Exhibit












EXHIBIT 4.31
EXECUTION VERSION










Dated 13 September 2018
























US$29,975,000


TERM LOAN FACILITY


SBI ZUMBA SHIPPING COMPANY LIMITED SBI PARAPARA SHIPPING COMPANY LIMITED as joint and several Borrowers
and Hedge Guarantors and
SCORPIO BULKERS INC.
as Parent Guarantor and
ING BANK N.V., LONDON BRANCH
as Arranger and
ING BANK N.V., LONDON BRANCH
as Facility Agent and
ING BANK N.V., LONDON BRANCH
as Security Agent








FACILITY AGREEMENT


relating to
the financing of m.v. "SBI ZUMBA" and m.v. "SBI PARAPARA"





































Index


Clause    Page








Section 1 Interpretation ...........................................................................................................................2
1    Definitions and Interpretation ....................................................................................................2
Section 2 The Facility ..............................................................................................................................29
2    The Facility.................................................................................................................................29
3    Purpose......................................................................................................................................30
4    Conditions of Utilisation ............................................................................................................30
Section 3 Utilisation................................................................................................................................32
5    Utilisation - Advance .................................................................................................................32
Section 4 Repayment, Prepayment and Cancellation ............................................................................34
6    Repayment ................................................................................................................................34
7    Prepayment and Cancellation ...................................................................................................35
Section 5 Costs of Utilisation..................................................................................................................39
8    Interest ......................................................................................................................................39
9    Interest Periods .........................................................................................................................41
10    Changes to the Calculation of Interest ......................................................................................42
11    Fees ...........................................................................................................................................44
Section 6 Additional Payment Obligations .............................................................................................45
12    Tax Gross Up and Indemnities...................................................................................................45
13    Increased Costs .........................................................................................................................49
14    Other Indemnities .....................................................................................................................51
15    Mitigation by the Finance Parties .............................................................................................53
16    Costs and Expenses ...................................................................................................................54
Section 7 Guarantees and Joint and Several Liability of Borrowers.......................................................56
17    Guarantee and Indemnity - Parent Guarantor .........................................................................56
18    Joint and Several Liability of the Borrowers..............................................................................58
19    Guarantee and Indemnity - Hedge Guarantors........................................................................60
Section 8 Representations, Undertakings and Events of Default ..........................................................64
20    Representations ........................................................................................................................64
21    Information Undertakings .........................................................................................................70
22    Financial Covenants...................................................................................................................73
23    General Undertakings ...............................................................................................................74
24    Insurance Undertakings ............................................................................................................80
25    General Ship Undertakings........................................................................................................85
26    Security Cover ...........................................................................................................................91
27    Accounts and application of Earnings .......................................................................................93
28    Events of Default .......................................................................................................................93
Section 9 Changes to Parties ..................................................................................................................98
29    Changes to the Lenders and the Hedge Counterparties ...........................................................98
30    Changes to the Obligors ..........................................................................................................103
Section 10 The Finance Parties.............................................................................................................105











31    The Facility Agent, the Arranger and the Reference Banks ....................................................105
32    The Security Agent ..................................................................................................................116
33    Conduct of Business by the Finance Parties............................................................................131
34    Sharing among the Finance Parties .........................................................................................131
Section 11 Administration ....................................................................................................................134
35    Payment Mechanics ................................................................................................................134
36    Set-Off .....................................................................................................................................137
37    Bail-in.......................................................................................................................................137
38    Notices.....................................................................................................................................138
39    Calculations and Certificates ...................................................................................................140
40    Partial Invalidity.......................................................................................................................140
41    Remedies and Waivers ............................................................................................................141
42    Settlement or Discharge Conditional ......................................................................................141
43    Irrevocable Payment ...............................................................................................................141
44    Amendments and Waivers ......................................................................................................141
45    Confidential Information .........................................................................................................144
46    Confidentiality of Funding Rates and Reference Bank Quotations.........................................148
47    Counterparts ...........................................................................................................................149
Section 12 Governing Law and Enforcement .......................................................................................150
48    Governing Law.........................................................................................................................150
49    Enforcement ............................................................................................................................150


Schedules


Schedule 1 The Parties .........................................................................................................................151
Part A The Obligors................................................................................................................. 151
Part B The Original Lenders .................................................................................................... 153
Part C The Servicing Parties .................................................................................................... 154
Schedule 2 Conditions Precedent and Subsequent .............................................................................155
Part A Conditions Precedent to Initial Utilisation Request .................................................... 155
Part B Conditions Precedent to Utilisation............................................................................. 158
Part C Conditions Subsequent for each Tranche .................................................................... 160
Schedule 3 Requests.............................................................................................................................161
Part A Utilisation Request - Advance...................................................................................... 161
Part B Selection Notice ........................................................................................................... 163
Schedule 4 Form of Transfer Certificate...............................................................................................164
Schedule 5 Form of Assignment Agreement........................................................................................166
Schedule 6 Form of Hedge Counterparty Accession Letter .................................................................169
Schedule 7 Form of Compliance Certificate .........................................................................................170
Schedule 8 Details of the Ships ................................................................................................................1
Schedule 9 Timetables..............................................................................................................................1


Execution


Execution Pages........................................................................................................................................2
EXECUTION VERSION




THIS AGREEMENT is made on      September 2018


PARTIES


		
	(1)
	SBI ZUMBA SHIPPING COMPANY LIMITED, a corporation incorporated in the Republic of the 













Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Republic of the Marshall Islands as a borrower ("Borrower A")


		
	(2)
	SBI PARAPARA SHIPPING COMPANY LIMITED, a corporation incorporated in the Republic of the  Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Republic of the Marshall Islands as a borrower ("Borrower B")




		
	(3)
	SCORPIO BULKERS INC., a corporation incorporated in the Republic of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Republic of the Marshall Islands as guarantor (the "Parent Guarantor")




(4)    THE COMPANIES listed in Part A of Schedule 1 (The Parties) as hedge guarantors (the "Hedge
Guarantors")


(5)    ING BANK N.V., LONDON BRANCH as arranger (the "Arranger")


(6)    THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the
"Original Lenders")


		
	(7)
	THE  FINANCIAL  INSTITUTIONS  listed  in  Part  B  of  Schedule  1  (The  Parties)  as  hedge counterparties (the "Original Hedge Counterparties")


(8)    ING BANK N.V., LONDON BRANCH as agent of the other Finance Parties (the "Facility Agent") (9)    ING BANK N.V., LONDON BRANCH 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 US$29,975,000 for the purposes of:




		
	(i)
	refinancing Ship A by way of a loan in a principal amount not exceeding the lesser of (A) US$14,712,500, or (B) 55 per cent. of the Market Value of Ship A on or around the Utilisation Date; and




		
	(ii)
	refinancing Ship B by way of a loan in a principal amount not exceeding the lesser of (A) US$15,262,500, or (B) 55 per cent. of the Market Value of Ship B on or around the Utilisation Date.




		
	(B)
	The Hedge Counterparties may, at the Borrowers' request, 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.




OPERATIVE PROVISIONS


SECTION 1


INTERPRETATION


1    DEFINITIONS AND INTERPRETATION


1.1    Definitions


In this Agreement:


"2002 ISDA Master Agreement" means the 2002 Master Agreement as published by the











International Swaps and Derivatives Association, Inc.


"Account Bank" means ABN AMRO Bank, N.V. acting through its office at Coolsingel 93, 3012
AE Rotterdam, The Netherlands or any replacement bank or other financial institution as may be approved by the Facility Agent acting with the authorisation of the Majority Lenders.


"Accounting Period" means, in relation to the Parent Guarantor, each consecutive quarterly period   during  the  Security  Period  ending  on  31  March,  30  June,  30  September  and
31 December.
"Account Security" means a document creating Security over any Account in agreed form. "Additional  Hedge Counterparty" means a bank or financial institution which becomes a
Hedge Counterparty in accordance with Clause 29.8 (Additional Hedge Counterparties).


"Advance" means a borrowing of all or part of a Tranche under this Agreement.


"Affiliate" means, in relation to any person, any other person that, directly or indirectly, controls, is controlled by or is under common control with such person or is a director or officer of such person, and for purposes of this definition, the term "control" (including the terms "controlling", "controlled  by" and "under common control with") of a person means the possession, direct or indirect, of the power to vote 20 per cent. or more of the voting stock of such person or to direct or cause direction of the management and policies of such person, whether through the ownership of voting stock, by contract or otherwise.


"Approved Brokers" means any firm or firms of insurance brokers approved in writing by the Facility Agent, acting with the authorisation of the Majority Lenders which authorisation no Lender shall unreasonably withhold or delay.


"Approved Classification" means, in relation to a Ship, as at the date of this Agreement, the classification in relation to that Ship specified in Schedule 8 (Details of the Ships) with the Approved Classification Society.


"Approved  Classification  Society"  means,  in  relation  to  a  Ship,  as  at  the  date  of  this Agreement, the classification society in relation to that Ship specified in Schedule 8 (Details of the Ships) or any other classification society approved in writing by the Facility Agent acting with  the   authorisation  of  the  Majority  Lenders  which  authorisation  no  Lender  shall unreasonably withhold or delay.


"Approved Commercial Manager" means, in relation to a Ship: (a)    Scorpio Commercial Management S.A.M;
(b)    any Affiliate or Subsidiary of Scorpio Ship Management S.A.M., Scorpio Commercial
Management S.A.M. or the Parent Guarantor, or


		
	(c)
	any  other  person  approved  in  writing  by  the  Facility  Agent  acting  with  the authorisation of the Majority Lenders.




"Approved Flag" means, in relation to a Ship, the Republic of Liberia, the Republic of the Marshall Islands or such other flag approved from time to time in writing by the Facility Agent acting with the authorisation of the Majority Lenders.


"Approved Manager" means, in relation to a Ship, the Approved Commercial Manager, the
Approved Technical Manager or the Approved Sub-Manager of that Ship.


"Approved Pooling Arrangement" means, in relation to a Ship, the "Scorpio Kamsarmax Pool" and any pooling arrangement:













(a)    proposed by the Parent Guarantor or the Borrower that owns that Ship; (b)    run by any Affiliate of the Approved Commercial Manager; and
(c)    approved in writing by the Facility Agent (acting on the instructions of all the Lenders)
prior to that Ship's entry into such pooling arrangement.


"Approved Technical Manager" in relation to a Ship: (a)    Scorpio Ship Management S.A.M.;
(b)    any Affiliate or Subsidiary of Scorpio Ship Management S.A.M., Scorpio Commercial
Management S.A.M. or the Parent Guarantor; or


		
	(c)
	any  other  person  approved  in  writing  by  the  Facility  Agent  acting  with  the authorisation of the Majority Lenders.




"Approved Sub-Manager" means, in relation to the technical management of a Ship:


(a)    any Affiliate or Subsidiary of Scorpio Ship Management S.A.M., Scorpio Commercial
Management S.A.M. or the Parent Guarantor;


(b)    Claus Peter Offen;


(c)    D'Amico International Shipping; (d)    Hellespont Shipping;
(e)    Synergy;


(f)    V. Ships Ship Management; or


		
	(g)
	any other company proposed by the Borrower owning such Ship which the Facility Agent may (acting on the instructions of the Majority Lenders) approve from time to time as the technical sub-contracting manager of a Ship.




"Approved  Valuer"  means  Clarksons  Valuations  Limited,  Arrow,  Braemar,  Fearnleys  and
Compass Marine Services Ltd. and any other firm or firms of independent sale and purchase
shipbrokers approved in writing by the Facility Agent, acting with the authorisation of the
Majority Lenders.


"Assignable Charter" means, in respect of a Ship, any Charter of that Ship having a duration (including, without limitation, by virtue of any operational extensions) of more than 12 months but excluding any Charter with an Affiliate of an Obligor or any Charter made pursuant to an Approved Pooling Arrangement.


"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, in relation to each Tranche, the period from and including the date of this Agreement to and including 30 September 2018.


"Available Commitment" means in relation to a Tranche, a Lender's Commitment under that











Tranche minus:


(a)    the amount of its participation in any outstanding Utilisation under that Tranche; and


		
	(b)
	in relation to any proposed Utilisation, the amount of its participation in any other Utilisation that is due to be made under that Tranche on or before the proposed Utilisation Date.




"Available Tranche" means, in relation to a Tranche, the aggregate for the time being of each
Lender's Available Commitment in respect of that Tranche.


"Bail-In Action" means the exercise of any Write-down and Conversion Powers. "Bail-In Legislation" means:
(a)    in relation to an EEA Member Country which has implemented, or which at any time
implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery  and  resolution of  credit  institutions  and investment  firms,  the  relevant implementing  law  or regulation as described in the EU Bail-In Legislation Schedule from time to time; and


		
	(b)
	in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.




"Borrower" means Borrower A or Borrower B. "Break Costs" means the amount (if any) by which:
(a)    the interest (excluding Margin) which a Lender should have received for the period
from the date of receipt of all or any part of its participation in the Loan or an "Unpaid Sum" to the last day of the current Interest Period in relation to the Loan, the relevant part of the Loan or that Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds


		
	(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, Amsterdam and New York.


"Cash" means any credit balance on any deposit, savings, current or other account, and any cash in hand held with banks or other financial institutions of the Group which is:


(a)    freely withdrawable on demand;


(b)    not subject to any Security (other than pursuant to any Security Document);


(c)    denominated and payable in a freely transferable and freely convertible currency; and


(d)    capable of being remitted to the Group. "Cash Equivalents" means:
(a)    unencumbered securities issued or directly and fully guaranteed or insured by the











United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof);


		
	(b)
	time deposits, certificates of deposit or deposits (in each case, unencumbered) in the interbank market of any commercial bank of recognized standing organized under the laws of  the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and


(c)    such other securities or instruments as the Majority Lenders shall agree in writing, and in respect of both (a) and (b) above, with a rating category of at least "A-" by Standard &
Poor's Rating Services and "A" by Moody's Investors Service Limited (or the equivalent used by
another rating agency) (provided that, in the case of (b) above only, such rating category shall not  be  applicable  for  time  deposits,  certificates  of  deposit  or  deposits  (in  each  case, unencumbered) in the interbank market of any commercial bank which is a Lender), and in each case having maturities of not more than 90 days from the date of acquisition.


"Change of Control" means where:


		
	(a)
	100 per cent. of the Equity Interests of either Borrower ceases to be ultimately owned and/or controlled by the Parent Guarantor;




		
	(b)
	a person or group other than any director or officer or any holders of 5 per cent. or more of  the Parent Guarantor's Equity Interests as of the date of this Agreement becomes the ultimate beneficial owner of more than 35 per cent. of the total voting power of the voting stock of the Parent Guarantor (calculated on a fully diluted basis); or


		
	(c)
	individuals who, at the beginning of any period of two consecutive calendar years, constitute  the  board  of  directors  or  equivalent  governing  body  of  the  Parent Guarantor and yet cease for any reason to constitute at least 50 per cent. of the total members of such board of directors or equivalent governing body then in office at any time during such two year period.




"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,  including,  without  limitation,  any Permitted Charter and any Assignable Charter.


"Charter  Guarantee"  means  any  guarantee,  bond,  letter  of  credit  or  other  instrument
(whether or not already issued) supporting an Assignable Charter. "Code" means the US Internal Revenue Code of 1986.
"Commercial  Management  Agreement"  means  the  agreement  entered  into  between  a Borrower and the Approved Commercial Manager regarding the commercial management of a Ship.


"Commitment" means a Tranche A Commitment or a Tranche B Commitment.


"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 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:


(a)    any member of the Group or any of its advisers; or


		
	(b)
	another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,















in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:


(i)    information that:


		
	(A)
	is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 45 (Confidential Information); or




		
	(B)
	is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or




		
	(C)
	is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the


Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and


(ii)    any Funding Rate or Reference Bank Quotation.


"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.


"Consolidated Funded Debt" means, for any Accounting Period, the sum of the following for the Parent Guarantor determined (without duplication) on a consolidated basis for such period and in accordance with US GAAP consistently applied:


(a)    all Financial Indebtedness; and


		
	(b)
	all obligations to pay a specific purchase price for goods or services whether or not delivered  or  accepted  (including  take-or-pay  and  similar  obligations  which  in accordance with US GAAP would be shown on the liability side of a balance sheet),




provided that balance sheet accruals for future dry docking expenses shall not be classified as
Consolidated Funded Debt.


"Consolidated Tangible Net Worth" means, on a consolidated basis, the total shareholders' equity (including retained earnings) of the Parent Guarantor, minus goodwill and as adjusted to exclude:


(a)    any incurred losses and/or write downs on assets sold or held for sale on or after 31
December 2013;


(b)    any losses incurred on termination of shipbuilding contracts on or after 31 December
2013; and


(c)    any impairment charges taken on assets on or after 31 December 2013,


provided always that until the US$409m loan facility provided by Nordea to the Parent Guarantor has been repaid in full, the definition in the loan agreement relating to such Nordea facility dated 30 December 2014 shall apply.













"Consolidated   Total   Capitalisation"   means   Consolidated   Tangible   Net   Worth   plus
Consolidated Funded Debt.


"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.


"Default" means an Event of Default or a Potential Event of Default.


"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security
Agent.


"Disruption Event" means either or both of:
		
	(a)
	a  material  disruption  to  those  payment or  communications  systems  or to  those financial markets which are, in each case, required to operate in order for payments to be made in connection with the 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.


"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 the Borrower owning that Ship or the Security
Agent and which arise out of the use or operation of that Ship, including (but not limited to): (a)    except to the extent that they fall within paragraph (b):
(i)    all freight, hire and passage moneys;


		
	(ii)
	compensation payable to the relevant Borrower or the Security Agent in the event of requisition of that Ship for hire;




(iii)    remuneration for salvage and towage services; (iv)    demurrage and detention moneys;
		
	(v)
	damages  for  breach  (or  payments  for  variation  or  termination)  of  any charterparty or other contract for the employment of that Ship;




		
	(vi)
	all moneys which are at any time payable under Insurances in respect of loss of hire; and




		
	(b)
	if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.















"Earnings Account" means, in relation to a Borrower:


(a)    an account in the name of that Borrower with the Account Bank designated "Earnings
Account";
		
	(b)
	any other account in the name of that Borrower with the Account Bank which may, with the  prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a) above, irrespective of the number or designation of such replacement account; or




(c)    any sub-account of any account referred to in paragraphs (a) or (b) above.


"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.


"Environmental Incident" means:


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




		
	(b)
	any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water from a vessel other than any Ship and which involves a collision between any Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or




		
	(c)
	any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water  otherwise than from a Ship and in connection with which a Ship is actually or potentially  liable to be arrested and/or where any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.




"Environmental Law" means any present or future law relating to pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material.


"Environmentally Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"Equity Interests" of any person means:













		
	(a)
	any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and




		
	(b)
	all  rights  to  purchase,  warrants  or  options  or  convertible  debt  (whether  or  not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person.




"Equity Proceeds" means the net cash proceeds from the issuance of common or preferred stock of the Parent Guarantor.


"EU Bail-In Legislation Schedule" means the document described as such and published by the
LMA from time to time.


"Event of Default" means any event or circumstance specified as such in Clause 28 (Events of
Default).


"Facility" means the term loan facility made available under this Agreement as described in
Clause 2 (The Facility).


"Facility Office" means in respect of a Lender, the office or offices notified by that 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.


"FATCA" means:


(a)    sections 1471 to 1474 of the Code or any associated regulations;


		
	(b)
	any   treaty,   law   or   regulation   of   any   other   jurisdiction,   or   relating   to   an intergovernmental agreement between the US and any other jurisdiction, which (in either  case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or




		
	(c)
	any agreement pursuant to  the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.




"FATCA Application Date" means:


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




		
	(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 any of the Arranger, the Facility Agent and the Security Agent and any Obligor setting out any of the fees referred to in Clause 11 (Fees).


"Finance Document" means: (a)    this Agreement;
(b)    any Fee Letter;


(c)    each Utilisation Request; (d)    any Security Document; (e)    any Hedging Agreement;
(f)    any Subordination Agreement;


		
	(g)
	any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or


(h)    any other document designated as such by the Facility Agent and the Borrowers. "Finance  Party" means the Facility Agent, the Security Agent, the Arranger, a Lender or a
Hedge Counterparty.


"Financial Indebtedness" means any indebtedness for or in relation to: (a)    moneys borrowed;
		
	(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 US GAAP, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with US GAAP in force prior to 1 January 2019 have been treated as an operating 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 agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;




		
	(g)
	any  derivative transaction entered  into  in  connection  with  protection  against  or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of  the termination or close-out of that derivative transaction, that amount) shall be taken into account);




		
	(h)
	any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and




		
	(i)
	the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.















"Fleet Vessel" means each vessel owned by a wholly owned direct or indirect Subsidiary of the
Parent Guarantor (including, but not limited to, the Ships).


"Funding Rate" means any individual rate notified by a Lender to the Facility Agent pursuant to sub-paragraph (ii) of paragraph (a) of Clause 10.4 (Cost of funds).


"General Assignment" means, in relation to a Ship, the general assignment creating Security over:


		
	(a)
	that Ship's Earnings, its Insurances and any Requisition Compensation in relation to that Ship; and




		
	(b)
	any Assignable Charter and any related Charter Guarantee in relation to that Ship in agreed form.




"Group" means the Parent Guarantor and its Subsidiaries for the time being.


"Hedge Counterparty" means any Original Hedge Counterparty or any Additional Hedge
Counterparty.


"Hedge Counterparty Accession Letter" means a document substantially in the form set out in Schedule 6 (Form of Hedge Counterparty Accession Letter).


"Hedge Counterparty Guarantee" means any guarantee in agreed form entered into or to be entered into in favour of a Borrower for the purpose of guaranteeing the obligations owed by a Hedge Counterparty to that Borrower under a Hedging Agreement.


"Hedge Counterparty Guarantor" means any person who provides a Hedge Counterparty
Guarantee.


"Hedge Receipts" means all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Borrower or the Security Agent by a Hedge Counterparty or a Hedge  Counterparty  Guarantor  under  a  Hedging  Agreement  or  a  Hedge  Counterparty Guarantee.
"Hedging Agreement" means any master agreement, confirmation, transaction, schedule or other agreement in agreed form entered into or to be entered into by a Borrower for the purpose of hedging interest payable under this Agreement.


"Hedging Agreement Security" means, in relation to a Borrower, a hedging agreement security creating Security over that Borrower's rights and interests in any Hedging Agreement and any Hedge Counterparty Guarantee, in agreed form.


"Hedging Prepayment Proceeds" means any Hedge Receipts arising 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). "Insolvency Event" in relation to an entity means that the entity:
(a)    is dissolved (other than pursuant to a consolidation, amalgamation or merger);


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




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















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




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




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




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




		
	(f)
	has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to  Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;


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




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




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




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




		
	(k)
	takes  any  action  in  furtherance  of,  or  indicating  its  consent  to,  approval  of,  or acquiescence in, any of the foregoing acts.




"Insurances" means, in relation to a Ship:


		
	(a)
	all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that Ship, that Ship's Earnings or otherwise in relation to that Ship 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 Payment Date" has the meaning given to it in paragraph (a) of Clause 8.2 (Payment of interest).


"Interest  Period"  means,  in  relation  to  the  Loan  or  any  part  of  the  Loan,  each  period determined in 











accordance with Clause 9.1 (Selection of 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 the Loan or any part of the Loan, 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 or that part of the Loan; and




		
	(b)
	the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan,




each as of the Specified Time for dollars.


"ISDA Master Agreement" means a 2002 ISDA Master Agreement.


"ISM Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (including the guidelines on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to time.


"ISPS Code" means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organization's (IMO) Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.


"ISSC" means an International Ship Security Certificate issued under the ISPS Code. "Legal Reservations" means:
		
	(a)
	the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;




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




(c)    similar principles, rights and defences under the laws of any Relevant Jurisdiction. "Lender" means:
(a)    any Original Lender; and


		
	(b)
	any bank, financial institution, trust, fund or other entity which has become a Party as a  Lender  in  accordance  with  Clause  29  (Changes to  the  Lenders  and  the  Hedge Counterparties),




which in each case has not ceased to be a Party as such in accordance with this Agreement. "LIBOR" means, in relation to the Loan or any part of the Loan:
		
	(a)
	the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or




(b)    as otherwise determined pursuant to Clause 10.1 (Unavailability of Screen Rate), and if, in either case, 











that rate is less than zero, LIBOR shall be deemed to be zero.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984. "LMA" means the Loan Market Association or any successor organisation.
"Loan" means the amount of the Advance to be made available under the Facility or the aggregate principal amount outstanding for the time being of the borrowings under the Facility and a "part of the Loan" means an Advance, a Tranche, a part of a Tranche or any other part of the Loan as the context may require.
"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.


"Majority Lenders" means:


		
	(a)
	if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 662⁄3 per cent. of the Total Commitments; or




		
	(b)
	at any other time, a Lender or Lenders whose participations in the Utilisations then outstanding aggregate more than 662⁄3 per cent. of the amount of the UƟlisaƟons then outstanding or, if all Utilisations have been repaid or prepaid in full, a Lender or Lenders  whose  participations  in  the  Utilisations  outstanding  immediately  before repayment or prepayment in full aggregate more than 662⁄3 per cent. of the Utilisations outstanding immediately before such repayment.




"Management  Agreement"  means  a  Technical  Management  Agreement,  a  Commercial
Management Agreement or a Sub-Technical Management Agreement.


"Manager's Undertaking" means, in relation to a Ship, the letter of undertaking from the Approved  Technical  Manager,  the  letter  of  undertaking  from  the  Approved  Commercial Manager  and  the  letter  of  undertaking  from  the  Approved  Sub-Manager  (if  applicable) subordinating  the  rights of  the  Approved  Technical  Manager,  the  Approved Commercial Manager and the Approved Sub-Manager (if applicable) respectively against each Ship and each Borrower to the rights of the Finance Parties in agreed form.


"Margin" means 2.20 per cent. per annum.


"Market Value" means, in relation to a Ship or any other vessel, at any date, the market value of that Ship or vessel shown by the average of two valuations addressed to the Facility Agent and prepared:


(a)    as at a date not more than 14 days previously; (b)    by an Approved Valuer;
		
	(c)
	with or without physical inspection of that Ship or vessel (as the Facility Agent may require);




		
	(d)
	on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any Charter; and




		
	(e)
	after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with a sale described in sub-paragraph (d) above.




"Material Adverse Effect" means in the reasonable opinion of the Majority Lenders a material adverse effect on:


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















(b)    the ability of any Obligor to perform its obligations under any Finance Document; or
		
	(c)
	the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.




"Month"  means  a  period  starting  on  one  day  in  a  calendar  month  and  ending  on  the numerically corresponding day in the next calendar month, except that:


		
	(a)
	(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 ship mortgage on that Ship in agreed form.


"Net Debt" means Financial Indebtedness less Cash and Cash Equivalents. "Obligor" means a Borrower, the Parent Guarantor or a Hedge Guarantor.
"Original Financial Statements" means the audited consolidated financial statements of the
Parent Guarantor for its financial year ended 31 December 2017.


"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that
Obligor is incorporated as at the date of this Agreement.
"Overseas Regulations" means the Overseas Companies Regulations 2009 (SI 2009/1801). "Parallel  Debt" means any  amount which an Obligor owes to the Security Agent under
Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) or under that clause as
incorporated by reference or in full in any other Finance Document.


"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.


"Party" means a party to this Agreement.


"Perfection Requirements" means the making or procuring of filings, stampings, registrations, notarisations,  endorsements,  translations  and/or  notifications  of  any  Finance  Document (and/or any Security created under it) necessary for the validity, enforceability (as against the relevant Obligor or any relevant third party) and/or perfection of that Finance Document.


"Permitted Charter" means, in relation to a Ship:
(a)    a Charter:


(i)    which is a time, voyage or consecutive voyage charter;


		
	(ii)
	the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 12 months plus a redelivery allowance of not more than 30 days;















(iii)    which is entered into on bona fide arm's length terms at the time at which that
Ship is fixed;


(iv)    where the charterer is an Affiliate of the Parent Guarantor; and
(v)    in relation to which not more than two months' hire is payable in advance, and any  other Charter, including without limitation an Assignable Charter, which is
approved in writing by the Facility Agent acting with the authorisation of the Majority
Lenders which authorisation no Lender shall unreasonably withhold or delay; or (b)    a Charter entered into in relation to an Approved Pooling Arrangement. "Permitted Financial Indebtedness" means:
(a)    any Financial Indebtedness incurred under the Finance Documents; and


		
	(b)
	any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents pursuant to a Subordination Agreement or otherwise and which is, in the case of any such Financial Indebtedness of a Borrower, the subject of Subordinated Debt Security.




"Permitted Security" means:


(a)    Security created by the Finance Documents;


		
	(b)
	any netting or set-off arrangement entered into by any Obligor in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;




		
	(c)
	liens  for  unpaid  master's  and  crew's  wages  in  accordance  with  first  class  ship ownership and management practice and not being enforced through arrest;




(d)    liens for salvage;


		
	(e)
	liens  for  master's  disbursements  incurred  in  the  ordinary  course  of  trading  in accordance with first class ship ownership and management practice and not being enforced through arrest; and




		
	(f)
	any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship:




(i)    not as a result of any default or omission by either Borrower; (ii)    not being enforced through arrest; and
		
	(iii)
	subject,  in  the  case  of  liens  for  repair  or  maintenance,  to  Clause  25.16 (Restrictions on chartering, appointment of managers etc.),




and provided such lien does not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps.


"Potential Event of Default" means any event or circumstance specified in Clause 28 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.


"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.













"Protected Party" has the meaning given to it in Clause 12.1 (Definitions).


"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 Security Assets.


"Reference  Bank  Quotation"  means  any  quotation  supplied  to  the  Facility  Agent  by  a
Reference Bank.


"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:


(a)    if:


(i)    the Reference Bank is a contributor to the Screen Rate; and


(ii)    it consists of a single figure,


as the rate (applied to the relevant Reference Bank and the relevant currency and period)  which contributors to the Screen Rate are asked to submit to the relevant administrator; or


		
	(b)
	in any other case, as the rate at which the relevant Reference Bank could fund itself in dollars  for the relevant period with reference to the unsecured wholesale funding market.




"Reference Banks" means such banks as may be appointed by the Facility Agent.


"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
"Relevant Interbank Market" means the London interbank market. "Relevant Jurisdiction" means, in relation to an Obligor:
(a)    England and Wales, the Principality of Monaco, New York State of the United States of
America, The Netherlands and the Republic of the Marshall Islands;


		
	(b)
	if not within any of the jurisdictions referred to in (a) above, the country under the laws of which the company is incorporated or formed;




		
	(c)
	if not within any of the jurisdictions referred to in (a) above, a country in which the company  has the centre of its main interests or in which the company's central management and control is or has recently been exercised; and




		
	(d)
	the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.




"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  20
(Representations) except Clause 20.10 (Insolvency), Clause 20.11 (No filing or stamp taxes) and Clause  20.12 (Deduction of Tax) and any representation of any 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.


"Requisition" means, in relation to a Ship:


		
	(a)
	any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected (whether de jure or de facto) by any government or  official authority or by any person or persons claiming to be or to represent a government or official authority; and




		
	(b)
	any capture or seizure of that Ship (including any hijacking or theft) by any person whatsoever.




"Requisition  Compensation"  includes  all  compensation  or  other  moneys  payable  to  a Borrower by reason of any Requisition or any arrest or detention of a Ship in the exercise or purported exercise of any lien or claim.


"Resolution Authority" means any body which has authority to exercise any Write-down and
Conversion Powers.


"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  sanctions,  embargoes,  freezing  provisions,  prohibitions  or  other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):


(a)    imposed by law or regulation of the United Kingdom, the Council of the European
Union, the United Nations or its Security Council or the United States of America; or


		
	(b)
	otherwise imposed by any law or regulation binding on an Obligor or to which an Obligor   is   subject  (which  shall  include  without  limitation,  any  extra-territorial sanctions imposed by law or regulation of the United States of America),




provided that such laws, regulations, sanctions, embargoes, freezing provisions, prohibitions or restrictive measures shall be applicable only to the extent such laws, regulations, sanctions, embargoes or restrictive measures are not in conflict with the laws of the United States of America.


"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 page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or 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 Obligor to any Secured Party under or in connection with each Finance Document.


"Secured Party" means each Finance Party from time to time party to this Agreement, a











Receiver or any Delegate.


"Security" means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.


"Security Assets" means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.


"Security Document" means: (a)    any Shares Security; (b)    any Mortgage;
(c)    any General Assignment; (d)    any Account Security;
(e)    any Hedging Agreement Security; (f)    any Subordinated Debt Security;
		
	(g)
	any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or


(h)    any other document designated as such by the Facility Agent and the Borrowers. "Security Period" means the period starting on the date of this Agreement and ending on the
date on which the Facility Agent, acting reasonably, notifies the Obligors and the Lenders that
there is no outstanding Commitment in force and that the Secured Liabilities have been irrevocably and unconditionally paid and discharged in full.


"Security Property" means:


		
	(a)
	the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;




		
	(b)
	all obligations expressed to be undertaken by an Obligor to pay amounts in relation to the  Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;




(c)    the  Security  Agent's  interest  in  any  turnover  trust  created  under  the  Finance
Documents;


		
	(d)
	any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,




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 8.5(a) (Interest Periods).













"Servicing Party" means the Facility Agent or the Security Agent.


"Shares Security" means, in relation to a Borrower, a document creating Security over the share capital in that Borrower in agreed form.


"Ship" means Ship A or Ship B.


"Ship A" means m.v. SBI ZUMBA, details of which are set out opposite its name in Schedule 8 (Details of the Ships).


"Ship B" means m.v. "SBI PARAPARA", details of which are set out opposite its name in
Schedule 8 (Details of the Ships).


"Specified Time" means a day or time determined in accordance with Schedule 9 (Timetables).
"Sub-Technical Management Agreement" means the agreement entered into between a
Borrower and the Approved Sub-Manager regarding the technical management of a Ship. "Subordinated Creditor" means:
(a)    an Obligor; or


(b)    any other person who becomes a Subordinated Creditor in accordance with this
Agreement.


"Subordinated Debt Security" means a Security over Subordinated Liabilities entered into or to be entered into by a Subordinated Creditor in favour of the Security Agent in an agreed form.


"Subordinated Finance Document" means: (a)    a Subordinated Loan Agreement; and
(b)    any other document relating to or evidencing Subordinated Liabilities.


"Subordinated Liabilities" means all indebtedness owed or expressed to be owed by the Borrowers to a Subordinated Creditor whether under the Subordinated Finance Documents or otherwise.


"Subordinated Loan Agreement" means a loan agreement made or to be made between (i) a
Borrower and (ii) a Subordinated Creditor.


"Subordination Agreement" means a subordination agreement entered into or to be entered into by any Subordinated Creditor and the Security Agent in agreed form.


"Subsidiary" means a subsidiary within the meaning of section 1159 of the Companies Act
2006.


"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).


"Tax Credit" has the meaning given to it in Clause 12.1 (Definitions).


"Tax Deduction" has the meaning given to it in Clause 12.1 (Definitions). "Tax Payment" has the meaning given to it in Clause 12.1 (Definitions).











"Technical Management Agreement" means the agreement entered into between a Borrower and the Approved Technical Manager regarding the technical management of a Ship.


"Termination Date" means, in relation to a Tranche, the date falling 60 Months from the
Utilisation Date relating to that Tranche.


"Third Parties Act" has the meaning given to it in Clause 1.5 (Third party rights).


"Total Commitments" means the aggregate of the Tranche A Commitments and Tranche B Commitments, being US$29,975,000 at the date of this Agreement.
"Total Loss" means, in relation to a Ship:


(a)    actual, constructive, compromised, agreed or arranged total loss of that Ship; or


		
	(b)
	any Requisition of that Ship unless that Ship is returned to the full control of the relevant Borrower within 3 Months of such Requisition.




"Total Loss Date" means, in relation to the Total Loss of a Ship:


		
	(a)
	in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;




		
	(b)
	in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:




(i)    the date on which a notice of abandonment is given to the insurers; and


		
	(ii)
	the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and




		
	(c)
	in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.




"Tranche" means Tranche A or Tranche B.


"Tranche A" means that part of the Loan made or to be made available to Borrower A to refinance Ship A in a principal amount not exceeding the lesser of (i) US$14,712,500, or (ii) fifty five per cent. of the Market Value of Ship A.


"Tranche A Commitment" means:


		
	(a)
	in relation to an Original Lender, the amount set opposite its name under the heading "Tranche A" in Part B of Schedule 1 (The Parties) and the amount of any other Tranche A Commitment transferred to it under this Agreement; and




		
	(b)
	in relation to any other Lender, the amount of any Tranche A Commitment transferred to it under this Agreement,




to the extent not cancelled, reduced or transferred by it under this Agreement.


"Tranche B" means that part of the Loan made or to be made available to Borrower B to refinance Ship B in a principal amount not exceeding the lesser of (i) US$15,262,500, or (ii) fifty five per cent. of the Market Value of Ship B.













"Tranche B Commitment" means:


		
	(a)
	in relation to an Original Lender, the amount set opposite its name under the heading "Tranche  B" in Part B of Schedule 1 (The Parties) and the amount of any other Tranche B Commitment transferred to it under this Agreement; and




		
	(b)
	in relation to any other Lender, the amount of any Tranche B Commitment transferred to it under this Agreement,


to the extent not cancelled, reduced or transferred by it under this Agreement. "Transaction Document" means:
(a)    a Finance Document;


(b)    a Subordinated Finance Document; (c)    any Charter;
(d)    any Hedge Counterparty Guarantee; or
(e)    any other document designated as such by the Facility Agent and a Borrower. "Transaction Security" means the Security created or evidenced or expressed to be created or
evidenced under the Security Documents.


"Transfer Certificate" means a certificate in the form set out in Schedule 4 (Form of Transfer
Certificate) or any other form agreed between the Facility Agent and the Borrowers. "Transfer Date" means, in relation to an assignment or a transfer, the later of:
(a)    the  proposed  Transfer  Date  specified  in  the  relevant  Assignment  Agreement  or
Transfer Certificate; and


(b)    the date on which the Facility Agent executes the relevant Assignment Agreement or
Transfer Certificate.
"UK Establishment" means a UK establishment as defined in the Overseas Regulations. "Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance
Documents.


"US" means the United States of America.


"US GAAP" means generally accepted accounting principles in the US as in effect from time to time.


"Utilisation" means an Advance.


"Utilisation Date" means the date of a Utilisation, being the date on which the Advance is to be made.


"Utilisation Request" means a notice substantially in the relevant 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.


"Write-down and Conversion Powers" means:


		
	(a)
	in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to 













time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and


(b)    in relation to any other applicable Bail-In Legislation:


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




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


1.2    Construction


(a)    Unless a contrary indication appears, a reference in this Agreement to:


		
	(i)
	the "Account Bank", the "Arranger", the "Facility Agent", any "Finance Party", any "Hedge Counterparty", any "Lender", any "Obligor", any "Party", any "Secured Party", the "Security  Agent", or any other person shall be construed so as to include its successors in title,  permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;




		
	(ii)
	"assets"  includes  present  and  future  properties,  revenues  and  rights  of  every description;




		
	(iii)
	a liability which is "contingent" means a liability which is not certain to arise and/or the amount of which remains unascertained;




(iv)    "document" includes a deed and also a letter, fax, email or telex;


		
	(v)
	"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;




		
	(vi)
	a "Finance Document", a "Security Document" or "Transaction Document" or any other  agreement or instrument is a reference to that Finance Document, Security Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;




		
	(vii)
	"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;




		
	(viii)
	"law" includes any order or decree, any form of delegated legislation, any treaty or international  convention  and  any  regulation  or  resolution  of  the  Council  of  the European Union, the European Commission, the United Nations or its Security Council;


		
	(ix)
	"proceedings"  means,  in  relation  to  any  enforcement  provision  of  a  Finance Document, proceedings of any kind, including an application for a provisional or protective measure;




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















		
	(xi)
	a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational  body,  agency,  department  or  regulatory,  self-regulatory  or  other authority or organisation;




(xii)    a provision of law is a reference to that provision as amended or re-enacted; (xiii)    a time of day is a reference to London time;
		
	(xiv)
	any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a  jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;




(xv)    words denoting the singular number shall include the plural and vice versa; and


		
	(xvi)
	"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.




		
	(b)
	The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.




		
	(c)
	Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.




		
	(d)
	Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.




		
	(e)
	A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.




1.3    Construction of insurance terms


In this Agreement:


"approved" means, for the purposes of Clause 24 (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 either Borrower is obliged to effect, under Clause 24 (Insurance Undertakings) or any other provision of this Agreement or of another Finance Document.


"policy" includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms.


"protection and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 6 of the International Hull Clauses (1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83)  (1/11/95)  or  the  Institute  Amended  Running  Down  











Clause  (1/10/71)  or  any equivalent provision.


"war risks" includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03), clause 24 of the Institute Time Clauses (Hulls) (1/11/95) or clause 23 of the Institute Time Clauses (Hulls) (1/10/83).


1.4    Agreed forms of Finance Documents


References in Clause 1.1 (Definitions) to any Finance Document being in "agreed form" are to that Finance Document:


(a)    in a form attached to a certificate dated the same date as this Agreement (and signed by 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 44.2 (All Lender matters) applies, all the Lenders.




1.5    Third party rights


		
	(a)
	Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.




		
	(b)
	Subject to Clause 44.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.




		
	(c)
	Any Receiver, Delegate, Affiliate or any other person described in paragraph (d) of Clause 14.2 (Other indemnities) , paragraph (b) of Clause 31.11 (Exclusion of liability), Clause 31.21 (Role of Reference Banks), Clause 31.22 (Third Party Reference Banks) or paragraph (b) of Clause 32.11 (Exclusion of liability) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.



























































SECTION 2


THE FACILITY


2    THE FACILITY


2.1    The Facility


Subject to the terms of this Agreement, the Lenders make available to:


		
	(a)
	the Borrowers, a dollar term loan facility in an aggregate amount not exceeding the Tranche A Commitment; and




		
	(b)
	the Borrowers, a dollar term loan facility in an aggregate amount not exceeding the Tranche B Commitment.




2.2    Finance Parties' rights and obligations


		
	(a)
	The obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance  Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.




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




		
	(c)
	A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.




2.3    Borrowers' Agent


		
	(a)
	Each Borrower by its execution of this Agreement irrevocably appoints the Parent Guarantor to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:




		
	(i)
	the  Parent  Guarantor  on  its  behalf  to  supply  all  information  concerning  itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by either Borrower notwithstanding that they may affect the Borrower, without further reference to or the consent of that Borrower; and




(ii)    each  Finance  Party  to  give  any  notice,  demand or other  communication to that
Borrower pursuant to the Finance Documents to the Parent Guarantor,


and in each case the Borrower shall be bound as though the Borrower itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed
or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.


		
	(b)
	Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice 













or other communication given or made by the Parent Guarantor or given to the Parent Guarantor under any Finance Document on behalf of a Borrower or in connection with any Finance Document (whether or not known to either Borrower) shall be binding for all purposes on that Borrower as if that Borrower had expressly made, given or concurred with it. In the event of any conflict  between any notices or other communications of the Parent Guarantor and either Borrower, those of the Parent Guarantor shall prevail.


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


4.1    Initial conditions precedent


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 and Subsequent) in form and substance satisfactory to the Facility Agent.


4.2    Further conditions precedent - Advance


The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if:


(a)    on the date of each Utilisation Request and on each proposed Utilisation Date and before the
Advance is made available:


(i)    no Default is continuing or would result from the borrowing of the proposed Advance; (ii)    the Repeating Representations to be made by each Obligor are true; and
		
	(iii)
	the Ship in respect of which such Advance is to be made has neither been sold nor become a Total Loss; and




		
	(b)
	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 B of Schedule 2 (Conditions Precedent and Subsequent) in form and substance satisfactory to the Facility Agent.




4.3    Conditions Subsequent


The Borrowers undertake to deliver or cause to be delivered to the Facility Agent within 30 days after the date of the Agreement the additional documents and other evidence listed in
Part C of Schedule 2 (Conditions Precedent and Subsequent) in form and substance satisfactory to the Facility Agent.


4.4    Notification of satisfaction of conditions precedent


		
	(a)
	The Facility Agent shall notify the Borrowers and the Lenders promptly upon being satisfied as to the  













satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).


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




4.5    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 Utilisation Date or such later date as the Facility Agent, acting with the authorisation of the Lenders, may agree in writing with the Borrowers.











































































SECTION 3


UTILISATION


5    UTILISATION - ADVANCE


5.1    Delivery of a Utilisation Request


		
	(a)
	The Borrowers may utilise the Facility by way of one Advance 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 under each of Tranche A
and Tranche B.


5.2    Completion of a Utilisation Request - Advance


		
	(a)
	Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:




(i)    it identifies the Tranche to be utilised;


(ii)    the proposed Utilisation Date is a Business Day within the Availability Period;


		
	(iii)
	the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);




(iv)    all applicable deductible items have been completed; and


(v)    the proposed Interest Period complies with Clause 8.5(a) (Interest Periods). (b)    Only one Advance may be requested in the Utilisation Request.
5.3    Currency and amount - Advance


(a)    The currency specified in the Utilisation Request must be dollars.


(b)    The amount of the proposed Advance must be an amount which is not more than:


		
	(i)
	in respect of the Advance under Tranche A, the lower of (i) US$14,712,500 and (ii) fifty five percent of the Market Value of Ship A; and




		
	(ii)
	in respect of the Advance under Tranche B, the lower of (i) US$15,262,500 and (ii) fifty five per cent of the Market Value of Ship B.




5.4    Lenders' participation - Advances


		
	(a)
	If  the  conditions  set out in  this  Agreement  have  been met,  each  Lender  shall  make  its participation in the Advance available by the applicable Utilisation Date through its Facility Office.




		
	(b)
	The amount of each Lender's participation in the Advance will be equal to the proportion borne by its Available Commitment to the relevant Available Tranche immediately before making the Advance.


		
	(c)
	The Facility Agent shall notify each Lender of the amount of the Advance and the amount of its participation in the Advance by the Specified Time.




5.5    Cancellation of Commitments













The Commitments in respect of any Tranche which are unutilised at the end of the Availability
Period for such Tranche shall then be cancelled.


5.6    Payment to third parties - Advance


Each Borrower irrevocably authorises the Facility Agent on the Utilisation Date, to pay to, or for the account of, the 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 of the Borrowers or the Parent Guarantor specified in the relevant Utilisation Request.


5.7    Disbursement of Advance to third party


Payment by the Facility Agent under Clause 5.6 (Payment to third parties - Advances) to a person other than a Borrower shall constitute the making of the Advance and the Borrowers shall at that  time  become indebted, as principal and direct obligors, to each Lender in an amount equal to that Lender's participation in the Advance.







































































SECTION 4


REPAYMENT, PREPAYMENT AND CANCELLATION


6    REPAYMENT


6.1    Repayment of Loan


The Borrowers shall repay the Loan as follows: (a)    Tranche A shall be repaid by:
		
	(i)
	20 equal consecutive quarterly instalments, each in an amount equal to 1/52 of the Loan borrowed under this Agreement, the first of which shall be repaid on the date falling 3 Months after the Utilisation Date in respect of Tranche A and the last on the Termination Date; and




		
	(ii)
	a balloon instalment equal to all amounts of the Loan borrowed under this Agreement then outstanding which shall be repaid on the Termination Date.




(b)    Tranche B shall be repaid by:


		
	(i)
	20 equal consecutive quarterly instalments, each in an amount equal to 1/56 of the Loan borrowed under this Agreement, the first of which shall be repaid on the date falling 3 Months after the Utilisation Date in respect of Tranche B and the last on the Termination Date; and




		
	(ii)
	a balloon instalment equal to all amounts of the Loan borrowed under this Agreement then outstanding which shall be paid on the Termination Date,




and each such instalment shall be a "Repayment Instalment".


6.2    Effect of cancellation and prepayment on scheduled repayments


		
	(a)
	If the Borrowers cancel the whole or any part of any Available Commitment in accordance with Clause 7.7 (Right of repayment and cancellation in relation to a single Lender) or if an Available Commitment of  any Lender is cancelled under Clause 7.1 (Illegality) then the Repayment Instalments relating to the relevant Tranche falling after that cancellation will reduce pro rata by the amount of the Available Commitments so cancelled.




		
	(b)
	If the Borrowers cancel the whole or any part of any Available Commitment in accordance with Clause 7.3 (Automatic cancellation) or if the whole or part of any Commitment is cancelled pursuant to  Clause 5.5 (Cancellation of Commitments), the Repayment Instalments for the relevant Tranche for  each Repayment Date falling after that cancellation will reduce first against the balloon instalment applicable to such Tranche and then in inverse chronological order by the amount of the Commitments so cancelled.




		
	(c)
	If any part of the Loan is repaid or prepaid in accordance with Clause 7.7 (Right of repayment and cancellation in relation to a single Lender) or Clause 7.1 (Illegality) then the Repayment Instalments for each Repayment Date for the relevant Tranche falling after that repayment or prepayment will reduce pro rata by the amount of the Loan repaid or prepaid.


		
	(d)
	If any part of the Loan is prepaid in accordance with Clause 7.4 (Voluntary prepayment of Utilisations),  Clause  7.5  (Mandatory  prepayment  on  sale  or  Total  Loss)  or  Clause  7.6 (Mandatory prepayment of Hedging Prepayment Proceeds) then the amount of the Repayment Instalments for the relevant Tranche for each Repayment Date falling after that repayment or prepayment will reduce first against the balloon instalment applicable to that Tranche and then in inverse chronological order by the amount of the Loan repaid or prepaid.















6.3    Termination Date


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.


6.4    Reborrowing


Neither Borrower may reborrow any part of the Loan which is repaid.


7    PREPAYMENT AND CANCELLATION


7.1    Illegality


If it  becomes  unlawful  in  any  applicable  jurisdiction  for  a  Lender to  perform  any of  its obligations as contemplated by this Agreement or to fund or maintain its participation in the Utilisation or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:


(a)    that Lender shall promptly notify the Facility Agent upon becoming aware of that event;


		
	(b)
	upon the Facility Agent notifying the Borrowers, the Available Commitments of that Lender will be immediately cancelled; and




		
	(c)
	the Borrowers shall prepay that Lender's participation in the Utilisation on the last day of the Interest Period for the Utilisation occurring after the Facility Agent has notified the Borrowers or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participation prepaid.




7.2    Change of control


If a Change of Control occurs:


(a)    the Parent Guarantor shall promptly (and in any event within 5 Business Days) notify the
Facility Agent upon becoming aware of that event; and


		
	(b)
	if the Majority Lenders so require, the Facility Agent shall, by not less than 15 days' notice to the Borrowers, cancel the Facility and declare all Utilisations then outstanding, together with accrued  interest, and all other amounts accrued under the Finance Documents due and payable, whereupon the Facility will be cancelled and all such outstanding Utilisations, interest and other amounts will become due and payable within 20 Business Days following the date of the Change of Control.


7.3    Automatic cancellation


The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the Advance is made available.


7.4    Voluntary prepayment of Utilisation


The Borrowers may, if they give the Facility Agent not less than 3 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 US$1,000,000 or a multiple of that amount or such lower amount as the Facility Agent may approve).


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)
	In this Clause 7.5 (Mandatory prepayment on sale or Total Loss): "Relevant Date" means:


(a)    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


(b)    in the case of a Total Loss of a Ship, on the earlier of:


(i)    the date falling 180 days after the Total Loss Date; and


		
	(ii)
	the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.




7.6    Mandatory prepayment of Hedging Prepayment Proceeds


Any Hedging Prepayment Proceeds arising as a result of any cancellation or prepayment under this Agreement shall, following payment to the relevant Earnings Account in accordance with Clause 27.2 (Payment of Earnings), be applied on the last day of the next Interest Period which ends after such payment in prepayment of the Loan.


7.7    Right of repayment and cancellation in relation to a single Lender


(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 under that clause as incorporated by reference or in full in any other Finance Document; 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 a Relevant Lender under Clause 10.3 (Market disruption),


the  Borrowers  may  whilst  in  the  case  of  sub-paragraphs  (i)  and  (ii)  above  the circumstance  giving  rise  to  the  requirement  for  that  increase  or  indemnification continues; or give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Utilisation.


		
	(b)
	On receipt of a notice of cancellation referred to in paragraph (a) above in relation to a Lender, any 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 by the Borrowers in that notice), the Borrowers shall repay that Lender's participation in the Utilisation.




7.8    Restrictions


		
	(a)
	Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and  Cancellation)  shall  be  irrevocable  and,  unless  a  contrary  indication  appears  in  this Agreement, shall 













specify the date or dates upon which the relevant cancellation or prepayment is to be made, the amount of that cancellation or prepayment and, if relevant, the part of the Loan to be prepaid or cancelled.


(b)


(i)    On the date the cancellation of the Lenders Commitment is effective under this Clause
7 (Prepayment and cancellation), the Borrowers shall pay any accrued but unpaid commitment fee on such cancelled amount as determined in accordance with Clause
11.1 (Commitment fee); and


		
	(ii)
	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)    Neither Borrower may reborrow any part of the Loan which is prepaid.


		
	(d)
	Neither Borrower shall repay or prepay all or any part of the Utilisation or cancel all or any part of the  Commitments except at the times and in the manner expressly provided for in this Agreement.




		
	(e)
	No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.




		
	(f)
	If the Facility Agent receives a notice under this Clause 7 (Prepayment and Cancellation) it shall promptly forward a copy of that notice to either the Borrowers or the affected Lenders and/or Hedge Counterparties, as appropriate.




		
	(g)
	If all or part of any Lender's participation in a Utilisation is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of the relevant Tranche will be deemed to be cancelled on the date of repayment or prepayment.


7.9    Application of prepayments


Any prepayment of any part of the Loan under this Clause (other than a prepayment pursuant to Clause  7.1 (Illegality) or 7.7 (Right of repayment and cancellation in relation to a single Lender) shall be applied in the manner notified by the Borrower to the Facility Agent at the time of such prepayment  or, where the Borrower does not notify the Facility Agent, such prepayment shall be applied pro rata to each Lender's participation in that part of the Loan.

























































SECTION 5


COSTS OF UTILISATION


8    INTEREST


8.1    Calculation of 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 Margin; and


(b)    LIBOR.


8.2    Payment of interest


		
	(a)
	The Borrowers shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period (each an "Interest Payment Date").




		
	(b)
	If an Interest Period is longer than three Months, the Borrowers shall also pay interest then accrued on the Loan or the relevant part of the Loan on the dates falling at three Monthly intervals after the first day of the Interest Period.




8.3    Default interest


		
	(a)
	If an Obligor fails to pay any amount payable by it under a Finance Document other than a Hedging Agreement on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 2.00 per cent. per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent. Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the Facility Agent.




		
	(b)
	If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan or that part of the Loan:




		
	(i)
	the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or that part of the Loan; and




		
	(ii)
	the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2.00 per cent. per annum higher than the rate which would have applied if that Unpaid Sum had not become due.




		
	(c)
	Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.


8.4    Notification of rates of interest


		
	(a)
	The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.















		
	(b)
	The Facility Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan, any part of the Loan or any Unpaid Sum.




8.5    Hedging


		
	(a)
	On or before or after the Utilisation Date, the Borrowers may request to enter into Hedging Agreements and shall after that date maintain such Hedging Agreements in accordance with this Clause 8.5 (Hedging).




(b)    Each Hedging Agreement shall:


		
	(i)
	be with a Hedge Counterparty and each Hedge Counterparty shall also be a Lender or an Affiliate of a Lender;




(ii)    be for a term ending on or before the Termination Date;


(iii)    have settlement dates coinciding with the interest payment dates;


		
	(iv)
	be based on 2002 ISDA Master Agreement and otherwise in form and substance satisfactory to the Facility Agent; and




(v)    provide that the Termination Currency (as defined in the relevant Hedging Agreement)
shall be dollars.


(c)    The rights of each Borrower under the Hedging Agreements shall be assigned to the Security
Agent by way of security under a Hedging Agreement Security.


(d)    The  parties  to  each  Hedging  Agreement  must  comply  with  the  terms  of  that  Hedging
Agreement.


		
	(e)
	Neither a Hedge Counterparty nor a Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent.




(f)    Paragraph (e) above shall not apply to:


		
	(i)
	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; and




		
	(ii)
	any assignment, transfer or novation pursuant to Clause 29 (Changes to the Lenders and the Hedge Counterparties).




		
	(g)
	If, at any time, the aggregate notional amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed the Loan at that time, the Borrowers must promptly notify the Facility Agent and must, at the  request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed the Loan 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)
	Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which the Borrowers have no actual or contingent indebtedness.




		
	(j)
	Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by each Borrower pursuant to the relevant Hedging Agreement Security of its rights under the Hedging Agreements to which it is party in favour of the Security Agent.















		
	(k)
	The Security Agent shall not be liable for the performance of any of a Borrower's obligations under a Hedging Agreement.




		
	(l)
	If a Hedging Agreement is entered into after the Utilisation Date, the Borrowers shall amend the Mortgages and other Finance Documents as required by the Facility Agent for the purpose of securing that Hedging Agreement entered into after the Utilisation Date or enter into new mortgages over the  Ships and amend the other Finance Documents at the request of the Facility Agent.




9    INTEREST PERIODS


9.1    Selection of Interest Periods


		
	(a)
	The Borrowers may select the Interest Period applicable to each Tranche in the Utilisation Request relating to that Tranche.  Subject to paragraph (f) below and Clause 9.2 (Changes to Interest Periods), 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 in respect of such Tranche to the Facility Agent in accordance with paragraph (a) and paragraph (b) above, the relevant Interest Period for such Tranche will, subject to paragraph (f) below and Clause 9.2 (Changes to Interest Periods), be three Months.




		
	(d)
	Subject to this Clause 8.5(a) (Interest Periods), the Borrowers may select an Interest Period for each Tranche of 3 or 6 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 a Tranche or any part of a Tranche shall not extend beyond the
Termination Date.


		
	(f)
	In respect of a Repayment Instalment applicable to a Tranche, the Borrowers may request in the relevant Selection Notice that an Interest Period for a part of the relevant Tranche equal to such Repayment Instalment shall end on the Repayment Date relating to it and, subject to paragraph (d) above, select a longer Interest Period for the remaining part of that Tranche.




		
	(g)
	The first Interest Period for each Tranche shall start on the Utilisation Date relating to such Tranche and each subsequent Interest Period shall start on the last day of its preceding Interest Period.


(h)    Except for the purposes of paragraph (f) and paragraph (h) above and Clause 9.2 (Changes to
Interest Periods), each Tranche shall have one Interest Period only at any time.


9.2    Changes to Interest Periods


		
	(a)
	In respect of a Repayment Instalment applicable to a Tranche, prior to determining the interest rate for the relevant Tranche, the Facility Agent may establish an Interest Period for a part of the relevant  Tranche equal to such Repayment Instalment to end on the Repayment Date relating to it and the remaining part of that Tranche shall have the Interest Period selected in the relevant Selection Notice,  subject to paragraph (d) of Clause 9.1 (Selection of Interest Periods).




		
	(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.




9.3    Non-Business Days













If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).


10    CHANGES TO THE CALCULATION OF INTEREST


10.1    Unavailability of Screen Rate


		
	(a)
	Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan.




		
	(b)
	Reference Bank Rate:  If no Screen Rate is available for LIBOR for: (i)    dollars; or


		
	(ii)
	the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,




the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of the Loan.


		
	(c)
	Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause 10.4 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest Period.




10.2    Calculation of Reference Bank Rate


		
	(a)
	Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.




		
	(b)
	If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.


10.3    Market disruption


If before close of business in London on the Quotation Day for the relevant Interest Period the Facility Agent receives notification from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan exceed 35 per cent. of the Loan or the relevant part of the Loan as appropriate) (the "Relevant Lender") that the cost to it of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 10.4 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.


10.4    Cost of funds


		
	(a)
	If this Clause 10.4 (Cost of funds) applies, the rate of interest on each Lender's share of the Loan or the relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:




(i)    the Margin; and


		
	(ii)
	the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage 













rate per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select.


		
	(b)
	If this Clause 10.4 (Cost of funds) applies and the Facility Agent or the Borrowers so require, the Facility Agent and the Borrowers shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.




		
	(c)
	Subject to Clause 44.4 (Replacement of Screen Rate), any substitute or alternative basis agreed pursuant  to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties.




		
	(d)
	If paragraph (e) below does not apply and any rate notified to the Facility Agent under sub- paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.




		
	(e)
	If this Clause 10.4 (Cost of funds) applies pursuant to Clause 10.3 (Market disruption) and: (i)    a Lender's Funding Rate is less than LIBOR; or


		
	(ii)
	a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above,




the cost to that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be LIBOR.


		
	(f)
	If this Clause 10.4 (Cost of funds) applies but any Lender does not supply a quotation by the time  specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.


10.5    Break Costs


		
	(a)
	The Borrowers shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by a Borrower on a day other than the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum.




		
	(b)
	Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.




11    FEES


11.1    Commitment fee


		
	(a)
	The Borrowers shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 0.88 per cent. per annum on that Lender's Available Commitments from time to time for the Availability Period.




		
	(b)
	The accrued commitment fee is payable on the last day of each successive period of three Months  which ends during the relevant Availability Period, on the last day of the relevant Availability  Period  and,  if  cancelled,  on  the  cancelled  amount  of  the  relevant  Lender's Commitment at the time the cancellation is effective.




11.2    Facility Agent upfront fee


The Borrowers shall pay to the Facility Agent (for its own account) an upfront fee in the amount and at the times agreed in a Fee Letter.











SECTION 6


ADDITIONAL PAYMENT OBLIGATIONS


12    TAX GROSS UP AND INDEMNITIES


12.1    Definitions


(a)    In this Agreement:


"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.


12.2    Tax gross-up


(a)    Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax
Deduction is required by law.


		
	(b)
	The  Borrowers  shall  promptly  upon  becoming  aware  that  an  Obligor  must  make  a  Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in  respect  of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrowers and that Obligor.




		
	(c)
	If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.




		
	(d)
	If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.




		
	(e)
	Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance


Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.


12.3    Tax indemnity













		
	(a)
	The Obligors shall (within three Business Days of demand by the Facility Agent) pay to a Protected  Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.




(b)    Paragraph (a) above shall not apply:


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


		
	(A)
	under the law of the jurisdiction in which that Finance Party is incorporated or, if  different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or




		
	(B)
	under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,




if that Tax is imposed on or calculated by reference to the net income received or receivable
(but not any sum deemed to be received or receivable) by that Finance Party; or


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


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


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


		
	(c)
	A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Obligors.




		
	(d)
	A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.




12.4    Tax Credit


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.
12.5    Stamp taxes


The Obligors 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.


12.6    VAT


		
	(a)
	All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in 













whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).


		
	(b)
	If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the  consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):




		
	(i)
	(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT.  The Recipient must (where this  sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and




		
	(ii)
	(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.




		
	(c)
	Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.




		
	(d)
	Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when that Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a


member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be).


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




12.7    FATCA Information


		
	(a)
	Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:















		
	(i)
	confirm to that other Party whether it is: (A)    a FATCA Exempt Party; or


(B)    not a FATCA Exempt Party; and


		
	(ii)
	supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and




		
	(iii)
	supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation or exchange of information regime.




		
	(b)
	If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.




		
	(c)
	Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:




(i)    any law or regulation; (ii)    any fiduciary duty; or
(iii)    any duty of confidentiality.


		
	(d)
	If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph  (a)  above  (including,  for  the  avoidance  of  doubt,  where  paragraph  (c)  above applies),  then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.




12.8    FATCA Deduction


		
	(a)
	Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase


any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.


		
	(b)
	Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.




13    INCREASED COSTS


13.1    Increased costs


		
	(a)
	Subject to Clause 13.3 (Exceptions), the Borrowers shall, within three Business Days of a demand  by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:















		
	(i)
	the  introduction of or any  change in  (or in  the  interpretation, administration  or application of) any law or regulation; or




(ii)    compliance with any law or regulation made, in each case after the date of this Agreement; or
		
	(iii)
	the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.




(b)    In this Agreement:


(i)    "Basel III" means:


		
	(A)
	the  agreements  on  capital  requirements,  a  leverage  ratio  and  liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk  measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the  Basel Committee on  Banking  Supervision in December 2010, each as amended, supplemented or restated;




		
	(B)
	the  rules  for  global  systemically  important  banks  contained  in  "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking  Supervision in November 2011, as amended, supplemented or restated; and




(C)    any  further  guidance  or  standards  published  by  the  Basel  Committee  on
Banking Supervision relating to "Basel III". (ii)    "CRD IV" means:
		
	(A)
	Regulation (EU) No 575/2013 of the European Parliament and of the Council of  26  June  2013  on  prudential  requirements  for  credit  institutions  and investment firms and amending regulation (EU) No. 648/2012;


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


(C)    any other law or regulation which implements Basel III. (iii)    "Increased Costs" means:
(A)    a reduction in the rate of return from the Facility or on a Finance Party's (or its
Affiliate's) overall capital;


(B)    an additional or increased cost; or
(C)    a reduction of any amount due and payable under any Finance Document, 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.


13.2    Increased cost claims













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




		
	(b)
	Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.




13.3    Exceptions


Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is: (a)    attributable to a Tax Deduction required by law to be made by an Obligor;
(b)    attributable to a FATCA Deduction required to be made by a Party;


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




(d)    compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);


		
	(e)
	attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or




(f)    incurred by a Hedge Counterparty in its capacity as such.
14    OTHER INDEMNITIES


14.1    Currency indemnity


		
	(a)
	If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First  Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:




(i)    making or filing a claim or proof against that Obligor; or


		
	(ii)
	obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,




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.




14.2    Other indemnities


		
	(a)
	Each Borrower shall, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:















(i)    the occurrence of any Event of Default;


		
	(ii)
	a failure by a Borrower to pay any amount due under a Finance Document on its due date,  including without limitation, any cost, loss or liability arising as a result of Clause 34 (Sharing among the Finance Parties);




		
	(iii)
	funding, or making arrangements to fund, its participation in an Advance requested by the Borrowers in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Secured Party alone); 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 Borrower shall, promptly 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)
	Subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:




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


(ii)    in connection with any Environmental Claim.


		
	(d)
	Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (Other indemnities) subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.




14.3    Mandatory Cost


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),




which, in each case, is referable to that Lender's participation in the Loan.













14.4    Indemnity to the Facility Agent


Each Borrower shall, on demand, indemnify the Facility Agent against:


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


		
	(i)
	investigating any event which it reasonably believes is a Default, provided always that the Facility Agent shall notify the Borrowers of any such investigation in writing; or




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




		
	(iii)
	instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; and


		
	(b)
	any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's  gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 35.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence,  gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.




14.5    Indemnity to the Security Agent


		
	(a)
	Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them:




(i)    in relation to or as a result of:


		
	(A)
	any failure by a Borrower to comply with its obligations under Clause 16 (Costs and Expenses);




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




		
	(C)
	the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;




		
	(D)
	the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;




		
	(E)
	any  default  by  any  Obligor  in  the  performance of any of  the obligations expressed to be assumed by it in the Finance Documents; 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 Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).




		
	(b)
	The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.















15    MITIGATION BY THE FINANCE PARTIES


15.1    Mitigation


		
	(a)
	Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate  any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3


(Mandatory Cost) including (but not limited to) transferring its rights and obligations under the
Finance Documents to another Affiliate or Facility Office.


(b)    Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance
Documents.


15.2    Limitation of liability


		
	(a)
	Each 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 either: (i)    an Event of Default has occurred and is continuing; or


		
	(ii)
	in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.




16    COSTS AND EXPENSES


16.1    Transaction expenses


The Borrowers shall, promptly on demand, pay the Facility Agent, the Security Agent and the Arranger the amount of all costs and expenses (including legal fees) reasonably incurred by any  Secured  Party  in  connection  with  the  negotiation,  preparation,  printing,  execution, syndication and perfection of:


(a)    this Agreement and any other documents referred to in this Agreement or in a Security
Document; and


(b)    any other Finance Documents executed after the date of this Agreement.


16.2    Amendment costs


If:


(a)    an Obligor requests an amendment, waiver or consent;


		
	(b)
	an  amendment  is  required  either  pursuant  to  Clause  35.9  (Change  of  currency)  or  as contemplated in Clause 44.4 (Replacement of Screen Rate); or




(c)    an Obligor requests, and the Security Agent agrees to, the release of all or any part of the
Security Assets from the Transaction Security,


the Obligors shall, on demand, reimburse each of the Facility Agent and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by each Secured Party in responding to, evaluating, negotiating or complying with that request or requirement.













16.3    Enforcement and preservation costs


The Borrowers shall, within three Business Days of demand, pay to each Secured Party the amount  of all costs and expenses (including legal fees) incurred by that Secured Party in connection with  the enforcement of, or the preservation of any rights under, any Finance
Document or the Transaction Security and with any proceedings instituted by or against that Secured Party as a consequence of it entering into a Finance Document, taking or holding the Transaction Security, or enforcing those rights.













































































































SECTION 7


GUARANTEES AND JOINT AND SEVERAL LIABILITY OF BORROWERS


17    GUARANTEE AND INDEMNITY - PARENT GUARANTOR


17.1    Guarantee and indemnity


The Parent Guarantor irrevocably and unconditionally:


(a)    guarantees  to  each  Finance  Party  punctual  performance  by  each  Borrower  of  all  that
Borrower's obligations under the Finance Documents;


		
	(b)
	undertakes with each Finance Party that whenever a Borrower does not pay any amount when due   under   or  in  connection  with  any  Finance  Document,  the  Parent  Guarantor  shall immediately on demand pay that amount as if it were the principal obligor; and




		
	(c)
	agrees  with  each  Finance  Party  that  if  any  obligation  guaranteed  by  it  is  or  becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due.  The amount payable by the Parent Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (Guarantee and Indemnity - Parent Guarantor) if the amount claimed had been recoverable on the basis of a guarantee.




17.2    Continuing guarantee


This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable  by each Borrower 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  Parent  Guarantor under this Clause 17 (Guarantee and Indemnity - Parent Guarantor) will continue or be reinstated as if the discharge, release or arrangement had not occurred.


17.4    Waiver of defences


The obligations of the Parent Guarantor under this Clause 17 (Guarantee and Indemnity - Parent Guarantor) 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 - Parent Guarantor) or in respect of any Transaction Security (without limitation and whether or not known to it or any Secured Party) including:


(a)    any time, waiver or consent granted to, or composition with, any Obligor or other person;
		
	(b)
	the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;




		
	(c)
	the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay 













in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non- presentation or  non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;


		
	(d)
	any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;




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




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


(g)    any insolvency or similar proceedings.


17.5    Immediate recourse


The Parent 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 17 (Guarantee and Indemnity - Parent Guarantor). 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 Parent Guarantor shall not be entitled to the benefit of the same; and




		
	(b)
	hold in an interest-bearing suspense account any moneys received from the Parent Guarantor or on account of the Parent Guarantor's liability under this Clause 17 (Guarantee and Indemnity


- Parent Guarantor).


17.7    Deferral of Parent Guarantor's rights


All rights which the Parent Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against either Borrower, any other Obligor (if any) 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 Parent Guarantor will not 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 17 (Guarantee and Indemnity - Parent Guarantor):


(a)    to be indemnified by an Obligor;













		
	(b)
	to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;




		
	(c)
	to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security  taken  pursuant to, or in connection with, the Finance Documents by any Secured Party;




		
	(d)
	to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Parent Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);




(e)    to exercise any right of set-off against any Obligor; and/or


(f)    to claim or prove as a creditor of any Obligor in competition with any Secured Party.


If the Parent Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Finance  Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 35 (Payment Mechanics).


17.8    Additional security


This guarantee and any other Security given by the Parent 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.


17.9    Applicability of provisions of Guarantee to other Security


Clauses 17.2 (Continuing guarantee), 17.3 (Reinstatement), 17.4 (Waiver of defences), 17.5 (Immediate recourse), 17.6 (Appropriations), 17.7 (Deferral of Parent Guarantor's rights) and
17.8 (Additional security) shall apply, with any necessary modifications, to any Security which the Parent 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.


18    JOINT AND SEVERAL LIABILITY OF THE BORROWERS


18.1    Joint and several liability


All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be joint and several.
18.2    Waiver of defences


The liabilities and obligations of a Borrower shall not be impaired by:


(a)    this Agreement being or later becoming void, unenforceable or illegal as regards the other
Borrower;


		
	(b)
	any  Lender  or  the  Security  Agent  entering  into  any  rescheduling,  refinancing  or  other arrangement of any kind with the other Borrower;




(c)    any Lender or the Security Agent releasing the other Borrower or any Security created by a











Finance Document;


		
	(d)
	any time, waiver or consent granted to, or composition with the other Borrower or other person;




		
	(e)
	the release of the 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, the 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 the 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


(j)    any insolvency or similar proceedings.


18.3    Principal Debtor


Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the Finance Documents and neither Borrower shall, in any circumstances, be construed to be a surety for the obligations of the other Borrower under this Agreement.


18.4    Borrower restrictions


(a)    Subject to paragraph (b) below, during the Security Period neither Borrower shall:


		
	(i)
	claim any amount which may be due to it from the 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;


		
	(ii)
	take or enforce any form of security from the other Borrower for such an amount, or in any way seek to have recourse in respect of such an amount against any asset of the other Borrower;




(iii)    set off such an amount against any sum due from it to the other Borrower;


		
	(iv)
	prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Borrower; or




(v)    exercise or assert any combination of the foregoing.


		
	(b)
	If during the Security Period, the Facility Agent, by notice to a Borrower, requires it to take any action referred to in paragraph (a) above in relation to the other Borrower, that Borrower shall take that action as soon as practicable after receiving the Facility Agent's notice.




18.5    Deferral of Borrowers' rights













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, neither Borrower will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents:


(a)    to be indemnified by the other Borrower; or


		
	(b)
	to claim any contribution from the other Borrower in relation to any payment made by it under the Finance Documents.




19    GUARANTEE AND INDEMNITY - HEDGE GUARANTORS


19.1    Guarantee and indemnity


Each Hedge Guarantor irrevocably and unconditionally jointly and severally:


(a)    guarantees to each Hedge Counterparty punctual performance by each Borrower of all that
Borrower's obligations under the Hedging Agreements;


		
	(b)
	undertakes with each Hedge  Counterparty that whenever a Borrower does not pay any amount when due under or in connection with any Hedging Agreement, that Hedge Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and




		
	(c)
	agrees with each Hedge Counterparty that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Hedge Counterparty immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on the date when it would have been due. The amount payable by a Hedge Guarantor under this indemnity will not exceed the amount it would  have had to pay under this Clause 19 (Guarantee and Indemnity - Hedge Guarantors) if the amount claimed had been recoverable on the basis of a guarantee.


19.2    Continuing guarantee


This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by either Borrower under the Hedging Agreements, regardless of any intermediate payment or discharge in whole or in part.


19.3    Reinstatement


If any discharge, release or arrangement (whether in respect of the obligations of either 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 19 (Guarantee and Indemnity - Hedge Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.


19.4    Waiver of defences


The obligations of each Hedge Guarantor under this Clause 19 (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 19.4 (Waiver of defences), would reduce,  release or  prejudice  any of its obligations under  this Clause 19  (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;




		
	(c)
	the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non- presentation or  non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;




		
	(d)
	any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;




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




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


(g)    any insolvency or similar proceedings.
19.5    Immediate recourse


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   19   (Guarantee   and   Indemnity   -   Hedge Guarantors).    This  waiver  applies  irrespective  of  any  law  or  any  provision  of  a  Finance Document to the contrary.


19.6    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 19 (Guarantee and Indemnity


- Hedge Guarantors).


19.7    Deferral of Hedge Guarantors' rights


All rights which each Hedge Guarantor at any time has (whether in respect of this guarantee, a  mortgage or any other transaction) against either 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  19  (Guarantee and Indemnity - Hedge Guarantors):


(a)    to be indemnified by an Obligor;


		
	(b)
	to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;




		
	(c)
	to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security  taken  pursuant to, or in connection with, the Finance Documents by any Secured Party;




		
	(d)
	to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Hedge Guarantor has given a guarantee, undertaking or indemnity under Clause 19 (Guarantee and Indemnity - Hedge Guarantors);




(e)    to exercise any right of set-off against any Obligor; and/or
(f)    to claim or prove as a creditor of any Obligor in competition with any Secured Party.


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 35 (Payment Mechanics).


19.8    Additional security


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.


19.9    Applicability of provisions of Guarantee to other Security


Clauses 19.2 (Continuing guarantee), 19.3 (Reinstatement), 19.4 (Waiver of defences), 19.5 (Immediate recourse), 19.6 (Appropriations), 19.7 (Deferral of Hedge Guarantors' rights) and
19.8 (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.
SECTION 8


REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT


20    REPRESENTATIONS


20.1    General


Each  Obligor   makes   the   representations   and   warranties   set  out   in   this   Clause  20 (Representations) to each Finance Party on the date of this Agreement.


20.2    Status


(a)    It is a corporation, duly incorporated and validly existing in good standing under the law of its
Original Jurisdiction.













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


20.3    Share capital and ownership


		
	(a)
	Borrower A has an authorised share capital of 1,500 divided into 1,500 registered shares with a par value of $0.01 each, all of which shares have been issued fully paid.




		
	(b)
	Borrower B has an authorised share capital of 1,500 divided into 1,500 registered shares with a par value of $0.01 each, all of which shares have been issued fully paid.




(c)    The legal title to and beneficial interest in the shares in each Borrower is held by the Parent
Guarantor free of any Security (other than Permitted Security) or any other claim.


		
	(d)
	None of the shares in either Borrower is subject to any option to purchase, pre-emption rights or similar rights.




20.4    Binding obligations


Subject to the Legal Reservations the obligations expressed to be assumed by it in each Transaction  Document  to  which  it  is  a  party  are  legal,  valid,  binding  and  enforceable obligations.


20.5    Validity, effectiveness and ranking of Security


		
	(a)
	Each Finance Document to which it is a party does now or, as the case may be, will upon execution   and  delivery  create,  subject  to  the  Legal  Reservations  and  the  Perfection Requirements, the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.




		
	(b)
	No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.




		
	(c)
	Subject to the Legal Reservations and the Perfection Requirements, the Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have such priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.


		
	(d)
	No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.




20.6    Non-conflict with other obligations


The  entry  into  and  performance  by  it  of,  and  the  transactions  contemplated  by,  each
Transaction Document to which it is a party do not and will not conflict with:


(a)    any law or regulation applicable to it; (b)    its constitutional documents; or
		
	(c)
	any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or instrument.




20.7    Power and authority


		
	(a)
	It has the power to enter into, perform and deliver, and has taken all necessary action to authorise 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.


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




20.8    Validity and admissibility in evidence


All Authorisations required or desirable:


(a)    to enable it lawfully to enter into, exercise its rights and comply with its obligations in the
Transaction Documents to which it is a party; and


(b)    to make the Transaction Documents to which it is a party admissible in evidence in its Relevant
Jurisdictions,


have been obtained or effected and are in full force and effect.


20.9    Governing law and enforcement


		
	(a)
	Subject to the Legal Reservations, the choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.




		
	(b)
	Subject  to  the  Legal  Reservations,  any  judgment  obtained  in  relation  to  a  Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its Relevant Jurisdictions.




20.10    Insolvency


No:


(a)    corporate action, legal proceeding or other procedure or step described in paragraph (a) of
Clause 28.8 (Insolvency proceedings); or


(b)    creditors' process described in Clause 28.9 (Creditors' process),
has been taken or, to its knowledge, threatened in relation to a member of the Group; and none of the circumstances described in Clause 28.7 (Insolvency) applies to a member of the Group.


20.11    No filing or stamp taxes


Under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be registered, filed, recorded, notarised or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated  by  those  Finance  Documents  except  such  UCC  filings  and  other  filings  or registrations as the legal counsel to the Lenders may consider appropriate or desirable which shall be arranged by the relevant legal counsels to the Lenders (with the cooperation of the Obligors as required) and any fees in relation thereto shall be paid promptly by the Obligors on demand.


20.12    Deduction of Tax


It is not required to make any Tax Deduction from any payment it may make under any Finance
Document to which it is a party.













20.13    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 any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject.




20.14    No misleading information


		
	(a)
	Any factual information provided by any Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.




		
	(b)
	The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.




		
	(c)
	Nothing has occurred or been omitted from any such information and no information has been given or  withheld that results in any such information being untrue or misleading in any material respect.




20.15    Financial Statements


		
	(a)
	The Parent Guarantor's Original Financial Statements were prepared in accordance with US GAAP consistently applied.




		
	(b)
	In the case of the Parent Guarantor only, its Original Financial Statements fairly present its financial condition as at the end of the relevant financial year and its results of operations during the relevant financial year.


		
	(c)
	There has been no material adverse change in the assets, business or consolidated financial condition of the Group since 31 March 2018.




		
	(d)
	In the case of the Parent Guarantor only, its most recent financial statements delivered pursuant to Clause 21.2 (Financial statements):




		
	(i)
	have been prepared in accordance with Clause 21.4 (Requirements as to financial statements); and




		
	(ii)
	fairly present its consolidated financial condition as at the end of the relevant financial year and operations during the relevant financial year.




		
	(e)
	Since the date of the most recent financial statements delivered pursuant to Clause 21.2 (Financial statements) there has been no material adverse change in the business, assets or consolidated financial condition of the Group.




20.16    Pari passu ranking


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.


20.17    No proceedings pending or threatened


		
	(a)
	No   litigation,   arbitration   or   administrative   proceedings   or   investigations   (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS  Code) of or before any court, arbitral body or agency which, if adversely determined, might  reasonably be expected to have a 













Material Adverse Effect have (to the best of its knowledge and  belief (having made due and careful enquiry)) been started or threatened against it or any of its Subsidiaries.


		
	(b)
	No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against it or any of its Subsidiaries.




20.18    Valuations


		
	(a)
	All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation  delivered to the Facility Agent in accordance with this Agreement was true and accurate as at the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.




		
	(b)
	It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.




		
	(c)
	There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that  valuation which, in either case, renders that information untrue or misleading in any material respect.


20.19    No breach of laws


It has not breached any law or regulation which breach has or is reasonably likely to have a
Material Adverse Effect.


20.20    No Charter


Neither Ship is subject to any Charter other than a Permitted Charter.


20.21    Compliance with Environmental Laws


All Environmental Laws relating to the ownership, operation and management of each Ship and the  business of each Obligor and each Approved Manager (as now conducted and as reasonably  anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied with.


20.22    No Environmental Claim


No Environmental Claim has been made or threatened against any member of the Group or either Ship which might reasonably be expected to have a Material Adverse Effect.


20.23    No Environmental Incident


No Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred, in each case which might reasonably be expected to have a Material Adverse Effect.


20.24    ISM and ISPS Code compliance


All requirements of the ISM Code and the ISPS Code as they relate to each Borrower, the Approved Technical Manager, the Approved Sub-Manager (if applicable) and each Ship have been complied with.


20.25    Taxes paid


		
	(a)
	It is not materially overdue in the filing of any Tax returns and it is not overdue in the payment of any amount in respect of Tax.















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




20.26    Financial Indebtedness


Neither Borrower has any Financial Indebtedness outstanding other than Permitted Financial
Indebtedness.


20.27    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.
20.28    Good title to assets


It has good, valid and marketable title to, or valid leases or licences of, and all appropriate
Authorisations to use, the assets necessary to carry on its business as presently conducted.


20.29    Ownership


(a)    Borrower A is the sole legal and beneficial owner of Ship A, its Earnings and its Insurances. (b)    Borrower B is the sole legal and beneficial owner of Ship B, its Earnings and its Insurances.
		
	(c)
	With effect on and from the date of its creation or intended creation, each Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction Security created or intended to be created by such Obligor.




		
	(d)
	The constitutional documents of each Obligor do not and could not restrict or inhibit any transfer of the shares of the Borrowers on creation or enforcement of the security conferred by the Security Documents.




20.30    Centre of main interests and establishments


For the purposes of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings (recast)(the "Regulation"), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in Monaco and it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.


20.31    Place of business


The Guarantor will maintain its principal executive office at 9, Boulevard Charles III, Monaco,
98000.


20.32    No employee or pension arrangements


No Obligor has any employees or any liabilities under any pension scheme.


20.33    Sanctions


(a)    No Obligor:


(i)    is a Prohibited Person;













		
	(ii)
	is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;




(iii)    owns or controls a Prohibited Person; or


		
	(iv)
	has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee.




		
	(b)
	No proceeds of any Advance, any Tranche 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.


20.34    Material adverse change


No event or circumstance has occurred which has or is reasonably likely to have a Material
Adverse Effect.


20.35    Due execution


Each Obligor has validly executed and delivered the Transaction Document, to which they are a party.


20.36    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, the Utilisation and the first day of each Interest Period.


21    INFORMATION UNDERTAKINGS


21.1    General


The undertakings in this Clause 21 (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.


21.2    Financial statements
The Parent Guarantor shall supply 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
financial years, its audited, consolidated financial statements for that financial year; and


		
	(b)
	as soon as the same become available, but in any event within 60 days after the end of each of the first three quarters of each of its financial years, its unaudited consolidated financial statements for that quarter.




21.3    Compliance Certificate


		
	(a)
	The Parent Guarantor shall supply to the Facility Agent, with each set of financial statements delivered pursuant to Clause 21.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 22 (Financial Covenants) as at the date as at which those financial statements were drawn up.




(b)    Each Compliance Certificate shall be signed by one officer or director of the Parent Guarantor.


21.4    Requirements as to financial statements


		
	(a)
	Each set of financial statements delivered by the Parent Guarantor pursuant to Clause 21.2 (Financial  statements)  shall  be  certified  by  a  director  of  the  Parent  Guarantor  as  fairly presenting its financial 













condition and operations as at the date as at which those financial statements were drawn up.


		
	(b)
	The Parent Guarantor shall procure that each set of financial statements delivered pursuant to Clause 21.2  (Financial  statements)  is  prepared  using  US  GAAP,  accounting  practices  and financial reference periods consistent with those applied in the preparation of the Original


Financial Statements unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in US GAAP, the accounting practices or reference periods and its auditors deliver to the Facility Agent:


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




		
	(ii)
	sufficient information, in form and substance as may be reasonably required by the Facility  Agent, to enable  the  Lenders to  determine whether Clause  22 (Financial Covenants) has been complied with and make an accurate comparison between the financial position  indicated in those financial statements and the Original Financial Statements.




Any  reference  in  this  Agreement  to  those  financial  statements  shall  be  construed  as  a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.


21.5    Information: miscellaneous


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 or investigations (including proceedings or investigations relating to any  alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or  pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect;




		
	(c)
	promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any member of the Group and which might have a Material Adverse Effect;




(d)    promptly, its constitutional documents where these have been amended or varied; (e)    promptly, such further information and/or documents regarding:
(i)    each Ship, goods transported on each Ship, its Earnings and its Insurances; (ii)    the Security Assets;
(iii)    compliance of the Obligors with the terms of the Finance Documents;


(iv)    the financial condition, business and operations of any member of the Group, as any Finance Party (through the Facility Agent) may reasonably request; and
		
	(f)
	promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it or as may be 













required by any regulatory authority.
21.6    Notification of Default


		
	(a)
	Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).




		
	(b)
	Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).




21.7    Use of websites


		
	(a)
	Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "Website Lenders") which accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (the "Designated Website") if:




		
	(i)
	the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;




		
	(ii)
	both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and




(iii)    the information is in a format previously agreed between the relevant Obligor and the
Facility Agent.


If  any  Lender  (a  "Paper  Form  Lender")  does  not  agree  to  the  delivery  of  information electronically then the Facility Agent shall notify the Obligors accordingly and each Obligor shall  supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form.  In any event each Obligor shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.


		
	(b)
	The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them and the Facility Agent.




		
	(c)
	An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if: (i)    the Designated Website cannot be accessed due to technical failure;


(ii)    the password specifications for the Designated Website change;


		
	(iii)
	any new information which is required to be provided under this Agreement is posted onto the Designated Website;




		
	(iv)
	any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or




		
	(v)
	if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.


If an Obligor notifies the Facility Agent under sub-paragraph (i) or (v) of paragraph (c) above, all information to be provided by the Obligors under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender  is  satisfied  that  the  circumstances  giving  











rise  to  the  notification  are  no  longer continuing.


		
	(d)
	Any  Website  Lender  may  request,  through  the  Facility  Agent,  one  paper  copy  of  any information  required  to  be  provided  under  this  Agreement  which  is  posted  onto  the Designated Website. The Obligors shall comply with any such request within 10 Business Days.




21.8    "Know your customer" checks


(a)    If:


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




		
	(ii)
	any change in the status of an Obligor (or of a Holding Company of an Obligor) (including, without limitation, a change of ownership of an Obligor or of a Holding Company of an Obligor) after the date of this Agreement; or




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




obliges a Finance Party (or, in the case of sub-paragraph (iii) above, any prospective new Lender)  to  comply  with  "know  your  customer"  or  similar  identification  procedures  in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the  request of any Finance Party  supply, or procure the supply  of, such documentation and other evidence as is reasonably requested by a Servicing Party (for itself or on behalf of any other Finance Party) or any Lender (for itself or, in the case of the event described in sub-paragraph (iii) above, on behalf of any prospective new Lender) in order for such Finance Party or, in the case of the event  described in sub-paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.


		
	(b)
	Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order for that Servicing Party to carry out and be satisfied it has complied with all necessary  "know  your  customer"  or  other  similar  checks  under  all  applicable  laws  and regulations pursuant to the transactions contemplated in the Finance Documents.




22    FINANCIAL COVENANTS


22.1    Minimum liquidity


The Parent Guarantor shall at all times maintain Cash and Cash Equivalents equal to the greater of (i) $25,000,000 and (ii) $700,000 per Fleet Vessel.


22.2    Minimum Tangible Net Worth


The Parent Guarantor shall at all times maintain a Consolidated Tangible Net Worth of not less than $500,000,000 plus:
25 per cent. of the Parent Guarantor's cumulative, positive consolidated net income for each
Accounting Period commencing on or after 31 December 2013; and


50 per cent. of the value of the Equity Proceeds realized from any issuance of Equity Interests in the Parent Guarantor occurring on or after 31 December 2013.













22.3    Maximum Leverage


The Parent Guarantor shall at all times maintain a ratio of Net Debt to Consolidated Total
Capitalisation of not more than 0.60 to 1.00.


22.4    Testing


The Parent Guarantor shall comply with the financial covenants set out in this Clause 22 (Financial Covenants), such covenants to be tested on the last day of each Accounting Period by reference to the latest consolidated financial statements of the Parent Guarantor provided pursuant to Clause 21.2 (Financial Statements).


23    GENERAL UNDERTAKINGS


23.1    General


The undertakings in this Clause 23 (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.


23.2    Authorisations


Each Obligor shall promptly:


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


(b)    supply certified copies to the Facility Agent of,


any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of the Approved Flag at any time of each Ship to enable it to:


(i)    perform its obligations under the Transaction Documents to which it is a party;


		
	(ii)
	ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Ship, of any Transaction Document to which it is a party; and




(iii)    own and operate each Ship (in the case of the Borrowers).


23.3    Compliance with laws


Without prejudice to Clauses 25.10 (Compliance with laws etc.) and 25.12 (Sanctions and Ship trading), each Obligor shall comply in all respects with all laws and regulations to which it may be subject, if failure so to comply has or is reasonably likely to have a Material Adverse Effect.


23.4    Environmental compliance


Each Obligor shall:
(a)    comply with all Environmental Laws;


(b)    obtain, maintain and ensure compliance with all requisite Environmental Approvals;


(c)    implement  procedures  to  monitor  compliance  with  and  to  prevent  liability  under  any
Environmental Law,













where failure to do so has or is reasonably likely to have a Material Adverse Effect.


23.5    Environmental Claims


Each Obligor shall (through the Parent Guarantor) promptly upon becoming aware of the same, inform the Facility Agent in writing of:


		
	(a)
	any Environmental Claim against any Obligor or an Approved Manager which is a 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 Obligor or an Approved Manager which is a member of the Group,




where the claim, if determined against that Obligor or an Approved Manager which is a member of the Group, has or is reasonably likely to have a Material Adverse Effect.


23.6    Taxation


		
	(a)
	Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:




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


		
	(ii)
	adequate reserves are maintained for those Taxes and the costs required to contest them and both have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 21.2 (Financial statements); and




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




(b)    No Obligor will change its residence for Tax purposes.


23.7    Overseas companies


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.


23.8    No change to centre of main interests


No Obligor shall change the location of its centre of main interest (as that term is used in Article 3(1) of the Regulation) from that stated in relation to it in Clause 20.30 (Centre of main interests and establishments) and it will create no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
23.9    Pari passu ranking


Each Obligor shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.













23.10    Title


(a)    Borrower A shall hold the legal title to, and own the entire beneficial interest in Ship A, its
Earnings and its Insurances;


(b)    Borrower B shall hold the legal title to, and own the entire beneficial interest in Ship B, its
Earnings and its Insurances; and


		
	(c)
	With effect on and from its creation or intended creation, each Obligor shall hold the legal title to, and own the entire beneficial interest in any other assets the subject of any Transaction Security created or intended to be created by such Obligor.




23.11    Negative pledge


		
	(a)
	No Obligor shall create or permit to subsist any Security over any of its assets which are the subject of the Security created or intended to be created by the Finance Documents.




(b)    Neither Borrower shall:


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




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


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




(iv)    enter into any other preferential arrangement having a similar effect,


in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.


(c)    Paragraphs (a) and (b) above do not apply to any Permitted Security.


23.12    Disposals


		
	(a)
	Neither Borrower shall enter into a single transaction or a series of transactions (whether related  or  not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset (including without limitation any Ship, its Earnings or its Insurances).




		
	(b)
	Paragraph (a) above does not apply to: (i)    any Permitted Charter; or


(ii)    the sale of a Ship, provided that the Borrowers comply with the provisions of Clause
7.5 (Mandatory prepayment on sale or Total Loss).
23.13    Merger


No Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction.


23.14    Change of business


		
	(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)    Neither Borrower shall engage in any business other than the ownership and operation of its
Ship.


23.15    Financial Indebtedness


Neither Borrower shall incur or permit to be outstanding any Financial Indebtedness except
Permitted Financial Indebtedness.


23.16    Expenditure


Neither Borrower shall incur any expenditure, except for expenditure reasonably incurred in the ordinary course of owning, operating, maintaining and repairing its Ship.


23.17    Share capital


Neither Borrower shall:


(a)    purchase, cancel or redeem any of its share capital; (b)    increase or reduce its authorised share capital;
		
	(c)
	issue any further shares except to the Parent Guarantor and provided such new shares are made  subject to the terms of the Shares Security applicable to that Borrower immediately upon the issue of such new shares in a manner satisfactory to the Security Agent and the terms of that Shares Security are complied with;




(d)    appoint any further director, officer or secretary of that Borrower (unless the provisions of the
Shares Security applicable to that Borrower are complied with).


23.18    Dividends


No Obligor shall following the occurrence of an Event of Default, which is continuing, or where any of the following would result in the occurrence of an Event of Default:


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




(ii)    repay or distribute any dividend or share premium reserve;


		
	(iii)
	pay  any  management,  advisory  or  other  fee  to  or  to  the  order  of  any  of  its shareholders; or


		
	(iv)
	redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so.




23.19    Other transactions


Neither 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.















		
	(c)
	enter into any material agreement other than: (i)    the Transaction Documents;


(ii)    any other agreement expressly allowed under any other term of this Agreement; and


		
	(d)
	enter into any transaction on terms which are, in any respect, less favourable to that 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.




23.20    Unlawfulness, invalidity and ranking; Security imperilled


No Obligor shall do (or fail to do) or cause or permit another person to do (or omit to do)
anything which is likely to:


(a)    make it unlawful for an Obligor to perform any of its obligations under the Transaction
Documents;


		
	(b)
	cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding  or  enforceable if that cessation individually or together with any other cessations materially  or  adversely  affects  the  interests  of  the  Secured  Parties  under  the  Finance Documents;




(c)    cause any Transaction Document to cease to be in full force and effect;


(d)    cause any Transaction Security to rank after, or lose its priority to, any other Security; and


(e)    imperil or jeopardise the Transaction Security.


23.21    Charter Assignment


Upon an Assignable Charter being entered into, the relevant Borrower owning the Ship which is subject to such Assignable Charter shall serve to the charterer a notice of assignment of Assignable  Charter under the General Assignment and shall use commercially reasonable efforts to procure that the charterer provides its acknowledgement.
23.22    Further assurance


		
	(a)
	Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do  all such acts (including procuring or arranging any registration, notarisation or authentication  or  the  giving  of  any  notice)  or  execute  or  procure  execution  of  all  such documents  (including   assignments,  transfers,  mortgages,  charges,  notices,  instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)):




		
	(i)
	to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of any of the Secured Parties provided by or pursuant to the Finance Documents or by law;




		
	(ii)
	to confer on the Security Agent or confer on the Secured Parties Security over any property and 













assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;


		
	(iii)
	to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of  the  Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or




		
	(iv)
	to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.




		
	(b)
	Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.




		
	(c)
	At the same time as an Obligor delivers to the Security Agent any document executed by itself pursuant  to this Clause 23.22 (Further assurance), that Obligor shall deliver to the Security Agent a certificate signed by two of that Obligor's directors or officers which shall:




		
	(i)
	set out the text of a resolution of that Obligor's directors specifically authorising the execution of the document specified by the Security Agent; and




		
	(ii)
	state that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors or officers and is valid under that Obligor's articles of association or other constitutional documents.


24    INSURANCE UNDERTAKINGS


24.1    General


The undertakings in this Clause 24 (Insurance Undertakings) remain in force from the date of this Agreement throughout the rest of the Security Period except as the Facility Agent, acting with the  authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.


24.2    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 and excess risks);
(b)    war risks;


(c)    protection and indemnity risks; and


		
	(d)
	any other risks against which the Facility Agent considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable for that Borrower to insure and which are specified by the Facility Agent by notice to that Borrower.




24.3    Terms of obligatory insurances


Each Borrower shall effect such insurances: (a)    in 











dollars;
		
	(b)
	in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:




(i)    120 per cent. of the Tranche relating to the Ship owned by it ; and


(ii)    the Market Value of that Ship;


		
	(c)
	in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international   marine  insurance  market  (which,  as  of  the  date  of  this  Agreement  is US$1,000,000,000);




(d)    in the case of protection and indemnity risks, in respect of the full tonnage of its Ship; (e)    on approved terms; and
		
	(f)
	through Approved Brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.




24.4    Further protections for the Finance Parties


In addition to the terms set out in Clause 24.3 (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 insured unless the interest of every other named insured is limited:




(i)    in respect of any obligatory insurances for hull and machinery and war risks;


		
	(A)
	to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and




		
	(B)
	to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and




		
	(ii)
	in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;




and when requested by the Security Agent (acting reasonably) obtain or procure that every other  named insured has undertaken in writing to the Security Agent (in such form as it requires) that any deductible shall be apportioned between that Borrower and every other named insured in proportion to the gross claims made or paid by each of them and that it shall do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances;


		
	(b)
	whenever the Facility Agent requires, name (or be amended to name) the Security Agent as additional named insured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;




		
	(c)
	name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;




		
	(d)
	provide that all payments by or on behalf of the insurers under the obligatory insurances to the  Security 













Agent shall be made without set off, counterclaim or deductions or condition whatsoever;


		
	(e)
	provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and




(f)    provide that the Security Agent may make proof of loss if that Borrower fails to do so.


24.5    Renewal of obligatory insurances


Each Borrower shall:


(a)    at least 21 days before the expiry of any obligatory insurance effected by it:


		
	(i)
	notify the Facility Agent of the Approved Brokers (or other insurers) and any protection and indemnity or war risks association through or with which it proposes to renew that obligatory insurance and of the proposed terms of renewal; and


(ii)    obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i)
above;


		
	(b)
	at least 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.




24.6    Copies of policies; letters of undertaking


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 24.4 (Further protections for the Finance Parties);




(ii)    they will hold such policies, and the benefit of such insurances, to the order of the
Security Agent in accordance with such loss payable clause;


		
	(iii)
	they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;




		
	(iv)
	they will, if they have not received notice of renewal instructions from the relevant Borrower or its agents, notify the Security Agent not less than 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.


24.7    Copies of certificates of entry


Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provide the Security Agent with:
(a)    a certified copy of the certificate of entry for that Ship;


		
	(b)
	a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and




		
	(c)
	a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.




24.8    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.


24.9    Payment of premiums


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.


24.10    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.


24.11    Compliance with terms of insurances


		
	(a)
	Neither Borrower shall do or omit to do (nor permit to be done or not to be done) any act or thing  which  would  or  might  render  any  obligatory  insurance  invalid,  void,  voidable  or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part.




(b)    Without limiting paragraph (a) above, each Borrower shall:


		
	(i)
	take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in  sub-paragraph (iii) of paragraph (b) of Clause 24.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or  qualifications to which the Facility Agent has not given its prior approval;




		
	(ii)
	not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it 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.


24.12    Alteration to terms of insurances


Neither Borrower shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.


24.13    Settlement of claims


		
	(a)
	Neither  Borrower  shall  settle,  compromise  or  abandon  any  claim  under  any  obligatory insurance for Total Loss or for a Major Casualty.




		
	(b)
	Each  Borrower  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.




24.14    Provision of copies of communications


Each Borrower shall provide the Security Agent, at the time of each such communication, with copies of all written communications between that Borrower and:


(a)    the Approved Brokers;


(b)    the approved protection and indemnity and/or war risks associations; and


		
	(c)
	the approved insurance companies and/or underwriters, which relate directly or indirectly to:


		
	(i)
	that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and




		
	(ii)
	any credit arrangements made between that Borrower and any of the persons referred to  in  paragraphs  (a)  or  (b)  above  relating  wholly  or  partly  to  the  effecting  or maintenance of the obligatory insurances.




24.15    Provision of information


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 24.16 (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.


24.16    Mortgagee's interest and additional perils insurances


The Facility Agent shall be entitled from time to time to effect, maintain and renew:


(a)    a mortgagee's interest insurance in an amount equal to 120 per cent. of the Loan; and


(b)    a mortgagee's interest additional perils insurance in an amount equal to 120 per cent. of the
Loan,


and the Borrowers shall upon demand fully indemnify the Finance Parties in respect of all premiums  and other expenses which are incurred in connection with or with a view to effecting,  maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.


25    GENERAL SHIP UNDERTAKINGS


25.1    General


The undertakings in this Clause 25 (General Ship Undertakings) 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.


25.2    Ships' names and registration


Each Borrower shall, in respect of the Ship owned by it:


		
	(a)
	keep that Ship registered in its name under the Approved Flag from time to time at its port of registration;




		
	(b)
	not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled;




(c)    not enter into any dual flagging arrangement in respect of that Ship; and


(d)    not change the name of that Ship,


provided that any change of flag of a Ship shall be subject to:


		
	(i)
	that Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of 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.




25.3    Repair and classification


Each Borrower shall keep the Ship owned by it in a good and safe condition and state of repair:
(a)    consistent with first class ship ownership and management practice; and













		
	(b)
	so  as  to  maintain  the  Approved  Classification  free  of  overdue  recommendations  and conditions.




25.4    Classification society undertaking


Each Borrower shall, in respect of the Ship owned by it, instruct the relevant Approved Classification Society (and procure that the Approved Classification Society undertakes with the Security Agent):


		
	(a)
	to send to the Security Agent, following receipt of a written request from the Security Agent, certified true copies of all original class records held by the Approved Classification Society in relation to that Ship;




		
	(b)
	to allow the Security Agent (or its agents), at any time and from time to time, to inspect the original class and related records of that Borrower and that Ship at the offices of the Approved Classification Society and to take copies of them;




(c)    to notify the Security Agent immediately in writing if the Approved Classification Society:


(i)    receives notification from that Borrower or any person that that Ship's Approved
Classification Society is to be changed; or


		
	(ii)
	becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of that Ship's class under the rules or terms  and conditions of that Borrower or that Ship's membership of the Approved Classification Society;




(d)    following receipt of a written request from the Security Agent:


		
	(i)
	to confirm that that Borrower is not in default of any of its contractual obligations or liabilities to the Approved Classification Society, including confirmation that it has paid in full all fees or other charges due and payable to the Approved Classification Society; or




		
	(ii)
	to confirm that that Borrower is in default of any of its contractual obligations or liabilities  to the Approved Classification Society, to specify to the Security Agent in reasonable detail the facts and circumstances of such default, the consequences of such default, and any remedy period agreed or allowed by the Approved Classification Society.




25.5    Modifications


Neither Borrower shall make any modification or repairs to, or replacement of, any Ship or equipment  installed  on  it  which  would  or  might  materially  alter  the  structure,  type  or performance characteristics of that Ship or materially reduce its value.


25.6    Removal and installation of parts


		
	(a)
	Subject to paragraph (b) below, neither Borrower shall remove any material part of either Ship, or any item of equipment installed on either Ship unless:


		
	(i)
	the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;




		
	(ii)
	the replacement part or item is free from any Security in favour of any person other than the Security Agent; and




		
	(iii)
	the replacement part or item becomes, on installation on that Ship, the property of that Borrower and subject to the security constituted by the Mortgage on that Ship.




		
	(b)
	A Borrower may install equipment owned by a third party if the equipment can be removed without any risk 













of damage to the Ship owned by that Borrower.


25.7    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.


25.8    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 once annually to inspect its condition  or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections; provided, however, if an Event of Default has occurred and is continuing there shall be no limit on the number of inspections and such persons shall be permitted  to  board the Ships;  provided that such inspections shall not unreasonably interfere with the operation of the Ships.




		
	(b)
	The cost of all inspections of a Ship under this Clause 25.8 (Inspection) shall be for the account of the Borrowers provided that if no Event of Default has occurred and that Ship is found to be in a condition satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) in all respects, the Borrowers shall not have to pay for more than one inspection per Ship in each calendar year.




25.9    Prevention of and release from arrest


(a)    Each Borrower shall, in respect of the Ship owned by it, promptly discharge:


		
	(i)
	all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;




(ii)    all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its
Insurances; and
(iii)    all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances. (b)    Each Borrower shall immediately upon receiving notice of the arrest of the Ship owned by it or
of its detention in exercise or purported exercise of any lien or claim, take all steps necessary to procure its release by providing bail or otherwise as the circumstances may require.
25.10    Compliance with laws etc.


Each Borrower shall:


		
	(a)
	comply, or procure compliance with all laws or regulations: (i)    relating to its business generally; and


(ii)    relating to the Ship owned by it, its ownership, employment, operation, management
and registration,


including, but not limited to, the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws of the Approved Flag;


(b)    obtain, comply with and do all that is necessary to maintain in full force and effect any
Environmental Approvals; and


		
	(c)
	without  limiting  paragraph  (a)  above,  not  employ  the  Ship  owned  by  it  nor  allow  its employment, operation or management in any manner contrary to any law or regulation including but not limited to the 













ISM Code, the ISPS Code, all Environmental Laws and Sanctions.


25.11    ISPS Code


Without limiting paragraph (a) of Clause 25.10 (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;




(b)    maintain an ISSC for that Ship; and


		
	(c)
	notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.




25.12    Sanctions and Ship trading


Without limiting Clause 25.10 (Compliance with laws etc.), each Borrower shall procure: (a)    that the Ship owned by it shall not be used by or for the benefit of a Prohibited Person; (b)    that such Ship shall not be used in trading in breach of Sanctions; and
		
	(c)
	that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances.




25.13    Trading in war zones


In the event of hostilities in any part of the world (whether war is declared or not), neither Borrower shall cause or permit either 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)    the prior written consent of the Security Agent acting on the instructions of the Majority
Lenders has been given; and
		
	(b)
	that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of the Majority Lenders may require.




25.14    Provision of information


Without prejudice to Clause 21.5 (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:


(a)    that Ship, its employment, position and engagements;


(b)    the Earnings and payments and amounts due to its master and crew;


		
	(c)
	any  expenditure  incurred,  or  likely  to  be  incurred,  in  connection  with  the  operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship;




(d)    any towages and salvages; and


(e)    its compliance, the Approved Manager's compliance and the compliance of that Ship with the
ISM Code and the ISPS Code,


and, upon the Facility Agent's request, promptly provide copies of any current Charter relating to that  Ship, 











of any current guarantee of any such Charter, the Ship's Safety Management Certificate and any relevant Document of Compliance.


25.15    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 is likely to be or to become a Major Casualty;


		
	(b)
	any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;




(c)    any requisition of that Ship for hire;


		
	(d)
	any  requirement  or  recommendation  made  in  relation  to  that  Ship  by  any  insurer  or classification society or by any competent authority which is not immediately complied with;




(e)    any arrest or detention of that Ship or any exercise or purported exercise of any lien on that
Ship or the Earnings;


(f)    any intended dry docking of that Ship;


(g)    any Environmental Claim made against that 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.


25.16    Restrictions on chartering, appointment of managers and sub-managers etc.


Neither Borrower shall, in relation to the Ship owned by it: (a)    let that Ship on demise charter for any period;
(b)    enter into any time, voyage or consecutive voyage charter in respect of that Ship other than a
Permitted Charter;


		
	(c)
	materially amend or supplement or terminate a Management Agreement without the prior written consent of the Facility Agent, such consent not to be unreasonably withheld, provided that amendments to the provisions relating to the management fees, termination fees and insurances  shall be permitted if such changes do not and shall not affect the rights of the Finance Parties in an adverse manner in the context of the Finance Documents;




		
	(d)
	appoint a manager of that Ship other than the Approved Commercial Manager, the Approved Technical Manager or the Approved Sub-Manager or agree to any material alteration to the terms of an Approved Manager's appointment;















(e)    de activate or lay up that Ship; or


		
	(f)
	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.




25.17    Notice of Mortgage


Each Borrower shall keep the relevant Mortgage registered against the Ship owned by it as a valid  first  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.


25.18    Sharing of Earnings


Neither Borrower shall enter into any agreement or arrangement for the sharing of any Earnings of the Ship owned by it other than for the purposes of this Agreement or otherwise in the context of any Approved Pooling Arrangement.


25.19    Change of an Approved Manager


If, subject to Clause 25.16 (Restrictions on charterer, appointment of managers and sub- managers etc.), there is a change of an Approved Manager or the appointment of an Approved Sub-Manager, the Borrowers shall:


		
	(a)
	promptly provide the Facility Agent with a copy of the management agreement pursuant to which such Approved Manager is to be appointed; and


		
	(b)
	procure that the new Approved Manager provides to the Facility Agent on or prior to the commencement of its appointment, a Manager's Undertaking.




25.20    Notification of compliance


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 25 (General Ship Undertakings).


25.21    Scrapping policy


The Parent Guarantor shall maintain a policy that any scrapping of a Ship which is to be carried out  during a period under which that Ship is owned and controlled by a Borrower shall be conducted in compliance with the IMO convention for the Safe and Environmentally Sound Recycling of Ship and with any future guideline issued by the IMO in connection with such Convention (if the same have  come into force) and the relevant Borrower will use its best efforts to take into account social and  environmental considerations when selecting the recycling yard.


26    SECURITY COVER


26.1    Minimum required security cover


Clause 26.2 (Provision of additional security; prepayment) applies if, the Facility Agent notifies the Borrowers that:


(a)    the aggregate Market Value of each Ship then subject to a Mortgage; plus













		
	(b)
	the  net  realisable  value  of  additional  Security  previously  provided  under  this  Clause 26 (Security Cover),




is below 150 per cent. of the Loan.


26.2    Provision of additional security; prepayment


		
	(a)
	If the Facility Agent serves a notice on the Borrowers under Clause 26.1 (Minimum required security cover), the Borrowers shall, on or before the date falling 30 days after the date (the "Prepayment Date") on which the Facility Agent's notice is served, prepay such part of the Loan as shall eliminate the shortfall.




		
	(b)
	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.


(c)    If a Borrower has provided additional security in accordance with paragraph (b) above (the
“Additional Security”, that Borrower may, no less than six Months after the Borrower has
provided such Additional Security, request that the Facility Agent test compliance with the minimum required security cover set out in Clause 26.1 (Minimum required security cover). The Borrower shall bear the cost of valuations obtained by the Facility Agent pursuant to this paragraph to determine the Market Value of the relevant Ship and the value of any Additional Security provided in accordance with paragraph (b) above. If the Facility Agent shall determine that all or any part of the Additional Security can be released without resulting in a shortfall in the minimum required security cover set out in Clause 26.1 (Minimum required security cover), then the Facility Agent shall release such Additional Security, provided that no Event of Default has occurred and is continuing.


26.3    Value of additional vessel security


The  net  realisable  value  of  any  additional  security which  is  provided  under  Clause  26.2 (Provision of additional security; prepayment) and which consists of Security over a vessel shall be the Market Value of the vessel concerned.


26.4    Valuations binding


Any valuation under this Clause 26 (Security Cover) shall be binding and conclusive as regards each Borrower.


26.5    Provision of information


		
	(a)
	Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 26 (Security Cover) with any information which the Facility Agent or the shipbroker may request for the purposes of the valuation.




		
	(b)
	If 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.




26.6    Prepayment mechanism













Any prepayment pursuant to Clause 26.2 (Provision of additional security; prepayment) shall be made in accordance with the relevant provisions of Clause 7 (Prepayment and Cancellation) and shall be treated as a voluntary prepayment pursuant to Clause 7.4 (Voluntary prepayment of Utilisations) but ignoring any restriction as to prepayments being made on the last day of the Interest Period.


26.7    Provision of valuations


		
	(a)
	The Facility Agent shall obtain two valuations in respect of each Ship and any other vessel over which  additional Security has been created in accordance with Clause 26.2 (Provision of additional  security; prepayment), from Approved Valuers, to enable the Facility Agent to determine the Market Value of each Ship and any other such vessel on not more than two occasions in each calendar year. The cost of all such valuations shall be borne by the Borrowers.




		
	(b)
	A Lender may also at any time request the Facility Agent to obtain valuations in respect of each Ship and any other vessel over which additional Security has been created in accordance with Clause 26.2 (Provision of additional security; prepayment), from Approved Valuers in addition to those obtained by the Facility Agent under paragraph (a) above, to enable the Facility Agent to determine the Market Value of the Ships or such other vessels, as the case may be, and the cost of such valuations shall be for the account of that Lender unless an Event of Default has


occurred and is continuing or any valuation obtained would entitle the Facility Agent to serve a  notice  pursuant  to  Clause  26.1  (Minimum  required  security  cover)  in which case  such valuations shall be for the cost of the Borrowers.


27    ACCOUNTS AND APPLICATION OF EARNINGS


27.1    Accounts


Neither Borrower may, without the prior consent of the Facility Agent, maintain any bank account other than its Earnings Account.


27.2    Payment of Earnings


Each Borrower shall ensure that,


		
	(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 Hedge Receipts are paid in to the relevant Earnings Account.


27.3    Location of Earnings Accounts


Each Borrower shall promptly:


(a)    comply with any requirement of the Facility Agent as to the location or relocation of its
Earnings Accounts (or either 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.




28    EVENTS OF DEFAULT


28.1    General













Each of the events or circumstances set out in this Clause 28 (Events of Default) is an Event of
Default except for Clause 28.18 (Acceleration) and Clause 28.19 (Enforcement of security).


28.2    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)    its failure to pay is caused by:


(i)    administrative or technical error; or


(ii)    a Disruption Event; and


(b)    payment is made within three Business Days of its due date.
28.3    Specific obligations


A breach occurs of Clause 4.5 (Waiver of conditions precedent), Clause 20.33 (Sanctions), Clause   22   (Financial  Covenants),  Clause  23.10  (Title),  Clause  23.11  (Negative  pledge), Clause 23.20   (Unlawfulness,   invalidity   and   ranking;   Security   imperilled),   Clause   24.2 (Maintenance  of   obligatory  insurances),  Clause 24.3  (Terms  of  obligatory  insurances), Clause 24.5 (Renewal of obligatory insurances), Clause 25.12 (Sanctions and Ship trading) or Clause 26 (Security Cover).


28.4    Other obligations


		
	(a)
	An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 28.2 (Non-payment) and Clause 28.3 (Specific obligations)).




		
	(b)
	No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten Business Days of the Facility Agent giving notice to the Borrowers or (if earlier) any Obligor becoming aware of the failure to comply.




28.5    Misrepresentation


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


28.6    Cross default


		
	(a)
	Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.




		
	(b)
	Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).




		
	(c)
	Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).




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




		
	(e)
	No Event of Default will occur under this Clause 28.6 (Cross default) if the aggregate amount of   Financial   













Indebtedness   or   commitment   for   Financial   Indebtedness   falling   within paragraphs (a) to (d) above is less than $1,000,000 (in respect of a Borrower) or $10,000,000 (in respect of the Parent Guarantor) (or its equivalent in any other currency).


28.7    Insolvency


(a)    An Obligor:


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


(ii)    is deemed to, or is declared to, be unable to pay its debts under applicable law;
(iii)    suspends or threatens to suspend making payments on any of its debts; or


		
	(iv)
	by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.




		
	(b)
	The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).




		
	(c)
	A moratorium is declared in respect of any indebtedness of any Obligor.   If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.




28.8    Insolvency proceedings


(a)    Any corporate action, legal proceedings or other procedure or step is taken in relation to:


		
	(i)
	the  suspension  of  payments,  a  moratorium  of  any  indebtedness,  winding-up, dissolution,  administration  or  reorganisation  (by  way  of  voluntary  arrangement, scheme of arrangement or otherwise) of any Obligor;




(ii)    a composition, compromise, assignment or arrangement with any creditor of any
Obligor;


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




(iv)    enforcement of any Security over any assets of any Obligor, or any analogous procedure or step is taken in any jurisdiction.
		
	(b)
	Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.




28.9    Creditors' process


Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of an Obligor (other than an arrest or detention of a Ship referred to in Clause 28.13 (Arrest)) and is not discharged within 30 days.


28.10    Unlawfulness, invalidity and ranking


(a)    It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance
Documents.













(b)    Any  obligation of  an  Obligor  under  the  Finance  Documents  is  not  (subject to  the Legal
Reservations) or ceases to be legal, valid, binding or enforceable.


		
	(c)
	Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.




(d)    Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
28.11    Security imperilled


Any Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy.


28.12    Cessation of business


Any Obligor suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.


28.13    Arrest


Any arrest of a Ship or its detention in the exercise or the purported exercise of any lien or claim unless it is redelivered to the full control of the relevant Borrower within 90 days of such arrest or detention.


28.14    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 other than:


(a)    an arrest of detention of a Ship referred to in Clause 28.13 (Arrest); or


(b)    any Requisition.


28.15    Repudiation and rescission of agreements


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.


28.16    Litigation


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


28.17    Material adverse change


Any event or circumstance occurs which has or is reasonably likely to have a Material Adverse
Effect.


28.18    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: (a)    by notice to the Borrowers:
(i)    cancel the Total Commitments, whereupon they shall immediately be cancelled;
		
	(ii)
	declare that all or part of the Utilisation, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or




		
	(iii)
	declare that all or part of the Utilisation be payable on demand, whereupon they shall immediately  become  payable  on  demand  by  the  Facility  Agent  acting  on  the instructions of the Majority Lenders; and/or




		
	(b)
	exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents,




and the Facility Agent may serve notices under sub-paragraphs (i), (ii) and (iii) of paragraph (a) above  simultaneously or on different dates and any Servicing Party may take any action referred to in paragraph (b) above or Clause 28.19 (Enforcement of security) if no such notice is served or simultaneously with or at any time after the service of any of such notice.


28.19    Enforcement of security


On and at any time after the occurrence of an Event of Default which is continuing the Security Agent may, and shall if so directed by the Majority Lenders, take any action which, as a result of the Event of Default or any notice served under Clause 28.18 (Acceleration), the Security Agent is entitled to take under any Finance Document 





































































SECTION 9


CHANGES TO PARTIES


29    CHANGES TO THE LENDERS AND THE HEDGE COUNTERPARTIES


29.1    Assignments and transfers by the Lenders


Subject to this Clause 29 (Changes to the Lenders and the Hedge Counterparties), a Lender (the
"Existing Lender") may: (a)    assign any of its rights; or
(b)    transfer by novation any of its rights and obligations,


under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender").


29.2    Conditions of assignment or transfer


		
	(a)
	The consent of the Borrowers is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:




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


(ii)    made at a time when an Event of Default is continuing.


		
	(b)
	The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld, delayed or conditional.  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)    An assignment will only be effective on:


		
	(i)
	receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent)  that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it had been an Original Lender; and




		
	(ii)
	performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.




		
	(d)
	Each Obligor agrees that all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrower or any other Obligor had against the Existing Lender.




(e)    A transfer will only be effective if the procedure set out in Clause 29.5 (Procedure for transfer)
is complied with.
(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 under that clause  as  incorporated by reference or in full in any other Finance Document or Clause 13 (Increased Costs),




then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment  under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.  This paragraph (f) shall not apply in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Facility.


		
	(g)
	Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any  amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment  becomes effective in accordance with this Agreement and that it is bound by that decision to the  same extent as the Existing Lender would have been had it remained a Lender.




29.3    Assignment or transfer fee


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


29.4    Limitation of responsibility of Existing Lenders


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




(i)    the  legality, validity,  effectiveness,  adequacy or  enforceability  of  the  Transaction
Documents, the Transaction Security or any other documents; (ii)    the financial condition of any Obligor;
(iii)    the  performance  and  observance  by  any  Obligor  of  its  obligations  under  the
Transaction Documents or any other documents; or


		
	(iv)
	the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,




and any representations or warranties implied by law are excluded.


(b)    Each New Lender confirms to the Existing Lender and the other Finance Parties and the
Secured Parties that it:


		
	(i)
	has  made  (and  shall  continue  to  make)  its  own  independent  investigation  and assessment of the financial condition and affairs of each Obligor and its related entities


in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and


(ii)    will continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities throughout the Security Period.













(c)    Nothing in any Finance Document obliges an Existing Lender to:


		
	(i)
	accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 29 (Changes to the Lenders and the Hedge Counterparties); or




		
	(ii)
	support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Transaction Documents or otherwise.




29.5    Procedure for transfer


		
	(a)
	Subject to the conditions set out in Clause 29.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender.  The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.




		
	(b)
	The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.




(c)    Subject to Clause 29.10 (Pro rata interest settlement), on the Transfer Date:


		
	(i)
	to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of  the  Transaction Security and their respective rights against one another under the Finance  Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");




		
	(ii)
	each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only  insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;




		
	(iii)
	the Facility Agent, the Security Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had  the  New  Lender  been  an  Original  Lender with the  rights  and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility


Agent, the Security Agent, the Arranger and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and


(iv)    the New Lender shall become a Party as a "Lender".


29.6    Procedure for assignment


		
	(a)
	Subject to the conditions set out in Clause 29.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender.  The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably  practicable  after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.















		
	(b)
	The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your  customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.




(c)    Subject to Clause 29.10 (Pro rata interest settlement), on the Transfer Date:


		
	(i)
	the Existing Lender will assign absolutely to the New Lender its rights under the Finance  Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;




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




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




		
	(d)
	Lenders may utilise procedures other than those set out in this Clause 29.6 (Procedure for assignment) to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 29.5 (Procedure for transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 29.2 (Conditions of assignment or transfer).




29.7    Copy of Transfer Certificate or Assignment Agreement to Borrowers


The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate  or an Assignment Agreement, send to the Borrowers a copy of that Transfer Certificate or Assignment Agreement.


29.8    Additional Hedge Counterparties


		
	(a)
	The Borrowers or a Lender may request that a Lender or an Affiliate of a Lender becomes an Additional Hedge Counterparty, with the prior approval of the Facility Agent and (in the case of a request by a Lender) the Borrowers, by delivering to the Facility Agent a duly executed Hedge Counterparty Accession Letter.


(b)    The relevant Lender or Affiliate will become an Additional Hedge Counterparty when the
Facility Agent enters into the relevant Hedge Counterparty Accession Letter.


29.9    Security over Lenders' rights


In addition to the other rights provided to Lenders under this Clause 29 (Changes to the Lenders and the Hedge Counterparties), 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)
	any charge, assignment or other Security granted to any holders (or trustee or representatives of  holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,




except that no such charge, assignment or Security shall:













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




		
	(ii)
	require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.




29.10    Pro rata interest settlement


		
	(a)
	If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 29.5 (Procedure for transfer) or any assignment pursuant to Clause 29.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):




		
	(i)
	any interest or fees in respect of the relevant participation which are expressed to accrue  by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and




		
	(ii)
	the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:




		
	(A)
	when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and




		
	(B)
	the amount payable to the New Lender on that date will be the amount which would,   but  for  the  application  of  this  Clause  29.10  (Pro  rata  interest


settlement), have been payable to it on that date, but after deduction of the
Accrued Amounts.


		
	(b)
	In this Clause 29.10 (Pro rata interest settlement) references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.




		
	(c)
	An  Existing  Lender  which  retains  the  right  to  the  Accrued  Amounts  pursuant  to  this Clause 29.10 (Pro rata interest settlement) but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.




30    CHANGES TO THE OBLIGORS


30.1    Assignment or transfer by Obligors


No Obligor may assign any of its rights or transfer any of its rights or obligations under the
Finance Documents.


30.2    Release of security


		
	(a)
	If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:















(i)    the disposal is permitted by the terms of any Finance Document; (ii)    all the Lenders agree to the disposal;
		
	(iii)
	the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or




(iv)    the disposal is being effected by enforcement of a Security Document,


the Security Agent may release the asset(s) being disposed of from any security over those assets created by a Security Document. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).


		
	(b)
	If the Security Agent is satisfied that a release is allowed under this Clause 30.2 (Release of security) (at the request and expense of the Borrowers) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party  irrevocably authorises the Security Agent to enter into any such document.  Any release will not affect the obligations of any other Obligor under the Finance Documents.




30.3    Additional Subordinated Creditors


		
	(a)
	The Borrowers may request that any person becomes a Subordinated Creditor, with the prior approval of the Facility Agent, by delivering to the Facility Agent:




(i)    a duly executed Subordination Agreement;


(ii)    a duly executed Subordinated Debt Security; and
		
	(iii)
	such constitutional documents, corporate authorisations and other documents and matters   as  the  Facility  Agent  may  reasonably  require,  in  form  and  substance satisfactory to  the  Facility Agent, to verify that the person's obligations are legally binding,  valid  and  enforceable  and to  satisfy  any applicable  legal  and regulatory requirements.




		
	(b)
	A person referred to in paragraph (a) above will become a Subordinated Creditor on the date the  Security Agent enters into the Subordination Agreement and the Subordinated Debt Security delivered under paragraph (a) above.


SECTION 10


THE FINANCE PARTIES


31    THE FACILITY AGENT, THE ARRANGER AND THE REFERENCE BANKS


31.1    Appointment of the Facility Agent


		
	(a)
	Each of the Arranger, the Lenders and the Hedge Counterparties appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.




		
	(b)
	Each of the Arranger, the Lenders and the Hedge Counterparties authorises the Facility Agent to  perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance  Documents together with any other incidental rights, powers, authorities and discretions.




31.2    Instructions













(a)    The Facility Agent shall:


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




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


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


		
	(ii)
	not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).




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




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




(d)    Paragraph (a) above shall not apply:


(i)    where a contrary indication appears in a Finance Document;
		
	(ii)
	where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;




		
	(iii)
	in respect of any provision which protects the Facility Agent's own position in its personal  capacity as opposed to its role of Facility Agent for the relevant Finance Parties.




		
	(e)
	If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion  have  an effect equivalent to an amendment or waiver referred to in Clause 44 (Amendments  and  Waivers),  the  Facility  Agent  shall  not  act  in  accordance  with  those instructions unless consent to it so acting is obtained from each Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver.




		
	(f)
	In  exercising  any  discretion  to  exercise  a  right,  power  or  authority  under  the  Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.




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




		
	(h)
	Without prejudice to the remainder of this Clause 31.2 (Instructions), in the absence of instructions, the 













Facility Agent shall not be obliged to take any action  (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.


		
	(i)
	The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document.  This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the  perfection,   preservation  or  protection  of  rights  under  the  Security  Documents  or enforcement of the Transaction Security or Security Documents.




31.3    Duties of the Facility Agent


		
	(a)
	The  Facility  Agent's  duties  under  the  Finance  Documents  are  solely  mechanical  and administrative in nature.




		
	(b)
	Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.




		
	(c)
	Without prejudice to Clause 29.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.




		
	(d)
	Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged  to  review or check the adequacy, accuracy or completeness of any document it forwards to another Party.


		
	(e)
	If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.




		
	(f)
	If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Arranger or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.




		
	(g)
	The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).




31.4    Role of the Arranger


Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.


31.5    No fiduciary duties


		
	(a)
	Nothing in any Finance Document constitutes the Facility Agent or the Arranger as a trustee or fiduciary of any other person.




		
	(b)
	None of the Facility Agent or the Arranger shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.




31.6    Application of receipts


Except as expressly stated to the contrary in any Finance Document, any moneys which the Facility Agent receives or recovers in its capacity as Facility Agent shall be applied by the Facility Agent in accordance with Clause 35.5 (Application of receipts; partial payments).


31.7    Business with the Group


The Facility Agent and the 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.


31.8    Rights and discretions


(a)    The Facility Agent may:


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




(ii)    assume that:


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




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




(iii)    rely on a certificate from any person:
		
	(A)
	as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or




		
	(B)
	to the effect that such person approves of any particular dealing, transaction, step, action or thing,




as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.


		
	(b)
	The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:




(i)    no Default has occurred (unless it has actual knowledge of a Default arising under
Clause 28.2 (Non-payment));


(ii)    any right, power, authority or discretion vested in any Party or any group of Finance
Parties has not been exercised; and


		
	(iii)
	any notice or request made by either 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 and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.




		
	(d)
	Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.




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




		
	(f)
	The Facility Agent may act in relation to the Finance Documents and the Security Property through its 













officers, employees and agents and shall not:


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


		
	(ii)
	be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,




unless such error or such loss was directly caused by the Facility Agent's gross negligence or wilful misconduct.


		
	(g)
	Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any  other  Party any information it reasonably believes it has received as agent under the Finance Documents.




(h)    Notwithstanding any other provision of any Finance Document to the contrary, none of the
Facility Agent or the Arranger is obliged to do or omit to do anything if it would or might, in its
reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.


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




31.9    Responsibility for documentation


None of the Facility Agent or the Arranger is responsible or liable for:


		
	(a)
	the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arranger, an Obligor or any other person in, or in connection   with,   any  Transaction  Document  or  the  transactions  contemplated  in  the Transaction  Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;




		
	(b)
	the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or




		
	(c)
	any determination as to whether any information provided or to be provided to any Finance Party or  Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.




31.10    No duty to monitor


The Facility Agent shall not be bound to enquire: (a)    whether or not any Default has occurred;
(b)    as to the performance, default or any breach by any Obligor of its obligations under any
Transaction Document; or


(c)    whether any other event specified in any Transaction Document has occurred.


31.11    Exclusion of liability













		
	(a)
	Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 35.11 (Disruption  to  Payment  Systems  etc.)  or  any  other  provision  of  any  Finance  Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:




		
	(i)
	any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;




		
	(ii)
	exercising, or not exercising, any right, power, authority or discretion given to it by, or in  connection with, any Transaction Document, the Security Property or any other


agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property;


(iii)    any shortfall which arises on the enforcement or realisation of the Security Property;
or


		
	(iv)
	without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:




(A)    any act, event or circumstance not reasonably within its control; or
(B)    the general risks of investment in, or the holding of assets in, any jurisdiction, including (in each case and without limitation) such damages, costs, losses, diminution
in  value  or  liability  arising  as  a  result  of  nationalisation,  expropriation  or  other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party  transport, telecommunications, computer services or systems; natural disasters or acts of  God; war, terrorism, insurrection  or revolution; or strikes  or industrial action.


		
	(b)
	No  Party  (other  than  the  Facility  Agent)  may  take  any  proceedings  against  any  officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.




		
	(c)
	The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account  with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.




		
	(d)
	Nothing in this Agreement shall oblige the Facility Agent or the Arranger to carry out: (i)    any "know your customer" or other checks in relation to any person; or


		
	(ii)
	any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,




on behalf of any Finance Party and each Finance Party confirms to the Facility Agent and the 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 the Arranger.


		
	(e)
	Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's  













liability, any liability of the Facility Agent arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a
result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.


31.12    Lenders' indemnity to the Facility Agent


		
	(a)
	Each  Lender  shall (in  proportion to  its  share of  the  Total Commitments or, if  the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence  or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 35.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross  negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).




		
	(b)
	Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.




		
	(c)
	Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.




31.13    Resignation of the Facility Agent


(a)    The Facility Agent may resign and appoint one of its Affiliates acting through an office in the
United Kingdom 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 acting through an office in the United Kingdom.




		
	(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 (acting through an office in the United Kingdom).




		
	(d)
	If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer  appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor  Facility  Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent) agree with the proposed successor Facility Agent amendments to this Clause 31 (The Facility Agent, the Arranger and the  Reference  Banks)  and  any  other  term  of  this  Agreement  dealing  with  the  rights  or obligations  of  the  Facility  Agent  consistent  with  then  current  market  practice  for  the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement  which are consistent with the successor Facility Agent's normal fee rates and those amendments will bind the Parties.




		
	(e)
	The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may













reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents. The Borrowers shall, within three Business Days of demand, reimburse the retiring  Facility Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.


		
	(f)
	The  Facility Agent's resignation notice shall only take effect upon the appointment of a successor.




		
	(g)
	Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further  obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Facility Agent) and this Clause 31 (The Facility Agent, the Arranger and the Reference Banks) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent.  Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date).  Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.




		
	(h)
	The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with  paragraph (b) above.   In this event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (e) above shall be for the account of the Borrowers.




		
	(i)
	The consent of either Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.




		
	(j)
	The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:




		
	(i)
	the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and the Borrowers 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;




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.
31.14    Confidentiality


		
	(a)
	In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.




		
	(b)
	If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance  Documents, that information may  be  treated  as  confidential  to  that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.




		
	(c)
	Notwithstanding any other provision of any Finance Document to the contrary, none of the Facility Agent or the Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other 













information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.


31.15    Relationship with the other Finance Parties


		
	(a)
	Subject to Clause 29.10 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender or Hedge Counterparty at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office or, as the case may be, the Hedge Counterparty:




(i)    entitled to or liable for any payment due under any Finance Document on that day;
and


		
	(ii)
	entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,




unless it has received not less than five Business Days' prior notice from that Lender or Hedge
Counterparty to the contrary in accordance with the terms of this Agreement.


		
	(b)
	Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent.




		
	(c)
	Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices,  communications, information and documents to be made or despatched to that Lender under the Finance Documents.  Such notice shall contain the address, fax number and (where  communication  by  electronic  mail  or  other electronic  means  is  permitted  under Clause 38.5 (Electronic communication) electronic mail address and/or any other information required to enable the  transmission of information by that means (and, in each case, the department or officer, if any, for  whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 38.2 (Addresses) and sub-paragraph (ii) of paragraph (a) of Clause 38.5 (Electronic communication) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.


31.16    Credit appraisal by the Finance Parties


Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in  connection with any Transaction Document, each Finance Party confirms to the Facility Agent and the 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 Transaction Document including but not limited to:


(a)    the financial condition, status and nature of each member of the Group;


		
	(b)
	the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;




		
	(c)
	whether that Finance Party has recourse, and the nature and extent of that recourse, against any  Party  or  any  of  its  respective  assets  under,  or  in  connection  with,  any  Transaction Document,   the   Security  Property,  the  transactions  contemplated  by  the  Transaction Documents  or  any  other  agreement,  arrangement  or  document  entered  into,  made  or executed in anticipation of,  under or in connection with any Transaction Document or the Security Property;















		
	(d)
	the adequacy, accuracy or completeness of the Information Memorandum and any other information provided by the Facility Agent, any Party or by any other person under, or in connection   with,   any   Transaction   Document,   the   transactions   contemplated   by   any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and




		
	(e)
	the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.




31.17    Facility Agent's management time


Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Facility Agent), Clause 16 (Costs and Expenses) and Clause 31.12 (Lenders' indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the Borrowers and the other Finance Parties, and is in addition to any fee paid or payable to the Facility Agent under Clause 11 (Fees).


31.18    Deduction from amounts payable by the Facility Agent


If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
31.19    Reliance and engagement letters


Each Secured Party confirms that each of the Arranger and the Facility Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arranger or the Facility Agent) the terms of any reliance letter or engagement letters or any reports or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.


31.20    Full freedom to enter into transactions


Without prejudice to Clause 31.7 (Business with the Group) or any other provision of a Finance Document and notwithstanding any rule of law or equity to the contrary, the Facility Agent shall be absolutely entitled:


		
	(a)
	to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);




(b)    to deal in and enter into and arrange transactions relating to:


(i)    any securities issued or to be issued by any Obligor or any other person; or


(ii)    any options or other derivatives in connection with such securities; and


		
	(c)
	to provide advice or other services to either 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.


31.21    Role of Reference Banks


		
	(a)
	No Reference Bank is under any obligation to provide a quotation or any other information to the Facility Agent.




		
	(b)
	No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.




		
	(c)
	No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee


or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer,  employee or agent of each Reference Bank may rely on this Clause 31.21 (Role of Reference Banks)  subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.


31.22    Third Party Reference Banks


A Reference Bank which is not a Party may rely on Clause 31.21 (Role of Reference Banks), Clause 44.3 (Other exceptions) and Clause 46 (Confidentiality of Funding Rates and Reference Bank  Quotations)  subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.


32    THE SECURITY AGENT


32.1    Trust


		
	(a)
	The Security Agent declares that it holds the Security Property on trust for the Secured Parties on  the  terms  contained  in  this  Agreement  and  shall  deal  with  the  Security  Property  in accordance with this Clause 32 (The Security Agent) and the other provisions of the Finance Documents.




		
	(b)
	Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.




32.2    Parallel Debt (Covenant to pay the Security Agent)


		
	(a)
	Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel  Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.




(b)    The Parallel Debt of an Obligor:


(i)    shall become due and payable at the same time as its Corresponding Debt;
(ii)    is independent and separate from, and without prejudice to, its Corresponding Debt. (c)    For  purposes of this Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)), the
Security Agent:


(i)    is the independent and separate creditor of each Parallel Debt;













		
	(ii)
	acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and




		
	(iii)
	shall have the independent and separate right to demand payment of each Parallel Debt in  its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).




(d)    The Parallel Debt of an Obligor shall be:
		
	(i)
	decreased  to  the  extent  that  its  Corresponding  Debt  has  been  irrevocably  and unconditionally paid or discharged; and




(ii)    increased to the extent that its Corresponding Debt has increased,


and the Corresponding Debt of an Obligor shall be decreased to the extent that its
Parallel Debt has been irrevocably and unconditionally paid or discharged,


in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding
Debt.


		
	(e)
	All amounts received or recovered by the Security Agent in connection with this Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent permitted by applicable law, shall be applied in accordance with Clause 35.5 (Application of receipts; partial payments).




		
	(f)
	This Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.




32.3    Enforcement through Security Agent only


The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority or discretion arising under the Security Documents except through the Security Agent.


32.4    Instructions


(a)    The Security Agent shall:


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




(A)    all  Lenders (or the  Facility  Agent on their behalf) if  the relevant  Finance
Document stipulates the matter is an all Lender decision; and


(B)    in all other cases, the Majority Lenders (or the Facility Agent on their behalf);
and


		
	(ii)
	not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).




		
	(b)
	The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or the Facility Agent on their behalf) (or, if the relevant Finance Document stipulates the 













matter is a decision for any other Finance Party or group of Finance Parties, from that  Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.


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


(d)    Paragraph (a) above shall not apply:


(i)    where a contrary indication appears in a Finance Document;


		
	(ii)
	where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;




		
	(iii)
	in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.




		
	(iv)
	in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:




(A)    Clause 32.28 (Application of receipts);


(B)    Clause 32.29 (Permitted Deductions); and


(C)    Clause 32.30 (Prospective liabilities).


		
	(e)
	If giving effect to instructions given by the Majority Lenders would in the Security Agent's opinion  have  an effect equivalent to an amendment or waiver referred to in Clause 44 (Amendments  and  Waivers),  the  Security  Agent  shall  not  act  in  accordance  with  those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment or waiver.




(f)    In  exercising  any  discretion  to  exercise  a  right,  power  or  authority  under  the  Finance
Documents where either:


(i)    it has not received any instructions as to the exercise of that discretion; or


(ii)    the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above, the Security Agent shall do so having regard to the interests of all the Secured Parties.
		
	(g)
	The Security Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.




		
	(h)
	Without prejudice to the remainder of this Clause 32.4 (Instructions), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.















		
	(i)
	The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document.  This paragraph (i) shall not apply to any legal or arbitration proceeding relating to


the  perfection,  preservation  or  protection  of  rights  under  the  Security  Documents  or enforcement of the Transaction Security or Security Documents.


32.5    Duties of the Security Agent


		
	(a)
	The  Security  Agent's  duties  under  the  Finance  Documents  are  solely  mechanical  and administrative in nature.




		
	(b)
	The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.




		
	(c)
	Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged  to  review or check the adequacy, accuracy or completeness of any document it forwards to another Party.




		
	(d)
	If  the  Security  Agent  receives  notice  from  a  Party  referring  to  any  Finance  Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.




		
	(e)
	The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).




32.6    No fiduciary duties


		
	(a)
	Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor.




		
	(b)
	The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account.




32.7    Business with the Group


The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.


32.8    Rights and discretions


(a)    The Security Agent may:


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




(ii)    assume that:


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




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


		
	(C)
	if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; and




(iii)    rely on a certificate from any person:













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




		
	(B)
	to the effect that such person approves of any particular dealing, transaction, step, action or thing,




as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.


		
	(b)
	The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through   the  Facility  Agent  and  may  give  to  the  Facility  Agent  any  notice  or  other communication required to be given by the Security Agent to any Finance Party.




		
	(c)
	The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:




(i)    no Default has occurred;


(ii)    any right, power, authority or discretion vested in any Party or any group of Finance
Parties has not been exercised; and


		
	(iii)
	any notice or request made by either 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.




		
	(d)
	The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.




		
	(e)
	Without prejudice to the generality of paragraph (c) above or paragraph (f) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the  Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.




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




		
	(g)
	The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:




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


		
	(ii)
	be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,


unless such error or such loss was directly caused by the Security Agent's gross negligence or wilful misconduct.


		
	(h)
	Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.




		
	(i)
	Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a  breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.















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




32.9    Responsibility for documentation


None of the Security Agent, any Receiver or Delegate is responsible or liable for:


		
	(a)
	the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arranger, an Obligor or any other person in, or in connection   with,   any  Transaction  Document  or  the  transactions  contemplated  in  the Transaction  Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;




		
	(b)
	the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or




		
	(c)
	any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.




32.10    No duty to monitor


The Security Agent shall not be bound to enquire: (a)    whether or not any Default has occurred;
(b)    as to the performance, default or any breach by any Obligor of its obligations under any
Transaction Document; or


(c)    whether any other event specified in any Transaction Document has occurred.


32.11    Exclusion of liability


		
	(a)
	Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:


		
	(i)
	any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;




		
	(ii)
	exercising, or not exercising, any right, power, authority or discretion given to it by, or in  connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property;




(iii)    any shortfall which arises on the enforcement or realisation of the Security Property;
or













		
	(iv)
	without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:




(A)    any act, event or circumstance not reasonably within its control; or
(B)    the general risks of investment in, or the holding of assets in, any jurisdiction, including (in each case and without limitation) such damages, costs, losses, diminution
in  value  or  liability  arising  as  a  result  of  nationalisation,  expropriation  or  other
governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party  transport, telecommunications, computer services or systems; natural disasters or acts of  God; war, terrorism, insurrection  or revolution; or strikes  or industrial action.


		
	(b)
	No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in  respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Security Agent, a  Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.




		
	(c)
	The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Security Agent if the Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Security Agent for that purpose.




(d)    Nothing in this Agreement shall oblige the Security Agent to carry out:


(i)    any "know your customer" or other checks in relation to any person; or


		
	(ii)
	any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,


on behalf of any Finance Party and each Finance Party confirms to the Security Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Security Agent.


		
	(e)
	Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate, any liability of the Security Agent or any Receiver or Delegate arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated  saving, or for special,  punitive, indirect  or  consequential  damages,  whether  or  not  the  Security  Agent,  the  Receiver  or Delegate has been advised of the possibility of such loss or damages.




32.12    Lenders' indemnity to the Security Agent


		
	(a)
	Each  Lender  shall (in  proportion to  its  share of  the  Total Commitments or, if  the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business  Days  of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence or wilful  misconduct)  in  acting  as  Security  Agent,  Receiver  or  Delegate  













under  the  Finance Documents (unless the  Security  Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).


		
	(b)
	Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.




		
	(c)
	Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which  the  Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.




32.13    Resignation of the Security Agent


(a)    The Security Agent may resign and appoint one of its Affiliates acting through an office in the
United Kingdom as successor by giving notice to the other Finance Parties and the Borrowers.


		
	(b)
	Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties  and the Borrowers, in which case the Majority Lenders may appoint a successor Security Agent (acting through an office in the United Kingdom).




		
	(c)
	If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent  may  appoint  a  successor  Security  Agent  (acting  through  an  office  in  the  United Kingdom).




		
	(d)
	The retiring Security Agent shall, at its own cost, make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the


Finance Documents. The Borrowers shall, within three Business Days of demand, reimburse the  retiring Security Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.


		
	(e)
	The Security Agent's resignation notice shall only take effect upon: (i)    the appointment of a successor; and


		
	(ii)
	the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.




		
	(f)
	Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a  document executed as a deed, from any further obligation in respect of the Finance Documents  (other than its obligations under paragraph (b) of Clause 32.25 (Winding up of trust)  and  paragraph  (d)  above)  but  shall  remain  entitled  to  the  benefit  of  Clause  14.5 (Indemnity to the Security  Agent) and this Clause 32 (The Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.




		
	(g)
	The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above.  In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrowers.




		
	(h)
	The consent of either Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.




32.14    Confidentiality













		
	(a)
	In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.




		
	(b)
	If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance  Documents, that information may  be  treated  as  confidential  to  that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.




		
	(c)
	Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information  if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.




32.15    Credit appraisal by the Finance Parties


Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Transaction Document, each Finance Party confirms to the Security Agent  that  it  has  been,  and  will  continue  to  be,  solely  responsible  for  making  its  own
independent appraisal and investigation of all risks arising under, or in connection with, any
Transaction Document including but not limited to:


(a)    the financial condition, status and nature of each member of the Group;


		
	(b)
	the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;




		
	(c)
	whether that Finance Party has recourse, and the nature and extent of that recourse, against any  Party  or  any  of  its  respective  assets  under,  or  in  connection  with,  any  Transaction Document,   the   Security  Property,  the  transactions  contemplated  by  the  Transaction Documents  or  any  other  agreement,  arrangement  or  document  entered  into,  made  or executed in anticipation of,  under or in connection with any Transaction Document or the Security Property;




		
	(d)
	the adequacy, accuracy or completeness of the Information Memorandum and any other information provided by the Security Agent, any Party or by any other person under, or in connection   with,   any   Transaction   Document,   the   transactions   contemplated   by   any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and




		
	(e)
	the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.




32.16    Security Agent's management time


		
	(a)
	Any amount payable to the Security Agent under Clause 14.5 (Indemnity to the Security Agent), Clause 16 (Costs and Expenses) and Clause 32.12 (Lenders' indemnity to the Security Agent) shall include the cost of utilising the Security Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Security Agent may notify to the Borrowers and the other Finance Parties, and is in addition to any fee paid or payable to the Security Agent under Clause 11 (Fees).




		
	(b)
	Without prejudice to paragraph (a) above, in the event of: (i)    a 













Default;
		
	(ii)
	the Security Agent being requested by an Obligor or the Majority Lenders to undertake duties  which the Security Agent and the Borrowers agree to be of an exceptional nature or  outside the scope of the normal duties of the Security Agent under the Finance Documents; or




		
	(iii)
	the Security Agent and the Borrowers agreeing that it is otherwise appropriate in the circumstances,




the Borrowers shall pay to the Security Agent any additional remuneration (together with any applicable VAT) that may be agreed between them or determined pursuant to paragraph (c) below.
		
	(c)
	If the Security Agent and the Borrowers fail to agree upon the nature of the duties, or upon the  additional  remuneration  referred  to  in  paragraph  (b)  above  or  whether  additional remuneration  is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Borrowers  or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrowers) and the determination of any investment bank shall be final and binding upon the Parties.




32.17    Reliance and engagement letters


Each Secured Party confirms that the Security Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Security Agent) the terms of any reliance letter or engagement letters or any reports or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the transactions  contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.


32.18    No responsibility to perfect Transaction Security


The Security Agent shall not be liable for any failure to:


		
	(a)
	require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Security Assets;




		
	(b)
	obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability  or  admissibility  in  evidence  of  any  Finance  Document  or  the  Transaction Security;




		
	(c)
	register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;




		
	(d)
	take, or to require any Obligor to take, any step to perfect its title to any of the Security Assets or to  render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or




(e)    require any further assurance in relation to any Finance Document.


32.19    Insurance by Security Agent


(a)    The Security Agent shall not be obliged:


(i)    to insure any of the Security Assets;


(ii)    to require any other person to maintain any insurance; or













(iii)    to verify any obligation to arrange or maintain insurance contained in any Finance
Document,


and the Security Agent shall not be liable for any damages, costs or losses to any person as a result of the lack of, or inadequacy of, any such insurance.
		
	(b)
	Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any  material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.




32.20    Custodians and nominees


The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any asset of the trust as the Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Agent shall not be responsible for any loss,  liability,  expense,  demand,  cost,  claim  or  proceedings  incurred  by  reason  of  the misconduct,  omission  or  default  on  the  part  of  any  person  appointed  by  it  under  this Agreement or be bound to supervise the proceedings or acts of any person.


32.21    Delegation by the Security Agent


		
	(a)
	Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.




		
	(b)
	That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.




		
	(c)
	No Security Agent, Receiver or Delegate shall be bound to  supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.




32.22    Additional Security Agents


		
	(a)
	The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:




(i)    if it considers that appointment to be in the interests of the Secured Parties; or


		
	(ii)
	for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or




(iii)    for obtaining or enforcing any judgment in any jurisdiction,


and the Security Agent shall give prior notice to the Borrowers and the Finance Parties of that appointment.


		
	(b)
	Any  person  so  appointed shall  have  the  rights,  powers,  authorities  and discretions  (not exceeding  those  given  to  the  Security  Agent  under  or  in  connection  with  the  Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.




(c)    The remuneration that the Security Agent may pay to that person, and any costs and expenses
(together with any applicable VAT) incurred by that person in performing its functions pursuant
to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by 











the Security Agent.


32.23    Acceptance of title


The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any Obligor may have to any of the Security Assets and shall not be liable for or bound to require any Obligor to remedy any defect in its right or title.


32.24    Releases


Upon a disposal of any of the Security Assets pursuant to the enforcement of the Transaction Security  by a Receiver, a Delegate or the Security Agent, the Security Agent is irrevocably authorised (at the cost of the Obligors and without any consent, sanction, authority or further confirmation from any  other Secured Party) to release, without recourse or warranty, that property from the Transaction Security and to execute any release of the Transaction Security or other claim over that asset and to issue any certificates of non-crystallisation of floating charges that may be required or desirable.


32.25    Winding up of trust


If the Security Agent, with the approval of the Facility Agent determines that:


		
	(a)
	all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and




		
	(b)
	no Secured Party is under any commitment, obligation or liability (actual or contingent) to make  advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,




then:


		
	(i)
	the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and




		
	(ii)
	any Security Agent which has resigned pursuant to Clause 32.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights under each Security Document.




32.26    Powers supplemental to Trustee Acts


The  rights,  powers,  authorities  and  discretions  given  to  the  Security  Agent  under  or  in connection with the Finance Documents shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Agent by law or regulation or otherwise.


32.27    Disapplication of Trustee Acts


Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the other Finance Documents.  Where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement and any other Finance Document, the provisions of this Agreement and any
other Finance Document shall, to the extent permitted by law and regulation, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement and any other Finance Document shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.


32.28    Application of receipts













All amounts from time to time received or recovered by the Security Agent pursuant to the terms of any Finance Document, under Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) or in connection with the realisation or enforcement of all or any part of the Security Property (for the purposes of this Clause 32 (The Security Agent), the "Recoveries") shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the remaining provisions of this Clause 32 (The Security Agent), in the following order of priority:


		
	(a)
	in discharging any sums owing to the Security Agent (in its capacity as such) (other than pursuant to Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) or any Receiver or Delegate;




		
	(b)
	in payment or distribution to the Facility Agent, on its behalf and on behalf of the other Secured Parties, for application towards the discharge of all sums due and payable by any Obligor under any of the Finance Documents in accordance with Clause 35.5 (Application of receipts; partial payments);




		
	(c)
	if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment or distribution to any person to whom the Security Agent is obliged to pay or distribute in priority to any Obligor; and




(d)    the balance, if any, in payment or distribution to the relevant Obligor.


32.29    Permitted Deductions


The Security Agent may, in its discretion:


		
	(a)
	set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and




		
	(b)
	pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).




32.30    Prospective liabilities


Following enforcement of any of the Transaction Security, the Security Agent may, in its discretion, or at the request of the Facility Agent, hold any Recoveries in an interest bearing suspense  or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) for later payment to the Facility Agent for application in accordance with Clause 32.28 (Application of receipts) in respect of:
(a)    any sum to the Security Agent, any Receiver or any Delegate; and


(b)    any part of the Secured Liabilities,


that the Security Agent or, in the case of paragraph (b) only, the Facility Agent, reasonably considers, in each case, might become due or owing at any time in the future.


32.31    Investment of proceeds


Prior to the payment of the proceeds of the Recoveries to the Facility Agent for application in accordance with Clause 32.28 (Application of receipts) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent  shall think fit (the interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security Agent's discretion in accordance with the provisions of Clause 32.28 (Application of receipts).













32.32    Currency conversion


		
	(a)
	For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.




		
	(b)
	The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.




32.33    Good discharge


		
	(a)
	Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf of the Secured Parties and any payment made in that way shall be a good discharge, to the extent of that payment, by the Security Agent.




		
	(b)
	The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.




32.34    Amounts received by Obligors


If any of the Obligors receives or recovers any amount which, under the terms of any of the Finance Documents, should have been paid to the Security Agent, that Obligor will hold the amount received or recovered on trust for the Security Agent and promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement.


32.35    Application and consideration


In consideration for the covenants given to the Security Agent by each Obligor in relation to Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent agrees with each Obligor to apply all moneys from time to time paid by such Obligor to the Security Agent in accordance with the foregoing provisions of this Clause 32 (The Security Agent).
32.36    Full freedom to enter into transactions


Without prejudice to Clause 32.7 (Business with the Group) or any other provision of a Finance Document and notwithstanding any rule of law or equity to the contrary, the Security Agent shall be absolutely entitled:


		
	(a)
	to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);




(b)    to deal in and enter into and arrange transactions relating to:


(i)    any securities issued or to be issued by any Obligor or any other person; or


(ii)    any options or other derivatives in connection with such securities; and


		
	(c)
	to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document,




and, in particular, the Security Agent shall be absolutely entitled, in proposing, evaluating, negotiating, 











entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any  information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.


33    CONDUCT OF BUSINESS BY THE FINANCE PARTIES


No provision of this Agreement will:


		
	(a)
	interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;




		
	(b)
	oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or




		
	(c)
	oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.




34    SHARING AMONG THE FINANCE PARTIES


34.1    Payments to Finance Parties


		
	(a)
	If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor  other  than  in  accordance  with  Clause  35  (Payment  Mechanics)  (a  "Recovered Amount") and applies that amount to a payment due to it under the Finance Documents then:




		
	(i)
	the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;


		
	(ii)
	the Facility Agent shall determine whether the receipt or recovery is in excess of the amount  the  Recovering  Finance  Party  would  have been  paid  had  the  receipt  or recovery been received or made by the Facility Agent and distributed in accordance with Clause 35 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and




		
	(iii)
	the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 35.5 (Application of receipts; partial payments).




34.2    Redistribution of payments


The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it among the Finance Parties (other than the Recovering Finance Party) (the "Sharing  Finance Parties") in accordance with Clause 35.5 (Application of receipts; partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.


34.3    Recovering Finance Party's rights


On a distribution by the Facility Agent under Clause 34.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from 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.













34.4    Reversal of redistribution


If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:


		
	(a)
	each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and




		
	(b)
	as between the relevant 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.




34.5    Exceptions


		
	(a)
	This Clause 34 (Sharing among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant 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.





































































SECTION 11


ADMINISTRATION


35    PAYMENT MECHANICS


35.1    Payments to the Facility Agent


		
	(a)
	On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.




		
	(b)
	Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.




35.2    Distributions by the Facility Agent


Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 35.3 (Distributions to an Obligor) and Clause 35.4 (Clawback and pre- funding) be made available by the Facility Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Facility Agent by not less than five Business Days' notice with a bank specified by that Party in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London), as specified by that Party or, in the case of an Advance, to such account of such person as may be specified by the Borrowers in a Utilisation Request.


35.3    Distributions to an Obligor


The Facility Agent may (with the consent of the Obligor or in accordance with Clause 36 (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.


35.4    Clawback and pre-funding


		
	(a)
	Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.




		
	(b)
	Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date  of  payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.


		
	(c)
	If the Facility Agent is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrowers:




(i)    the  Facility  Agent  shall  notify  the  Borrowers  of  that  Lender's  identity  and  the
Borrowers shall on demand refund it to the Facility Agent; and













		
	(ii)
	the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrowers shall on demand pay to the Facility Agent the amount (as certified by the  Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.




35.5    Application of receipts; partial payments


		
	(a)
	If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by 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 or any Delegate under the Finance Documents;




(ii)    secondly, in or towards payment pro rata of:


(A)    any  accrued  interest and fees due  but unpaid  to the  Lenders  under this
Agreement; and


		
	(B)
	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;




(iii)    thirdly, in or towards payment pro rata of:


(A)    any principal due but unpaid to the Lenders under this Agreement; and


(B)    any payments as a result of termination or closing out due but unpaid to the
Hedge Counterparties under the Hedging Agreements; and


(iv)    fourthly, in or towards payment pro rata of any other sum due but unpaid under the
Finance Documents.


		
	(b)
	The Facility Agent shall, if so directed by the Majority Lenders and the Hedge Counterparties, vary, or instruct the Security Agent to vary (as applicable), the order set out in sub-paragraphs (ii) to (iv) of paragraph (a) above.




(c)    Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
35.6    No set-off by Obligors


		
	(a)
	All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.




		
	(b)
	Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.




35.7    Business Days


		
	(a)
	Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).




		
	(b)
	During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement 













interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.


35.8    Currency of account


		
	(a)
	Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.




		
	(b)
	Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.




		
	(c)
	Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.




35.9    Change of currency


		
	(a)
	Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:




		
	(i)
	any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrowers); and




		
	(ii)
	any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency  unit  into  the  other,  rounded  up  or  down  by  the  Facility  Agent  (acting reasonably).




		
	(b)
	If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrowers) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.


35.10    Currency Conversion


		
	(a)
	For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.




		
	(b)
	The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.




35.11    Disruption to Payment Systems etc.


If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by 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 44 (Amendments and Waivers);




		
	(e)
	the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 35.11 (Disruption to Payment Systems etc.); and




		
	(f)
	the  Facility  Agent  shall  notify  the  Finance  Parties  of  all  changes  agreed  pursuant  to paragraph (d) above.




36    SET-OFF


A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation.  If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.


37    BAIL-IN


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


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


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


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




(iii)    a cancellation of any such liability; and


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


38    NOTICES


38.1    Communications in writing


Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.


38.2    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.


38.3    Delivery


		
	(a)
	Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:




(i)    if by way of fax, when received in legible form; or


		
	(ii)
	if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,


and, if a particular department or officer is specified as part of its address details provided under Clause 38.2 (Addresses), if addressed to that department or officer.


		
	(b)
	Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention of the department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Party shall specify for this purpose).




		
	(c)
	All notices from or to 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.




38.4    Notification of address and fax number


Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 38.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.


38.5    Electronic communication


		
	(a)
	Any communication to be made between any two Parties under or in connection with the Finance  Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:















		
	(i)
	notify  each  other  in  writing  of  their  electronic  mail  address  and/or  any  other information required to enable the transmission of information by that means; and




		
	(ii)
	notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.




		
	(b)
	Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.




		
	(c)
	Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Facility Agent or the Security Agent only if it is addressed in such a manner as the Facility Agent or the Security Agent shall specify for this purpose.




		
	(d)
	Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5.00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.


		
	(e)
	Any reference in a Finance Document to a communication being sent or received shall be construed  to  include  that  communication  being  made  available  in  accordance  with  this Clause 38.5 (Electronic communication).




38.6    English language


(a)    Any notice given under or in connection with any Finance Document must be in English.


		
	(b)
	All other documents provided under or in connection with any Finance Document must be: (i)    in English; or


		
	(ii)
	if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the  English  translation will prevail unless the document is a constitutional, statutory or other official document.




38.7    Hedging Agreement


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 a Borrower with a Hedge Counterparty in connection with the Facility.


39    CALCULATIONS AND CERTIFICATES


39.1    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.


39.2    Certificates and determinations


Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.


39.3    Day count convention













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.


40    PARTIAL INVALIDITY


If,  at  any  time,  any  provision  of  a  Finance  Document  is  or  becomes  illegal,  invalid  or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions 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.
41    REMEDIES AND WAIVERS


No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute  an election to affirm any Finance Document.   No election to affirm any Finance Document on the part of a Secured Party shall be effective unless it is in writing.  No single or partial exercise of any  right  or remedy shall prevent any further or other exercise or the exercise of any other right or  remedy.   The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law.


42    SETTLEMENT OR DISCHARGE CONDITIONAL


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.


43    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 Secured 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.


44    AMENDMENTS AND WAIVERS


44.1    Required consents


		
	(a)
	Subject to Clause 44.2 (All Lender matters) and Clause 44.3 (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 44 (Amendments and Waivers).




		
	(c)
	Without prejudice to the generality of Clause 31.8 (Rights and discretions), the Facility Agent may  engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.




		
	(d)
	Paragraph (c) of Clause 29.10 (Pro rata interest settlement) shall apply to this Clause 44 (Amendments and Waivers).




44.2    All Lender matters













Subject to Clause 44.4 (Replacement of Screen Rate), 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:


(a)    the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(b)    a postponement to or extension of the date of payment of any amount under the Finance
Documents;


		
	(c)
	a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable;




(d)    a change in currency of payment of any amount under the Finance Documents;


		
	(e)
	an increase in any Commitment or the Total Commitments, an extension of any Availability Period or  any requirement that a cancellation of Commitments reduces the Commitments rateably under the Facility or a Tranche;




(f)    a change to any Obligor other than in accordance with Clause 30 (Changes to the Obligors); (g)    any provision which expressly requires the consent of all the Lenders;
(h)    this Clause 44 (Amendments and Waivers);


		
	(i)
	any change to the preamble (Background), Clause 2 (The Facility), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 6.2 (Effect of cancellation and prepayment on scheduled repayments), Clause 7.5 (Mandatory prepayment on sale or Total Loss), Clause 7.6 (Mandatory prepayment of Hedging Prepayment Proceeds), Clause 8 (Interest), Clause 20.33 (Sanctions), Clause 25.10 (Compliance with laws etc.), Clause 25.12 (Sanctions and Ship trading), Clause 27 (Accounts and application of Earnings and Hedge Receipts), Clause 29 (Changes to the Lenders and the Hedge Counterparties), Clause 34 (Sharing among the Finance Parties), Clause 48 (Governing Law) or Clause 49 (Enforcement);




		
	(j)
	any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction Security as it relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);




		
	(k)
	(other than as expressly permitted by the provisions of any Finance Document), the nature or scope of:




		
	(i)
	the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity - Parent Guarantor);




		
	(ii)
	the guarantees and indemnities granted under Clause 19 (Guarantee and Indemnity - Hedge Guarantors);




(iii)    the joint and several liability of the Borrowers under Clause 18 (Joint and Several
Liability of the Borrowers); (iv)    the Security Assets; or
(v)    the manner in which the proceeds of enforcement of the Transaction Security are
distributed,


(except in the case of sub-paragraphs (iv) and (v) 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);


		
	(l)
	the release of the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity - Parent Guarantor) or Clause 19 (Guarantee and Indemnity - Hedge Guarantors) or the release of the joint and several liability of the Borrowers under Clause 18 (Joint and Several Liability of the Borrowers) or of any Transaction Security unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document,




shall not be made, or given, without the prior consent of all the Lenders.


44.3    Other exceptions


		
	(a)
	An amendment or waiver which relates to the rights or obligations of a Servicing Party, the Arranger or a Reference Bank (each in their capacity as such) may not be effected without the consent of that Servicing Party, the Arranger or that Reference Bank, as the case may be.




		
	(b)
	An amendment or waiver which relates to and would adversely affect the rights or obligations of a Hedge Counterparty (in its capacity as such) may not be effected without the consent of that Hedge Counterparty.




		
	(c)
	The Borrowers and the Facility Agent, the Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party.




		
	(d)
	The Hedge Counterparty and the relevant Borrower may amend, supplement or waive the terms of any Hedging Agreement or Hedge Counterparty Guarantee if permitted by paragraph (f) of Clause 8.5 (Hedging).




44.4    Replacement of Screen Rate


		
	(a)
	Subject to Clause 44.3 (Other exceptions), if the Screen Rate is not available for dollars, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to dollars, in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that benchmark rate) may be made with the consent of the Majority Lenders and the Borrowers.




		
	(b)
	If  any  Lender  fails  to  respond  to  a  request  for  an  amendment  or  waiver  described  in paragraph (a) above within five Business Days (or such longer time period in relation to any request which the Borrowers and the Facility Agent may agree) of that request being made:




		
	(i)
	its  Commitment  shall  not  be  included  for  the  purpose  of  calculating  the  Total Commitments   when   ascertaining   whether   any   relevant   percentage   of   Total Commitments has been obtained to approve that request; and




		
	(ii)
	its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.


44.5    Obligor Intent


Without prejudice to the generality of Clauses 1.2 (Construction), 17.4 (Waiver of defences),
18.2 (Waiver of defences) and 19.4 (Waiver of defences), each Obligor expressly confirms that it intends that any guarantee contained in this Agreement or any other Finance Document and any Security created by any Finance Document shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following:  business acquisitions of any nature; increasing  working  capital;  enabling   investor  distributions  to  be  made;  carrying  out restructurings;  refinancing  existing  facilities;  refinancing  any  other  indebtedness;  making facilities available to new borrowers; any other  variation or extension of the purposes for which any such facility or 











amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.


45    CONFIDENTIAL INFORMATION


45.1    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  45.2  (Disclosure  of  Confidential Information) and Clause 45.3 (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.


45.2    Disclosure of Confidential Information


Any Finance Party may disclose:


		
	(a)
	to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that  Finance  Party  shall  consider  appropriate  if  any  person  to  whom  the  Confidential Information  is  to  be  given  pursuant  to  this  paragraph  (a)  is  informed  in  writing  of  its confidential nature and  that some or all of such Confidential Information may be price- sensitive information except that  there shall be no such requirement to so inform if the recipient  is  subject  to  professional   obligations  to  maintain  the  confidentiality  of  the information  or  is  otherwise  bound  by  requirements  of  confidentiality  in  relation  to  the Confidential Information;




(b)    to any person:


		
	(i)
	to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent or Security Agent and, in each case, to any  of that person's Affiliates, Related Funds, Representatives and professional advisers;




		
	(ii)
	with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments  are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;


		
	(iii)
	appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph  (b)  above  applies  to  receive  communications,  notices,  information  or documents delivered pursuant to the Finance Documents on its behalf (including, without  limitation,  any  person  appointed  under  paragraph  (c)  of  Clause  31.15 (Relationship with the other Finance Parties));




		
	(iv)
	who  invests  in  or  otherwise  finances  (or  may  potentially  invest  in  or  otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;




		
	(v)
	to  whom  information  is  required  or  requested  to  be  disclosed  by  any  court  of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;




		
	(vi)
	to whom information is required to be disclosed in connection with, and for the purposes   of,  any  litigation,  arbitrations,  administrative  or  other  investigations, proceedings or disputes;




(vii)    to whom or for whose benefit that Finance Party charges, assigns or otherwise creates
Security (or may do so) pursuant to Clause 29.9 (Security over Lenders' rights); (viii)    











who is a Party, a member of the Group or any related entity of an Obligor;
(ix)    as a result of the registration of any Finance Document as contemplated by any Finance
Document or any legal opinion obtained in connection with any Finance Document; or


(x)    with the consent of the Parent Guarantor;


in each  case,  such  Confidential  Information  as  that  Finance  Party  shall  consider appropriate if:


		
	(A)
	in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to  whom  the  Confidential  Information  is  to  be  given  has  entered  into  a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject  to  professional  obligations  to  maintain  the  confidentiality  of  the Confidential Information;




		
	(B)
	in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking  or  is  otherwise  bound  by  requirements  of  confidentiality  in relation  to the Confidential Information they receive and is informed that some   or   all   of   such   Confidential   Information   may   be   price-sensitive information;




		
	(C)
	in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;


		
	(c)
	to any person appointed by that Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be  disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking  for Use With Administration/ Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Finance Party;




		
	(d)
	to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.




45.3    Disclosure to numbering service providers


		
	(a)
	Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:




(i)    names of Obligors;


(ii)    country of domicile of Obligors; (iii)    place of incorporation of Obligors; (iv)    date of this Agreement;











(v)    Clause 48 (Governing Law);


(vi)    the names of the Facility Agent and the Arranger;


(vii)    date of each amendment and restatement of this Agreement; (viii)    amounts of, and names of, the Facility (and any Tranches);
(ix)    amount of Total Commitments; (x)    currency of the Facility;
(xi)    type of the Facility; (xii)    ranking of the Facility;
(xiii)    Termination Date for the Facility;


(xiv)    changes to any of the information previously supplied pursuant to sub-paragraphs (i)
to (xiii) above; and


(xv)    such other information agreed between such Finance Party and the 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 Facility with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.




		
	(c)
	Each Obligor represents that none of the information set out in sub-paragraphs (i) to (xv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.




(d)    The Facility Agent shall notify the Parent Guarantor and the other Finance Parties of:


		
	(i)
	the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more 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.




45.4    Entire agreement


This Clause 45 (Confidential Information) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.


45.5    Inside information


Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by  applicable legislation including securities law relating to insider dealing and market  abuse  and  each  of  the  Finance  Parties  undertakes  not  to  use  any  Confidential Information for any unlawful purpose.













45.6    Notification of disclosure


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 sub- paragraph (v) of paragraph (b) of Clause 45.2 (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 45 (Confidential Information).


45.7    Continuing obligations


The obligations in this Clause 45 (Confidential Information) are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
		
	(a)
	the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and




(b)    the date on which such Finance Party otherwise ceases to be a Finance Party.


46    CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS


46.1    Confidentiality and disclosure


		
	(a)
	The Facility Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.




(b)    The Facility Agent may disclose:


(i)    any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation)
to the Borrower pursuant to Clause 8.4 (Notification of rates of interest); and


		
	(ii)
	any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service  provider  to  whom  that  information  is  to  be  given  has  entered  into  a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may be.




(c)    The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and each
Obligor may disclose any Funding Rate, to:


		
	(i)
	any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives, if any person to whom that Funding Rate or  Reference  Bank Quotation is to be given pursuant to this paragraph (i) is informed  in  writing  of  its  confidential  nature  and  that  it may  be  price  sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate  or  Reference  Bank  Quotation  or  is  otherwise  bound  by  requirements  of confidentiality in relation to it;




		
	(ii)
	any person to whom information is required or requested to be disclosed by any court of competent 













jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;


		
	(iii)
	any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may


be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and


		
	(iv)
	any person with the consent of the relevant Lender or Reference Bank, as the case may be.




		
	(d)
	The  Facility  Agent's  obligations  in  this  Clause  46  (Confidentiality  of  Funding  Rates  and Reference Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 8.4 (Notification of rates of interest) provided that (other than pursuant to sub-paragraph (i) of paragraph (b) above) the Facility Agent shall not  include  the  details  of any  individual  Reference Bank  Quotation  as  part of  any such notification.




46.2    Related obligations


		
	(a)
	The Facility Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to  insider  dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.




		
	(b)
	The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:




		
	(i)
	of  the  circumstances  of  any  disclosure  made  pursuant  to  sub-paragraph  (ii)  of paragraph  (c)  of  Clause  46.1  (Confidentiality  and  disclosure)  except  where  such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and




(ii)    upon becoming aware that any information has been disclosed in breach of this
Clause 46 (Confidentiality of Funding Rates and Reference Bank Quotations).


46.3    No Event of Default


No Event of Default will occur under Clause 28.4 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 46 (Confidentiality of Funding Rates and Reference Bank Quotations).


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.
SECTION 12


GOVERNING LAW AND ENFORCEMENT













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)
	Unless  specifically  provided  in  another  Finance  Document  in  relation  to  that  Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in  connection with any Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a "Dispute").




		
	(b)
	The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.




		
	(c)
	This Clause 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.




49.2    Service of process


(a)    Without prejudice to any other mode of service allowed under any relevant law, each Obligor
(other than an Obligor incorporated in England and Wales):


		
	(i)
	irrevocably appoints Scorpio UK Limited at its business address for the time being, presently   at   10   Lower   Grosvenor   Place,   London   SW1W   0EN,   England   (such communication to be marked preferably and if possible on the paper envelope (not any courier exterior) with  "SALT Transaction" for the urgent attention of the Legal Department) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and




		
	(ii)
	agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.




		
	(b)
	If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.




This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE 1


THE PARTIES PART A
THE OBLIGORS


		
	Name of Borrower
	Place of Incorporation    Registration number    (or equivalent, if any)













Address for Communication


SBI Zumba Shipping
Company Limited
The   Republic   of   the
Marshall Islands
65373    c/o Scorpio Bulkers Inc.


9, Boulevard Charles III,


98000, Monaco, marked for the attention    of    the    Legal Department


SBI    Parapara Shipping Company Limited
The   Republic   of   the
Marshall Islands
65374    c/o Scorpio Bulkers Inc.


9, Boulevard Charles III,


98000, Monaco, marked for the attention    of    the    Legal Department








Name    of    Parent
Guarantor
		
	Place of Incorporation
	Registration number    (or equivalent, if any)


Address for Communication


Scorpio Bulkers Inc.    The   Republic   of   the
Marshall Islands
60299    c/o Scorpio Bulkers Inc.


9, Boulevard Charles III,


98000, Monaco, marked for the attention    of    the    Legal Department








Name    of    Hedge
Guarantor
		
	Place of Incorporation
	Registration number    (or equivalent, if any)


Address for Communication


SBI Zumba Shipping
Company Limited
The   Republic   of   the
Marshall Islands
65373    c/o Scorpio Bulkers Inc.


9, Boulevard Charles III,
98000, Monaco, marked for the attention    of    the    Legal Department













SBI    Parapara Shipping Company Limited
The   Republic   of   the
Marshall Islands
65374    c/o Scorpio Bulkers Inc.


9, Boulevard Charles III,


98000, Monaco, marked for the attention    of    the    Legal Department
PART B


THE ORIGINAL LENDERS


	
								
	Nameof
	Original
	Tranche
	A
	Tranche
	B
	Address
	for

	Lender
	 
	Commitment
	 
	Commitment
	 
	Communication
	 






ING Bank N.V. London
Branch
US$14,712,500    US$15,262,500    8-10    Moorgate
London EC2R 6DA












THE ORIGINAL HEDGE COUNTERPARTIES


Name of Original Hedge Counterparty    Address for Communication


ING Capital Markets LLC






	
					
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 




Fax: +1 646-424-6248
PART C


THE SERVICING PARTIES


	
			
	Name of Facility Agent
	Address for Communication
	 

	ING Bank N.V. London Branch
	8-10
London EC2R 6DA
	Moorgate









































	
			
	Name of Security Agent
	Address for Communication
	 

	ING Bank N.V. London Branch
	

8-10
London EC2R 6DA
	Moorgate




SCHEDULE 2


CONDITIONS PRECEDENT AND SUBSEQUENT PART A
CONDITIONS PRECEDENT TO INITIAL UTILISATION REQUEST


1    Obligors


1.1    A copy of the constitutional documents of each Obligor.


1.2    A copy of a resolution of the board of directors of each Obligor:


		
	(a)
	approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;




		
	(b)
	authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and




		
	(c)
	authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request 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 specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.




		
	1.5
	A copy of a resolution signed by the Parent Guarantor as the holder of the issued shares in each Borrower, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Borrower is a party.




		
	1.6
	A certificate of each Obligor (signed by a director) confirming that borrowing or guaranteeing, as  appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.




		
	1.7
	A certificate of 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.


		
	1.8
	A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in this Part A of Schedule 2 (Conditions Precedent and Subsequent) is correct,  complete  and in full force and effect as at a date no earlier than the date of this Agreement.




2    Other Documents
2.1    Copies of each Hedging Agreement, if any, executed by a Hedge Counterparty and the relevant
Borrower.


		
	2.2
	Copies of any Hedge Counterparty Guarantee executed by a Hedge Counterparty Guarantor in favour of a Borrower.




3    Finance Documents


3.1    A duly executed original of the Subordination Agreement and copies of each Subordinated
Finance Document.


		
	3.2
	A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (Conditions Precedent and Subsequent).




3.3    A duly executed original of any other document required to be delivered by each Finance
Document if not otherwise referred to this Schedule 2 (Conditions Precedent and Subsequent).


4    Security


		
	4.1
	A duly executed original of the Account Security in relation to each Account and of the Shares 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 Security in respect of each Borrower (and of each document to be delivered under each of them).




4.3    A duly executed original of the Subordinated Debt Security.


5    Legal opinions


		
	5.1
	A legal opinion of Watson Farley & Williams, legal advisers to the Arranger, the Facility Agent and the Security Agent in England, substantially in the form distributed to the Original Lenders before signing this Agreement.




		
	5.2
	A legal opinion of Loyens & Loeff N.V., legal advisers to the Arranger, the Facility Agent and the Security Agent in The Netherlands, substantially in the form distributed to the Original Lenders before signing this Agreement.




		
	5.3
	If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger, the Facility Agent and the Security Agent in the relevant jurisdiction, substantially in the form distributed to the Original Lenders before signing this Agreement.




6    Other documents and evidence


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 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 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.













































































PART B


CONDITIONS PRECEDENT TO UTILISATION


In this Part B, the “relevant Ship” means the particular Ship to which the relevant Tranche relates and the “relevant Borrower” means the Borrower who owns that Ship.


1    Borrowers


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 and Subsequent) is correct, complete and in full force and effect as at the Utilisation Date of the Advance under the relevant Tranche.


2    Ship and other security


		
	2.1
	A duly executed original of the Mortgage and the General Assignment 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  ship  mortgage  in  accordance  with  the  laws  of  the jurisdiction of its Approved Flag.




2.2    Documentary evidence that the relevant Ship:


(a)    is definitively and permanently registered in the name of the relevant Borrower under the
Approved Flag applicable to that Ship;


		
	(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 Ship will, as from the Utilisation Date of the Advance under the Tranche applicable to such Ship, be managed commercially by the Approved Commercial Manager and managed technically by the Approved Technical Manager (and the Approved Sub-Manager,  if  applicable)  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,  the  Approved
Commercial Manager and the Approved Sub-Manager of that Ship; and


		
	(b)
	copies of the relevant Approved Technical Manager's Document of Compliance and of the relevant  Ship's  Safety  Management  Certificate  (together  with  any  other  details  of  the applicable Safety  Management System which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the relevant Ship 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 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 Advance under the relevant Tranche from an Approved Valuer.




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 the Ship, Marshall Islands and such other relevant jurisdictions as the Facility Agent may require.


4    Other documents and evidence


		
	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 Advance under the relevant Tranche.





















































































PART C


CONDITIONS SUBSEQUENT FOR EACH TRANCHE


In this Part B, the “relevant Ship” means the particular Ship to which the relevant Tranche relates and the “relevant Borrower” means the Borrower who owns that Ship.


1    Accounts


Evidence satisfactory to the Facility Agent that the accounts the Borrowers hold with Nordea
Bank AB (publ), New York Branch will be closed within 30 days of the date of this Agreement.

















































































SCHEDULE 3


REQUESTS PART A
UTILISATION REQUEST - ADVANCE


From:   [Borrowers]


To:    [Facility Agent] Dated: [—]
Dear Sirs


[Borrowers] - [—] Facility Agreement dated [—] (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 Advance under Tranche [A][B] on the following terms:


Proposed Utilisation Date:    [—] (or, if that is not a Business Day, the next Business Day) Amount:    [—] or, if less, the Available Tranche
Interest Period for the first Advance:    [—]


		
	3
	[You are authorised and requested to deduct from the Advance prior to funds being remitted the following amounts set out against the following items:




Arrangement Fee


Net proceeds of Advance         ]


		
	4
	We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) of the Agreement as they relate to the Advance to which this Utilisation Request refers is satisfied on the date of this Utilisation Request.




5    The [net] proceeds of this Advance should be credited to [account].


6    This Utilisation Request is irrevocable. Yours faithfully




[—]
authorised signatory for


[Borrower A]


[—]
authorised signatory for


[Borrower B]











PART B


SELECTION NOTICE


From:   [•] and [•] [Borrowers]


To:    ING Bank N.V., London branch


Dated: [—] Dear Sirs
[•] and [•] [Borrowers] - US$29,975,000 Facility Agreement dated [—] 2018 (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 the next Interest Period for the Loan be [—]] OR [an Interest Period for a part of the Loan in an amount equal to [—] (which is the amount of the Repayment Instalment next due) ending on [—] (which is the Repayment Date relating to that Repayment Instalment) and that the Interest Period for the remaining part of the Loan shall be [—].


3    This Selection Notice is irrevocable. Yours faithfully






















[—]
authorised signatory for


[Borrower A]












[—]
authorised signatory for


[Borrower B]

























SCHEDULE 4


FORM OF TRANSFER CERTIFICATE








To:    ING Bank N.V., London branch as Facility Agent


From:   [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender") Dated: [—]
Dear Sirs


[Borrowers] - US$29,975,000 Facility Agreement dated [—] 2018 (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.




2    We refer to Clause 29.5 (Procedure for transfer) of the Agreement:


		
	(a)
	the Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the  other   Finance  Documents  which  relate  to  that  portion  of  the  Existing  Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 29.5 (Procedure for transfer) of the Agreement;




(b)    the proposed Transfer Date is [—];


		
	(c)
	the Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 38.2 (Addresses) of the Agreement are set out in the Schedule.




		
	3
	The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 29.4 (Limitation of responsibility of Existing Lenders) of the Agreement.




		
	4
	This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.




		
	5
	This Transfer Certificate [and any non-contractual obligations arising out of or in connection with it] [is/are] is governed by English law.




6    This Transfer Certificate has been entered into on the date stated at the beginning of this
Transfer Certificate.


Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all jurisdictions.  It is the responsibility of the New Lender to  ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
THE    SCHEDULE Commitment/rights and obligations to be transferred
[insert relevant details]













[Facility Office address, fax number and attention details for notices and account details for payments.]










[Existing Lender]    [New Lender] By: [—]  By: [—]






This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [—].








ING Bank N.V., London branch


By: [—]































































SCHEDULE 5


FORM OF ASSIGNMENT AGREEMENT








To:    ING Bank N.V., London branch as Facility Agent and [—] and [—] as Borrowers, for and on behalf of each Obligor


From:   [the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender") Dated: [—]
Dear Sirs


[•] and [•] [Borrowers] - US$29,975,000 Facility Agreement dated [—] 2018 (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.




2    We refer to Clause 29.6 (Procedure for assignment) of the 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;




		
	(d)
	all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrower or any other Obligor had against the Existing Lender.




3    The proposed Transfer Date is [—].


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 38.2 (Addresses) of the Agreement are set out in the Schedule.




		
	6
	The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 29.4 (Limitation of responsibility of Existing Lenders) of the Agreement.




7    This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance
Party) and, upon delivery in accordance with Clause 29.7 (Copy of Transfer Certificate or
Assignment Agreement to Borrowers) of the Agreement, to the Borrowers (on behalf of each
Obligor) of the assignment referred to in this Assignment Agreement.













		
	8
	This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.




		
	9
	This Assignment Agreement and any non-contractual obligations arising out of or in connection with it 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.











































































THE SCHEDULE


Commitment rights and obligations to be transferred by assignment, release and accession


[insert relevant details]


[Facility office address, fax number and attention details for notices and account details for payments]






[Existing Lender]    [New Lender] By: [—]  By: [—]


This Assignment Agreement is accepted by the Facility Agent and the Transfer Date is confirmed as [—]. Signature of this Assignment Agreement by the Facility Agent constitutes confirmation by the Facility
Agent of receipt of notice of the assignment referred to herein, which notice the Facility Agent receives on behalf of each Finance Party.


ING Bank N.V., London branch


By:

































































FORM OF HEDGE COUNTERPARTY ACCESSION LETTER








To:    ING Bank N.V., London branch as Facility Agent


From:   [Additional Hedge Counterparty] (the "Additional Hedge Counterparty") Dated: [—]
Dear Sirs


[•] and [•] [Borrowers] - US$29,975,000 Facility Agreement dated [—] 2018 (the "Agreement")


		
	1
	We refer to the Agreement.  This is a Hedge Counterparty Accession Letter.  Terms defined in the Agreement have the same meaning in this Hedge Counterparty Accession Letter unless given a different meaning in this Hedge Counterparty Accession Letter.




		
	2
	We   refer  to   Clause  29.8   (Additional  Hedge  Counterparties).    The  Additional  Hedge Counterparty agrees to become an Additional Hedge Counterparty and to be bound by the terms of the Agreement as an Additional Hedge Counterparty.




		
	3
	This Hedge Counterparty Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.




Yours faithfully










[Additional Hedge Counterparty] By: [—]














ING Bank N.V., London branch
By: [—]]







































FORM OF COMPLIANCE CERTIFICATE








To:    ING Bank N.V., London branch as Facility Agent


From:   Scorpio Bulkers Inc. Dated: [—]
Dear Sirs


[•] and [•] [Borrowers] - US$29,975,000 Facility Agreement dated [—] 2018 (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:


2.1    our Cash and Cash Equivalents are equal to the greater of (i) $25,000,000 and (ii) $700,000 per
Fleet Vessel;


2.2    our Consolidated Tangible Net Worth is not less than $500,000,000 plus:


		
	(a)
	25 per cent. of our cumulative, positive consolidated net income for each Accounting Period commencing on or after 31 December 2013; and




		
	(b)
	50 per cent. of the value of the Equity Proceeds realized from any issuance of Equity Interests in the Parent Guarantor occurring on or after 31 December 2013; and




2.3    our ratio of Net Debt to Consolidated Total Capitalisation is not more than 0.60 to 1.00.


3    We confirm that no Default is continuing.












Signed:      


[Director][Officer]


of Scorpio Bulkers Inc.



























EXECUTION VERSION




SCHEDULE 8
DETAILS OF THE SHIPS




	
										
	Ship name
	Name of the
Borrower owner
	Year built
	IMO
number
	Type
	GRT
	NRT
	Approved Flag and port of registration
	Approved
Classification Society
	Approved Classification

	SBI ZUMBA
	SBI ZUMBA
SHIPPING COMPANY LIMITED
	2016
	9728629
	Kamsarmax Bulker
	44,069
	27,307
	Liberia, Monrovia
	American Bureau of
Shipping (ABS)
	A1, Bulk Carrier, BC-A
holds 2, 4, &6 may be empty, ESP, E, AMS, ACCU, CPS, CSR AB-CM

	SBI PARAPARA
	SBI PARAPARA
SHIPPING COMPANY LIMITED
	2017
	9763904
	Kamsarmax Bulker
	44,069
	27,307
	Liberia, Monrovia
	American Bureau of
Shipping (ABS)
	A1, Bulk Carrier, BC-A
holds 2, 4, &6 may be empty, ESP, E, AMS, ACCU, CPS, CSR AB-CM






















































EUROPE/62394826v12

































EXECUTION VERSION




SCHEDULE 9


TIMETABLES


Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) or a   Selection  Notice  (Clause  9.1  (Selection  of Interest Periods))
Three   Business   Days   before   the   intended Utilisation   Date   (Clause   5.1   (Delivery   of   a Utilisation   Request))   or   the   expiry   of   the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))


Facility   Agent   notifies   the   Lenders   of   the Advance in accordance with Clause 5.4 (Lenders' participation)
Two    Business    Days    before    the    intended
Utilisation Date.


LIBOR is fixed    Quotation Day as of 11:00 am London time


Reference Bank Rate calculated by reference to available    quotations    in    accordance    with Clause 10.2 (Calculation of Reference Bank Rate)
Noon on the Quotation Day





























































EXECUTION PAGES


	
					
	BORROWERS
	 
	 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by Nicholas Kaasik
	)
	/s/ Nicholas Kaasik
	 
	 

	duly authorised
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	SBI ZUMBA SHIPPING COMPANY LIMITED
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Sebastian B. Sandtov
	 
	 

	Witness’ name:
	)
	Sebastian B. Sandtov
	 
	 

	Witness’ address:
	)
	9, Boulevard Charles III
MC 98000 Monaco 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by Nicholas Kaasik
	)
	/s/ Nicholas Kaasik
	 
	 

	duly authorised
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	SBI PARAPARA SHIPPING COMPANY LIMITED
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Sebastian B. Sandtov
	 
	 

	Witness’ name:
	)
	Sebastian B. Sandtov
	 
	 

	Witness’ address:
	)
	9, Boulevard Charles III
MC 98000 Monaco 
	 
	 

	 
	 
	 
	 
	 

	PARENT GUARANTOR
	)
	 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by Micha Withoft
	)
	/s/ Micha Withoft
	 
	 

	duly authorised
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 















	
					
	SCORPIO BULKERS INC.
	 
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Sebastian B. Sandtov
	 
	 

	Witness’ name:
	)
	Sebastian B. Sandtov
	 
	 

	Witness’ address:
	)
	9, Boulevard Charles III
MC 98000 Monaco 
	 
	 






	
							
	HEDGE GUARANTORS
	 
	 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by Nicholas Kaasik
	)
	/s/ Nicholas Kaasik
	 
	 

	duly authorized
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	SBI ZUMBA SHIPPING COMPANY LIMITED
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Sebastian B. Sandtov
	 
	 

	Witness’ name:
	)
	Sebastian B. Sandtov
	 
	 

	Witness’ address:
	)
	9, Boulevard Charles III
MC 98000 Monaco 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by
	)
	/s/ Nicholas Kaasik
	 
	 

	duly authorised
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	SBI PARAPARA SHIPPING COMPANY LIMITED
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Sebastian B. Sandtov
	 
	 

	Witness’ name:
	)
	Sebastian B. Sandtov
	 
	 

	Witness’ address:
	)
	9, Boulevard Charles III
MC 98000 Monaco 
	 
	 















	
							
	 
	 
	 
	 
	 

	ORIGINAL LENDERS
	)
	 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by
	)
	/s/ Laura Gerrard
	 
	 

	duly authorized
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	ING BANK N.V., LONDON BRANCH
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Tamara Ristic
	 
	 

	Witness’ name:
	)
	Tamara Ristic
Trainee Solicitor
	 
	 

	Witness’ address:
	)
	Watson Farley & Williams LLP
15 Appold Street
London EC2A 2HB
	 
	 






	
					
	ORIGINAL HEDGE COUNTERPARTIES
	 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by
	)
	/s/ Laura Gerrard
	 
	 

	duly authorized
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	ING CAPITAL MARKETS LLC
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Juan Carlos Wallarino
	 
	 

	Witness’ name:
	)
	Juan Carlos Wallarino
	 
	 

	Witness’ address:
	)
	1133 Avenue of the Americas
New York, NY 10036 USA
	 
	 

	 
	 
	 
	 
	 

	ARRANGER
	 
	 
	 
	 















	
					
	 
	 
	 
	 
	 

	SIGNED by
	)
	/s/ Laura Gerrard
	 
	 

	duly authorised
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	ING BANK N.V., LONDON BRANCH
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Tamara Ristic
	 
	 

	Witness’ name:
	)
	Tamara Ristic
Trainee Solicitor
	 
	 

	Witness’ address:
	)
	Watson Farley & Williams LLP
15 Appold Street
London EC2A 2HB
	 
	 

	 
	 
	 
	 
	 

	FACILITY AGENT
	 
	 
	 
	 

	 
	 
	 
	 
	 

	SIGNED by
	)
	/s/ Laura Gerrard
	 
	 

	duly authorized
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	ING BANK N.V., LONDON BRANCH
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Tamara Ristic
	 
	 

	Witness’ name:
	)
	Tamara Ristic
Trainee Solicitor
	 
	 

	Witness’ address:
	)
	Watson Farley & Williams LLP
15 Appold Street
London EC2A 2HB
	 
	 

	 
	 
	 
	 
	 

	SECURITY AGENT
	 
	 
	 
	 

	 
	 
	 
	 
	 















	
					
	SIGNED by
	)
	/s/ Laura Gerrard
	 
	 

	duly authorized
	)
	 
	 
	 

	for and on behalf of
	)
	 
	 
	 

	ING BANK N.V., LONDON BRANCH
	)
	 
	 
	 

	in the presence of:
	)
	 
	 
	 

	 
	 
	 
	 
	 

	Witness’ signature:
	)
	/s/ Tamara Ristic
	 
	 

	Witness’ name:
	)
	Tamara Ristic
Trainee Solicitor
	 
	 

	Witness’ address:
	)
	Watson Farley & Williams LLP
15 Appold Street
London EC2A 2HB