33.1 Trust
(a) The Security Agent declares that it shall hold the Security Property on trust for the Secured Parties on the terms contained in this Agreement and
shall deal with the Security Property in accordance with this Clause 33 (The Security Agent) and the other provisions of the Finance Documents.
(b) Each of the parties to this Agreement agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified
in this Agreement or in the Finance Documents (and no others shall be implied).
(c) The Security Agent shall not have any liability to any person in respect of its duties, obligations and responsibilities under this Agreement or the
other Finance Documents except as expressly set out in paragraph (a) of Clause 33.1 (Trust) and as excluded or limited by this Clause 33 (The
Security Agent) including in particular Clause 33.8 (Instructions to Security Agent and exercise of discretion), Clause 33.13 (Responsibility for
documentation), Clause 33.14 (Exclusion of liability). Clause 33.16 (Lenders' indemnity to the Security Agent), Clause 33.23 (Business with the
Group) and Clause 33.28 (Full freedom to enter into transactions).
(a) Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the
currency or currencies of, its Corresponding Debt.
(i) shall become due and payable at the same time as its Corresponding Debt;
(ii) is independent and separate from, and without prejudice to, its Corresponding Debt.
(c) For purposes of this Clause 33.2 (Parallel Debt (Covenant to pay the Security Agent))), the Security Agent:
(ii) acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not
be held on trust; and
(iii) shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation,
through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency
proceeding).
(i) decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
(ii) increased to the extent that its Corresponding Debt has increased,
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(A) decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
(B) increased to the extent that its Parallel Debt has increased,
in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding Debt.
(e) All amounts received or recovered by the Security Agent in connection with this Clause 33.2 (Parallel Debt (Covenant to pay the Security Agent))
to the extent permitted by applicable law, shall be applied in accordance with Clause 37.5 (Application of receipts; partial payments).
(f) This Clause 33.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any rights or
powers arising under the Finance Documents creating the Transaction Security except through the Security Agent.
(a) Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are
attributable to, Security Property (for the purposes of this Clause 33 (The Security Agent), the "Recoveries") shall be transferred to the Facility Agent
for application in accordance with Clause 37.5 (Application of receipts; partial payments).
(b) Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
(i) under Clause 14.6 (Indemnity to the Security Agent) to be indemnified out of the Charged Property; and
(ii) under any Finance Document to credit any moneys received or recovered by it to any suspense account.
(c) Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that
payment, by the Security Agent.
(d) The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause 33.4 ( Application of
receipts) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
(a) Before transferring any moneys to the Facility Agent under Clause 33.4 (Application of receipts), the Security Agent may, in its discretion:
(i) deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or
Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
(ii) set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or
otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement;
and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by
virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration
for performing its duties under this Agreement).
(b) For the purposes of paragraph (a)(i) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be
treated as due and payable, even if no demand has yet been served.
Following acceleration of any of the Transaction Security, the Security Agent may, in its discretion, or at the request of the Facility Agent, hold any
Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including
itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) for later payment to the Facility Agent
for application in accordance with Clause 37.5 (Application of receipts; partial payments) in respect of:
(a) any sum to the Security Agent, any Receiver or any Delegate; and
that the Security Agent or, in the case of paragraph (b) only, the Facility Agent, reasonably considers, in each case, might become due or owing at
any time in the future.
Prior to the payment of the proceeds of the Recoveries to the Facility Agent for application in accordance with Clause 37.5 (Application of receipts;
partial payments) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal
account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the
interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security Agent's discretion in
accordance with the provisions of this Clause 33.7 (Investment of proceeds).
(a) Subject to paragraph (d) below, the Security Agent shall act in accordance with any instructions given to it by the Facility Agent (acting on the
instructions of the Majority Lenders or all the Lenders (as appropriate)) or, if so instructed by the Facility Agent (acting on the instructions of the
Majority Lenders or all the Lenders (as appropriate)), refrain from exercising any right, power, authority or discretion vested in it as Security Agent
and shall be entitled to assume that:
(i) any instructions received by it from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as
appropriate)) are duly given in accordance with the terms of the Finance Documents; and
(ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked.
(b) The Security Agent shall be entitled to request instructions, or clarification of any direction, from the Facility Agent (acting on the instructions of
the Majority Lenders or all the Lenders (as appropriate)) as to whether, and in what manner, it should exercise or refrain from exercising any rights,
powers, authorities and discretions and the Security Agent may refrain from acting unless and until those instructions or clarification are received by
it.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) Any instructions given to the Security Agent by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as
appropriate)) shall override any conflicting instructions given by any other Party.
(ii) where this Agreement requires the Security Agent to act in a specified manner or to take a specified action;
(iii) in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent
for the Secured Parties including, without limitation, the provisions set out in Clauses 33.10 (Security Agent's discretions) to Clause 33.28
(Full freedom to enter into transactions); and
(iv) in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of Clause 33.5 (Deductions
from receipts) and Clause 33.6 (Prospective liabilities).
Without prejudice to the provisions of Clause 33.4 (Application of receipts), the Security Agent may (but shall not be obliged to), in the absence of
any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Finance Documents as it considers in its
discretion to be appropriate.
(i) assume (unless it has received actual notice to the contrary from the Facility Agent) that (i) no Default has occurred and no Obligor is in
breach of or default under its obligations under any of the Finance Documents and (ii) any right, power, authority or discretion vested by
any Finance Document in any person has not been exercised;
(ii) any notice or request made by any Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors;
(iii) if it receives any instructions or directions to take any action in relation to the Transaction Security, assume that all applicable conditions
under the Finance Documents for taking that action have been satisfied;
(iv) engage, pay for and rely on the advice or services of any legal advisers, accountants, tax advisers, surveyors or other experts (whether
obtained by the Security Agent or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or
desirable;
(v) act in relation to the Finance Documents through its personnel and agents;
(vi) disclose to any other Party any information it reasonably believes it has received as security agent under this Agreement;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(vii) rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected
to be within the knowledge of a Secured Party or an Obligor, upon a certificate signed by or on behalf of that person; and
(viii) refrain from acting in accordance with the instructions of any Party (including bringing any legal action or proceeding arising out of or in
connection with the Finance Documents) until it has received any indemnification and/or security that it may in its discretion require
(whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting.
(b) Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it
would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
(a) copy to the Facility Agent the contents of any notice or document received by it from any Obligor under any Finance Document;
(b) forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party provided that,
except where a Finance Document expressly provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party; and
(c) inform the Facility Agent of the occurrence of any Default or any default by a Debtor in the due performance of or compliance with its obligations
under any Finance Document of which the Security Agent has received notice from any other party to this Agreement.
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent shall not:
(a) be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by a Transaction Obligor of its
obligations under any of the Finance Documents;
(b) be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty;
(d) have or be deemed to have any relationship of trust or agency with, any Obligor.
None of the Security Agent, any Receiver nor any Delegate shall accept responsibility or be liable for:
(a) the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Agent or any other person in or in
connection with any Finance Document or the transactions contemplated in the Finance Documents, or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
(c) any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Finance Documents,
the Security Property or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise unless directly caused by its gross
negligence or wilful misconduct;
(d) the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Finance Documents, the
Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with,
the Finance Documents or the Security Property; or
(e) any shortfall which arises on the enforcement or realisation of the Security Property.
(a) Without limiting Clause 33.15 (No proceedings), none of the Security Agent, any Receiver or any Delegate will be liable for any action taken by it
or not taken by it under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or
wilful misconduct.
(b) The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by it for that purpose.
(c) Nothing in this Agreement shall oblige the Security Agent to carry out any "know your customer" or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Security Agent that it is solely responsible for any such checks it is required to carry out and that it
may not rely on any statement in relation to such checks made by the Security Agent.
33.15 No proceedings
No Party (other than the Security Agent, that Receiver or that Delegate) may take any proceedings against any officer, employee or agent of the
Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of
any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer,
employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the
provisions of the Third Parties Rights Act.
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three
Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent's,
Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents
(unless the relevant Security Agent, Receiver or Delegate has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
33.17 Own responsibility
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Finance
Document, each Secured Party confirms to the Security Agent that it has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the Group;
(b) the legality, validity, effectiveness, adequacy and enforceability of any Finance Document, the Security Property and any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security
Property;
(c) whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security
Property;
(d) the adequacy, accuracy and/or completeness of any information provided by the Security Agent or by any other person under or in connection with
any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance Document; and
(e) the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security
or the existence of any Security affecting the Charged Property,
and each Secured Party warrants to the Security Agent that it has not relied on and will not at any time rely on the Security Agent in respect of any of
these matters.
The Security Agent shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Charged
Property;
(b) obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the
Finance Documents or the Transaction Security;
(c) register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable
laws in any jurisdiction or to give notice to any person of the execution of any of the Finance Documents or of the Transaction Security;
(d) take, or to require any of the Transaction Obligors to take, any steps to perfect its title to any of the Charged Property or to render the Transaction
Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(e) require any further assurances in relation to any of the Finance Documents creating the Transaction Security.
(a) The Security Agent shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or
to verify any obligation to arrange or maintain insurance contained in the Finance Documents. The Security Agent shall not be responsible for any
loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance.
(b) Where the Security Agent is named on any insurance policy as an insured party, it shall not be responsible for any loss which may be suffered by
reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other
information of any kind, unless the Facility Agent shall have requested it to do so in writing and the Security Agent shall have failed to do so within
14 days after receipt of that request.
The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the
Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created
under this Agreement and the Security Agent shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by
reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the
proceedings or acts of any person.
The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Transaction
Obligors may have to any of the Charged Property and shall not be liable for or bound to require any Transaction Obligor to remedy any defect in its
right or title.
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent may refrain from doing anything
which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction and the Security Agent may do anything
which is, in its opinion, necessary to comply with any such law, directive or regulation.
The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of
the Group.
If the Security Agent, with the approval of the Facility Agent determines that (a) all of the Secured Liabilities and all other obligations secured by
the Finance Documents creating the Transaction Security have been fully and finally discharged and (b) none of the Secured Parties is under any
commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to
the Finance Documents:
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(a) the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction
Security and the rights of the Security Agent under each of the Finance Documents creating the Transaction Security; and
(b) any Retiring Security Agent shall release, without recourse or warranty, all of its rights under each of the Finance Documents creating the
Transaction Security.
The rights, powers and discretions conferred upon the Security Agent by this Agreement shall be supplemental to the Trustee Act 1925 and the
Trustee Act 2000 and in addition to any which may be vested in the Security Agent by general law or otherwise.
(a) In acting as trustee for the Secured Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a
separate entity from any of its other divisions or departments.
(b) If information is received by another division or department of the Security Agent, it may be treated as confidential to that division or department
and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
33.27 Disapplication
In addition to its rights under or by virtue of this Agreement and the other Finance Documents, the Security Agent shall have all the rights conferred
on a trustee by the Trustee Act 1925, the Trustee Delegation Act 1999, the Trustee Act 2000 and by general law or otherwise, provided that:
(a) section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the
other Finance Documents; and
(b) where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement and any other Finance
Document, the provisions of this Agreement and any other Finance Document shall, to the extent allowed by law, prevail and, in the case of any
inconsistency with the Trustee Act 2000, such provisions shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.
Notwithstanding any rule of law or equity to the contrary, the Security Agent shall be absolutely entitled:
(a) to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any
person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction,
whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such
Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
(b) to deal in and enter into and arrange transactions relating to:
(i) any securities issued or to be issued by any Transaction Obligor or any other person; or
(ii) any options or other derivatives in connection with such securities; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) to provide advice or other services to any Borrower or any person who is a party to, or referred to in, a Finance Document,
and, in particular, each Servicing Party shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such
transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation)
any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings,
transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived
from the dealings transactions or other matters.
(a) The Security Agent may resign and appoint one of its affiliates as successor by giving notice to the Borrowers and each Finance Party.
(b) Alternatively the Security Agent may resign by giving notice to the other Parties in which case the Majority Lenders may appoint a successor
Security Agent.
(c) If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 30 days after the notice of
resignation was given, the Security Agent (after consultation with the Facility Agent) may appoint a successor Security Agent.
(d) The retiring Security Agent (the "Retiring Security Agent") shall, at its own cost, make available to the successor Security Agent such documents
and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as
Security Agent under the Finance Documents.
(e) The Security Agent's resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer, by way of a document
expressed as a deed, of all of the Security Property to that successor.
(f) Upon the appointment of a successor, the Retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further
obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 33.24 (Winding up of trust ) and under
paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Agent, remain entitled to the benefit of Clause 33
(The Security Agent), Clause 14.6 (Indemnity to the Security Agent), Clause 33.16 (Lenders' indemnity to the Security Agent) and any other
provisions of a Finance Document which are expressed to limit or exclude its liability in acting as Security Agent. Its successor and each of the other
Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party.
(g) The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security
Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrowers.
(h) The consent of any Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
33.30 Delegation
(a) Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any
period, all or any of the rights, powers and discretions vested in it by any of the Finance Documents.
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(b) That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security
Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties and it shall not be
bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such delegate or sub
delegate.
(a) The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
(ii) for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Agent deems to be relevant; or
and the Security Agent shall give prior notice to the Borrowers and the Facility Agent of that appointment.
(b) Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Agent by this Agreement) and
the duties and obligations that are conferred or imposed by the instrument of appointment.
(c) The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that
person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred
by the Security Agent.
(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any
claim; or
(c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party
acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In
Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a) any Bail-In Action in relation to any such liability, including (without limitation):
(i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of
any such liability;
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(ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
(b) a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 37
(Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due to it under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid
had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 37 (Payment Mechanics), without
taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the " Sharing
Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party
as its share of any payment to be made, in accordance with Clause 37.5 (Application of receipts; partial payments).
The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it among the Finance Parties (other
than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 37.5 (Application of receipts; partial payments);
partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.
On a distribution by the Facility Agent under Clause 36.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from
an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment
will be treated as not having been paid by that Obligor.
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:
(a) each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an
amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed
Amount"); and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as
not having been paid by that Obligor.
36.5 Exceptions
(a) This Clause 36 (Sharing Among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not, after making any
payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or arbitration proceedings.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 12
ADMINISTRATION
37 PAYMENT MECHANICS
(a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an
amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant
currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of the country of that currency and with such bank as the Facility Agent, in
each case, specifies.
Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 37.3 (Distributions to an
Obligor) and Clause 37.4 (Clawback and pre-funding) be made available by the Facility Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that
Party may notify to the Facility Agent by not less than five Business Days' notice with a bank specified by that Party in the principal financial centre
of the country of that currency, as specified by that Party or, in the case of an Advance, to such account of such person as may be specified by the
Borrowers in a Utilisation Request.
The Facility Agent may (with the consent of the Obligor or in accordance with Clause 38 (Set-Off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in
or towards purchase of any amount of any currency to be so applied.
(a) Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually
received that sum.
(b) Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not
actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent
shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the
Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
(c) If the Facility Agent is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the
extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid
to the Borrowers:
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(i) the Borrowers shall on demand refund it to the Facility Agent; and
(ii) the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrowers to whom that sum was
made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility
Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
(a) Subject to paragraph (i) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any
Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the
following order:
(i) first, in or towards payment of any amounts then due and payable under any of the Finance Documents excluding any Hedging Agreement;
(ii) secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document excluding
any Hedging Agreement but which the Facility Agent, by notice to the Borrowers and the other Finance Parties, states in its opinion will or
may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them;
(iii) thirdly, in or towards payment of any amounts then due and payable under any Hedging Agreement;
(iv) fourthly, in retention by the Security Agent of an amount equal to any amount not then payable under any Hedging Agreement but which
the Facility Agent, by notice to the Borrowers and the other Finance Parties, states in its opinion will or may become payable in the future
and, upon those amounts becoming due and payable, in or towards satisfaction of them; and
(v) fifthly, any surplus shall be paid to the Borrowers or to any other person who appears to be entitled to it.
(b) If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance
Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following
order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the
Security Agent, any Receiver and any Delegate under the Finance Documents excluding any Hedging Agreement;
(ii) secondly, in or towards payment of any accrued interest and fees due but unpaid to the Lenders under this Agreement;
(iii) thirdly, in or towards payment of any principal due but unpaid to the Lenders under this Agreement;
(iv) fourthly, in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents excluding
any Hedging Agreement; and
(v) fifthly, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to any Hedge Counterparty
under any Hedging Agreement;
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(vi) sixthly, in or towards payment of any periodical payments (not being payments as a result of termination or closing out) due but unpaid to
the Hedge Counterparties under the Hedging Agreements;
(vii) seventhly, in or towards payment of any payments as a result of termination or closing out due but unpaid to the Hedge Counterparties
under the Hedging Agreements.
(c) The Facility Agent shall, if so directed by the Majority Lenders and the Hedge Counterparties, vary the order set out in paragraphs (b)(ii) to (b) (vii)
above.
(d) Paragraphs (a), (b)and (c) above will override any appropriation made by an Obligor.
(a) All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
(b) Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under any Hedging
Agreement.
(a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
(a) Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance
Document.
(b) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
(c) Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall
be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the
Borrowers); and
(ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
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(b) If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with
the Borrowers) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.
(a) For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any
moneys received or recovered by it from one currency to another, at a market rate of exchange.
(b) The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after
deducting the costs of conversion.
If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by a Borrower that a
Disruption Event has occurred:
(a) the Facility Agent may, and shall if requested to do so by a Borrower, consult with the Borrowers with a view to agreeing with the Borrowers such
changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
(b) the Facility Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in paragraph (a) above if, in its opinion,
it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
(c) the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do
so if, in its opinion, it is not practicable to do so in the circumstances;
(d) any such changes agreed upon by the Facility Agent and the Borrowers shall (whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding
the provisions of Clause 45 (Amendments and Waivers);
(e) the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including,
without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of
the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 37.11 (Disruption to
Payment Systems etc.); and
(f) the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
38 SET-OFF
A Finance Party may set off any obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance
Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off.
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39 NOTICES
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
39.2 Addresses
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with the Finance Documents are:
(a) in the case of the Borrowers, that specified in Schedule 1 (The Parties);
(b) in the case of each Lender, each Hedge Counterparty or any other Obligor, that specified in Schedule 1 (The Parties) or, if it becomes a Party after the
date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
(c) in the case of the Facility Agent, that specified in Schedule 1 (The Parties); and
(d) in the case of the Security Agent, that specified in Schedule 1 (The Parties),
or any substitute address, fax number or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the
other Parties, if a change is made by the Facility Agent) by not less than five Business Days' notice.
39.3 Delivery
(a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be
effective:
(ii) if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its address details provided under Clause 39.2 (Addresses), if addressed to that
department or officer.
(b) Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party
and then only if it is expressly marked for the attention of the department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or
any substitute department or officer as that Servicing Party shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
(d) Any communication or document made or delivered to the Borrowers in accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
(e) Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt
shall be deemed only to become effective on the following day.
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39.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 39.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify the other Parties.
(a) Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or
other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of
communication and if those two Parties:
(i) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of
information by that means; and
(ii) notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
(b) Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any
electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this
purpose.
(c) Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be
deemed only to become effective on the following day.
(a) Any notice given under or in connection with any Finance Document must be in English.
(b) All other documents provided under or in connection with any Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved
by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official
document.
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this clause do not include any
Hedging Agreement entered into by the Borrower with the Hedge Counterparty in connection with the Facility.
40.1 Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by
a Finance Party are prima facie evidence of the matters to which they relate.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
40.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market
practice.
41 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under the Finance Documents shall operate
as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance
Documents on the part of a Secured Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent
any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
Any settlement or discharge under any Finance Document between any Finance Party and any Obligor shall be conditional upon no security or
payment to any Finance Party by any Obligor or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency
law or otherwise.
44 IRREVOCABLE PAYMENT
If the Facility Agent considers that an amount paid or discharged by, or on behalf of, an Obligor or by any other person in purported payment or
discharge of an obligation of that Obligor to a Finance Party under the Finance Documents is capable of being avoided or otherwise set aside on the
liquidation or administration of that Obligor or otherwise, then that amount shall not be considered to have been unconditionally and irrevocably
paid or discharged for the purposes of the Finance Documents.
(a) Subject to Clause 45.2 (All Lender matters) and Clause 45.3 (Other exceptions) any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all
Parties.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 45 (Amendments and Waivers).
(c) Without prejudice to the generality of Clause 32.7 (Rights and discretions of the Facility Agent) and Clause 33.10 (Security Agent's discretions), the
Facility Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment,
waiver or consent under this Agreement.
An amendment of or waiver or consent in relation to any term of any Finance Document that has the effect of changing or which relates to:
(b) a postponement to or extension of the date of payment of any amount under the Finance Documents (other than in relation to Clause 7.4 (Voluntary
prepayment of Loan) in respect of a prepayment made pursuant to Clause 27.2 (Provision of additional security; prepayment), Clause 7.5
(Mandatory prepayment on sale or Total Loss) or Clause 7.6 (Mandatory prepayment of Hedging Payment Proceeds);
(c) a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable;
(d) a change in currency of payment of any amount under the Finance Documents;
(e) an increase in any Commitment or the Total Commitments (including any increase in Total Commitments set out in Clause 2.3 ( Increase
commitment option)), an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments
rateably under the Facility;
(g) any provision which expressly requires the consent of all the Lenders;
(i) any amendment to the definition of Sanctions or any of the Sanctions provisions within this Agreement;
(j) any change to the preamble (Background), Clause 2 (The Facility), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 28
(Application of Earnings), Clause 7.2 (Change of control), Clause 30 (Changes to the Lenders), Clause 48 (Governing Law) or Clause 49
(Enforcement);
(k) any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document
(except in the case of a release of Transaction Security as it relates to the disposal of an asset which is the subject of the Transaction Security and
where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
(l) (other than as expressly permitted by the provisions of any Finance Document), the nature or scope of:
(i) the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity Guarantors) or Clause 20 (Guarantee and Indemnity
Hedge Guarantors) and the joint and several liability of the Guarantors under Clause 18 (Joint and Several Liability of the Guarantors)
and 19 (Joint and Several Liability of the Borrowers);
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(ii) the Charged Property; or
(iii) the manner in which the proceeds of enforcement of the Transaction Security are distributed,
(except in the case of paragraphs (ii) and (iii) above, insofar as it relates to a sale or disposal of an asset which is the subject of the
Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document);
(m) the release of the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity Guarantors) or of any Transaction Security
unless permitted under this Agreement or another Finance Document or relating to a sale or disposal of an asset which is the subject of the
Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document,
shall not be made, or given, without the prior consent of all the Lenders.
(a) An amendment or waiver which relates to the rights or obligations of a Servicing Party or either Mandated Lead Arranger (each in their capacity as
such) may not be effected without the consent of that Servicing Party or, as the case may be, that Mandated Lead Arranger.
(b) An amendment or waiver which relates to the rights or obligations of a Hedge Counterparty (in its capacity as such) may not be effected without the
consent of that Hedge Counterparty.
(c) The Borrowers and the Facility Agent, either Mandated Lead Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee
Letter to which they are party.
(d) If any Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any of the terms of any Finance Document or other
vote of Lenders under the terms of this Agreement within 10 Business Days of such request (unless the Borrowers and the Facility Agent agree to a
longer time period in relation to any request), (i) its Commitment shall not be included for the purpose of calculating the Total Commitments under
the relevant Facility when ascertaining whether any relevant percentage (including for the avoidance of doubt, unanimity) of Total Commitments
has been obtained to approve that request and (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of
any specified group of Lenders has been obtained to approve that request.
46 CONFIDENTIALITY
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause
46.2 (Disclosure of Confidential Information) and Clause 46.3 (Disclosure to numbering service providers) and to ensure that all Confidential
Information is protected with security measures and a degree of care that would apply to its own confidential information.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, insurance brokers, auditors,
partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential
Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional
obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the
Confidential Information;
(i) to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or
more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent or Security Agent and, in each case, to
any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(ii) with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or
any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or
more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices,
information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed
under paragraph (c) of Clause 32.14 (Relationship with the Lenders));
(iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in
paragraph (b)(i) or (b)(ii) above;
(v) to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking,
taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or
regulation;
(vi) to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or
other investigations, proceedings or disputes;
(vii) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 30.8
(Security over Lenders' rights);
(viii) who is a Party, a member of the Group or any related entity of an Obligor;
(ix) as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in
connection with any Finance Document; or
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the
recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential
Information;
(B) in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information
they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
(C) in relation to paragraphs (b)(v), (b)(vi), and (b)(vii) above, the person to whom the Confidential Information is to be given is
informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except
that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the
circumstances;
(c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or
settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in
respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any
of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a
confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service
Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Finance Party;
(d) to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating
agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors;
(e) to the U.S. Securities and Exchange Commissioning (the "SEC") such Confidential Information as may be required to be disclosed to the SEC.
(a) Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide
identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
(v) the names of the Facility Agent and each Mandated Lead Arranger;
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(ix) type of Facility;
(xii) changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and
(xiii) such other information agreed between such Finance Party and the Borrowers,
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
(b) The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a
numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the
standard terms and conditions of that numbering service provider.
(c) Each Obligor represents that none of the information set out in paragraphs (a)(i) to (a)(xiii) above is, nor will at any time be, unpublished price-
sensitive information.
(d) The Facility Agent shall notify each Obligor and the other Finance Parties of:
(i) the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more
Obligors; and
(ii) the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service
provider.
This Clause 46 (Confidentiality) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the
Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential
Information.
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use
of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse
and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrowers:
(a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 46.2 (Disclosure of Confidential
Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or
regulatory function; and
(b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 46 (Confidentiality).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
46.7 Continuing obligations
The obligations in this 46 (Confidentiality) are continuing and , in particular, shall survive and remain binding on each Finance Party for a period of
12 months from the earlier of:
(a) the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have
been cancelled or otherwise cease to be available; and
(b) the date on which such Finance Party otherwise ceases to be a Finance Party.
47 COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
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SECTION 13
48 GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
49 ENFORCEMENT
49.1 Jurisdiction
(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this
Agreement) (a "Dispute").
(b) The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will
argue to the contrary.
(c) This Clause 49.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any
number of jurisdictions.
(a) Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and
Wales):
(i) irrevocably appoints WFW Legal Services Limited at its registered office presently at 15 Appold Street, London, EC2A 2HB as its agent for
service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
(ii) agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
(b) If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of
all the Obligors) must immediately (and in any event within 3 days of such event taking place) appoint another agent on terms acceptable to the
Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
THE PARTIES
PART A
THE OBLIGORS
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Name of Corporate Place of Registration number Address for
Guarantor Incorporation (or equivalent, if Communication
any)
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
PART B
Notices to:
DVB Bank SE
Shipping Finance Europe
Park House, 16-18 Finsbury Circus
London EC2M 7EB
United Kingdom
Fax +44 207 256 4529
Attn: Cornelia Urban
Cornelia.Urban@dvbbank.com
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THE HEDGE COUNTERPARTIES
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PART C
Email: abn.amro.agency.team.1@nl.abnamro.com
Email: abn.amro.agency.team.1@nl.abnamro.com
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SCHEDULE 2
CONDITIONS PRECEDENT
PART A
1 Obligors
(a) approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance
Documents to which it is a party;
(b) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation
Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
1.3 An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a
party.
1.4 A copy of a resolution signed by the Corporate Guarantor as the holder of the membership interests in each Borrower, approving the terms of, and the
transactions contemplated by, the Finance Documents to which that Borrower is a party.
1.5 A certificate of each Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not
cause any borrowing, guaranteeing or similar limit binding on that Transaction Obligor to be exceeded.
1.6 A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any
UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the
name and registered number under which it is registered with the Registrar of Companies.
1.7 A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part A of Schedule
2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
2.1 Copies of the Pool Agreement and of all documents signed by the Borrowers in connection with it.
2.2 Copies of each Hedging Agreement executed by a Hedge Counterparty and the relevant Borrower.
3 Finance Documents
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4 Security
4.1 A duly executed original of the Accounts Security in relation to each Earnings Account and of the Membership Interests Security in respect of each
Borrower (and of each document to be delivered under each of them).
4.2 A duly executed original of the Hedging Agreement Assignment in respect of each Borrower (and of each document to be delivered under each of
them).
5 Legal opinions
5.1 A legal opinion of Watson, Farley & Williams LLP, legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in
England, substantially in the form distributed to and agreed by the Original Lenders before signing this Agreement.
5.2 If a Transaction Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Mandated Lead
Arrangers, the Facility Agent and the Security Agent in the relevant jurisdiction, substantially in the form distributed and agreed by to the Original
Lenders before signing this Agreement.
6.1 Evidence that any process agent referred to in Clause 49.2 (Service of process), if not an Obligor, has accepted its appointment.
6.2 A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has
notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction
Document, or for the validity and enforceability of any Transaction Document.
6.3 The Original Financial Statements of each Borrower and the Parent Guarantor.
6.4 The original of any mandates or other documents required in connection with the opening or operation of the Earnings Accounts.
6.5 Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the first Utilisation Date.
6.6 Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar
identification procedures in relation to the transactions contemplated by the Finance Documents.
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PART B
"Relevant Ship" means the Existing Ship that is the subject of the Utilisation Request;
"Relevant Borrower" means the Borrower which is the owner of the Relevant Ship; and
"Relevant Advance" means the borrowing of the Tranche relating to the Relevant Ship.
1 Relevant Borrower
A certificate of an authorised signatory of the Relevant Borrower certifying that each copy document which it is required to provide under this Part
B of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at the Utilisation Date of the Relevant Advance.
2.1 A duly executed original of the Mortgage, the General Assignment in the name of the Relevant Borrower (if applicable) in respect of the Relevant
Ship and of each document to be delivered under or pursuant to each of them together with documentary evidence that the Mortgage in respect of
the Relevant Ship has been duly registered as a valid first preferred or priority (as applicable) ship mortgage in accordance with the laws of the
jurisdiction of its Approved Flag.
(a) is definitively and permanently registered in the name of the Relevant Borrower under the Approved Flag;.
(b) is in the absolute and unencumbered ownership of the Relevant Borrower save as contemplated by the Finance Documents;
(c) maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the
Approved Classification Society; and
(d) is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied
with.
2.3 Documents establishing that the Relevant Ship will, as from the Utilisation Date of the Relevant Advance, be managed commercially by its
Approved Commercial Manager and managed technically by its Approved Technical Manager on terms acceptable to the Facility Agent acting with
the authorisation of all of the Lenders, together with:
(a) a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and
(b) copies of the Approved Technical Manager's Document of Compliance and of the Relevant Ship's Safety Management Certificate (together with any
other details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM
Code and the ISPS Code in relation to the Relevant Ship including without limitation an ISSC and IAPPC.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
2.4 An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility
Agent may require.
2.5 A valuation of the Relevant Ship addressed to the Facility Agent on behalf of the Finance Parties, stated to be for the purposes of this Agreement and
dated not earlier than 14 days before the Utilisation Date for the Relevant Advance from an Approved Valuer which shows a value for the Relevant
Ship of not less than 130 per cent. of the Relevant Advance (after the Relevant Advance has been made).
3 Legal opinions
Legal opinions of the legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in England and Wales, the
jurisdiction of the Approved Flag of the relevant Ship and the Marshall Islands and such other relevant jurisdictions as the Facility Agent may
require and in substance and form acceptable to the Lenders.
4.1 Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the Utilisation Date for the Loan.
4.2 Evidence satisfactory to the Facility Agent as to the outstanding indebtedness in relation to the Existing Ships.
143
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PART C
1 Borrowers
A certificate of an authorised signatory of Hebrides Shipco LLC certifying that each copy document which it is required to provide under this Part C
of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at the Utilisation Date of the Advance under Tranche L.
2.1 A duly executed original of the Mortgage and the General Assignment in respect of Ship L and of each document to be delivered under or pursuant
to each of them together with documentary evidence that the Mortgage in respect of Ship L has been duly recorded as a valid first preferred ship
mortgage in accordance with the laws of the jurisdiction of its Approved Flag.
(a) has been unconditionally delivered to Hebrides Shipco LLC and that the full purchase price payable in connection with the acquisition of Ship L,
other than the sums to be financed pursuant to the Advance under Tranche L, have been paid to the seller;
(b) is definitively and permanently registered in the name of Hebrides Shipco LLC under the Approved Flag applicable to Ship L;
(c) is in the absolute and unencumbered ownership of Hebrides Shipco LLC save as contemplated by the Finance Documents;
(d) maintains the Approved Classification with the Approved Classification Society free of all recommendations and conditions of the Approved
Classification Society; and
(e) is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied
with.
2.3 Documents establishing that Ship L will, as from the Utilisation Date of the Advance under Tranche L, be managed commercially by its Approved
Commercial Manager and managed technically by its Approved Technical Manager on terms acceptable to the Facility Agent acting with the
authorisation of all of the Lenders, together with:
(a) a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager for Ship L; and
(b) copies of the relevant Approved Technical Manager's Document of Compliance and of Ship L's Safety Management Certificate (together with any
other details of the applicable Safety Management System which the Facility Agent requires) and of any other documents required under the ISM
Code and the ISPS Code in relation to Ship L including without limitation an ISSC.
2.4 An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility
Agent may require.
2.5 Two valuations of Ship L, addressed to the Facility Agent on behalf of the Finance Parties, stated to be for the purposes of this Agreement and dated
not earlier than 14 days before the Utilisation Date for the Advance under Tranche L from an Approved Valuer which shows a value for Ship L of not
less than 130 per cent. of the Loan (after the Advance under Tranche L has been utilised).
144
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
2.6 An inspection satisfactory to the Security Agent (acting through surveyors or other persons appointed by it for that purpose).
3 Legal opinions
Legal opinions of the legal advisers to the Arranger, the Facility Agent and the Security Agent in the jurisdiction of the Approved Flag of Ship L,
and England and Wales and such other relevant jurisdictions as the Facility Agent may require.
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the Utilisation Date for the Advance under Tranche L.
145
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SCHEDULE 3
REQUESTS
PART A
UTILISATION REQUEST
From: Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC
Dated: [l]
Dear Sirs
Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC $212,650,000 Facility Agreement
dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2 We wish to borrow [the][an] Advance under Tranche [A]/[B]/[C]/[D]/[E/[F]/[G]/[H]/[I]/[J]/[K]/[L] on the following terms:
Proposed Utilisation Date: [l] (or, if that is not a Business Day, the next Business Day)
3 We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) as they relate to
the Advance to which this utilisation request refers of the Agreement is satisfied on the date of this Utilisation Request.
4 We represent and warrant that the representations and warranties in Clause 21 (Representations) remain true by reference to the facts and
circumstances existing at the date of this, Utilisation Request.
146
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Yours faithfully
147
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PART B
SELECTION NOTICE
From: Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC
Dated: [l]
Dear Sirs
Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC $212,650,000 Facility Agreement
dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given
a different meaning in this Selection Notice.
2 We request that, subject to paragraph (f) of Clause 9.1 (Selection of Interest Periods) of the Agreement, the next Interest Period for Tranche
[A]/[B]/[C]/[D]/[E]/[F]/[G]/[H]/[I]/[J]/[K]/[L] be [l].
Yours faithfully
148
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
authorised signatory for
FASTNET SHIPCO LLC
149
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SCHEDULE 4
REPAYMENT SCHEDULE
Quarterly Quarterly
Repayment Repayment
during the after the
Nominal first two second
Tranche years of the year of the
Tranche Amount Facility Facility Balloon
Total $ 212,650,000
150
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SCHEDULE 5
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
Dated: [l]
Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC $212,650,000 Facility Agreement
dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
(a) The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights
and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and
participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 30.5 (Procedure for transfer) of the
Agreement.
(c) The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 39.2 (Addresses) of the
Agreement are set out in the Schedule.
3 The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 30.4 (Limitation of
responsibility of Existing Lenders) of the Agreement.
4 This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on
a single copy of this Transfer Certificate.
5 This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
6 This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in
all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a
transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and
completion of those formalities.
151
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
THE SCHEDULE
By:[l] By:[l]
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [l].
[Facility Agent]
By:[l]
152
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SCHEDULE 6
To: ABN Amro Bank N.V. as Facility Agent and Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco
LLC, Forth Shipco LLC, Rockall Shipco LLC, Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides
Shipco LLC as Borrowers, for and on behalf of each Obligor
From: [the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
Dated: [l]
Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC $212,650,000 Facility Agreement
dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement
unless given a different meaning in this Assignment Agreement.
(a) The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents
and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan
under the Agreement as specified in the Schedule.
(b) The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's
Commitments and participations in the Loan under the Agreement specified in the Schedule.
(c) The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under
paragraph (b) above.
4 On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
5 The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 39.2 (Addresses) are set
out in the Schedule.
6 The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 30.4 (Limitation of
responsibility of Existing Lenders).
7 This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 30.7
(Copy of Transfer Certificate or Assignment Agreement to Borrowers), to the Borrowers (on behalf of each Obligor) of the assignment referred to in
this Assignment Agreement.
8 This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were
on a single copy of this Assignment Agreement.
153
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
9 This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
10 This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security
in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a
transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and
completion of those formalities.
154
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THE SCHEDULE
[Facility office address, fax number and attention details for notices
and account details for payments]
By:[l] By:[l]
This Assignment Agreement is accepted by the Facility Agent and the Transfer Date is confirmed as [l].
Signature of this Assignment Agreement by the Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the assignment referred to
herein, which notice the Facility Agent receives on behalf of each Finance Party.
[Facility Agent]
By:
155
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SCHEDULE 7
Dated: [l]
Dear Sirs
Bailey Shipco LLC, Dover Shipco LLC, Fair Isle Shipco LLC, Fastnet Shipco LLC, Fitzroy Shipco LLC, Forth Shipco LLC, Rockall Shipco LLC,
Shannon Shipco LLC, Sole Shipco LLC, Trafalgar Shipco LLC, Viking Shipco LLC and Hebrides Shipco LLC $212,650,000 Facility Agreement
dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance Certificate.
2 We confirm that we have maintained the following financial covenants pursuant to clause 23.1 of the Agreement:
(b) minimum Cash and Cash Equivalents of an amount the greater of:
(d) a ratio of EBITDA plus one third of cash in excess of minimum Cash and Cash Equivalents to Total Interest Expenses, computed on a trailing 4
quarter basis shall at all times exceed 2.25:1.0.
Please refer to the attached documents which confirm the calculation for the above financial covenants and the accompanying Financial Statements.
Signed:
Director Director
of of
Ardmore Shipping Corporation Ardmore Shipping Corporation
156
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SCHEDULE 8
SHIPS
Approved Approved
Vessel Type Approved Approved Commercial Technical
Ship Owner Vessel Name / Capacity GRT NRT Classification Flag Manager Manager
Ship A Bailey ARDMORE Product 29,996 13,411 ABS The Marshall Ardmore Thome Ship
Shipco LLC SEAVENTURE tanker A1 Islands Shipping Management Pte
(Bermuda) Ltd
Limited
Ship B Dover Shipco ARDMORE Product 26,900 13,660 ABS The Marshall Ardmore Univan
LLC SEALEADER tanker A1 Islands Shipping Shipmanagement
(Bermuda) International
Limited Limited
Ship C Fair Isle ARDMORE MR2 tanker 29,737 13,730 Lloyds The Marshall Ardmore Univan
Shipco LLC SEALION Register Islands Shipping Shipmanagement
100A1 (Bermuda) International
Limited Limited
Ship D Fastnet ARDMORE Product 27,969 12,195 Lloyds The Marshall Ardmore Univan
Shipco LLC SEAFARER tanker Register Islands Shipping Shipmanagement
100A1 (Bermuda) International
Limited Limited
Ship E Fitzroy ARDMORE Double hull 29,996 13,411 ABS The Marshall Ardmore Thome Ship
Shipco LLC SEAVALIANT oil and A1 Islands Shipping Management Pte
chemical (Bermuda) Ltd
carrier Limited
Ship F Forth Shipco ARDMORE Product 30,030 13,200 ABS The Marshall Ardmore Thome Ship
LLC SEAVANTAGE tanker A1 Islands Shipping Management Pte
(Bermuda) Ltd
Limited
Ship G Rockall ARDMORE Chemical & 19,549 7,487 ABS The Marshall Ardmore Thome Ship
Shipco LLC CENTURION oil carrier A1 Islands Shipping Management Pte
(Bermuda) Ltd
Limited
157
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Approved Approved
Vessel Type Approved Approved Commercial Technical
Ship Owner Vessel Name / Capacity GRT NRT Classification Flag Manager Manager
Ship H Shannon ARDMORE Product 28,114 11,660 ABS The Marshall Ardmore Thome Ship
Shipco LLC SEAMASTER tanker A1 Islands Shipping Management Pte
(Bermuda) Ltd
Limited
Ship I Sole Shipco ARDMORE Product 26,900 13,660 ABS The Marshall Ardmore Univan
LLC SEALIFTER tanker A1 Islands Shipping Shipmanagement
(Bermuda) International
Limited Limited
Ship J Trafalgar ARDMORE Product 29,940 13,496 ABS The Marshall Ardmore Univan
Shipco LLC ENDEAVOUR tanker A1 Islands Shipping Shipmanagement
(Bermuda) International
Limited Limited
Ship K Viking ARDMORE Product 30,030 13,192 ABS The Marshall Ardmore Thome Ship
Shipco LLC SEAVANGUARD tanker A1 Islands Shipping Management Pte
(Bermuda) Ltd
Limited
158
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SCHEDULE 9
Shipbroker Country
159
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SCHEDULE 10
TIMETABLES
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Five Business Days before the intended Utilisation Date (Clause 5.1
Utilisation Request)) or a Selection Notice (Clause 9.1 (Selection of Interest (Delivery of a Utilisation Request)) or the expiry of the preceding Interest
Periods)) Period (Clause 9.1 (Selection of Interest Periods))
Facility Agent notifies the Lenders of the Advance in accordance with Three Business Days before the intended Utilisation Date.
Clause 5.4 (Lenders participation)
160
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EXECUTION PAGES
BORROWERS
161
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SIGNED by ) /s/ Kathryn Palmer
duly authorised )
for and on behalf of ) Kathryn Palmer
FITZROY SHIPCO LLC ) Attorney-in-Fact
in the presence of: )
162
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SIGNED by ) /s/ Kathryn Palmer
duly authorised )
for and on behalf of ) Kathryn Palmer
SOLE SHIPCO LLC ) Attorney-in-Fact
in the presence of: )
163
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HEDGE GUARANTORS
164
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SIGNED by ) /s/ Kathryn Palmer
duly authorised )
for and on behalf of ) Kathryn Palmer
FITZROY SHIPCO LLC ) Attorney-in-Fact
in the presence of: )
165
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SIGNED by ) /s/ Kathryn Palmer
duly authorised )
for and on behalf of ) Kathryn Palmer
SOLE SHIPCO LLC ) Attorney-in-Fact
in the presence of: )
166
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PARENT GUARANTOR
SIGNED by ) /s/ Kathryn Palmer
duly authorised )
for and on behalf of ) Kathryn Palmer
ARDMORE SHIPPING CORPORATION ) Attorney-in-Fact
in the presence of: )
CORPORATE GUARANTOR
ORIGINAL LENDERS
167
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ORIGINAL HEDGE COUNTERPARTIES
168
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MANDATED LEAD ARRANGERS
BOOKRUNNERS
169
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FACILITY AGENT
SECURITY AGENT
170
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Exhibit 4.3
and
and
and
and
and
and
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NORDEA BANK AB, LONDON BRANCH
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
as Bookrunners
and
and
FACILITY AGREEMENT
relating to
the refinancing of m.t.s
ARDMORE SEAFOX, ARDMORE SEAWOLF, ARDMORE SEAHAWK, ARDMORE DAUNTLESS, ARDMORE DEFENDER, ARDMORE
CHINOOK and ARDMORE CHIPPEWA
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Index
Clause Page
Section 1 Interpretation 2
1 Definitions and Interpretation 2
Section 2 The Facility 25
2 The Facility 25
3 Purpose 25
4 Conditions of Utilisation 25
Section 3 Utilisation 27
5 Utilisation 27
Section 4 Repayment, Prepayment and Cancellation 29
6 Repayment 29
7 payment and Cancellation 29
Section 5 Costs of Utilisation 34
8 Interest 34
9 Interest Periods 36
10 Changes to the Calculation of Interest 37
11 Fees 38
Section 6 Additional Payment Obligations 39
12 Tax Gross Up and Indemnities 39
13 Increased Costs 42
14 Other Indemnities 43
15 Mitigation by the Finance Parties 46
16 Costs and Expenses 46
Section 7 Guarantees and Joint and Several Liability of Borrowers 48
17 Guarantee and Indemnity Guarantors 48
18 Joint and Several Liability of the Guarantors 50
19 Joint and Several Liability of the Borrowers 52
Section 8 Guarantee and Indemnity - Hedge Guarantors 54
20 Guarantee and Indemnity Hedge Guarantors 54
Section 9 Representations, Undertakings and Events of Default 57
21 Representations 57
22 Information Undertakings 63
23 Financial Covenants 66
24 General Undertakings 68
25 Insurance Undertakings 75
26 Ship Undertakings 80
27 Security Cover 84
28 Application of Earnings 86
29 Events of Default 86
Section 10 Changes to Parties 91
30 Changes to the Lenders 91
31 Changes to the Obligors 96
Section 11 The Finance Parties 97
32 The Facility Agent and the Mandated Lead Arrangers 97
33 The Security Agent 103
34 Conduct of Business by the Finance Parties 114
35 Contractual recognition of bail-in 114
36 Sharing Among the Finance Parties 115
Section 12 Administration 117
37 Payment Mechanics 117
38 Set-Off 120
39 Notices 121
40 Calculations and Certificates 123
41 Partial Invalidity 123
42 Remedies and Waivers 123
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43 Settlement or Discharge Conditional 123
44 Irrevocable Payment 123
45 Amendments and Waivers 124
46 Confidentiality 125
47 Counterparts 129
Section 13 Governing Law and Enforcement 130
48 Governing Law 130
49 Enforcement 130
Schedules
Execution
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THIS AGREEMENT is made on 13 January 2016
PARTIES
(1) FAROE SHIPCO LLC, PLYMOUTH SHIPCO LLC, PORTLAND SHIPCO LLC, WIGHT SHIPCO LLC, LUNDY SHIPCO LLC, FISHER
SHIPCO LLC and HUMBER SHIPCO LLC, each a limited liability company formed in the Republic of the Marshall Islands whose registered
address is at The Trust Company of the Marshall Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH
96960 as joint and several borrowers (together the "Borrowers" and each a "Borrower")
(2) ARDMORE SHIPPING LLC, a limited liability company formed in the Republic of the Marshall Islands whose registered office is at The Trust
Company of the Marshall Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as a guarantor (the
"Corporate Guarantor")
(3) ARDMORE SHIPPING CORPORATION, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at The Trust
Company of the Marshall Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as a guarantor (the
"Parent Guarantor")
(4) THE COMPANIES listed in Part A of Schedule 1 (The Parties) as hedge guarantors (the "Hedge Guarantors")
(5) NORDEA BANK AB, LONDON BRANCH and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as mandated lead arrangers (the "Mandated
Lead Arrangers")
(6) NORDEA BANK AB, LONDON BRANCH and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as bookrunners (the "Bookrunners")
(7) THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the "Original Lenders")
(8) THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as hedge counterparties (the "Hedge Counterparties")
(9) NORDEA BANK AB, LONDON BRANCH , acting in such capacity through its office at 6th Floor, 5 Aldermanbury Square, London EC2V 7AZ,
England as agent for the other Finance Parties (the "Facility Agent")
(10) NORDEA BANK AB, LONDON BRANCH , acting in such capacity through its office at 6th Floor, 5 Aldermanbury Square, London EC2V 7AZ,
England as security agent for the Secured Parties (the "Security Agent")
BACKGROUND
(A) The Lenders have agreed to make available to the Borrowers a facility of up to $150,500, 000 for (i) the purpose of refinancing the Existing
Indebtedness and (ii) for general corporate purposes.
(B) The Hedge Counterparties may enter into interest rate swap transactions with the Borrowers from time to time to hedge the Borrowers exposure
under this Agreement to interest rate fluctuations.
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SECTION 1
INTERPRETATION
1.1 Definitions
In this Agreement:
"Account Bank" means Nordea Bank AB, London Branch acting through its office at 6th Floor, 5 Aldermanbury Square, London EC2V 7AZ,
England or any other bank acceptable to the Majority Lenders.
"Account Security" means a document creating Security over any Earnings Account in agreed form.
"Affected Lender" has the meaning given to it in Clause 10.2 (Market disruption).
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding
Company.
"Approved Brokers" means such insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, war risks
and protection and indemnity risks associations as have been approved by the Facility Agent, acting with the authorisation of the Majority Lenders
in writing in advance.
"Approved Classification" means, in relation to a Ship, as at the date of this Agreement, the class notification in relation to that Ship specified in
Schedule 7 (Ships).
"Approved Classification Society" means, in relation to a Ship, as at the date of this Agreement, the classification society specified in Schedule 7
(Ships) or any other classification society approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders and which
authorisation shall not be withheld in the case of any classification society which is a member of the International Association of Classification
Societies.
"Approved Commercial Manager" means, in relation to a Ship, Ardmore Shipping (Bermuda) Limited, an Affiliate of Ardmore Shipping (Bermuda)
Limited, Highlander Tankers AS or any other person approved in writing by the Facility Agent acting with the authorisation of the Majority
Lenders, as the commercial manager of that Ship and, for the avoidance of doubt, this shall include Mansel Ltd. and Navig8 Chemicals Pool Inc. as
the pool managers under the Pool Agreement or any pool manager under another pool agreement in relation to the Ships which may be approved by
the Facility Agent acting with the authorisation of the Majority Lenders.
"Approved Flag" means, in relation to a Ship, Marshall Islands, or such other flag approved in writing by the Facility Agent acting with the
authorisation of all the Lenders.
"Approved Manager" means, in relation to a Ship, the Approved Commercial Manager or the Approved Technical Manager of that Ship.
"Approved Technical Manager" means in relation to a Ship, Univan Ship Management Ltd, Thome Ship Management Pte. Ltd. RY Corporation,
and Ardmore Shipping (Bermuda) Limited or any of its Subisdiaries or any other person approved in writing by the Facility Agent acting with the
authorisation of the Majority Lenders, as the technical manager of that Ship.
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"Approved Valuer" means, in relation to a Ship, at any time during the Security Period, any of the firms listed in Schedule 8 (List of Approved
Valuers) or any other firm or firms of shipbrokers approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
"Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form
agreed between the relevant assignor and assignee.
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, legalisation or registration.
"Availability Period" means the period from and including the date of this Agreement to and including 31 January 2016 or such longer period
acceptable to the Facility Agent on the instructions of the Majority Lenders.
(b) in relation to the proposed Utilisation, the amount of its participation in the Loan that is due to be made on or before the proposed
Utilisation Date.
"Available Facility" means the aggregate for the time being of each Lenders Available Commitment.
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of
Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant
implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.
(a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for
more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking
Supervision in December 2010, each as amended, supplemented or restated;
(b) the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the
additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as
amended, supplemented or restated; and
(c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
(a) the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its
participation in the Loan or Unpaid Sum to the last day of the current Interest Period in relation to the Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
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exceeds
(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it
on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Cork, Stockholm and New
York.
"Charged Property" means all of the assets which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Charter" means, in relation to a Ship, any charter relating to that Ship, or other contract for its employment, whether or not already in existence.
"Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part B of Schedule 1 (The Parties)
and the amount of any other Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
"Compliance Certificate" means a certificate in the form set out in Schedule 6 (Form of Compliance Certificate) or in any other form agreed
between the Parent Guarantor and the Facility Agent.
"Confidential Information" means all information relating to any Transaction Obligor, the Group, the Finance Documents or the Facility of which a
Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to,
or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of
its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but excludes information that:
(i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 46
(Confidentiality)); or
(ii) is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is
lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected
with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not
otherwise subject to, any obligation of confidentiality.
"Confidentiality Undertaking" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from time to
time or in any other form agreed between the Borrowers and the Facility Agent.
"Corresponding Debt" means any amount, other than any Parallel Debt, which an Obligor owes to a Secured Party under or in connection with the
Finance Documents.
"Deed of Release" means a deed releasing the Existing Security in form acceptable to the Facility Agent.
(a) which has failed to make available the relevant proportion of its Commitment in respect of any part of the Loan or has given notice to the
Facility Agent that it will not make such amount available by the Utilisation Date pursuant to Clause 5.4 (Lenders participation); or
(c) with respect to which an Insolvency Event has occurred and is continuing,
(ii) the Lender is disputing in good faith whether it is contractually obliged to make the relevant payment.
"Delegate" means any delegate, agent, attorney, co-trustee or other person appointed by the Security Agent.
"Delivery Date" means, in relation to a Ship, the date on which that Ship was delivered by the relevant builder to the relevant Borrower owning that
ship under the shipbuilding contract applicable to it.
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate
in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other, Party:
(i) from performing its payment obligations under the Finance Documents; or
(ii) from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"dollars" and "$" mean the lawful currency, for the time being, of the United States of America.
"Earnings" means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Borrower or
the Security Agent and which arise out of the use or operation of that Ship, including (but not limited to):
(a) the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled or shared with any other
person:
(ii) compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire;
(v) damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that
Ship;
(vi) all moneys which are at any time payable under any Insurances in relation to loss of hire;
(vii) all monies which are at any time payable to a Borrower in relation to general average contribution; and
(b) if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (vi) of paragraph (a) above are
pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is
attributable to that Ship.
(a) an account in the name of that Borrower with the Account Bank designated "Earnings Account"; or
(b) any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank)
which is designated by the Facility Agent as the Earnings Account of that Borrower for the purposes of this Agreement.
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Environmental Approval" means any present or future permit, ruling, variance or other Authorisation required under Environmental Laws.
"Environmental Claim" means any claim by any governmental, judicial or regulatory authority or any other person which arises out of an
Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim" includes a
claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-
up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend
certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
(a) any release, emission, spill or discharge into any Ship or into or upon the air, sea, land or soils (including the seabed) or surface water of
Environmentally Sensitive Material within or from any Ship; or
(b) any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils
(including the seabed) or surface water from a vessel other than any Ship and which involves a collision between any Ship and such other
vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to
be arrested, attached, detained or injuncted and/or a Ship and/or any Obligor and/or any operator or manager of a Ship is at fault or
allegedly at fault or otherwise liable to any legal or administrative action; or
(c) any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or
soils (including the seabed) or surface water otherwise than from a Ship and in connection with which a Ship is actually or potentially liable
to be arrested and/or where any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any
legal or administrative action, other than in accordance with an Environmental Approval.
"Environmental Law" means any present or future law relating to pollution or protection of human health or the environment, to conditions in the
workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened
releases of Environmentally Sensitive Material.
"Environmentally Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including
any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person)
from time to time.
Executive Order means an order issued by the president of the United States of America.
"Event of Default" means any event or circumstance specified as such in Clause 29 (Events of Default).
"Existing Facility Agent" means the "Facility Agent" as such term is defined in the Existing Facility Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Existing Facility Agreement" means the facility agreement entered into between, inter alia, (i) the Borrowers and others as joint and several
borrowers and (ii) the Existing Facility Agent as facility agent and security agent dated 19 March 2014 as amended and restated on 24 July 2014.
"Existing Indebtedness" means, at any date, the outstanding Financial Indebtedness relating to the Ships on that date under the Existing Facility
Agreement.
"Existing Security" means any security created to secure the Existing indebtedness.
"Facility" means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than 5 Business Days written notice) as the office or offices through which it will perform its obligations under this
Agreement.
"Fair Market Value" means, in relation to a Ship, at any date, the market value of that Ship shown by the arithmetic average of 2 valuations each
prepared:
(c) with or without physical inspection of that Ship or vessel (as the Facility Agent may require); and
(d) on the basis of a sale for prompt delivery for cash on normal arms length commercial terms as between a willing seller and a willing buyer,
free of any Charter,
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
"FATCA" means:
(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other
jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal
Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
(a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain
other payments from sources within the US), 1 July 2014;
(b) in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the
disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January
2019,
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any
change in FATCA after the date of this Agreement.
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Bookrunners and/or the Facility Agent and the
Borrowers or Guarantor setting out any of the fees referred to in Clause 11 (Fees).
(k) any other document (whether or not it creates Security) which is executed as security for, or for the purpose of establishing any priority or
subordination arrangement in relation to, the Secured Liabilities; or
(l) any other document designated as such by the Facility Agent and the Borrowers.
"Finance Party" means the Facility Agent, the Security Agent, a Mandated Lead Arranger, a Bookrunner, a Lender or a Hedge Counterparty.
(a) moneys borrowed and debit balances at banks or other financial institutions;
(b) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance
or capital lease;
(e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement)
having the commercial effect of a borrowing or otherwise classified as borrowing under GAAP;
(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
(h) any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other
instrument issued by a bank or financial institution;
(i) any amount raised by the issue of shares which are redeemable (other than at the option of the Issuer) before the Termination Date or are
otherwise classified as borrowings under GAAP; and
(j) the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above without
duplication.
"GAAP" means generally accepted accounting principles in the United States of America including IFRS.
"General Assignment" means, in relation to a Ship, the general assignment creating Security over that Ships Earnings, its Insurances and any
Requisition Compensation in relation to that Ship-, any charter entered into or to be entered into with a term exceeding or capable of exceeding 14
months and any charter to a member of the group and any supporting guarantee in relation to such charter in agreed form.
"Group" means, at any time, the Parent Guarantor and its Subsidiaries at that time.
"Hedging Agreement" means any master agreement, confirmation, transaction, schedule, off-balance sheet instrument or other agreement in agreed
form entered into or to be entered into by a Borrower or the Borrowers for the purpose of hedging interest payable under this Agreement.
"Hedging Agreement Assignment " means, in relation to a Borrower, a first assignment of that Borrowers rights and interests in any Hedging
Agreement, in agreed form.
"Hedging Close Out Liabilities" means, as at any relevant date, the aggregate amount certified by each Hedge Counterparty to the Facility Agent as
the net aggregate amount in dollars which would be payable by any Borrower under the Hedging Agreements to which it is a party at the relevant
determination date as a result of termination or closing out under such Hedging Agreements.
"Hedging Prepayment Proceeds" means any amount payable to a Borrower as a result of termination or closing out under a Hedging Agreement.
"Holding Company" means, in relation to a person, any other person in relation to which it is a Subsidiary.
10
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"IFRS" means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant
financial statements.
"Indemnified Person" has the meaning given to it in Clause 14.2 (Other indemnities).
(b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(c) makes a general assignment, arrangement, or composition with or for the benefit of its creditors;
(d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory
jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking
a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors'
rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
(e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of
any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity
not described in paragraph (d) above and:
(f) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or
liquidation; or
(g) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
(h) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or
merger);
(i) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly
disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);
(j) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
(k) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the
events specified in paragraphs (a) to (h) above; or
(l) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
11
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Insurances" means, in relation to a Ship:
(a) all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in
relation to that Ship, the Earnings or otherwise in relation to that Ship whether before, on or after the date of this Agreement; and
(b) all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium
and any rights in relation to any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of
this Agreement.
"Interest Period" means, in relation to the Loan or any part of the Loan, each period determined in accordance with Clause 9 (Interest Periods) and,
in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
"Interpolated Screen Rate" means, in relation to LIBOR for the Loan, any part of the Loan or any Unpaid Sum, the rate (rounded to the same number
of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
(a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan,
that part of the Loan or that Unpaid Sum; and
(b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan,
that part of the Loan or that Unpaid Sum,
each as of the Specified Time on the Quotation Day for the currency of the Loan, that part of the Loan or that Unpaid Sum.
"ISM Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (including the
guidelines on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to
time.
"ISPS Code" means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organizations (IMO)
Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"ISSC" means an International Ship Security Certificate issued under the ISPS Code.
"Lender" means:
(b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 30 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with this Agreement.
"LIBOR" means, in relation to the Loan, any part of the Loan or any Unpaid Sum:
(b) (if no Screen Rate is available for the Interest Period of the Loan, that part of the Loan or that Unpaid Sum), the applicable Interpolated
Screen Rate; or
12
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) if:
(i) no Screen Rate is available for the currency of the Loan, that part of the Loan or that Unpaid Sum); or
(ii) no Screen Rate is available for the Interest Period of the Loan, that part of the Loan or that Unpaid Sum and it is not possible to
calculate an Interpolated Screen Rate for the Loan, that part of the Loan or that Unpaid Sum,
as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for dollars for the Loan, that part of the Loan or that
Unpaid Sum and for a period equal in length to the Interest Period of the Loan, that part of the Loan or that Unpaid Sum and, if any such rate is
below zero, LIBOR shall be deemed to be zero.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
"Loan" means the loan to be made available under the Facility or the aggregate principal amount outstanding for the time being of the borrowings
under the Facility.
"Major Casualty" means, in relation to a Ship, any casualty to that Ship in relation to which the claim or the aggregate of the claims against all
insurers, before adjustment for any relevant franchise or deductible, exceeds $1,000,000 or the equivalent in any other currency.
(a) if the Loan has not yet been advanced, a Lender or Lenders whose Commitments aggregate more than 66 per cent. of the Total
Commitments; or
(b) at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66 per cent. of the amount of the Loan then
outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before
repayment or prepayment in full aggregate more than 66 per cent. of the Loan immediately before such repayment.
"Managers Undertaking" means, in relation to a Ship, the letter of undertaking from its Approved Technical Manager and the letter of undertaking
from its Approved Commercial Manager subordinating the rights of such Approved Technical Manager and such Approved Commercial Manager
respectively against that Ship and the relevant Borrower to the rights of the Finance Parties in agreed form.
"Market Disruption Event" has the meaning given to it in Clause 10.2 (Market disruption).
"Material Adverse Effect" means, in the reasonable opinion of the Majority Lenders, a material adverse effect on:
(a) the business, operations, property, condition (financial or otherwise) or prospects of any member of the Group or the Group as a whole; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) the ability of any Transaction Obligor to perform its obligations under any Finance Document; or
(c) the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the
Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
"Membership Interests Security" means, in relation to a Borrower, a document creating Security in respect of the membership interests in that
Borrower in agreed form.
"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day
in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business
Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"Mortgage" means, in relation to a Ship, a first preferred or priority ship mortgage (as applicable for the Approved Flag of that Ship) and, if as
applicable for the Approved Flag of the Ship, a deed of covenant collateral to the said mortgage in agreed form.
"Non-Consenting Lender" means any Lender which does not and continues not to consent or agree to a request of the Borrowers or the Facility
Agent (at the request of the Borrowers) to give a consent in relation to, or to agree to a waiver or amendment of, any provision of the Finance
Documents when:
(a) the consent, waiver or amendment in question requires the approval of all of the Lenders; and
(b) Lenders whose commitments aggregate more than 66 per cent. of the Total Commitments have consented or agreed to such waiver or
amendment.
"Obligor" means a Borrower, a Hedge Guarantor, the Parent Guarantor or the Corporate Guarantor.
"Operating Costs" means, in relation to a Ship, the costs and expenses in respect of the technical and commercial operation, insurance, repair and
maintenance of that Ship, all payments due under each of the management agreements for that Ship and any other day-to-day running costs in
relation to that Ship (including Voyage Expenses but not including any dry docking or special survey costs).
"Original Financial Statements" means in relation to the Parent Guarantor, the unaudited consolidated financial statements of the Group for its
financial year ended 31 December 2014.
"Overseas Regulations" means the Overseas Companies Regulations 2009 (SI 2009/1801).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Parallel Debt" means any amount which an Obligor owes to the Security Agent under Clause 33.2 (Parallel Debt (Covenant to pay the Security
Agent)).
(b) the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 14 months;
(c) which is entered into on bona fide arms length terms at the time at which that Ship is fixed; and
(d) in relation to which not more than two months hire is payable in advance,
and any other charter which is approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
(c) any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents in a manner and on
terms satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders); and
(d) any Financial Indebtedness reasonably incurred in connection with the normal commercial operation of the Ship.
(b) any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances, any netting or right of pledge under the general base conditions of a Lender and any right of
pledge and set off in connection with permitted cash pool arrangements;
(c) liens for unpaid masters and crews wages in accordance with usual maritime practice;
(e) liens for masters disbursements incurred in the ordinary course of trading, provided such liens do not secure amounts more than 30 days
overdue; and
(f) any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship and not as
a result of any default or omission by any Borrower, provided such liens do not secure amounts more than 30 days overdue (unless the
overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause
26.14 (Restrictions on chartering, appointment of managers etc.).
15
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Pool Agreement" means:
(a) the pool agreement entered or to be entered into in relation to the pool managed by Mansel Ltd. in which Faroe Shipco Ltd, Plymouth
Shipco Ltd and Portland Shipco Ltd are or will be a participant; and
(b) the pool agreement entered or to be entered into in relation to the pool managed by Navig8 Chemicals Pool Inc which Wight Shipco Ltd
and Lundy Shipco Ltd are or will be a participant.
"Potential Event of Default" means any event or circumstance specified in Clause 29 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period
unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant
Interbank Market on more than one day, the Quotation Day will be the last of those days).
"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its
request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in dollars for
the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for
that period.
"Reference Banks" means the principal London offices of Nordea Bank AB, London Branch, Skandinaviska Enskilda Banken AB (PUBL) and such
other banks as may be appointed by the Facility Agent in consultation with the Borrowers.
"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment
adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment
adviser is an Affiliate of the investment manager or investment adviser of the first fund.
(b) any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created,
under the Finance Documents to which it is a party is situated;
(d) the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance
Documents to which it is a party.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Repayment Date" means each date on which a Repayment Instalment is required to be paid under Clause 6.1 (Repayment of Loan).
"Repayment Instalment" has the meaning given to it in Clause 6.1 (Repayment of Loan).
"Repeating Representation" means each of the representations set out in Clause 21 (Representations) except Clause 21.10 (Insolvency) and Clause
21.12 (Deduction of Tax) and any representation of any Transaction Obligor made in any other Finance Document that is expressed to be a
"Repeating Representation" or is otherwise expressed to be repeated.
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
(a) 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 year without any right to an extension) unless it is within 30 days redelivered to the full control of the relevant Borrower; and
(b) any arrest, capture, seizure or detention of that Ship (including any hijacking or theft) unless it is within 30 days redelivered to the full
control of the relevant Borrower.
"Requisition Compensation" includes all compensation or other moneys payable by reason of any Requisition.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
(a) that is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person);
(b) that is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of, a country which is
subject to Sanctions Laws which attach legal effect to being domiciled, registered as located or having its main place of business in such
country; or
(c) that is directly or indirectly owned or controlled by a person referred to in (a) and/or (b) above ; or
(d) with which any Lender is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions Laws.
"Safety Management Certificate" has the meaning given to it in the ISM Code.
"Safety Management System" has the meaning given to it in the ISM Code.
"Sanctions Laws" means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive measures, decisions,
Executive Orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced by any Sanctions Authority.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Sanctions Authority " means the Norwegian State, the United Nations, the European Union, the member states of the European Union and the
United States of America and any authority acting on behalf of any of them in connection with Sanctions Laws.
"Sanctions List" means any list of persons or entities published in connection with Sanctions Laws by or on behalf of any Sanctions Authority.
"Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes
over the administration of that rate) for dollars for the relevant period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any
replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time
to time in place of Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the
relevant rate after consultation with the Borrowers.
"Secured Liabilities" means all present and future obligations and liabilities, (whether actual or contingent and whether owed jointly or severally or
in any other capacity whatsoever) of each Transaction Obligor to any Secured Party under or in connection with each Finance Document.
"Secured Party" means each Finance Party from time to time party to this Agreement and any Receiver or Delegate.
"Security" means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the
effect of conferring security.
"Security Period" means the period starting on the date of this Agreement and ending on the date on which the Facility Agent is satisfied that there
is no outstanding Commitment in force and that the Secured Liabilities have been irrevocably and unconditionally paid and discharged in full.
(a) the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that
Transaction Security;
(b) all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security
Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed
to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
(c) the Security Agents interest in any turnover trust created under the Finance Documents;
(d) any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is
required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
except:
(i) rights intended for the sole benefit of the Security Agent; and
(ii) any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained
in accordance with the provisions of this Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Selection Notice" means a notice substantially in the form set out in Part B of Schedule 3 (Requests) given in accordance with Clause 9 (Interest
Periods).
"Ship A" means the Ship described as such in further details in Schedule 7 (Ships).
"Ship B" means the Ship described as such in further details in Schedule 7 (Ships).
"Ship C" means the Ship described as such in further details in Schedule 7 (Ships).
"Ship D" means the Ship described as such in further details in Schedule 7 (Ships).
"Ship E" means the Ship described as such in further details in Schedule 7 (Ships).
"Ship F" means the Ship described as such in further details in Schedule 7 (Ships).
"Ship G" means the Ship described as such in further details in Schedule 7 (Ships).
"Subsidiary" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Termination Date" means the earlier of (i) the date falling 6 years after the Utilisation Date or (ii) 31 January 2022.
"Third Parties Act" has the meaning given to it in Clause 1.5 (Third party rights).
"Total Commitments" means the aggregate of the Commitments, being a maximum of $150,500,000 at the date of this Agreement.
(a) actual, constructive, compromised, agreed or arranged total loss of that Ship; or
(a) in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
(b) in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) the date on which a notice of abandonment is given to the insurers; and
(ii) the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ships insurers in
which the insurers agree to treat that Ship as a total loss; and
(c) in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event
constituting the total loss occurred.
"Tranche" means Tranche A, Tranche B, Tranche C, Tranche D, Tranche E, Tranche F and Tranche G.
"Tranche A" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship A in
a principal amount not exceeding $22,500,000.
"Tranche B" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship B in
a principal amount not exceeding $22,500,000.
"Tranche C" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship C in
a principal amount not exceeding $22,500,000.
"Tranche D" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship D in
a principal amount not exceeding $22,000,000.
"Tranche E" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship E in
a principal amount not exceeding $22,000,000.
"Tranche F" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship F in a
principal amount not exceeding $19,500,000.
"Tranche G" means that part of the Loan made or to be made available to the Borrowers to refinance the Existing Indebtedness relating to Ship G in
a principal amount not exceeding $19,500,000.
(c) any other document designated as such by the Facility Agent and the Borrower.
"Transaction Obligor" means an Obligor, an Approved Manager which is a member of the Group or any other person, except a Finance Party who
executes a Finance Document.
"Transaction Security" means the Security created or intended to be created in favour of the Security Agent pursuant to the Finance Documents.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed
between the Facility Agent and the Borrowers.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Transfer Date" means, in relation to an assignment or a transfer, the later of:
(a) the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
(b) the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.
(a) a person which is a "United States Person" within the meaning of Section 7701(a)(30) of the Code; or
(b) a person some or all of whose payments under the Finance Documents are from sources within the United States for US federal income tax
purposes.
"Utilisation Date" means the date of the Utilisation, being the date on which all Tranches are to be advanced.
"Utilisation Request" means a notice substantially in the form set out in Part A of Schedule 3 (Requests).
"VAT" means:
(a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive
2006/112); and
(b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such
tax referred to in paragraph (a) above, or imposed elsewhere.
"Voyage Expenses" means, in relation to a Ship, expenses and disbursements incurred by a Borrower or an Approved Manager in respect of that Ship
for port dues, canal dues, pilotage, towage and other charges and/or taxes customarily charged to that Ship under a normal voyage charter together
with the cost of repositioning for the next voyage and the cost of bunker fuel and lubrication oil consumed on such voyage or in repositioning and
including insurance premiums and reimbursement where applicable.
"Write-down and Conversion Powers" means in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to
time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule.
1.2 Construction
(i) the "Account Bank", any "Mandated Lead Arranger", any "Bookrunner", the "Facility Agent", any "Finance Party", any "Hedge
Counterparty", any "Lender", any "Obligor", any "Party", any "Secured Party", the "Security Agent", any "Transaction Obligor" or any
other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or
obligations under the Finance Documents;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) "assets" includes present and future properties, revenues and rights of every description;
(iii) "contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
(v) "expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including
VAT;
(vi) a "Finance Document" or "Transaction Document" or any other agreement or instrument is a reference to that Finance Document or
Transaction Document or other agreement or instrument as amended or novated;
(vii) "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present
or future, actual or contingent;
(viii) "law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or
resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
(ix) "proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application
for a provisional or protective measure;
(x) a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint
venture, consortium or partnership (whether or not having separate legal personality);
(xi) a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or
organisation;
(xiv) any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal
concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that
jurisdiction to the English legal term;
(xv) words denoting the singular number shall include the plural and vice versa; and
(xvi) "including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in
connection with which they are used.
(b) Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the
Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance
Document has the same meaning in that Finance Document or notice as in this Agreement.
(d) A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
In this Agreement:
"approved" means, for the purposes of Clause 25 (Insurance Undertakings), approved in writing by the Facility Agent;
"excess risks" means, in respect of a Ship, the proportion of claims for general average, salvage and salvage charges not recoverable under the hull
and machinery policies in respect of that Ship in consequence of its insured value being less than the value at which that Ship is assessed for the
purpose of such claims;
"obligatory insurances" means all insurances effected, or which any Borrower is obliged to effect, under Clause 25 (Insurance Undertakings) or any
other provision of this Agreement or of another Finance Document;
"policy" includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;
"protection and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution
risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and
machinery policies by reason of the incorporation in them of clause 1 of the Institute Time Clauses (Hulls) (1/10/82) or clause 8 of the Institute Time
Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision; and
"war risks" includes the risk of mines and all risks excluded by clause 23 of the Institute Time Clauses (Hulls)(1/10/83) or clause 24 of the Institute
Time Clauses (Hulls) (1/11/1995).
References in Clause 1.1 (Definitions) to any Finance Document being in "agreed form" are to that Finance Document:
(a) in a form attached to a certificate dated the same date as this Agreement (and signed by each Borrower and the Facility Agent); or
(b) in any other form agreed in writing between each Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where
Clause 45.2 (All Lender matters) applies, all the Lenders.
(a) Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third
Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
(b) Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at
any time.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) Any Receiver, Delegate or any other person described in paragraph (d) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 32.10 (Exclusion
of liability) or Clause 33.15 (No proceedings) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of
this Agreement which expressly confers rights on it.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 2
THE FACILITY
2 THE FACILITY
Subject to the terms of this Agreement, the Lenders shall make available to the Borrowers a dollar term loan facility in seven Tranches in an
aggregate amount not exceeding the Total Commitments.
(a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
(d) Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the
consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
3 PURPOSE
3.1 Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility only for the purpose stated in the preamble (Background) to this
Agreement.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4 CONDITIONS OF UTILISATION
The Borrowers may not deliver the Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in
Part A of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent.
The Lenders will only be obliged to comply with Clause 5.4 (Lenders participation) if on the date of the Utilisation Request and on the proposed
Utilisation Date and before the Loan is made available:
(a) no Default is continuing or would result from the advance of the proposed Loan;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) the Repeating Representations to be made by each Obligor are true;
(c) no event described in paragraph (b) of Clause 7.5 (Mandatory prepayment on sale or Total Loss) has occurred in relation to any Ship;
(d) the provisions of paragraph (c) of Clause 10.3 (Alternative basis of interest or funding, suspension) do not apply; and
(e) the Facility Agent has received, or is satisfied it will receive when the Loan is advanced, all of the documents and other evidence listed in Part B of
Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent.
(a) The Facility Agent shall notify the Borrowers and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent
referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
(b) Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification
described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not
be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
If the Lenders, at their discretion, permit the Loan to be borrowed before any of the conditions precedent referred to in Clause 4.1 (Initial conditions
precedent) or Clause 4.2 (Further conditions precedent) has been satisfied, the Borrowers shall ensure that that condition is satisfied within five
Business Days after the Utilisation Date or such later date as the Facility Agent, acting with the authorisation of the Lenders, may agree in writing
with the Borrowers.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 3
UTILISATION
5 UTILISATION
(a) The Borrowers may utilise the Facility or any part of it by delivery to the Facility Agent of a duly completed Utilisation Request not later than the
Specified Time.
(b) The Borrowers may not deliver more than one Utilisation Request in respect of the Loan. All Tranches shall be disbursed in one advance.
(a) The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the relevant Availability Period;
(ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
(iii) the proposed Interest Period complies with Clause 9 (Interest Periods).
(b) The amount of a proposed Loan must be an amount which is no more than:
(c) The amount of the proposed Loan must be an amount which is not more than the Available Facility.
(d) The amount of the proposed Loan must be an amount which would not oblige the Borrowers to provide additional security or prepay part of the
Loan if the ratio set out in Clause 27 (Security Cover) were applied and notice was given by the Facility Agent under Clause 27.1 (Minimum
required security cover) immediately after the Loan was advanced.
(a) If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Loan available by the Utilisation Date
through its Facility Office.
(b) The amount of each Lenders participation in the Loan will be equal to the proportion borne by its Available Commitment to the Available Facility
immediately before making that Loan.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) The Facility Agent shall notify each Lender of the amount of the Loan and the amount of its participation in the Loan by the Specified Time.
The Commitments in respect of any Tranche which are unutilised following the Utilisation Date shall then be cancelled.
The Facility Agent shall, on the Utilisation Date, pay to, or for the account of, the relevant Borrower which is to utilise the Loan the amounts which
the Facility Agent receives from the Lenders in respect of the Loan. That payment shall be made in like funds as the Facility Agent received from the
Lenders in respect of the Loan to the account of the Existing Facility Agent under the Existing Facility Agreement which the Borrowers specify in
the Utilisation Request.
A payment by the Facility Agent under Clause 5.6 ( Payment to third parties) to a person other than a Borrower shall constitute the making of the
Loan and the Borrowers shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lenders
participation in that the Loan.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 4
6 REPAYMENT
The Borrowers shall repay each Tranche by equal consecutive quarterly instalments, representing a repayment profile whereby each Tranche will be
repaid to zero once the Ship to which such Tranche relates reaches 15 years of age, the first of which shall be repaid on the date falling 4 Months
after the Utilisation Date and the last on the Termination Date, together with a balloon instalment of all outstanding amounts relating to that
Tranche repayable at the same time as the last quarterly instalment,
On the Termination Date, the Borrowers shall additionally pay to the Facility Agent for the account of the Finance Parties all other sums then
accrued and owing under the Finance Documents.
6.3 Reborrowing
7.1 Illegality
(a) If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in the Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:
(i) that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
(ii) upon the Facility Agent notifying the Borrowers, the Commitment of that Lender will be immediately cancelled; and
(iii) the Borrowers shall repay that Lenders participation in the Loan on the last day of the Interest Period for the Loan occurring after the
Facility Agent has notified the Borrowers or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being
no earlier than the last day of any applicable grace period permitted by law).
(b) Any partial prepayment under this Clause 7.1 (Illegality) shall reduce pro rata the amount of each Repayment Instalment falling after that
prepayment by the amount prepaid.
(a) If, without the Lenders prior consent, any person or group of persons acting in concert gains control of the Parent Guarantor:
(i) the Parent Guarantor shall promptly notify the Facility Agent upon becoming aware of that event; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) irrespective of whether a notice has been given pursuant to paragraph (i) above, if the Majority Lenders so require, the Facility Agent shall,
by no less than 60 days notice to the Borrowers, cancel the Facility and declare the Loan, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such
outstanding amounts will become immediately due and payable.
(i) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(A) cast, or control the casting of, more than 25 per cent. of the maximum number of votes that might be cast at a general meeting of
the Parent Guarantor; or
(B) appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent Guarantor; or
(C) give directions with respect to the operating and financial policies of the Parent Guarantor with which the directors or other
equivalent officers of the Parent Guarantor are obliged to comply; and/or
(ii) the holding (beneficially) of more than 25 per cent. of the issued share capital of the Parent Guarantor (excluding any part of that issued
share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); and/or
(c) For the purpose of paragraph (a) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal
or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Parent Guarantor by any of them, either directly or
indirectly, to obtain or consolidate control of the Parent Guarantor.
(a) The Borrowers may, if they give the Facility Agent not less than 15 Business Days (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of $500,000) of the Available Facility. Any cancellation under this Clause 7.3
(Voluntary and automatic cancellation) shall reduce the Commitments of the Lenders and the amount of each Tranche then unutilised rateably.
(b) The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the Loan is made
available.
(a) The Borrowers may, if they give the Facility Agent not less than 15 Business Days (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of
$500,000 or a multiple of that amount).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) The Loan may only be prepaid after the last day of the last Availability Period (or, if earlier, the day on which the Available Facility is zero)
Provided that any amount advanced to the Borrowers prior to the last day of the Availability Period may be prepaid subject to payment by the
Borrowers of any Breakage Costs and the other provisions of this Clause 7.4 (Voluntary prepayment of Loan).
(c) Any partial prepayment under this Clause 7.4 (Voluntary prepayment of Loan) shall be applied as follows:
(i) 50 per cent. of the amount prepaid shall reduce in inverse order of maturity the amount of each Repayment Instalment for the relevant
Tranche falling after that prepayment; and
(ii) 50 per cent. of the amount prepaid may be applied on a pro-rata basis towards satisfaction of the Repayment Instalments set out in Clause
6.1 (Repayment of Loan).
(d) Subject to Lenders consent, such consent not to be unreasonably withheld, the Borrowers may request to apply a voluntary prepayment towards
full or partial repayment of a particular Tranche and, in the case of a full repayment only, a release of the Ship securing that Tranche. Any such
prepayment shall be applied first against the Tranche to which such Ship relates and then pro rata against the Tranches and against each Tranche in
inverse order of maturity. This sub-paragraph (d) is subject to payment by the Borrowers of any Breakage Costs.
(a) If a Ship is sold or becomes a Total Loss, the Borrowers shall on the Relevant Date prepay the Tranche applicable to that Ship.
(b) On the Relevant Date, the Borrowers shall also prepay such part of the Loan as shall eliminate any shortfall arising if the ratio set out in Clause 27
(Security Cover) were applied immediately following the payment referred to in paragraph (a) above.
(c) Provided that no Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship after the prepayments referred to
in paragraph (a) and paragraph (b) above have been made together with all other amounts that are payable on any such prepayment pursuant to the
Finance Documents shall be paid to the Borrower that owned the relevant Ship.
(i) in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and
(A) the date falling 150 days after the Total Loss Date; and
(B) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
(e) Any partial prepayment of the Loan under this Clause 7.5 (Mandatory prepayment on sale or Total Loss) shall reduce in inverse order of maturity
the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
7.6 Mandatory prepayment of Hedging Payment Proceeds
Any Hedging Prepayment Proceeds arising as a result of any cancellation or prepayment under this Agreement shall, following payment into the
Earnings Account in accordance with Clause 28.1 (Payment of Earnings), be applied on the last day of the Interest Period which ends on or after
such payment in, in prepayment of the Loan and shall reduce pro rata the amount of each Repayment Instalment falling after that prepayment by the
amount prepaid.
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up); or
(ii) any Lender claims indemnification from a Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs) ; or
(iii) the Facility Agent receives notification from an Affected Lender under paragraph (b)(iii) of Clause 10.2 (Market disruption),
(A) whilst in the case of paragraph (i) and (ii) above the circumstance giving rise to the requirement for that increase or
indemnification continues ; or
(B) whilst in the case of paragraph (iii) above the Market Disruption Event in relation to the Affected Lender continues,
give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lenders
participation in the Loan or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (e) below.
(b) On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Borrowers have given notice of cancellation under paragraph (a) above in relation to a
Lender (or, if earlier, the date specified the Borrowers in that notice), the Borrowers shall repay that Lenders participation in the Loan.
(d) Any partial prepayment under this Clause 7.7 (Right of replacement or repayment and cancellation in relation to a single Lender) shall reduce pro
rata the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
(e) The Borrowers may, in the circumstances set out in paragraph (a) above, on 10 Business Days prior notice to the Facility Agent and that Lender,
replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 30 (Changes to the
Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other
entity selected by the Borrowers which confirms its willingness to assume and does assume all the obligations of the transferring Lender in
accordance with Clause 30 (Changes to the Lenders) for a purchase price in cash or other cash payment payable at the time of the transfer equal to
the outstanding principal amount of such Lenders participation in the Loan and all accrued interest (to the extent that the Facility Agent has not
given a notification under Clause 30.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance
Documents.
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(f) The replacement of a Lender pursuant to paragraph (e) above shall be subject to the following conditions:
(ii) neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender;
(iii) in no event shall the Lender replaced under paragraph (e) above be required to pay or surrender any of the fees received by such Lender
pursuant to the Finance Documents;
(iv) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (e) above once it is satisfied that it has
complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that
transfer; and
(v) the Facility Agent is satisfied that the replacement lender has complied with all necessary "know your customer" or other similar checks
under all applicable laws and regulations in relation to that transfer.
(g) A Lender shall perform the checks described in paragraph (f)(iv) above as soon as reasonably practicable following delivery of a notice referred to in
paragraph (e) above and shall notify the Facility Agent and the Borrowers when it is satisfied that it has complied with those checks.
7.8 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this Clause 7 (payment and Cancellation) shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and
the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and amounts (if any) payable under the
Hedging Agreements in connection with that prepayment and, subject to any Break Costs, without premium or penalty.
(c) No Borrower may reborrow any part of the Facility which is prepaid.
(d) No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
(f) If the Facility Agent receives a notice under this Clause 7 (payment and Cancellation) it shall promptly forward a copy of that notice to either the
Borrowers or the affected Lenders and/or Hedge Counterparties, as appropriate.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 5
COSTS OF UTILISATION
8 INTEREST
The rate of interest on the Loan or any part of the Loan for each Interest Period is the percentage rate per annum which is the aggregate of:
(b) LIBOR.
(a) The Borrowers shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period.
(b) If an Interest Period is longer than three Months, the Borrowers shall also pay interest then accrued on the Loan or the relevant part of the Loan on
the dates falling at three Monthly intervals after the first day of the Interest Period.
(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due
date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is two per cent. higher than the
rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of a Loan in the currency of the
Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent. Any interest accruing under this Clause 8.3 ( Default
interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
(b) If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan:
(i) the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the
Loan; and
(ii) the rate of interest applying to that Unpaid Sum during that first Interest Period shall be two per cent. higher than the rate which would have
applied if that Unpaid Sum had not become due.
(c) Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that
Unpaid Sum but will remain immediately due and payable.
The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
8.5 Hedging
(a) The Borrowers may enter into Hedging Agreements and shall after that date maintain such Hedging Agreements in accordance with this Clause 8.5
(Hedging).
(i) be with a Hedge Counterparty and each Hedge Counterparty shall also be a Lender;
(iii) have settlement dates coinciding with the Interest Payment Dates;
(v) provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination
Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and
(vi) provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
(c) The rights of each Borrower under the Hedging Agreements shall be assigned by way of security under a Hedging Agreement Assignment.
(d) The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
(e) Neither a Hedge Counterparty nor a Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of
the Facility Agent.
(f) Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to
a conflict with any provision of this Agreement.
(g) If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any
repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrowers must promptly notify the Facility
Agent and must reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Hedge Counterparties
so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding.
(h) Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above
will be apportioned as between those transactions pro rata.
(i) Subject to paragraph (l) below, neither a Hedge Counterparty nor a Borrower may terminate or close out any transactions in respect of any Hedging
Agreement (in whole or in part) except:
(ii) on the occurrence of an Illegality, (as such expression is defined in the relevant Hedging Agreement);
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent makes a demand for repayment of the Loan but
irrespective as to whether such payment is made pursuant to that demand;
(iv) in the case of any other termination or closing out by a Hedge Counterparty or a Borrower, with the consent of the Facility Agent; or
(v) If the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged
in full;
(j) If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under paragraph (i)(iii) above,
such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent.
(k) A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if a Borrower is in breach of its
payment obligations under any transaction in respect of that Hedging Agreement.
(l) Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by each Borrower pursuant to the relevant
Hedging Agreement Assignment of its rights under the Hedging Agreements to which it is party in favour of the Security Agent.
(m) Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect
of any amounts owing under any Hedging Agreement.
(n) The Security Agent shall not be liable for the performance of any of a Borrower's obligations under a Hedging Agreement.
9 INTEREST PERIODS
(a) The Borrowers may select the Interest Period for the Loan in the Utilisation Request. Subject to paragraph (f) below, the Borrowers may select each
subsequent Interest Period in respect of the Loan in a Selection Notice.
(b) Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrowers not later than the Specified Time.
(c) If the Borrowers fail to select an Interest Period in the Utilisation Request or fail to deliver a Selection Notice to the Facility Agent in accordance
with paragraphs (a) and (b) above, the relevant Interest Period will, subject to Clause 9.2 (Changes to Interest Periods) below, be three Months.
(d) Subject to this Clause 9 (Interest Periods), the Borrowers may select an Interest Period of 1, 3, 6 or 12 Months or any other period agreed between the
Borrowers and the Facility Agent (acting on the instructions of all the Lenders) subject to a maximum of three 1 month Interest Periods in any
calendar year for the Loan.
(e) An Interest Period in respect of the Loan shall not extend beyond the Termination Date.
(f) In respect of a Repayment Instalment, an Interest Period for a part of the Loan equal to such Repayment Instalment shall end on the Repayment Date
relating to it if such date is before the end of the Interest Period then current.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(g) The first Interest Period for the Loan shall start on the Utilisation Date and each subsequent Interest Period shall start on the last day of the preceding
Interest Period.
(h) Except for the purposes of paragraph (f) above, the Loan shall have one Interest Period only at any time.
(a) The Borrowers may, at their option, but subject to the consent of the Facility Agent, acting with the approval of the Majority Lenders, such approval
not to be unreasonably withheld, synchronise the Interest Periods of the Tranches by matching the Interest Periods of any Tranche utilised under this
Agreement to the Interest Period s of another Tranche.
(b) The Majority Lenders may, at their option, but subject to the consent of the Borrowers, such approval not to be unreasonably withheld, synchronise
the Interest Periods of the Tranches by matching the Interest Periods of any Tranche utilised under this Agreement to the Interest Period s of another
Tranche.
(c) If the Facility Agent makes any change to an Interest Period referred to in this Clause 9.2 (Changes to Interest Periods), it shall promptly notify the
Borrowers and the Lenders.
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that
calendar month (if there is one) or the preceding Business Day (if there is not).
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply
a quotation by the Specified Time on the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.
(a) If a Market Disruption Event occurs in relation to the Loan for any Interest Period, then the rate of interest on each Lenders share of the Loan for the
Interest Period shall be the rate per annum which is the sum of:
(ii) the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of
that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the
Loan from whatever source it may reasonably select.
(i) at or about noon on the Quotation Day for the relevant Interest Period, LIBOR is to be determined by reference to the Reference Banks and
none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest
Period; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a
Lender or Lenders (whose participations in the Loan exceed 30 per cent. of the Loan) that the cost to it or them of obtaining matching
deposits in the Relevant Interbank Market would be in excess of LIBOR; or
(iii) at least one Business Day before the start of an Interest Period, the Facility Agent receives notification from a Lender (the "Affected
Lender") that for any reason it is unable to obtain dollars in the Relevant Interbank Market in order to fund its participation in the Loan or
any part of the Loan.
(a) If a Market Disruption Event occurs and the Facility Agent or the Borrowers so require, the Facility Agent and the Borrowers shall enter into
negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may
be) an alternative basis for funding.
(b) Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Borrowers, be
binding on all Parties.
(i) in circumstances falling within paragraph (b)(i) of Clause 10.2 (Market disruption) or paragraph(b)(ii) of Clause 10.2 (Market disruption),
the Lenders obligation to advance the Loan; or
(ii) in circumstances falling within paragraph (b)(iii) of Clause 10.2 (Market disruption), the Affected Lenders obligation to participate in the
Loan,
shall be suspended while the circumstances giving rise to the Market Disruption Event continue.
(a) The Borrowers shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any
part of the Loan or Unpaid Sum being paid by a Borrower on a day other than the last day of an Interest Period for the Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they accrue.
11 FEES
The Borrowers shall pay to the Facility Agent for distribution to the Mandated Lead Arrangers and the Bookrunners an arrangement fee in the
amount and at the times agreed in Fee Letter.
The Borrowers shall pay to the Facility Agent for its account an agency fee in the amount and at the times agreed in a Fee Letter.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 6
12.1 Definitions
"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in
relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA
Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under
Clause 12.3 (Tax indemnity).
(b) Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the determination.
(c) This Clause 12 (Tax Gross Up and Indemnities) shall not apply to any Hedging Agreement.
(a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Borrowers shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis
of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a
payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrowers and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that
Tax Deduction within the time allowed and in the minimum amount required by law.
(e) Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax
Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party
that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
12.3 Tax indemnity
(a) The Borrowers shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.
(A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in
which that Finance Party is treated as resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance Partys Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2 (Tax gross-up ), Clause 12.8 (FATCA
Deduction and gross-up by Borrower).
(c) A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will
give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrowers.
(d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in
consequence of which that Tax Payment was received; and
(b) that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to be made by the Obligor.
The Borrowers shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability which that
Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
12.6 VAT
(a) All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the
consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject
to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such
Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the
same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly
provide an appropriate VAT invoice to that Party).
(b) If VAT is or becomes chargeable on any supply made by any Finance Party (the " Supplier") to any other Finance Party (the "Recipient") under a
Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an
amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of
that consideration):
(i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the
Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this
paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the
relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
(ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly,
following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent
that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or
indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part of it as represents VAT, save to
the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax
authority.
(d) Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include
(where appropriate and unless the context otherwise requires) a reference to any member of such group at such time.
(e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party
must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in
connection with such Finance Party's VAT reporting requirements in relation to such supply.
(a) Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
(ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party
reasonably requests for the purposes of that other Party's compliance with FATCA;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for
the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is
not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything,
which would or might in its reasonable opinion constitute a breach of:
(d) (d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in
accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be
treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in
question provides the requested confirmation, forms, documentation or other information.
(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA
Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate
the recipient of the payment for that FATCA Deduction.
(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such
FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrowers and the Facility Agent and the
Facility Agent shall notify the other Finance Parties.
13 INCREASED COSTS
(a) Subject to Clause 13.3 (Exceptions), the Borrowers shall, within three Business Days of a demand by the Facility Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:
(i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
(ii) compliance with any law or regulation made, including any costs attributable to the implementation, application of, or compliance with,
Basel III,
(i) a reduction in the rate of return from the Facility or on a Finance Partys (or its Affiliates) overall capital;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.
(a) A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the
claim, following which the Facility Agent shall promptly notify the Borrowers.
(b) Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased
Costs.
13.3 Exceptions
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:
(c) compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
(d) compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);
(e) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
14 OTHER INDEMNITIES
(a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose
of:
(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Obligor shall, as an independent obligation, on demand, indemnify each Secured Party to which that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
(c) This Clause 14.1 (Currency indemnity) does not apply to any sum due to a Hedge Counterparty in its capacity as such.
(a) Each Obligor shall, on demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
(ii) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or
liability arising as a result of Clause 35 (Contractual recognition of bail-in);
(iii) funding, or making arrangements to fund, its participation in the Loan requested by the Borrowers in the Utilisation Request but not made
by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that
Finance Party alone); or
(iv) the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers.
(b) Each Obligor shall, on demand, indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its
Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability
incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry,
in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security
constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, any Ship unless
such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
(c) Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or
liability incurred by each Indemnified Person in any jurisdiction:
(i) arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions
Laws; or
(d) Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 ( Other indemnities) subject to
Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
Each Borrower shall, on demand by the Facility Agent, pay to the Facility Agent for the account of the relevant Lender, such amount which any
Lender certifies in a notice to the Facility Agent to be its good faith determination of the amount necessary to compensate it for complying with:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements
having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in
respect of loans made from that Facility Office; and
(b) in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other
requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to
the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or
any of their functions),
Each Obligor shall, on demand, indemnify each Servicing Party against any reasonable cost, loss or liability incurred by that Servicing Party (acting
reasonably) as a result of:
(b) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; and
(c) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
Each Obligor shall, on demand, indemnify the Facility Agent against any reasonable cost, loss or liability incurred by the Facility Agent (otherwise
than by reason of the Facility Agent's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 37.11
(Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever
but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
(a) Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of
them:
(A) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately
authorised;
(B) the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
(C) the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and
Delegate by the Finance Documents or by law;
(D) any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance
Documents;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(E) any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
(F) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance
Documents;
(ii) acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or
the performance of the terms of this Agreement or the other Finance Documents (otherwise, in each case, than by reason of the relevant
Security Agents, Receivers or Delegates gross negligence or wilful misconduct); and
(iii) any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses
(including reasonable counsel fees and disbursements) incurred by the Facility Agent or any Lender as a result of conduct of any Obligor or
any of their partners, directors, officers, employees, agents or advisors, that violates any Sanctions Laws.
(b) The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged
Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.6 (Indemnity to the Security Agent) and
shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
15.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and
Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3 (Mandatory Cost) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
(a) Each Borrower shall, on demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 15.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
The Borrowers shall, on demand, pay the Facility Agent, the Security Agent and each Mandated Lead Arranger the amount of all reasonable costs
and expenses (including legal fees) reasonably incurred by any Secured Party in connection with the negotiation, preparation, printing, execution,
syndication and perfection of:
(a) this Agreement and any other documents referred to in this Agreement;
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(b) the Transaction Security; and
(c) any other Finance Documents executed after the date of this Agreement.
If:
(c) an Obligor requests, and the Security Agent agrees to, the release of all or any part of the Charged Property from the Transaction Security,
the Borrowers shall, on demand, reimburse each of the Facility Agent and the Security Agent for the amount of all reasonable costs and expenses
(including legal fees) reasonably incurred by each Secured Party in responding to, evaluating, negotiating or complying with that request or
requirement.
The Borrowers shall, on demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured
Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any
proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing those rights.
47
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 7
(a) guarantees to each Finance Party punctual performance by each Obligor other than the Guarantors of all such other Obligors obligations under the
Finance Documents;
(b) undertakes with each Finance Party that whenever an Obligor other than the Guarantors do not pay any amount when due under or in connection
with any Finance Document, the Guarantors shall immediately on demand pay that amount as if it were the principal obligor; and
(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and
primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor other
than the Guarantors not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any
Finance Document on the date when it would have been due. The amount payable by the Guarantors under this indemnity will not exceed the
amount it would have had to pay under this Clause 17 (Guarantee and Indemnity Guarantors) if the amount claimed had been recoverable on the
basis of a guarantee.
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is
made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in
insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantors under this Clause 17 (Guarantee and
Indemnity Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of the Guarantors under this Clause 17 (Guarantee and Indemnity Guarantors) and in respect of any Transaction Security will not
be affected or discharged by an act, omission, matter or thing which, but for this Clause 17.4 (Waiver of defences), would reduce, release or prejudice
any of its obligations under this Clause 17 (Guarantee and Indemnity Guarantors) or in respect of any Transaction Security (without limitation
and whether or not known to it or any Secured Party) including:
(a) any time, waiver or consent granted to, or composition with, any Obligor or other person;
(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
48
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take
up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(e) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any
Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase
in any facility or the addition of any new facility under any Finance Document or other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
The Guarantors waive any right they may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any
Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 17 (Guarantee and
Indemnity Guarantors). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
17.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid
in full, each Secured Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf)
in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and
the Guarantors shall not be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from the Guarantors or on account of any Guarantors liability under this Clause
17 (Guarantee and Indemnity Guarantors).
All rights which the Guarantors at any time have (whether in respect of this guarantee, a mortgage or any other transaction) against any Borrower,
any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the
end of the Security Period and unless the Facility Agent otherwise directs, the Guarantors will not exercise any rights which they may have (whether
in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by the Guarantors of their obligations
under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17 (Guarantee and Indemnity
Guarantors):
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any third party providing security for, or any other guarantor of, any Obligors obligations under the Finance
Documents;
(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
(d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the
Guarantors have given a guarantee, undertaking or indemnity under Clause 17 (Guarantee and Indemnity Guarantors);
(f) to claim or prove as a creditor of any Obligor in competition with any Secured Party.
If the Guarantors receive any benefit, payment or distribution in relation to such rights they shall hold that benefit, payment or distribution to the
extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the
Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the
Facility Agent may direct for application in accordance with Clause 37 (Payment Mechanics).
This guarantee and any other Security given by the Guarantors is in addition to and is not in any way prejudiced by, and shall not prejudice, any
other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to
combine accounts in connection with the Finance Documents.
Clauses 17.2 (Continuing guarantee), 17.3 (Reinstatement), 17.4 (Waiver of defences), 17.5 (Immediate recourse), 17.6 (Appropriations), 17.7
(Deferral of Guarantors' rights) and 17.8 (Additional security) shall apply, with any necessary modifications, to any Security which the Guarantors
create (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
All liabilities and obligations of the Guarantors under this Agreement shall, whether expressed to be so or not, be joint and several.
(a) this Agreement being or later becoming void, unenforceable or illegal as regards the other Guarantor;
(b) any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with the other Guarantor;
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) any Lender or the Security Agent releasing the other Guarantor or any Security created by a Finance Document; or
(d) any time, waiver or consent granted to, or composition with the other Guarantor or other person;
(e) the release of the other Guarantor or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
(f) 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, the other Guarantor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
(g) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the other Guarantor or any
other person;
(h) any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance
Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any
facility or the addition of any new facility under any Finance Document or other document or security;
(i) any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
Each Guarantor declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement
and the Finance Documents and no Guarantor shall, in any circumstances, be construed to be a surety for the obligations of the other Guarantor
under this Agreement.
(a) Subject to paragraph (b) below, during the Security Period no Guarantor shall:
(i) claim any amount which may be due to it from the other Guarantor whether in respect of a payment made under, or matter arising out of, this
Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
(ii) take or enforce any form of security from the other Guarantor for such an amount, or in any the way seek to have recourse in respect of such
an amount against any asset of the other Guarantor; or
(iii) set off such an amount against any sum due from it to the other Guarantor; or
(iv) prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Guarantor; or
(b) If during the Security Period, the Facility Agent, by notice to a Guarantor, requires it to take any action referred to in paragraph (a) above in relation
to the other Guarantor, that Guarantor shall take that action as soon as practicable after receiving the Facility Agents notice.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
18.5 Deferral of Guarantors rights
Until all amounts which may be or become payable by the Guarantors under or in connection with the Finance Documents have been irrevocably
paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it
of its obligations under the Finance Documents:
(b) to claim any contribution from the other Guarantor in relation to any payment made by it under the Finance Documents.
All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be joint and several.
(a) this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
(b) any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
(c) any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document; or
(d) any time, waiver or consent granted to, or composition with any other Borrower or other person;
(e) the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
(f) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any other Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
(g) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any
other person;
(h) any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance
Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any
facility or the addition of any new facility under any Finance Document or other document or security;
(i) any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
52
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(j) any insolvency or similar proceedings.
Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and
the Finance Documents and no Borrower shall, in any circumstances, be construed to be a surety for the obligations of any other Borrower under this
Agreement.
(a) Subject to paragraph (b) below, during the Security Period no Borrower shall:
(i) claim any amount which may be due to it from any other Borrower whether in respect of a payment made under, or matter arising out of, this
Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
(ii) take or enforce any form of security from any other Borrower for such an amount, or in any the way seek to have recourse in respect of such
an amount against any asset of any other Borrower; or
(iii) set off such an amount against any sum due from it to any other Borrower; or
(iv) prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or
(b) If during the Security Period, the Facility Agent, by notice to a Borrower, requires it to take any action referred to in paragraph (a) above in relation
to any other Borrower, that Borrower shall take that action as soon as practicable after receiving the Facility Agents notice.
Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably
paid in full and unless the Facility Agent otherwise directs, no Borrower will exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(b) to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents.
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Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 8
(a) guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Hedging Agreements;
(b) undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Hedging
Agreement, that Hedge Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and
(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and
primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not
paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on
the date when it would have been due. The amount payable by a Hedge Guarantor under this indemnity will not exceed the amount it would have
had to pay under this Clause 20 (Guarantee and Indemnity Hedge Guarantors) if the amount claimed had been recoverable on the basis of a
guarantee.
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Borrower under the Hedging Agreements,
regardless of any intermediate payment or discharge in whole or in part.
20.3 Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Borrower or any security for those obligations or otherwise) is
made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in
insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Hedge Guarantor under this Clause 20 (Guarantee
and Indemnity Hedge Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of each Hedge Guarantor under this Clause 20 (Guarantee and Indemnity Hedge Guarantors) (and in respect of any Transaction
Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 20.4 (Waiver of defences), would reduce,
release or prejudice any of its obligations under this Clause 20 (Guarantee and Indemnity Hedge Guarantors)) or in respect of any Transaction
Security (without limitation and whether or not known to it or any Secured Party) including:
(a) any time, waiver or consent granted to, or composition with, any Obligor or other person;
(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the
Group;
54
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take
up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(e) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any
Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase
in any facility or the addition of any new facility under any Finance Document or other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
Each Hedge Guarantor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any
Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 20 (Guarantee and
Indemnity Hedge Guarantors).
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
20.6 Appropriations
Until all amounts which may be or become payable by the Borrowers under or in connection with the Hedging Agreements have been irrevocably
paid in full, each Secured Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf)
in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and
no Hedge Guarantor shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from any Hedge Guarantor or on account of any Hedge Guarantor's liability under
this Clause 20 (Guarantee and Indemnity Hedge Guarantors).
All rights which each Hedge Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against any
Borrower, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents
and until the end of the Security Period and unless the Facility Agent otherwise directs, no Hedge Guarantor will exercise any rights which it may
have (whether in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by it of its obligations
under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 20 (Guarantee and Indemnity
Hedge Guarantors):
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance
Documents;
(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
(d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any
Hedge Guarantor has given a guarantee, undertaking or indemnity under Clause 19 (Joint and Several Liability of the Borrowers);
(f) to claim or prove as a creditor of any Obligor in competition with any Secured Party.
If a Hedge Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the
extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the
Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the
Facility Agent may direct for application in accordance with Clause 37 (Payment Mechanics).
This guarantee and any other Security given by a Hedge Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice, any
other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to
combine accounts in connection with the Finance Documents.
Clauses 20.2 (Continuing guarantee), 20.3 (Reinstatement), 20.4 (Waiver of defences), 20.5 (Immediate recourse), 20.6 (Appropriations), 20.7
(Deferral of Hedge Guarantors rights) and 20.8 (Additional security) shall apply, with any necessary modifications, to any Security which a Hedge
Guarantor creates (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
56
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 9
21 REPRESENTATIONS
21.1 General
Each Obligor makes the representations and warranties set out in this Clause 21 (Representations) to each Finance Party on the date of this
Agreement.
21.2 Status
(a) In the case of each Borrower and the Corporate Guarantor, it is a limited liability company, duly formed and validly existing in good standing under
the law of its jurisdiction of incorporation and in the case of the Parent Guarantor it is a corporation, duly incorporated and validly existing in good
standing under the law of its jurisdiction of incorporation.
(b) It has the power to own its assets and carry on its business as it is being conducted.
(a) The aggregate membership interests expressed in terms of shares authorised to be issued by each Borrower is:
(i) in the case of each of Faroe Shipco LLC, Portland Shipco LLC and Plymouth Shipco LLC, one hundred LLC shares;
(iv) in the case of each of Humber Shipco LLC and Fisher Shipco LLC, 2,963,289 LLC shares,
(b) The legal title to and beneficial interest in the membership interests in each Borrower is held free of any Security or any other claim by the Corporate
Guarantor.
(c) None of the membership interests in any Borrower is subject to any option to purchase, pre-emption rights or similar rights.
(d) The legal title to and beneficial interest in the membership interests in the Corporate Guarantor is held free of any Security or any other claim by the
Parent Guarantor.
The obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable
obligations.
(a) Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration
create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended
to be created, be valid and effective.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted
by it.
(c) The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first
ranking priority or such other priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking
security.
(d) No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.
The entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and will not
conflict with:
(c) any agreement or instrument binding upon it or any member of the Group or any member of the Groups assets or constitute a default or termination
event (however described) under any such agreement or instrument.
(a) It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
(i) its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated
by those Transaction Documents; and
(ii) in the case of each Borrower, its registration of the Ship owned by it under its Approved Flag.
(b) No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the
Transaction Documents to which it is a party.
(a) to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
(b) to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
have been obtained or effected and are in full force and effect.
(a) The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction
Document will be recognised and enforced in its Relevant Jurisdictions.
21.10 Insolvency
No:
(a) corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 29.8 (Insolvency proceedings); or
has been taken or, to its knowledge, threatened in relation to a member of the Group; and none of the circumstances described in Clause 29.7
(Insolvency) applies to a member of the Group.
Under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with
any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the Finance
Documents to which it is a party or the transactions contemplated by those Finance Documents except any filing, recording or enrolling or any tax
or fee payable which is referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) and which will be made or paid
promptly after the date of the relevant Finance Document.
It is not required to make any deduction for or on account of a Tax Deduction from any payment it may make under any Finance Document to which
it is a party.
21.13 No default
(a) No Event of Default and, on the date of this Agreement and on the Utilisation Date, no Default is continuing or might reasonably be expected to
result from the making of the Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
(b) No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or
instrument which is binding on it or to which its assets are subject which might have a Material Adverse Effect.
(a) Any factual information provided by any member of the Group for the purposes of this Agreement was true and accurate in all material respects as at
the date it was provided or as at the date (if any) at which it is stated.
(b) The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of
reasonable assumptions.
(c) Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information
provided being untrue or misleading in any material respect.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.15 Financial Statements
(a) Its Original Financial Statements were prepared in accordance with GAAP consistently applied.
(b) Its Original Financial Statements give a true and fair view of its financial condition and operations (consolidated in the case of the Parent Guarantor)
during the relevant financial year.
(c) There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of
the Group, in the case of the Parent Guarantor) since 31 December 2014.
(d) Its most recent financial statements delivered pursuant to Clause 22.2 (Financial statements):
(i) have been prepared in accordance with Clause 22.4 (Requirements as to financial statements); and
(ii) give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition and operations (consolidated in the case of
the Guarantor) during the relevant financial year.
(e) Since the date of the most recent financial statements delivered pursuant to Clause 22.2 (Financial statements) there has been no material adverse
change in its business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the Guarantor).
Its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual
breach of the ISM Code or of the ISPS Code) of or before any court, arbitral body or agency have (to the best of its knowledge and belief (having
made due and careful enquiry)) been started or threatened against it.
(a) Each Pool Agreement constitutes legal, valid, binding and enforceable obligations of the parties to it.
(b) The copies of the Pool Agreements delivered to the Facility Agent before the date of this Agreement are true and complete copies.
(c) No material amendments or additions to either Pool Agreement have been agreed nor have any rights under eitherPool Agreement been waived.
21.19 Valuations
(a) All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation delivered to the Facility Agent in accordance
with this Agreement was true and accurate as at the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such
Approved Valuer.
(c) There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such
information was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect.
It has not breached any law or regulation which breach has had or could reasonably be expected to have a Material Adverse Effect.
21.21 No Charter
All Environmental laws relating to the ownership, operation and management of each Ship and the business of each member of the Group (as now
conducted and as reasonably anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied with.
No Environmental Claim has been made or threatened against any member of the Group or any Ship.
No Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
All requirements of the ISM Code and the ISPS Code as they relate to each Borrower each Approved Manager and each Ship have been complied
with.
(a) It is not and no other member of the Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Group is)
overdue in the payment of any amount in respect of Tax.
(b) No claims or investigations are being, or could reasonably be expected to be, made or conducted against it (or any other member of the Group) with
respect to Taxes.
No Borrower has any Financial Indebtedness outstanding other than as permitted by this Agreement.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.28 Overseas companies
No Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment to the
Registrar of Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Facility Agent sufficient details
to enable an accurate search against it to be undertaken by the Lenders at the Companies Registry.
It has good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its
business as presently conducted.
21.30 Ownership
(a) On the Utilisation Date, Faroe Shipco LLC will be the sole legal and beneficial owner of Ship A, its Earnings and its Insurances.
(b) On the Utilisation Date, Plymouth Shipco LLC will be the sole legal and beneficial owner of Ship B, its Earnings and its Insurances.
(c) On the Utilisation Date, Portland Shipco LLC will be the sole legal and beneficial owner of Ship C, its Earnings and its Insurances.
(d) On the Utilisation Date, Wight Shipco LLC will be the sole legal and beneficial owner of Ship D, its Earnings and its Insurances.
(e) On the Utilisation Date, Lundy Shipco LLC will be the sole legal and beneficial owner of Ship E, its Earnings and its Insurances.
(f) On the Utilisation Date, Fisher Shipco LLC will be the sole legal and beneficial owner of Ship F, its Earnings and its Insurances.
(g) On the Utilisation Date of, Humber Shipco LLC will be the sole legal and beneficial owner of Ship G, its Earnings and its Insurances.
(h) With effect on and from the date of its creation or intended creation, each Borrower will be the sole legal and beneficial owner of any other asset that
is the subject of any Transaction Security created or intended to be created by that Borrower.
For the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the "Regulation"), its centre of main
interest (as that term is used in Article 3(1) of the Regulation) is situated in Bermuda and it has no "establishment" (as that term is used in Article 2(h)
of the Regulation) in any other jurisdiction save as disclosed to, and agreed by, the Lenders.
No Obligor has a place of business in any countries other than as delivered to the Facility Agent in writing, and agreed to by the Lenders, on or
around the date of this Agreement.
No Obligor has any employees (other than as disclosed to the Lenders) or any liabilities under any pension scheme.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
21.34 Sanctions
(a) Each Obligor, each of their respective subsidiaries, their joint ventures, and their respective directors, officers, employees, and to the best of the
Obligors knowledge, their respective agents or representatives has been and is in compliance with Sanctions Laws.
(b) No Obligor, nor any of their respective subsidiaries nor any other member of the Group, their joint ventures, and their respective directors, officers,
employees, and to the best of the Obligors' knowledge, none of their respective agents or representatives:
(i) is a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party; or
(ii) is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions Laws.
21.36 Repetition
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of the
Utilisation Request and the first day of each Interest Period.
22 INFORMATION UNDERTAKINGS
22.1 General
The undertakings in this Clause 22 (Information Undertakings) remain in force throughout the Security Period unless the Facility Agent, acting with
the authorisation of the Majority Lenders (or, where specified, all the Lenders), may otherwise permit.
The Obligors shall ensure that there are provided to the Facility Agent in sufficient copies for all the Lenders:
(a) as soon as they become available, but in any event within 120 days after the end of each of its respective financial years the audited consolidated
financial statements of the Parent Guarantor for that financial year.
(b) as soon as the same become available, but in any event within 60 days after the end of each quarter of each of their respective financial years the
consolidated financial statement of the Parent Guarantor for that financial quarter year.
(a) The Parent Guarantor shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a) or (b) of Clause
22.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 23 (Financial
Covenants) as at the date as at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by both one director and one senior officer of the Parent Guarantor.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
22.4 Requirements as to financial statements
(a) Each set of financial statements delivered by a Borrower pursuant to Clause 22.2 (Financial statements) shall be certified by a director or officer of
the relevant company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at the
date as at which those financial statements were drawn up.
(b) The Borrowers shall procure that each set of financial statements delivered pursuant to Clause 22.2 (Financial statements) is prepared using GAAP.
(c) The Borrowers shall procure that each set of financial statements of an Obligor delivered pursuant to Clause 22.2 (Financial statements) is prepared
using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial
Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in GAAP,
the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Facility Agent:
(i) a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon
which that Obligor's Original Financial Statements were prepared; and
(ii) sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine
whether Clause 23 (Financial Covenants) has been complied with and make an accurate comparison between the financial position
indicated in those financial statements and that Obligor's Original Financial Statements.
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the
basis upon which the Original Financial Statements were prepared.
Each Obligor shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):
(a) all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (including proceedings relating to
any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Group, and
which might have a Material Adverse Effect;
(iii) compliance of the Transaction Obligors with the terms of the Finance Documents; and
(iv) the financial condition, business and operations of any member of the Group,
as any Finance Party (through the Facility Agent) may reasonably request.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
22.6 Notification of default
(a) Each Obligor shall, and shall procure that each other Transaction Obligor shall, notify the Facility Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by
another Obligor).
(b) Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to
remedy it).
(a) Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders
(the "Website Lenders") which accept this method of communication by posting this information onto an electronic website designated by the
Borrowers and the Facility Agent (the "Designated Website") if:
(i) the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by
this method;
(ii) both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated
Website; and
(iii) the information is in a format previously agreed between the relevant Obligor and the Facility Agent.
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Facility Agent shall notify the Obligors
accordingly and each Obligor shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In
any event each Obligor shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
(b) The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website
following designation of that website by the Obligors or any of them and the Facility Agent.
(c) An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
(iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;
(iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
(v) if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected
by any electronic virus or similar software.
If an Obligor notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Obligors under this
Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that
the circumstances giving rise to the notification are no longer continuing.
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Obligors shall comply with any such request within 10 Business Days.
(a) If:
(i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of
this Agreement;
(ii) any change in the status of an Obligor after the date of this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior
to such assignment or transfer,
obliges a Finance Party (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the
request of any Finance Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by a Servicing
Party (for itself or on behalf of any other Finance Party) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for such Finance Party or, in the case of the event described in paragraph (iii) above, any prospective
new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws
and regulations pursuant to the transactions contemplated in the Finance Documents.
(b) Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Servicing Party (for itself) in order for that Servicing Party to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the
Finance Documents.
23 FINANCIAL COVENANTS
The Parent Guarantor shall at all times during the Security Period (save that in the case of paragraph (b) this shall apply from the Utilisation Date
throughout the remainder of the Security Period) on a consolidated basis maintain:
(b) minimum Cash and Cash Equivalents of an amount the greater of:
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) a ratio of EBITDA plus one third of cash in excess of minimum Cash and Cash Equivalents to Total Interest Expenses, computed on a trailing 4
quarter basis shall at all times exceed 2.25:1.0.
The financial covenants contained in this Clause 23.1 (Financial covenants) shall be tested semi-annually on the basis of the annual and semi-
annual financial statements provided under Clause 22.2 (Financial statements) and shall be confirmed in the relevant compliance certificate referred
to in Clause 22.3 (Compliance Certificate).
The expressions used in this Clause 23 (Financial Covenants) shall be construed in accordance with IFRS, or GAAP as applicable, or for the
purposes of this Agreement:
(a) cash in hand or held with banks or financial institutions of the Parent Guarantor in Dollars or another currency freely convertible in Dollars,
which is free of any Security (other than a Permitted Security Interest and other than ordinary bankers liens which have not been enforced
or become capable of being enforced);
(b) any other short-term financial investment of the Parent Guarantor which is free of any Security;
(c) any cash equivalent of the Parent Guarantor and/or its Subsidiaries; and
(d) any marketable securities of the Parent Guarantor and/or its Subsidiaries,
(e) as stated in the most recent financial statements of the Group provided in accordance with Clause 22.2 (Financial statements) and
determined in accordance with GAAP or IFRS.
"Consolidated Equity" means, at any relevant time, the amount of the total capital reserves of the Parent Guarantor on a consolidated basis as stated
is the most recent financial statements of the Group provided in accordance with 22.2 (Financial statements) and determined in accordance with
GAAP or IFRS.
"Current Assets" means the current assets of the Parent Guarantor on a consolidated basis as stated in the most recent financial statements of the
Group provided in accordance with Clause 22.2 (Financial statements) and determined in accordance with GAAP or IFRS.
"Current Liabilities" means the current liabilities of the Parent Guarantor on a consolidated basis as stated in the most recent financial statements of
the Group provided in accordance with Clause 22.2 (Financial statements) and determined in accordance with GAAP or IFRS.
"EBITDA" means consolidated earnings before interest, taxes depreciation and amortisation.
"Financial Statements" means the financial statements of the Group provided in accordance with Clause 22.2 (Financial statements).
"Fleet Vessels" means any ship (including the Ships) from time to time wholly owned, leased or chartered in by the Guarantor (directly or indirectly)
(excluding vessels under construction and vessels chartered in for period shorter than 24 months including any extension options) (each a "Fleet
Vessel").
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
"Market Value Adjusted Total Assets" means, at any relevant time, the Total Assets adjusted to reflect the difference of the book value of the Fleet
Vessels (as evidenced in the most recent financial statements of the Group provided in accordance with Clause 22.2 (Financial statements)) and the
Fair Market Value of the Fleet Vessels.
"Working Capital" means the Current Assets less the Current Liabilities.
"Total Assets " means at any relevant time, the total assets of the Parent Guarantor on a consolidated basis as stated in the most recent financial
statements of the Group provided in accordance with Clause 22.2 (Financial statements)) and determined in accordance with GAAP or IFRS.
"Total Consolidated Long Term Debt " means, at any relevant time, the amount of the total liabilities of the Parent Guarantor on a consolidated
basis which would be included in the applicable Financial Statements of the Parent Guarantor as total long term debt in accordance with GAAP or
IFRS including the current portion of long term debt.
"Total Interest Expenses" means, in respect of any period and at any relevant time, the aggregate (calculated on a consolidated basis of the Parent
Guarantor) of:
(a) the amounts charged and posted (or estimated to be charged and posted) as a current accrual accrued during such period by way of interest
on all financial indebtedness in accordance with GAAP or IFRS; and
(b) net payments in relation to interest rate hedging arrangements in respect of financial indebtedness in accordance with GAAP or IFRS (after
deducting net income in relation to such interest rate hedging arrangements).
24 GENERAL UNDERTAKINGS
24.1 General
The undertakings in this Clause 24 (General Undertakings) remain in force throughout the Security Period except as the Facility Agent, acting with
the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
24.2 Authorisations
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly:
(a) obtain, comply with and do all that is necessary to maintain in full force and effect; and
(b) supply certified copies to the Facility Agent of any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of the
Approved Flag at any time of each Ship to enable it to:
(i) perform its obligations under the Transaction Documents to which it is a party;
(ii) ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at
any time of each Ship of any Transaction Document to which it is a party; and
(iii) own and operate each Ship (in the case of the Borrowers).
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The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.3 Compliance with laws
Each Obligor shall, and shall procure that each other member of the Group and each Affiliate of any of them shall, comply in all respect with all laws
and regulations to which it may be subject, including Sanctions Laws.
Each Obligor shall, and shall procure that each other Transaction Obligor will, and the Parent Guarantor shall ensure that each other member of the
Group will:
(b) obtain, maintain and ensure compliance with all requisite Environmental Approvals;
(c) implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
in relation to a member of the Group not including an Obligor only, where failure to do so has had or could reasonably be expected to have a
Material Adverse Effect.
Each Obligor shall, and shall procure that each other Transaction Obligor will, (through the Parent Guarantor), promptly upon becoming aware of the
same, inform the Facility Agent in writing of:
(a) any Environmental Claim against any member of the Group which is current, pending or threatened; and
(b) any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of
the Group,
where the claim against a member of the Group not including an Obligor, has had or could reasonably be expected to have a Material Adverse Effect.
24.6 Taxation
(a) Each Obligor shall and shall procure that each other Transaction Obligor will pay and discharge all Taxes imposed upon it or its assets within the
time period allowed without incurring penalties unless and only to the extent that:
(ii) adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial
statements delivered to the Facility Agent under Clause 22.2 (Financial statements); and
(iii) such payment can be lawfully withheld and failure to pay those Taxes does not have or could not reasonably be expected to have a
Material Adverse Effect.
Each Obligor shall promptly inform the Facility Agent if it delivers to the Registrar particulars required under the Overseas Regulations of any UK
Establishment and it shall comply with any directions given to it by the Facility Agent regarding the recording of any Transaction Security on the
register which it is required to maintain under The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.8 Pari passu ranking
Each Obligor shall, and shall procure that each other Transaction Obligor will, ensure that at all times any unsecured and unsubordinated claims of a
Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors
except those creditors whose claims are mandatorily preferred by laws of general application to companies.
24.9 Title
(a) From the Utilisation Date, Borrower A shall hold the legal title to, and own the entire beneficial interest in Ship A, its Earnings and its Insurances.
(b) From the Utilisation Date, Borrower B shall hold the legal title to, and own the entire beneficial interest in Ship B, its Earnings and its Insurances.
(c) From the Utilisation Date, Borrower C shall hold the legal title to, and own the entire beneficial interest in Ship C, its Earnings and its Insurances.
(d) From the Utilisation Date, Borrower D shall hold the legal title to, and own the entire beneficial interest in Ship D, its Earnings and its Insurances.
(e) From the Utilisation Date, Borrower E shall hold the legal title to, and own the entire beneficial interest in Ship E, its Earnings and its Insurances.
(f) From the Utilisation Date, Borrower F shall hold the legal title to, and own the entire beneficial interest in Ship F, its Earnings and its Insurances.
(g) From the Utilisation Date, Borrower G shall hold the legal title to, and own the entire beneficial interest in Ship G, its Earnings and its Insurances.
(h) With effect on and from its creation or intended creation, each Borrower shall hold the legal title to, and own the entire beneficial interest in any
other assets the subject of any Transaction Security created or intended to be created by it.
(a) No Obligor shall create or permit to subsist any Security over any of its assets which are the subject of the Security created or intended to be created
by the Finance Documents.
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Borrower or any
other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; or
(iii) enter into any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to any Permitted Security.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.11 Disposals
(a) No Borrower shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell,
lease, transfer or otherwise dispose of any asset (including without limitation any Ship, its Earnings or its Insurances) and, for the avoidance of
doubt, this does not apply to the sale, lease, transfer or otherwise disposal of any ships other than the Ships financed under this Agreement.
(b) The Guarantor shall not transfer, lease or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of
transactions, whether related or not except for cash on arm's length terms for full consideration or otherwise in the usual course of its trading
operations.
(c) Paragraph (a) above does not apply to any charter of a Ship to which Clause 26.14 (Restrictions on chartering, appointment of managers etc.)
applies.
24.12 Merger
No Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction Provided that this restriction shall not
apply if there is no change of control of the Obligors and the Obligors are in compliance with Clause 29.10 (Ownership of the Obligors) after any
such amalgamation, demerger, merger, consolidation or corporate reconstruction.
(a) The Parent Guarantor shall procure that no substantial change is made to the general nature of the business of the Parent Guarantor or the Group from
that carried on at the date of this Agreement.
(b) No Borrower shall engage in any business other than the ownership and operation of its Ship.
The Borrowers shall not incur any Financial Indebtedness except for Permitted Financial Indebtedness.
24.15 Expenditure
No Borrower shall incur any expenditure, except for expenditure reasonably incurred in the ordinary course of owning, operating, maintaining and
repairing its Ship.
No Borrower shall:
(c) issue any membership interests except to the Corporate Guarantor and provided such new membership interests are made subject to the terms of the
relevant Membership Interests Security applicable to that Borrower immediately upon the issue thereof in a manner satisfactory to the Facility Agent
and the terms of that Membership Interests Security are complied with;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) appoint any further director or officer of that Borrower (unless the provisions of the Membership Interests Security applicable to that Borrower are
complied with).
24.17 Dividends
Each Obligor may make or pay any dividend or other distribution (in cash or in kind) in respect of its membership interests provided always that no
Default has occurred and is continuing or would result from the making of any such payment.
24.18 Accounts
No Borrower shall open or maintain any account with any bank or financial institution except its Earnings Account and accounts with the Account
Bank, the Facility Agent or the Security Agent for the purposes of the Finance Documents.
No Borrower shall:
(a) be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is
Permitted Financial Indebtedness;
(b) give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or
enter into any document under which that Borrower assumes any liability of any other person other than any guarantee or indemnity given under the
Finance Documents.
(ii) any other agreement expressly allowed under any other term of this Agreement; and
(d) enter into any transaction on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at
arms' length; or
(e) acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European
banks.
No Obligor shall and the Obligors shall procure that no other Transaction Obligor will, do (or fail to do) or cause or permit another person to do (or
omit to do) anything which could be expected to:
(a) make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents;
(b) cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable;
(c) cause any Transaction Document to cease to be in full force and effect;
(d) cause any Transaction Security to rank after, or lose its priority to, any other Security; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.21 Further assurance
(a) Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or
arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents
(including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent
may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)):
(i) to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to
be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other
Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any
rights, powers and remedies of the Security Agent, any Receiver or the Secured Parties provided by or pursuant to the Finance Documents or
by law;
(ii) to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in
any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
(iii) to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets
which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in
respect of which the Security has become enforceable; and/or
(iv) to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any
other action relating to any item of the Security Property.
(b) Each Obligor shall, and shall procure that each other Transaction Obligor will, (and the Parent Guarantor shall procure that each member of the
Group will) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the
creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by
or pursuant to the Finance Documents.
(c) At the same time as a Transaction Obligor delivers to the Security Agent any document executed under this Clause 24.21 (Further assurance), that
Transaction Obligor shall deliver to the Security Agent a certificate signed by two of that Transaction Obligor's directors or officers which shall:
(i) set out the text of a resolution of that Transaction Obligor's directors specifically authorising the execution of the document specified by
the Security Agent; and
(ii) state that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of
directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors of officers and is valid
under that Transaction Obligor's articles of association or other constitutional documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
24.22 Use of proceeds
No proceeds of any advance of the Loan shall be made available, directly or indirectly, to or for the benefit of a Restricted Party nor shall they
otherwise be applied in a manner or for a purpose prohibited by Sanctions Laws.
(a) Each Obligor shall supply to the Facility Agent promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or
investigation pursuant to Sanctions Laws against it, any of its direct or indirect owners, any of its subsidiaries or any other member of the Group, any
of their joint ventures or any of their respective directors, officers, employees, agents or representatives, as well as information on what steps are
being taken with regards to answer or oppose such.
(b) Each Obligor shall notify the Facility Agent promptly upon becoming aware that it, any of its direct or indirect owners, any of its subsidiaries or any
other member of the Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives has become
or is likely to become a Restricted Party.
24.24 Sanctions
Each Borrower shall ensure that none of them, nor any of their subsidiaries, their joint ventures or other members of the Group, respective directors,
officers, employees, agents or representatives or any other persons acting on any of their behalf, is or will become a Restricted Party.
(a) No Obligor shall (and the Parent Guarantor shall ensure that no other member of the Group will) directly or indirectly use the proceeds of the Facility
for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act 0f 1977 or other similar legislation in
other jurisdictions.
(b) Each Obligor shall (and the Parent Guarantor shall ensure that each other member of the Group will):
(i) conduct its business in compliance with applicable anti-corruption laws; and
(ii) maintain policies and procedures designed to promote and achieve compliance with such laws.
(a) No Obligor shall, without written notice to the Lenders, whether by a document, by conduct, by acquiescence or in any other way:
(i) vary the terms of either Pool Agreement in any material respect;
(ii) release, waive, suspend or subordinate or permit to be lost or impaired any interest or right of any kind which such Obligor has at any time
to, in or in connection with either Pool Agreement or in relation to any matter arising out of or in connection with either Pool Agreement;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(iv) rescind or terminate either Pool Agreement or treat itself as discharged or relieved from further performance of any of its obligations or
liabilities under either Pool Agreement.
25 INSURANCE UNDERTAKINGS
25.1 General
In respect of a Ship, the undertakings in this Clause 25 (Insurance Undertakings) shall apply and remain in force on and from the date of this
Agreement and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or,
where specified, all the Lenders) may otherwise permit.
Each Borrower shall keep the Ship owned by it insured at its expense against:
(a) fire and usual marine risks (including hull and machinery, increased value and excess risks);
(d) any other risks against which the Facility Agent acting on the instructions of the Majority Lenders considers, having regard to practices and other
circumstances prevailing at the relevant time, it would be reasonable for that Borrower to insure and which are specified by the Facility Agent by
notice to that Borrower.
(a) in dollars;
(b) in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
(i) when aggregated with the insured values of the other Ships then subject to a Mortgage, 110 per cent. of the Loan; and
(c) in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic
protection and indemnity club entry and in the international marine insurance market;
(d) in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
(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.
In addition to the terms set out in Clause 25.3 (Terms of obligatory insurances), each Borrower shall procure that the obligatory insurances effected
by it shall:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) subject always to paragraph (b), name that Borrower as the sole named assured unless the interest of every other named assured is limited:
(i) in respect of any obligatory insurances for hull and machinery and war risks;
(A) to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
(B) to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of
any claims made against it); and
(ii) in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement
following discharge of any third party liability claims made specifically against it;
and every other named assured has undertaken in writing to the Security Agent (in such form as it requires) that any deductible shall be apportioned
between that Borrower and every other named assured in proportion to the gross claims made or paid by each of them and that it shall do all things
necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time
become payable in respect of the obligatory insurances;
(b) whenever the Facility Agent requires, name (or be amended to name) the Security Agent as additional named assured for its rights and interests,
warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent thereby
being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance Provided that this paragraph (b)
shall not apply to the protection and indemnity risks;
(c) name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
(d) provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off,
counterclaim or deductions or condition whatsoever;
(e) provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security
Agent or any other Finance Party; and
(f) provide that the Security Agent may make proof of loss if that Borrower fails to do so.
(a) at least 21 days before the expiry of any obligatory insurance effected by it:
(i) notify the Facility Agent of the Approved Brokers (or other insurers) and any protection and indemnity or war risks association through or
with which it proposes to renew that obligatory insurance and of the proposed terms of renewal; and
(ii) obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i) of paragraph (a) above;
(b) at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval
pursuant to paragraph (a) above; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) procure that the approved brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected
shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
Each Borrower shall ensure that the Approved Brokers provide the Security Agent with:
(a) pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
(b) a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Brokers that:
(i) they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the
provisions of Clause 25.4 (Further protections for the Finance Parties);
(ii) they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable
clause;
(iii) they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
(iv) they will, if they have not received notice of renewal instructions from the relevant Borrower or its agents, notify the Security Agent not less
than 14 days before the expiry of the obligatory insurances;
(v) if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
(vi) they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory
insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien
on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not
cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and
(vii) they will arrange for a separate policy to be issued in respect of the Ship owned by that Borrower forthwith upon being so requested by the
Facility Agent.
Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provide the
Security Agent with:
(b) a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
(c) a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant
certifying authority in relation to that Ship.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
25.8 Deposit of original policies
Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are deposited with the Approved Brokers through which
the insurances are effected or renewed.
Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all
relevant receipts when so required by the Facility Agent or the Security Agent.
25.10 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.
(a) No Borrower shall do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance
invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part.
(i) take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and
(without limiting the obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 25.6 (Copies of policies; letters of
undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has
not given its prior approval;
(ii) not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the
underwriters of the obligatory insurances;
(iii) make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the
protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of
America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
(iv) not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory
insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise)
which the insurers specify.
No Borrower shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
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(a) not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
(b) do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at
any time become payable in respect of the obligatory insurances.
Each Borrower shall provide the Security Agent, at the time of each such communication, with copies of all written communications between that
Borrower and:
(b) the approved protection and indemnity and/or war risks associations; and
(i) that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of
additional premiums or calls; and
(ii) any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or
partly to the effecting or maintenance of the obligatory insurances.
Each Borrower shall promptly provide the Facility Agent (or any persons which it may designate) with any information which the Facility Agent (or
any such designated person) 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 25.16 (Mortgagee's interest and additional perils insurances) or
dealing with or considering any matters relating to any such insurances,
and the Borrowers shall, forthwith upon demand, indemnify the Security Agent in respect of all fees and other expenses incurred by or for the
account of the Security Agent in connection with any such report as is referred to in paragraph (a) above.
(a) The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's
interest additional perils insurance in such amounts (but not exceeding 120 per cent. of the Loan), on such terms, through such insurers and
generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
(b) The Borrowers shall upon demand fully indemnify the Security Agent and the Lenders (as the case may be) in respect of all premiums and other
expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above
or dealing with, or considering, any matter arising out of any such insurance.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
26 SHIP UNDERTAKINGS
26.1 General
In respect of a Ship, the undertakings in this Clause 26 (Ship Undertakings) shall apply and remain in force on and from the date of this Agreement
and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where
specified, all the Lenders) may otherwise permit.
(a) keep that Ship registered in its name under an Approved Flag from time to time at its port of registration;
(b) not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
(i) that Ship being registered on an Approved Flag and remaining subject to Security securing the Secured Liabilities created by a first priority
or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first
priority Security) on substantially the same terms as the Mortgage on that Ship and on such other terms and in such other form as the
Facility Agent, acting with the authorisation of the Majority Lenders, shall approve or require; and
(ii) the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the
authorisation of the Majority Lenders, shall approve or require.
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; and
(b) so as to maintain the Approved Classification free of overdue recommendations and conditions affecting that Ship's class.
26.4 Modifications
No Borrower shall unless after consultation, and agreement, with the Facility Agent, make any modification or repairs to, or replacement of, any Ship
or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce
its value save for changes or modifications that are required to be made in order to satisfy updated rules and regulations from time to time applicable
to that Ship.
(a) Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any item of equipment installed on any Ship unless the
part or item so removed:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;
(ii) is free from any Security in favour of any person other than the Security Agent; and
(iii) becomes, on installation on that Ship, the property of that Borrower and subject to the security constituted by the Mortgage on that Ship.
(b) A Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that
Borrower.
26.6 Surveys
Each Borrower shall submit the Ship owned by it regularly to all periodic or other surveys which may be required for classification purposes and, if
so required by the Facility Agent acting on the instructions of the Majority Lenders, provide the Facility Agent, with copies of all survey reports
and, in addition, the Facility Agent shall have the right to have a technical survey carried out at any time on each Ship and the Borrowers shall pay
the cost of 1 such survey of each Ship per year at the Facility Agent's request.
26.7 Inspection
Each Borrower shall permit the Security Agent (acting through surveyors or other persons appointed by it for that purpose) to board the Ship owned
by it at all reasonable times to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities
for such inspections.
(a) Each Borrower shall, in respect of the Ship owned by it, promptly discharge amounts due in respect of:
(i) all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its
Insurances;
(ii) all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
(iii) all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
(b) Each Borrower shall immediately and, forthwith upon receiving notice of the arrest of the Ship owned by it or of its detention in exercise or
purported exercise of any lien or claim, procure its release by providing bail or otherwise as the circumstances may require.
(ii) relating to the Ship owned by it, its ownership, employment, operation, management and registration,
including the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions Laws and the laws of the Approved Flag;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and
(c) without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner contrary
to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions Laws.
Without limiting paragraph (a) of Clause 26.9 (Compliance with laws etc.), each Borrower 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
(c) notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
In the event of hostilities in any part of the world (whether war is declared or not), no Borrower shall cause or permit any Ship to enter or trade to any
zone which is declared a war zone by any government or by that Ship's war risks insurers unless:
(a) that Ships war risks insurers have agreed to cover such transit or trade under the annual war risks policy on terms and conditions not less restrictive
than those already in place (it being understood the requirement for an additional premium does not constitute a restriction); or
(b) the prior written consent of the Security Agent acting on the instructions of the Majority Lenders has been given; and
(c) that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of
the Majority Lenders may require.
Without prejudice to Clause 22.5 (Information: miscellaneous) each Borrower shall, in respect of the Ship owned by it, promptly provide the
Facility Agent with any information which it requests regarding:
(b) the Earnings and payments and amounts due to its master and crew;
(c) any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it
in respect of that Ship;
(e) its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code,
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
and, upon the Facility Agent's request, provide copies of any current charter relating to that Ship, of any current guarantee of any such charter, the
Ship's Safety Management Certificate and any relevant Document of Compliance.
Each Borrower shall, in respect of the Ship owned by it, immediately notify the Facility Agent by fax, confirmed forthwith by letter of:
(a) any casualty to that Ship which is or could reasonably be expected to be or to become a Major Casualty;
(b) any occurrence as a result of which that Ship has become or could reasonably be expected, by the passing of time or otherwise, to become a Total
Loss;
(d) any requirement or recommendation made in relation to that Ship Ay any insurer or classification society or by any competent authority which is not
immediately complied with;
(e) any arrest or detention of that Ship, any exercise or purported exercise of any lien on that Ship or the Earnings or any requisition of that Ship for
hire;
(g) any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident;
(h) any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Manager or otherwise in connection with
that Ship; or
(i) any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied
with,
and each Borrower shall keep the Facility Agent advised in writing on a regular basis and in such detail as the Facility Agent shall require as to that
Borrower's, any such Approved Manager's or any other person's response to any of those events or matters.
(b) enter into any time or consecutive voyage charter in respect of that Ship other than a Permitted Charter;
(c) appoint a manager of that Ship other than the Approved Commercial Manager and the Approved Technical Manager or agree to any alteration to the
terms of an Approved Manager's appointment;
(e) other than in the event of a scheduled drydocking 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 Agent
and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other
reason.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
26.15 Notice of Mortgage
Each Borrower shall keep the relevant 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 relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of
that Ship a framed printed notice stating that that Ship is mortgaged by that Borrower to the Security Agent.
No Borrower shall enter into any agreement or arrangement for the sharing of any Earnings, except for any internal agreement between a Borrower
and Ardmore Shipping (Asia) Pte Limited or pursuant to a time charter entered into by a Borrower with a third party which includes profit sharing
agreements which, in any case, are on terms approved by the Lenders or a Pool Agreement or any other pool that the Ships may be employed in from
time to time subject to the consent of the Facility Agent, acting with the authorisation of the Majority Lenders.
Each Borrower shall promptly provide the Facility Agent from time to time with evidence (in such form as the Facility Agent requires) that it is
complying with this Clause 26 (Ship Undertakings).
27 SECURITY COVER
Clause 27.2 (Provision of additional security; prepayment) applies if, at any time during the Security Period, the Facility Agent notifies the
Borrowers that:
(i) the aggregate Fair Market Value of each Ship then subject to a Mortgage and which has not become a Total Loss; plus
(ii) the net realisable value of additional Security previously provided under this Clause 27 (Security Cover),
(a) If the Facility Agent serves a notice on the Borrowers under Clause 27.1 (Minimum required security cover), the Borrowers shall, on or before the
date falling one month after the date (the "Prepayment Date") on which the Facility Agent's notice is served, prepay such part of the Loan as shall
eliminate the shortfall.
(b) A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional
security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders,
(i) has a net realisable value at least equal to the shortfall; and
(ii) is documented in such terms as the Facility Agent may approve or require,
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
before the Prepayment Date; and conditional upon such security being provided in such manner, it shall satisfy such prepayment obligation.
The net realisable value of any additional security which is provided under Clause 27.2 (Provision of additional security; prepayment) and which
consists of Security over a vessel shall be the Fair Market Value of the vessel concerned.
Any valuation under this Clause 27 (Security Cover) shall be binding and conclusive as regards each Borrower.
(a) Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 27 (Security Cover) with any information
which the Facility Agent or the shipbroker may request for the purposes of the valuation.
(b) If a Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on
any basis and assumptions which the shipbroker or the Facility Agent considers prudent.
Any prepayment pursuant to Clause 27.2 (Provision of additional security; prepayment) shall be:
(a) made in accordance with the relevant provisions of Clause 7 (payment and Cancellation) but ignoring any restriction as to prepayments being made
on the last day of the Interest Period;
(i) 50 per cent. of the amount prepaid shall reduce in inverse order of maturity the amount of each Repayment Instalment for the relevant
Tranche falling after that prepayment; and
(ii) 50 per cent. of the amount prepaid shall be applied on a pro-rata basis towards satisfaction of the Repayment Instalments for the relevant
Tranche set out in Clause 6.1 (Repayment of Loan).
(a) Each Borrower shall provide the Facility Agent with valuations of the Ship owned by it or that will be owned by it on the Utilisation Date and any
other vessel over which additional Security has been created in accordance with Clause 27.3 (Value of additional vessel security), from an Approved
Valuer, to enable the Facility Agent to determine the Fair Market Value of that Ship.
(b) The valuations referred to in this Clause 27.7 (Provision of valuations) are to be obtained:
(i) on or before the Utilisation Date (not to be obtained earlier than 30 days prior to the Utilisation Date) and shown, in respect of such Ship
when not on or before the Utilisation Date, in June and December of each year during the Facility Period; or
(ii) at any other time requested by the Facility Agent in its absolute discretion.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) The valuations referred to in paragraph (b)(i) and (b)(ii) of Clause 27.7 (Provision of valuations) shall be at the Borrowers cost, but no more than
twice per year, unless the valuations provided under paragraph (b)(i) and (b)(ii) of Clause 27.7 (Provision of valuations) show a breach of Clause
27.1 (Minimum required security cover), in which case any additional valuations will be at the Borrowers cost.
28 APPLICATION OF EARNINGS
(a) subject only to the provisions of the General Assignment to which it is a party, all the Earnings in respect of the Ship owned by it are paid in to its
Earnings Account; and
(b) all payments by a Hedge Counterparty to that Borrower under a Hedging Agreement are paid to the Earnings Account.
Each Borrower may withdraw moneys from the Earnings Account in its name provided that no Default is continuing.
(a) comply with any requirement of the Facility Agent as to the location or relocation of its Earnings Account (or any of them); and
(b) execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-
off, consolidation or other rights in relation to) the Earnings Accounts.
29 EVENTS OF DEFAULT
29.1 General
Each of the events or circumstances set out in this Clause 29 (Events of Default) is an Event of Default except for Clause 29.18 (Acceleration) and
Clause 29.19 (Enforcement of security).
29.2 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
29.3 Specific obligations
A breach occurs of Clause 4.4 (Waiver of conditions precedent ), Clause 23 (Financial Covenants), Clause 24.3 (Compliance with laws) (in so far as
that clause relates to Sanctions Laws) Clause 24.9 (Title), Clause 24.10 (Negative pledge), Clause 24.20 (Unlawfulness, invalidity and ranking;
Security imperilled), Clause 24.22 (Use of proceeds), Clause 24.23 (Information: sanctions), Clause 24.25 (Anti-corruption law), Clause 25.2
(Maintenance of obligatory insurances), Clause 25.3 (Terms of obligatory insurances), Clause 25.5 (Renewal of obligatory insurances) or Clause
27 (Security Cover).
(a) A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 29.2 (Non-payment)
and Clause 29.3 (Specific obligations)).
(b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of
the Facility Agent giving notice to the Borrowers or (if earlier) any Transaction Obligor becoming aware of the failure to comply.
29.5 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on
behalf of any Transaction Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading when made
or deemed to be made and which has had or could reasonably be expected to have a Material Adverse Effect.
(a) Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an
event of default (however described).
(c) Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of
default (however described).
(d) Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as
a result of an event of default (however described).
(e) No Event of Default will occur under this Clause 29.6 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is less than, in respect of each Borrower, $500,000 (or its equivalent in any other
currency) and in respect of each of the Corporate Guarantor or Parent Guarantor and other members of the Group, $2,000,000 (or its equivalent in
any other currency in aggregate).
29.7 Insolvency
(a) An Obligor:
(i) is unable or admits inability to pay its debts as they fall due;
(ii) is deemed to, or is declared to, be unable to pay its debts under applicable law;
(iv) by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance
Party in its capacity as such) with a view to rescheduling any of its indebtedness.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any
Event of Default caused by that moratorium.
(a) Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation
of any member of the Group which is not an Obligor;
(ii) a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
(iii) the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver,
administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Group or any of its
assets; or
(iv) enforcement of any Security over any assets of any member of the Group,
(b) Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days
of commencement.
Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of an
Obligor.
Without the prior approval of the Lenders, there is any change in the (beneficial) ownership of an Obligor (other than the Parent Guarantor) or an
Obligor is not or ceases to be a Subsidiary of the Parent Guarantor from that advised to the Facility Agent as at the date of this Agreement.
(a) It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
(b) Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable if that cessation
individually or together with any other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents.
(c) Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is
alleged by a party to it (other than a Finance Party) to be ineffective.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(d) Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
Any Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy.
Any Obligor suspends or ceases to carry on (or threatens to suspend or ceases to carry on) all or a material part of its business.
29.14 Expropriation
The authority or ability of any member of the Group to conduct its business is limited or wholly or substantially curtailed by any seizure,
expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other
person in relation to any member of the Group or any of its assets.
An Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Transaction Document or any of the
Transaction Security or evidences an intention to rescind or repudiate a Transaction Document or any Transaction Security.
29.16 Litigation
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in
relation to any of the Transaction Documents or the transactions contemplated in any of the Transaction Documents or against any member of the
Group or its assets which has or may have a Material Adverse Effect and, for the avoidance of doubt, this clause shall not apply to any proceeding or
dispute which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
Any event or circumstance occurs which has had or could reasonably be expected to have a Material Adverse Effect.
29.18 Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the Facility Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrowers:
(a) cancel the Total Commitments, whereupon they shall immediately be cancelled;
(b) declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon it shall become immediately due and payable; and/or
(c) declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting
on the instructions of the Majority Lenders,
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
and the Facility Agent may serve notices under paragraphs (a), (b) and (c) above simultaneously or on different dates and the Security Agent may
take any action referred to in Clause 29.19 (Enforcement of security) if no such notice is served or simultaneously with or at any time after the
service of any of such notice.
On and at any time after the occurrence of an Event of Default which is continuing the Security Agent may, and shall if so directed by the Majority
Lenders, take any action which, as a result of the Event of Default or any notice served under Clause 29.18 (Acceleration), the Security Agent is
entitled to take under any Finance Document or any applicable law or regulation.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 10
CHANGES TO PARTIES
Subject to this Clause 30 (Changes to the Lenders), a Lender (the "Existing Lender") may:
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established
for the purpose of making, purchasing or investing in loans, securities or other financial assets (except for a hedge fund) (the "New Lender") but in
no event to a member of the Group or a holding company, or holding company acting in concert, of the Parent Guarantor.
(a) The consent of the Borrowers is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
(b) The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld or delayed. Each Borrower will be deemed to have
given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by that Borrower within that time.
(c) The consent of a Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to
any amount payable under Clause 14.3 (Mandatory Cost).
(i) receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and
substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would
have been under if it were an Original Lender; and
(ii) performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations
in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender
and the New Lender.
(e) A transfer will only be effective if the procedure set out in Clause 30.5 (Procedure for transfer) is complied with.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(f) If:
(i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment
to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13
(Increased Costs),
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
(g) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility
Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in
accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and
that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $5,000
unless the assignment or transfer is to an Affiliate of the Existing Lender.
(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
(iii) the performance and observance by any Transaction Obligor of its obligations under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
(b) Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
(i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each
Transaction Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction
Security; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout
the Security Period.
(i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 30
(Changes to the Lenders); or
(ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its
obligations under the Finance Documents or otherwise.
(a) Subject to the conditions set out in 30.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when
the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The
Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the
transfer to such New Lender.
(c) Subject to Clause 30.9 (Pro rata interest settlement), on the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance
Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against
one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and
Obligations");
(ii) each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same
in place of that Obligor and the Existing Lender;
(iii) the Facility Agent, the Security Agent, each Mandated Lead Arranger, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that
extent the Facility Agent, the Security Agent, the each Mandated Lead Arranger and the Existing Lenders shall each be released from
further obligations to each other under the Finance Documents; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
30.6 Procedure for assignment
(a) Subject to the conditions set out in Clause 30.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph
(c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New
Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed
Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Assignment Agreement.
(b) The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the
assignment to such New Lender.
(c) Subject to Clause 30.9 (Pro rata interest settlement), on the Transfer Date:
(i) the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction
Security expressed to be the subject of the assignment in the Assignment Agreement;
(ii) the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the
Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
(iii) the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
(d) Lenders may utilise procedures other than those set out in this Clause 30.6 (Procedure for assignment) to assign their rights under the Finance
Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 30.5 (Procedure for transfer), to obtain a
release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that they comply with the conditions set out in Clause 30.2 (Conditions of assignment or transfer).
The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the
Obligors a copy of that Transfer Certificate or Assignment Agreement.
In addition to the other rights provided to Lenders under this Clause 30 (Changes to the Lenders), each Lender may without consulting with or
obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all
or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
(a) any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
(b) in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of
obligations owed, or securities issued, by that Lender as security for those obligations or securities,
(i) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or
Security for the Lender as a party to any of the Finance Documents; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those
required to be made or granted to the relevant Lender under the Finance Documents.
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders
then (in respect of any transfer pursuant to Clause 30.5 (Procedure for transfer) or any assignment pursuant to Clause 30.6 (Procedure for
assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
(a) any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in
favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender
(without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the
next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
(b) The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
(i) when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
(ii) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 30.9 (Pro rata
interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts.
(a) The Borrowers may, at any time (other than where an Event of Default or a Potential Event of Default has occurred and is continuing) in respect of:
(i) a Lender whose costs of funds charged to the Borrowers are (in the Borrowers' reasonable opinion) materially higher than those of the other
Lenders generally;
by giving 10 Business Days' notice to the Facility Agent and that Lender (the "Outgoing Lender") replace the Outgoing Lender by requiring it to
(and the Outgoing Lender must) transfer in accordance with Clause 30.5 (Procedure for transfer) all (and not part only) of its rights and obligations
under this Agreement to a Lender or other bank (a "Replacement Lender") selected by the Borrowers and which is acceptable to the Facility Agent
(acting reasonably) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of the Outgoing Lender's
Contribution and all accrued interest, break costs and other amounts payable in relation to that Contribution under this Agreement and the other
Finance Documents.
(b) Any transfer of rights and obligations of an Outgoing Lender under this Clause is subject to the following conditions:
(i) neither the Facility Agent nor the Outgoing Lender will have any obligation to the Borrowers to find a Replacement Lender;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) the transfer must take place no later than 10 Business Days after the Borrowers' notice referred to above; and
(iii) in no event will the Outgoing Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Outgoing
Lender under this Agreement and the other Finance Documents.
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 11
(a) Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility
Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
(a) Subject to paragraph (b) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the
Facility Agent for that Party by any other Party.
(b) Without prejudice to Clause 30.7 (Copy of Transfer Certificate or Assignment Agreement to Borrowers), paragraph (a) above shall not apply to any
Transfer Certificate or to any Assignment Agreement.
(c) Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(d) If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the Finance Parties.
(e) If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the
Facility Agent or a Mandated Lead Arranger or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
(f) The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
Except as specifically provided in the Finance Documents, no Mandated Lead Arranger has any obligations of any kind to any other Party under, or
in connection with, any Finance Document.
(a) The Facility Agent shall not have any liability to any person in respect of its obligations and duties under this Agreement or the other Finance
Documents except as expressly set out in Clause 32.5 (Application of receipts), and as excluded or limited by Clauses 32.8 (Majority Lenders'
instructions), 32.9 (Responsibility for documentation), 32.10 (Exclusion of liability), 32.11 (Lenders' indemnity to the Facility Agent) and 32.18
(Full freedom to enter into transactions).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) The provisions of paragraph (a) above shall apply even if, notwithstanding and contrary to paragraph (a) above, any provision of this Agreement or
any other Finance Document by operation of law has the effect of constituting the Facility Agent as a fiduciary.
(c) Nothing in the Finance Documents constitutes the Facility Agent or either Mandated Lead Arranger a trustee of any other person.
(d) None of the Facility Agent, the Security Agent nor either Mandated Lead Arranger shall be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
Except as expressly stated to the contrary in any Finance Document, any moneys which the Facility Agent receives or recovers in its capacity as
Facility Agent shall be applied by the Facility Agent in accordance with Clause 37.5 (Application of receipts; partial payments).
The Facility Agent and either Mandated Lead Arranger may accept deposits from, lend money to, and generally engage in any kind of banking or
other business with, any member of the Group.
(i) any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify.
(b) The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 29.2 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by any Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
(d) The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
(e) The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(f) Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor either Mandated Lead Arranger is
obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a
fiduciary duty or duty of confidentiality.
(a) Unless a contrary indication appears in a Finance Document, the Facility Agent shall:
(i) exercise any right, power, authority or discretion vested in it as Servicing Party in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it
as a Servicing Party); and
(ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority
Lenders.
(b) Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance
Parties.
(c) The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the
instructions.
(d) In the absence of instructions from the Majority Lenders (or, if appropriate, the Lenders), the Facility Agent shall not be obliged to take any action
(or refrain from taking action) (even if it considers acting or not acting to be in the best interests of the Lenders). The Facility Agent may act (or
refrain from taking action) as it considers to be in the best interest of the Lenders.
(e) The Facility Agent is not authorised to act on behalf of a Lender or Hedge Counterparty (without first obtaining that Lender's or Hedge
Counterparty's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (e) shall not apply to any legal or
arbitration proceedings relating to the perfection, preservation or protection of rights under the Transaction Security or Finance Documents creating
Transaction Security.
(a) is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, either
Mandated Lead Arranger, an Obligor or any other person given in, or in connection with, any Transaction Document;
(b) is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Transaction Security or any
other agreement, arrangement or document entered into or made or executed in anticipation of, or in connection with, any Transaction Document or
the Transaction Security; or
(c) is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the
use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
(a) Without limiting paragraph (b) below (and without prejudice to the provisions of paragraph (e) of Clause 37.11 (Disruption to Payment Systems
etc.), the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document or the Transaction Security,
unless directly caused by its gross negligence or wilful misconduct.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim
it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance
Document and each officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 ( Third party rights) and the
provisions of the Third Parties Act.
(c) The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by it for that purpose.
(d) Nothing in this Agreement shall oblige the Facility Agent or either Mandated Lead Arranger to carry out any "know your customer" or other checks
in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and either Mandated Lead Arranger that it is solely
responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility
Agent or either Mandated Lead Arranger.
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Facility Agent (otherwise than by reason of its gross negligence or wilful misconduct) (or, in the case of any cost, loss
or liability pursuant to Clause 37.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any
other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the
Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
(a) The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers.
(b) Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority
Lenders may appoint a successor Facility Agent.
(c) If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of
resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
(d) The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions Facility Agent under the Finance
Documents.
(e) The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents
but shall remain entitled to the benefit of this Clause 32 (The Facility Agent and the Mandated Lead Arranger) and any other provisions of a Finance
Document which are expressed to limit or exclude its liability in acting as Facility Agent. Any successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(g) The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility
Agent shall resign in accordance with paragraph (b) above.
(h) The consent of any Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
(i) The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a
successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date
relating to any payment to the Facility Agent under the Finance Documents, either:
(i) the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Borrower or a Lender reasonably believes that
the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
(ii) the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be
(or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
(iii) the Facility Agent notifies the Borrowers and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt
Party on or after that FATCA Application Date;
(j) and (in each case) the Borrowers or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be
required if the Facility Agent were a FATCA Exempt Party, and the Borrowers or that Lender, by notice to the Facility Agent, requires it to resign.
32.13 Confidentiality
(a) In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.
(b) If information is received by a division or department of the Facility Agent other than that division or department responsible for complying with
the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the
Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
(a) Subject to Clause 30.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender or Hedge Counterparty at
the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting
through its Facility Office or, as the case may be, the Hedge Counterparty:
(i) entitled to or liable for any payment due under any Finance Document on that day; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(ii) entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance
Document made or delivered on that day,
unless it has received not less than five Business Days' prior notice from that Lender or Hedge Counterparty to the contrary in accordance with the
terms of this Agreement.
(b) Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost.
(c) Each Lender and each Hedge Counterparty shall supply the Facility Agent with any information that the Security Agent may reasonably specify
(through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender and
Hedge Counterparty shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
(d) Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to
be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication
by electronic mail or other electronic means is permitted under Clause 39.5 (Electronic communication)) electronic mail address and/or any other
information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose
attention communication is to be made) and be treated as notification of a substitute address, fax number, electronic mail address, department and
officer by that Lender for the purposes of Clause 39.2 (Addresses) and paragraph (a)(iii) of Clause 39.5 (Electronic communication) and the Facility
Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though
that person were that Lender.
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Finance
Document, each Lender and Hedge Counterparty confirms to the Facility Agent and each Mandated Lead Arranger that it has been, and will
continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under, or in connection with, any
Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction
Security;
(c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection
with, any Finance Document or the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(d) the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in
connection with, any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(e) the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security
or the existence of any Security affecting the Charged Property.
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent shall (in
consultation with the Borrowers) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.
If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an
amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance
Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party
shall be regarded as having received any amount so deducted.
Notwithstanding any rule of law or equity to the contrary, the Facility Agent shall be absolutely entitled:
(a) to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any
person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction,
whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such
Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
(b) to deal in and enter into and arrange transactions relating to:
(i) any securities issued or to be issued by any Transaction Obligor or any other person; or
(ii) any options or other derivatives in connection with such securities; and
(c) to provide advice or other services to any Borrower or any person who is a party to, or referred to in, a Finance Document,
and, in particular, the Facility Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such
transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation)
any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings,
transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived
from the dealings transactions or other matters.
33.1 Trust
(a) The Security Agent declares that it shall hold the Security Property on trust for the Secured Parties on the terms contained in this Agreement and
shall deal with the Security Property in accordance with this Clause 33 (The Security Agent) and the other provisions of the Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Each of the parties to this Agreement agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified
in this Agreement or in the Finance Documents (and no others shall be implied).
(c) The Security Agent shall not have any liability to any person in respect of its duties, obligations and responsibilities under this Agreement or the
other Finance Documents except as expressly set out in paragraph (a) of Clause 33.1 (Trust) and as excluded or limited by this Clause 33 (The
Security Agent) including in particular Clause 33.8 (Instructions to Security Agent and exercise of discretion), Clause 33.13 (Responsibility for
documentation), Clause 33.14 (Exclusion of liability). Clause 33.16 (Lenders' indemnity to the Security Agent), Clause 33.23 (Business with the
Group) and Clause 33.28 (Full freedom to enter into transactions).
(a) Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the
currency or currencies of, its Corresponding Debt.
(i) shall become due and payable at the same time as its Corresponding Debt;
(ii) is independent and separate from, and without prejudice to, its Corresponding Debt.
(c) For purposes of this Clause 33.2 (Parallel Debt (Covenant to pay the Security Agent))), the Security Agent:
(ii) acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not
be held on trust; and
(iii) shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation,
through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency
proceeding).
(i) decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
(ii) increased to the extent that its Corresponding Debt has increased,
(A) decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
(B) increased to the extent that its Parallel Debt has increased,
in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding Debt.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(e) All amounts received or recovered by the Security Agent in connection with this Clause 33.2 (Parallel Debt (Covenant to pay the Security Agent))
to the extent permitted by applicable law, shall be applied in accordance with Clause 37.5 (Application of receipts; partial payments).
(f) This Clause 33.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any rights or
powers arising under the Finance Documents creating the Transaction Security except through the Security Agent.
(a) Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are
attributable to, Security Property (for the purposes of this Clause 33 (The Security Agent), the "Recoveries") shall be transferred to the Facility Agent
for application in accordance with Clause 37.5 (Application of receipts; partial payments).
(b) Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
(i) under Clause 14.6 (Indemnity to the Security Agent) to be indemnified out of the Charged Property; and
(ii) under any Finance Document to credit any moneys received or recovered by it to any suspense account.
(c) Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that
payment, by the Security Agent.
(d) The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause 33.4 ( Application of
receipts) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
(a) Before transferring any moneys to the Facility Agent under Clause 33.4 (Application of receipts), the Security Agent may, in its discretion:
(i) deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or
Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
(ii) set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or
otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement;
and
(iii) pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by
virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration
for performing its duties under this Agreement).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) For the purposes of paragraph (a)(i) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be
treated as due and payable, even if no demand has yet been served.
Following acceleration of any of the Transaction Security, the Security Agent may, in its discretion, or at the request of the Facility Agent, hold any
Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including
itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) for later payment to the Facility Agent
for application in accordance with Clause 37.5 (Application of receipts; partial payments) in respect of:
(a) any sum to the Security Agent, any Receiver or any Delegate; and
that the Security Agent or, in the case of paragraph (b) only, the Facility Agent, reasonably considers, in each case, might become due or owing at
any time in the future.
Prior to the payment of the proceeds of the Recoveries to the Facility Agent for application in accordance with Clause 37.5 (Application of receipts;
partial payments) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal
account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the
interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security Agent's discretion in
accordance with the provisions of this Clause 33.7 (Investment of proceeds).
(a) Subject to paragraph (d) below, the Security Agent shall act in accordance with any instructions given to it by the Facility Agent (acting on the
instructions of the Majority Lenders or all the Lenders (as appropriate)) or, if so instructed by the Facility Agent (acting on the instructions of the
Majority Lenders or all the Lenders (as appropriate)), refrain from exercising any right, power, authority or discretion vested in it as Security Agent
and shall be entitled to assume that:
(i) any instructions received by it from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as
appropriate)) are duly given in accordance with the terms of the Finance Documents; and
(ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked.
(b) The Security Agent shall be entitled to request instructions, or clarification of any direction, from the Facility Agent (acting on the instructions of
the Majority Lenders or all the Lenders (as appropriate)) as to whether, and in what manner, it should exercise or refrain from exercising any rights,
powers, authorities and discretions and the Security Agent may refrain from acting unless and until those instructions or clarification are received by
it.
(c) Any instructions given to the Security Agent by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as
appropriate)) shall override any conflicting instructions given by any other Party.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) where a contrary indication appears in this Agreement;
(ii) where this Agreement requires the Security Agent to act in a specified manner or to take a specified action;
(iii) in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent
for the Secured Parties including, without limitation, the provisions set out in Clauses 33.10 (Security Agent's discretions) to Clause 33.28
(Full freedom to enter into transactions); and
(iv) in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of Clause 33.5 (Deductions
from receipts) and Clause 33.6 (Prospective liabilities).
Without prejudice to the provisions of Clause 33.4 (Application of receipts), the Security Agent may (but shall not be obliged to), in the absence of
any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Finance Documents as it considers in its
discretion to be appropriate.
(i) assume (unless it has received actual notice to the contrary from the Facility Agent) that (i) no Default has occurred and no Obligor is in
breach of or default under its obligations under any of the Finance Documents and (ii) any right, power, authority or discretion vested by
any Finance Document in any person has not been exercised;
(ii) any notice or request made by any Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors;
(iii) if it receives any instructions or directions to take any action in relation to the Transaction Security, assume that all applicable conditions
under the Finance Documents for taking that action have been satisfied;
(iv) engage, pay for and rely on the advice or services of any legal advisers, accountants, tax advisers, surveyors or other experts (whether
obtained by the Security Agent or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or
desirable;
(v) act in relation to the Finance Documents through its personnel and agents;
(vi) disclose to any other Party any information it reasonably believes it has received as security agent under this Agreement;
(vii) rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected
to be within the knowledge of a Secured Party or an Obligor, upon a certificate signed by or on behalf of that person; and
(viii) refrain from acting in accordance with the instructions of any Party (including bringing any legal action or proceeding arising out of or in
connection with the Finance Documents) until it has received any indemnification and/or security that it may in its discretion require
(whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it
would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
(a) copy to the Facility Agent the contents of any notice or document received by it from any Obligor under any Finance Document;
(b) forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party provided that,
except where a Finance Document expressly provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party; and
(c) inform the Facility Agent of the occurrence of any Default or any default by a Debtor in the due performance of or compliance with its obligations
under any Finance Document of which the Security Agent has received notice from any other party to this Agreement.
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent shall not:
(a) be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by a Transaction Obligor of its
obligations under any of the Finance Documents;
(b) be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty;
(d) have or be deemed to have any relationship of trust or agency with, any Obligor.
None of the Security Agent, any Receiver nor any Delegate shall accept responsibility or be liable for:
(a) the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Agent or any other person in or in
connection with any Finance Document or the transactions contemplated in the Finance Documents, or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(c) any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Finance Documents,
the Security Property or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise unless directly caused by its gross
negligence or wilful misconduct;
(d) the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Finance Documents, the
Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with,
the Finance Documents or the Security Property; or
(e) any shortfall which arises on the enforcement or realisation of the Security Property.
(a) Without limiting Clause 33.15 (No proceedings), none of the Security Agent, any Receiver or any Delegate will be liable for any action taken by it
or not taken by it under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or
wilful misconduct.
(b) The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by it for that purpose.
(c) Nothing in this Agreement shall oblige the Security Agent to carry out any "know your customer" or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Security Agent that it is solely responsible for any such checks it is required to carry out and that it
may not rely on any statement in relation to such checks made by the Security Agent.
33.15 No proceedings
No Party (other than the Security Agent, that Receiver or that Delegate) may take any proceedings against any officer, employee or agent of the
Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of
any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer,
employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the
provisions of the Third Parties Rights Act.
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three
Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent's,
Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents
(unless the relevant Security Agent, Receiver or Delegate has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Finance
Document, each Secured Party confirms to the Security Agent that it has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(a) the financial condition, status and nature of each member of the Group;
(b) the legality, validity, effectiveness, adequacy and enforceability of any Finance Document, the Security Property and any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security
Property;
(c) whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security
Property;
(d) the adequacy, accuracy and/or completeness of any information provided by the Security Agent or by any other person under or in connection with
any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance Document; and
(e) the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security
or the existence of any Security affecting the Charged Property,
and each Secured Party warrants to the Security Agent that it has not relied on and will not at any time rely on the Security Agent in respect of any of
these matters.
The Security Agent shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Charged
Property;
(b) obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the
Finance Documents or the Transaction Security;
(c) register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable
laws in any jurisdiction or to give notice to any person of the execution of any of the Finance Documents or of the Transaction Security;
(d) take, or to require any of the Transaction Obligors to take, any steps to perfect its title to any of the Charged Property or to render the Transaction
Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or
(e) require any further assurances in relation to any of the Finance Documents creating the Transaction Security.
(a) The Security Agent shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or
to verify any obligation to arrange or maintain insurance contained in the Finance Documents. The Security Agent shall not be responsible for any
loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) Where the Security Agent is named on any insurance policy as an insured party, it shall not be responsible for any loss which may be suffered by
reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other
information of any kind, unless the Facility Agent shall have requested it to do so in writing and the Security Agent shall have failed to do so within
14 days after receipt of that request.
The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the
Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created
under this Agreement and the Security Agent shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by
reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the
proceedings or acts of any person.
The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Transaction
Obligors may have to any of the Charged Property and shall not be liable for or bound to require any Transaction Obligor to remedy any defect in its
right or title.
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent may refrain from doing anything
which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction and the Security Agent may do anything
which is, in its opinion, necessary to comply with any such law, directive or regulation.
The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of
the Group.
If the Security Agent, with the approval of the Facility Agent determines that (a) all of the Secured Liabilities and all other obligations secured by
the Finance Documents creating the Transaction Security have been fully and finally discharged and (b) none of the Secured Parties is under any
commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to
the Finance Documents:
(a) the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction
Security and the rights of the Security Agent under each of the Finance Documents creating the Transaction Security; and
(b) any Retiring Security Agent shall release, without recourse or warranty, all of its rights under each of the Finance Documents creating the
Transaction Security.
The rights, powers and discretions conferred upon the Security Agent by this Agreement shall be supplemental to the Trustee Act 1925 and the
Trustee Act 2000 and in addition to any which may be vested in the Security Agent by general law or otherwise.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
33.26 Trustee division separate
(a) In acting as trustee for the Secured Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a
separate entity from any of its other divisions or departments.
(b) If information is received by another division or department of the Security Agent, it may be treated as confidential to that division or department
and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
33.27 Disapplication
In addition to its rights under or by virtue of this Agreement and the other Finance Documents, the Security Agent shall have all the rights conferred
on a trustee by the Trustee Act 1925, the Trustee Delegation Act 1999, the Trustee Act 2000 and by general law or otherwise, provided that:
(a) section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the
other Finance Documents; and
(b) where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement and any other Finance
Document, the provisions of this Agreement and any other Finance Document shall, to the extent allowed by law, prevail and, in the case of any
inconsistency with the Trustee Act 2000, such provisions shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.
Notwithstanding any rule of law or equity to the contrary, the Security Agent shall be absolutely entitled:
(a) to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any
person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction,
whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such
Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
(b) to deal in and enter into and arrange transactions relating to:
(i) any securities issued or to be issued by any Transaction Obligor or any other person; or
(ii) any options or other derivatives in connection with such securities; and
(c) to provide advice or other services to any Borrower or any person who is a party to, or referred to in, a Finance Document,
and, in particular, each Servicing Party shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such
transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation)
any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings,
transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived
from the dealings transactions or other matters.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
33.29 Resignation of the Security Agent
(a) The Security Agent may resign and appoint one of its affiliates as successor by giving notice to the Borrowers and each Finance Party.
(b) Alternatively the Security Agent may resign by giving notice to the other Parties in which case the Majority Lenders may appoint a successor
Security Agent.
(c) If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 30 days after the notice of
resignation was given, the Security Agent (after consultation with the Facility Agent) may appoint a successor Security Agent.
(d) The retiring Security Agent (the "Retiring Security Agent") shall, at its own cost, make available to the successor Security Agent such documents
and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as
Security Agent under the Finance Documents.
(e) The Security Agent's resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer, by way of a document
expressed as a deed, of all of the Security Property to that successor.
(f) Upon the appointment of a successor, the Retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further
obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 33.24 (Winding up of trust ) and under
paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Agent, remain entitled to the benefit of Clause 33
(The Security Agent), Clause 14.6 (Indemnity to the Security Agent), Clause 33.16 (Lenders' indemnity to the Security Agent) and any other
provisions of a Finance Document which are expressed to limit or exclude its liability in acting as Security Agent. Its successor and each of the other
Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party.
(g) The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security
Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrowers.
(h) The consent of any Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
33.30 Delegation
(a) Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any
period, all or any of the rights, powers and discretions vested in it by any of the Finance Documents.
(b) That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security
Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties and it shall not be
bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such delegate or sub
delegate.
(a) The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(i) if it considers that appointment to be in the interests of the Secured Parties; or
(ii) for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Agent deems to be relevant; or
and the Security Agent shall give prior notice to the Borrowers and the Facility Agent of that appointment.
(b) Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Agent by this Agreement) and
the duties and obligations that are conferred or imposed by the instrument of appointment.
(c) The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that
person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred
by the Security Agent.
(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any
claim; or
(c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party
acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to
Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a) any Bail-In Action in relation to any such liability, including (without limitation):
(i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of
any such liability;
(ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
(b) a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
36 SHARING AMONG THE FINANCE PARTIES
If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 37
(Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due to it under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid
had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 37 (Payment Mechanics), without
taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the " Sharing
Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party
as its share of any payment to be made, in accordance with Clause 37.5 (Application of receipts; partial payments).
The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it among the Finance Parties (other
than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 37.5 (Application of receipts; partial payments);
partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.
On a distribution by the Facility Agent under Clause 36.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from
an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment
will be treated as not having been paid by that Obligor.
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:
(a) each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an
amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed
Amount"); and
(b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as
not having been paid by that Obligor.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
36.5 Exceptions
(a) This Clause 35 (Contractual recognition of bail-in) shall not apply to the extent that the Recovering Finance Party would not, after making any
payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or arbitration proceedings.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SECTION 12
ADMINISTRATION
37 PAYMENT MECHANICS
(a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an
amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant
currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of the country of that currency and with such bank as the Facility Agent, in
each case, specifies.
Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 37.3 (Distributions to an
Obligor) and Clause 37.4 (Clawback and pre-funding) be made available by the Facility Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that
Party may notify to the Facility Agent by not less than five Business Days' notice with a bank specified by that Party in the principal financial centre
of the country of that currency, as specified by that Party or, in the case of an advance of the Loan, to such account of such person as may be
specified by the Borrowers in the Utilisation Request.
The Facility Agent may (with the consent of the Obligor or in accordance with Clause 38 (Set-Off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in
or towards purchase of any amount of any currency to be so applied.
(a) Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually
received that sum.
(b) Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not
actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent
shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the
Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
(c) If the Facility Agent is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the
extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid
to the Borrowers:
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(i) the Borrowers shall on demand refund it to the Facility Agent; and
(ii) the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrowers to whom that sum was
made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility
Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
(a) Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any
Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the
following order:
(i) first, in or towards payment of any amounts then due and payable under any of the Finance Documents (not including any Hedging
Agreement);
(ii) secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document (not
including any Hedging Agreement) but which the Facility Agent, by notice to the Borrowers and the other Finance Parties, states in its
opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them;
(iii) thirdly, in or towards payment of any amounts then due and payable under any Hedging Agreement;
(iv) fourthly, in retention by the Security Agent of an amount equal to any amount not then payable under any Hedging Agreement but which
the Facility Agent, by notice to the Borrowers and the other Finance Parties, states in its opinion will or may become payable in the future
and, upon those amounts becoming due and payable, in or towards satisfaction of them; and
(v) fifthly, any surplus shall be paid to the Borrowers or to any other person who appears to be entitled to it.
(b) If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance
Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following
order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the
Security Agent, any Receiver and any Delegate under the Finance Documents (not including any Hedging Agreement);
(ii) secondly, in or towards payment of any accrued interest and fees due but unpaid to the Lenders under this Agreement;
(iii) thirdly, in or towards payment of any principal due but unpaid to the Lenders under this Agreement;
(iv) fourthly, in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents (not
including any Hedging Agreement);
(v) fifthly, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to any Hedge Counterparty
under any Hedging Agreement;
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(vi) sixthly, in or towards payment of any periodical payments (not being payments as a result of termination or closing out) due but unpaid to
the Hedge Counterparties under the Hedging Agreements; and
(vii) seventhly, in or towards payment of any payments as a result of termination or closing out due but unpaid to the Hedge Counterparties
under the Hedging Agreements.
(c) The Facility Agent shall, if so directed by the Majority Lenders and the Hedge Counterparties, vary the order set out in paragraphs (b) (ii) to (b)(vii)
above.
(d) Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor.
(a) All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
(b) Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under any Hedging
Agreement.
(a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
(a) Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance
Document.
(b) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
(c) Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall
be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the
Borrowers); and
(ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with
the Borrowers) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.
(a) For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any
moneys received or recovered by it from one currency to another, at a market rate of exchange.
(b) The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after
deducting the costs of conversion.
If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by a Borrower that a
Disruption Event has occurred:
(a) the Facility Agent may, and shall if requested to do so by a Borrower, consult with the Borrowers with a view to agreeing with the Borrowers such
changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
(b) the Facility Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in paragraph (a) above if, in its opinion,
it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
(c) the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do
so if, in its opinion, it is not practicable to do so in the circumstances;
(d) any such changes agreed upon by the Facility Agent and the Borrowers shall (whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding
the provisions of Clause 45 (Amendments and Waivers);
(e) the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including,
without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of
the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 37.11 (Disruption to
Payment Systems etc.); and
(f) the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
38 SET-OFF
A Finance Party may set off any obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance
Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
39 NOTICES
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
39.2 Addresses
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with the Finance Documents are:
(a) in the case of the Borrowers, that specified in Schedule 1 (The Parties);
(b) in the case of each Lender, each Hedge Counterparty or any other Obligor, that specified in Schedule 1 (The Parties) or, if it becomes a Party after the
date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
(c) in the case of the Facility Agent, that specified in Schedule 1 (The Parties); and
(d) in the case of the Security Agent, that specified in Schedule 1 (The Parties),
or any substitute address, fax number or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the
other Parties, if a change is made by the Facility Agent) by not less than five Business Days' notice.
39.3 Delivery
(a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be
effective:
(ii) if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its address details provided under Clause 39.2 (Addresses), if addressed to that
department or officer.
(b) Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party
and then only if it is expressly marked for the attention of the department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or
any substitute department or officer as that Servicing Party shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
(d) Any communication or document made or delivered to the Borrowers in accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
(e) Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt
shall be deemed only to become effective on the following day.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
39.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 39.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify the other Parties.
(a) Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or
other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of
communication and if those two Parties:
(i) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of
information by that means; and
(ii) notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
(b) Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any
electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this
purpose.
(c) Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be
deemed only to become effective on the following day.
(d) All Finance Parties confirm that they have consented to the use of the Facility Agents Debtdomain systems as an accepted method of
communication under or in connection with the Finance Documents and agree that the Debtdomain system (or another electronic collaborative
website) will be the primary method of communication between the Facility Agent and the other Finance Parties. The Finance Parties acknowledge
that a communication via Debtdomain (or such other electronic collaborative website) will be effective once the communication is posted (in a
readable form) to Debtdomain (or such other electronic collaborative website) by the Facility Agent.
(a) Any notice given under or in connection with any Finance Document must be in English.
(b) All other documents provided under or in connection with any Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved
by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official
document.
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this clause do not include any
Hedging Agreement entered into by the Borrower with the Hedge Counterparty in connection with the Facility.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
40 CALCULATIONS AND CERTIFICATES
40.1 Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by
a Finance Party are prima facie evidence of the matters to which they relate.
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market
practice.
41 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under the Finance Documents shall operate
as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance
Documents on the part of a Secured Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent
any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
Any settlement or discharge under any Finance Document between any Finance Party and any Obligor shall be conditional upon no security or
payment to any Finance Party by any Obligor or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency
law or otherwise.
44 IRREVOCABLE PAYMENT
If the Facility Agent considers that an amount paid or discharged by, or on behalf of, an Obligor or by any other person in purported payment or
discharge of an obligation of that Obligor to a Finance Party under the Finance Documents is capable of being avoided or otherwise set aside on the
liquidation or administration of that Obligor or otherwise, then that amount shall not be considered to have been unconditionally and irrevocably
paid or discharged for the purposes of the Finance Documents.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
45 AMENDMENTS AND WAIVERS
(a) Subject to Clause 45.2 (All Lender matters) and Clause 45.3 (Other exceptions) any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all
Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 45 (Amendments and Waivers).
(c) Without prejudice to the generality of Clause 32.7 (Rights and discretions of the Facility Agent) and Clause 33.10 (Security Agent's discretions), the
Facility Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment,
waiver or consent under this Agreement.
(a) An amendment of or waiver or consent in relation to any term of any Finance Document that has the effect of changing or which relates to:
(ii) a postponement to or extension of the date of payment of any amount under the Finance Documents (other than in relation to Clause 7.4
(Voluntary prepayment of Loan ) in respect of a prepayment made pursuant to Clause 27.2 (Provision of additional security; prepayment),
Clause 7.5 (Mandatory prepayment on sale or Total Loss) or Clause 7.6 (Mandatory prepayment of Hedging Payment Proceeds);
(iii) a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable;
(iv) a change in currency of payment of any amount under the Finance Documents;
(v) an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation
of Commitments reduces the Commitments rateably under the Facility;
(vii) any provision which expressly requires the consent of all the Lenders;
(ix) any change to the preamble (Background), Clause 2 (The Facility), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 28
(Application of Earnings), Clause 29.10 (Ownership of the Obligors), Clause 30 (Changes to the Lenders), Clause 48 (Governing Law) or
Clause 49 (Enforcement);
(x) any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance
Document (except in the case of a release of Transaction Security as it relates to the disposal of an asset which is the subject of the
Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
(xi) (other than as expressly permitted by the provisions of any Finance Document), the nature or scope of:
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(A) the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity Guarantors) or Clause 20 (Guarantee and
Indemnity Hedge Guarantors) and the joint and several liability of the Guarantors under Clause 18 (Joint and Several Liability
of the Guarantors) and 19 (Joint and Several Liability of the Borrowers);
(C) the manner in which the proceeds of enforcement of the Transaction Security are distributed,
(except in the case of paragraphs (B) and (C) above, insofar as it relates to a sale or disposal of an asset which is the subject of the
Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document);
(xii) the release of the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity Guarantors) or of any Transaction
Security unless permitted under this Agreement or another Finance Document or relating to a sale or disposal of an asset which is the
subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document,
shall not be made, or given, without the prior consent of all the Lenders.
(a) An amendment or waiver which relates to the rights or obligations of a Servicing Party or either Mandated Lead Arranger (each in their capacity as
such) may not be effected without the consent of that Servicing Party or, as the case may be, that Mandated Lead Arranger.
(b) An amendment or waiver which relates to the rights or obligations of a Hedge Counterparty (in its capacity as such) may not be effected without the
consent of that Hedge Counterparty.
(c) The Borrowers and the Facility Agent, either Mandated Lead Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee
Letter to which they are party.
(d) If any Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any of the terms of any Finance Document or other
vote of Lenders under the terms of this Agreement within 10 Business Days of such request (unless the Borrowers and the Facility Agent agree to a
longer time period in relation to any request), (i) its Commitment shall not be included for the purpose of calculating the Total Commitments under
the relevant Facility when ascertaining whether any relevant percentage (including for the avoidance of doubt, unanimity) of Total Commitments
has been obtained to approve that request and (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of
any specified group of Lenders has been obtained to approve that request.
46 CONFIDENTIALITY
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause
46.2 (Disclosure of Confidential Information) and Clause 46.3 (Disclosure to numbering service providers) and to ensure that all Confidential
Information is protected with security measures and a degree of care that would apply to its own confidential information.
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
46.2 Disclosure of Confidential Information
(a) to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, insurance brokers, auditors,
partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential
Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional
obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the
Confidential Information;
(i) to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or
more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent or Security Agent and, in each case, to
any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(ii) with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or
any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or
more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices,
information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed
under paragraph (c) of Clause 32.14 (Relationship with the Lenders));
(iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in
paragraph (b)(i) or (b)(ii) above;
(v) to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking,
taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or
regulation;
(vi) to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or
other investigations, proceedings or disputes;
(vii) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 30.8
(Security over Lenders' rights);
(viii) who is a Party, a member of the Group or any related entity of an Obligor;
(ix) as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in
connection with any Finance Document; or
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the
recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential
Information;
(B) in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information
they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
(C) in relation to paragraphs (b)(v), (b)(vi), and (b)(vii) above, the person to whom the Confidential Information is to be given is
informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except
that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the
circumstances;
(c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or
settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in
respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any
of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a
confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service
Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Finance Party;
(d) to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating
agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors;
(e) to the U.S. Securities and Exchange Commissioning (the "SEC") such Confidential Information as may be required to be disclosed to the SEC.
(a) Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide
identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
(v) the names of the Facility Agent and each Mandated Lead Arranger;
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(vii) amount of Total Commitments;
(xii) changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and
(xiii) such other information agreed between such Finance Party and the Borrowers,
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
(b) The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a
numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the
standard terms and conditions of that numbering service provider.
(c) Each Obligor represents that none of the information set out in paragraphs (a)(i) to (a)(xiii) above is, nor will at any time be, unpublished price-
sensitive information.
(d) The Facility Agent shall notify each Obligor and the other Finance Parties of:
(i) the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more
Obligors; and
(ii) the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service
provider.
This Clause 46 (Confidentiality) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the
Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential
Information.
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use
of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse
and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrowers:
(a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 46.2 (Disclosure of Confidential
Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or
regulatory function; and
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
(b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 46 (Confidentiality).
The obligations in this 46 (Confidentiality) are continuing and , in particular, shall survive and remain binding on each Finance Party for a period of
12 months from the earlier of:
(a) the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have
been cancelled or otherwise cease to be available; and
(b) the date on which such Finance Party otherwise ceases to be a Finance Party.
47 COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
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SECTION 13
48 GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
49 ENFORCEMENT
49.1 Jurisdiction
(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this
Agreement) (a "Dispute").
(b) The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will
argue to the contrary.
(c) This Clause 49.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any
number of jurisdictions.
(a) Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and
Wales):
(i) irrevocably appoints WFW Legal Services Limited at its registered office presently at 15 Appold Street, London, EC2A 2HB as its agent for
service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
(ii) agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
(b) If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of
all the Obligors) must immediately (and in any event within 3 days of such event taking place) appoint another agent on terms acceptable to the
Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
THE PARTIES
PART A
THE OBLIGORS
Registration number
Place of (or equivalent, if Address for
Name of Borrower Incorporation any) Communication
Registration number
Name of Corporate Place of (or equivalent, if Address for
Guarantor Incorporation any) Communication
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Registration number
Place of (or equivalent, if Address for
Name of Hedge Guarantor Incorporation any) Communication
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PART B
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THE HEDGE COUNTERPARTIES
Telephone: +47 22 82 70 00
Facsimile No: +47 22 82 70 70
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PART C
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SCHEDULE 2
CONDITIONS PRECEDENT
PART A
1 Obligors
(a) approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance
Documents to which it is a party;
(b) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation
Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
1.3 An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a
party.
1.4 A copy of a resolution signed by the Corporate Guarantor as the holder of the membership interests in each Borrower, approving the terms of, and the
transactions contemplated by, the Finance Documents to which that Borrower is a party.
1.5 A certificate of each Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not
cause any borrowing, guaranteeing or similar limit binding on that Transaction Obligor to be exceeded.
1.6 A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any
UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the
name and registered number under which it is registered with the Registrar of Companies.
1.7 A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part A of Schedule
2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
2.1 Copies of the Pool Agreements and of all documents signed by the Borrowers in connection with each of them.
2.2 Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution of each Pool
Agreement by each of the parties thereto.
2.3 Copies of each Hedging Agreement executed by a Hedge Counterparty and the relevant Borrower.
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3 Security
3.1 A duly executed original of the Accounts Security in relation to each Earnings Account and of the Membership Interests Security in respect of each
Borrower (and of each document to be delivered under each of them).
3.2 A duly executed original of the Hedging Agreement Assignment in respect of each Borrower (and of each document to be delivered under each of
them).
4 Legal opinions
4.1 A legal opinion of Watson, Farley & Williams LLP, legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in
England, substantially in the form distributed to and agreed by the Original Lenders before signing this Agreement.
4.2 If a Transaction Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Mandated Lead
Arrangers, the Facility Agent and the Security Agent in the relevant jurisdiction, substantially in the form distributed and agreed by to the Original
Lenders before signing this Agreement.
5.1 Evidence that any process agent referred to in Clause 49.2 (Service of process), if not an Obligor, has accepted its appointment.
5.2 A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has
notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction
Document, or for the validity and enforceability of any Transaction Document.
5.3 The Original Financial Statements of each Borrower and the Parent Guarantor.
5.4 The original of any mandates or other documents required in connection with the opening or operation of the Earnings Accounts.
5.5 Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the Utilisation Date.
5.6 Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar
identification procedures in relation to the transactions contemplated by the Finance Documents.
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PART B
1 Relevant Borrower
A certificate of an authorised signatory of each Borrower certifying that each copy document which it is required to provide under this Part B of
Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at the Utilisation Date.
An original of the Deed of Release and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Facility
Agent of its due execution by the parties to it.
3.1 A duly executed original of the Mortgage and the General Assignment in respect of each Ship and of each document to be delivered under or
pursuant to each of them together with documentary evidence that the Mortgage in respect of each Ship has been duly registered as a valid first
preferred or priority (as applicable) ship mortgage in accordance with the laws of the jurisdiction of its Approved Flag.
(a) is definitively and permanently registered in the name of the relevant Borrower under the Approved Flag;.
(b) is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
(c) maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the
Approved Classification Society; and
(d) is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied
with.
3.3 Documents establishing that each Ship will, as from the Utilisation Date, be managed commercially by its Approved Commercial Manager and
managed technically by its Approved Technical Manager on terms acceptable to the Facility Agent acting with the authorisation of all of the
Lenders, together with:
(a) a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and
(b) copies of the Approved Technical Manager's Document of Compliance and of each Ship's Safety Management Certificate (together with any other
details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM Code and
the ISPS Code in relation to each Ship including without limitation an ISSC.
3.4 An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility
Agent may require.
3.5 A valuation of each Ship addressed to the Facility Agent on behalf of the Finance Parties, stated to be for the purposes of this Agreement and dated
not earlier than 30 days before the Utilisation Date from an Approved Valuer which shows a value for each Ship of not less than 130 per cent. of
relevant Tranche (after the relevant Tranche has been advanced).
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4 Legal opinions
Legal opinions of the legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in England and Wales, the
jurisdiction of the Approved Flag of each Ship and the Marshall Islands and such other relevant jurisdictions as the Facility Agent may require and
in substance and form acceptable to the Lenders.
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the Utilisation Date.
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SCHEDULE 3
REQUESTS
PART A
UTILISATION REQUEST
From:
Faroe Shipco LLC
Plymouth Shipco LLC
Portland Shipco LLC
Wight Shipco LLC
Lundy Shipco LLC
Fisher Shipco LLC
Humber Shipco LLC
Dear Sirs
Faroe Shipco LLC, Plymouth Shipco LLC, Portland Shipco LLC, Wight Shipco LLC, Lundy Shipco LLC, Fisher Shipco LLC and Humber Shipco LLC
$150,500,000 Facility Agreement dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
Proposed Utilisation Date: [l] (or, if that is not a Business Day, the next Business Day)
3 We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) as they relate to
the part of the LOan to which this utilisation request refers of the Agreement is satisfied on the date of this Utilisation Request.
4 We represent and warrant that the representations and warranties in Clause 21 (Representations) remain true by reference to the facts and
circumstances existing at the date of this, Utilisation Request.
Yours faithfully
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authorised signatory for
FAROE SHIPCO LLC
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PART B
SELECTION NOTICE
Dated: [l]
Dear Sirs
Faroe Shipco LLC, Plymouth Shipco LLC, Portland Shipco LLC, Wight Shipco LLC, Lundy Shipco LLC, Fisher Shipco LLC and Humber Shipco LLC
$150,500,000 Facility Agreement dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given
a different meaning in this Selection Notice.
2 We request that, subject to paragraph (f) of Clause 9.1 (Selection of Interest Periods) of the Agreement, the next Interest Period for the Loan be [l].
Yours faithfully
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authorised signatory for
PORTLAND SHIPCO LLC
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SCHEDULE 4
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
Dated: [l]
Faroe Shipco LLC, Plymouth Shipco LLC, Portland Shipco LLC, Wight Shipco LLC, Lundy Shipco LLC, Fisher Shipco LLC and Humber Shipco LLC
$150,500,000 Facility Agreement dated [l ] January 2016 (the "Agreement")
1 We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
(a) The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights
and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and
participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 30.5 (Procedure for transfer) of the
Agreement.
(c) The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 39.2 (Addresses) of the
Agreement are set out in the Schedule.
3 The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 30.4 (Limitation of
responsibility of Existing Lenders) of the Agreement.
4 This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on
a single copy of this Transfer Certificate.
5 This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
6 This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in
all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a
transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and
completion of those formalities.
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THE SCHEDULE
By:[l] By:[l]
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [l].
[Facility Agent]
By:[l]
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SCHEDULE 5
To: Nordea Bank AB, London Branch as Facility Agent and Faroe Shipco LLC, Plymouth Shipco LLC, Portland Shipco LLC, Wight Shipco LLC,
Lundy Shipco LLC, Fisher Shipco LLC and Humber Shipco LLC as Borrowers, for and on behalf of each Obligor
From: [the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
Dated: [l]
Faroe Shipco LLC, Plymouth Shipco LLC, Portland Shipco LLC, Wight Shipco LLC, Lundy Shipco LLC, Fisher Shipco LLC and Humber Shipco LLC
$150,500,000 Facility Agreement dated [l ]January 2016 (the "Agreement")
1 We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement
unless given a different meaning in this Assignment Agreement.
(a) The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents
and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan
under the Agreement as specified in the Schedule.
(b) The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's
Commitments and participations in the Loan under the Agreement specified in the Schedule.
(c) The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under
paragraph (b) above.
4 On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
5 The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 39.2 (Addresses) are set
out in the Schedule.
6 The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 30.4 (Limitation of
responsibility of Existing Lenders).
7 This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 30.7
(Copy of Transfer Certificate or Assignment Agreement to Borrowers), to the Borrowers (on behalf of each Obligor) of the assignment referred to in
this Assignment Agreement.
8 This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were
on a single copy of this Assignment Agreement.
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9 This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
10 This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security
in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a
transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and
completion of those formalities.
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THE SCHEDULE
[Facility office address, fax number and attention details for notices
and account details for payments]
By:[l] By:[l]
This Assignment Agreement is accepted by the Facility Agent and the Transfer Date is confirmed as [l].
Signature of this Assignment Agreement by the Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the assignment referred to
herein, which notice the Facility Agent receives on behalf of each Finance Party.
[Facility Agent]
By:
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SCHEDULE 6
Dated: [l]
Dear Sirs
Fair Isle Shipco LLC, Faroe Shipco LLC, Plymouth Shipco LLC, Portland Shipco LLC, Wight Shipco LLC, Lundy Shipco LLC, Fisher Shipco LLC
Humber Shipco LLC, Dover Shipco LLC, Sole Shipco LLC and Trafalgar Shipco LLC $150,500,000 Facility Agreement dated [ ] January 2016 (the
"Agreement")
1 We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance Certificate.
2 We confirm that: [Insert details of covenants to be certified after these are agreed in the body of the agreement.]
Signed:
Director Director
of of
Ardmore Shipping Corporation Ardmore Shipping Corporation
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SCHEDULE 7
SHIPS
Ship A Faroe Shipco LLC ARDMORE SEAFOX MR1 tanker 9708215 50,300 Lloyds's Register 100A1
Ship B Plymouth Shipco LLC ARDMORE SEAWOLF MR1 tanker 9708227 50,300 Lloyds's Register 100A1
Ship C Portland Shipco LLC ARDMORE SEAHAWK MR1 tanker 9708239 50,300 Lloyds's Register 100A1
Ship D Wight Shipco LLC ARDMORE DAUNTLESS MR2 tanker 9707388 37,000 Lloyds's Register 100A1
Ship E Lundy Shipco LLC ARDMORE DEFENDER MR2 tanker 9707390 37,000 Lloyds's Register 100A1
Ship F Fisher Shipco LLC ARDMORE CHINOOK Product/ chemical tanker 9707869 25,000 ABS A1
Ship G Humber Shipco LLC ARDMORE CHIPPEWA Product/ chemical tanker 9707871 25,000 ABS A1
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SCHEDULE 8
Shipbroker Country
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SCHEDULE 9
TIMETABLES
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of the Five Business Days before the intended Utilisation Date (Clause 5.1
Utilisation Request)) or a Selection Notice (Clause 9.1 (Selection of Interest (Delivery of the Utilisation Request)) or the expiry of the preceding Interest
Periods)) Period (Clause 9.1 (Selection of Interest Periods))
Facility Agent notifies the Lenders of the Loan in accordance with Clause Three Business Days before the intended Utilisation Date.
5.4 (Lenders participation)
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EXECUTION PAGES
BORROWERS
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SIGNED by ) /s/ Kathryn Palmer
KATHRYN PALMER )
duly authorised )
attorney-in-fact )
for and on behalf of )
WIGHT SHIPCO LLC )
in the presence of: )
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HEDGE GUARANTORS
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SIGNED by ) /s/ Kathryn Palmer
KATHRYN PALMER )
duly authorised )
attorney-in-fact )
for and on behalf of )
WIGHT SHIPCO LLC )
in the presence of: )
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PARENT GUARANTOR
CORPORATE GUARANTOR
ORIGINAL LENDERS
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SIGNED by ) /s/ Delphine Joly
DELPHINE JOLY )
duly authorised )
attorney-in-fact )
for and on behalf of )
SKANDINAVISKA ENSKILDA )
BANKEN AB (PUBL) )
in the presence of: )
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
MANDATED LEAD ARRANGERS
BOOKRUNNERS
159
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
SIGNED by ) /s/ Delphine Joly
DELPHINE JOLY )
duly authorised )
attorney-in-fact )
for and on behalf of )
SKANDINAVISKA ENSKILDA )
BANKEN AB (PUBL) )
in the presence of: )
FACILITY AGENT
SECURITY AGENT
160
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
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except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Exhibit 8.1
Subsidiary Companies
(1) We have 14 dormant subsidiaries incorporated in the Republic of Marshall Islands and have Ardmore Shipping LLC as the immediate parent
company.
(2) We have 22 ship-owning subsidiaries and two subsidiaries which have long-term bareboat charters, incorporated in the Republic of Marshall Islands
and have Ardmore Shipping LLC as the immediate parent company.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Exhibit 12.1
1. I have reviewed this annual report on Form 20-F of Ardmore Shipping Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that
material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during
the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles;
(c) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual
report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting; and
5. The company's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
company's auditors and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over
financial reporting.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Exhibit 12.2
1. I have reviewed this annual report on Form 20-F of Ardmore Shipping Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that
material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during
the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles;
(c) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual
report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting; and
5. The company's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
company's auditors and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over
financial reporting.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Exhibit 13.1
In connection with this Annual Report of Ardmore Shipping Corporation (the Company) on Form 20-F for the year ended December 31, 2015 as filed with
the Securities and Exchange Commission (the SEC) on or about the date hereof (the Report), I, Anthony Gurnee, Chief Executive Officer of the
Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the SEC or its staff upon
request.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Exhibit 13.2
In connection with this Annual Report of Ardmore Shipping Corporation (the Company) on Form 20-F for the year ended December 31, 2015 as filed with
the Securities and Exchange Commission (the SEC) on or about the date hereof (the Report), I, Paul Tivnan, Chief Financial Officer of the Company,
certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the SEC or its staff upon
request.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.
Source: Ardmore Shipping Corp, 20-F, April 06, 2016 Powered by Morningstar Document Research
The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user assumes all risks for any damages or losses arising from any use of this information,
except to the extent such damages or losses cannot be limited or excluded by applicable law. Past financial performance is no guarantee of future results.