REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of each class
|
Trading Symbol
|
Name of each exchange on which registered
|
|
|
|
|
No ☐
|
Yes ☐
|
|
|
No ☐
|
|
Accelerated Filer ☐
|
Non-accelerated Filer ☐
|
U.S. GAAP ☐
|
International Accounting Standards Board ☒
|
Other ☐
|
Item 17 ☐ |
Item 18 ☐
|
Yes
|
No ☒ |
1
|
|||
4
|
|||
6
|
|||
ITEM 1.
|
6
|
||
ITEM 2.
|
6
|
||
ITEM 3.
|
6
|
||
ITEM 4.
|
24
|
||
ITEM 4A.
|
35
|
||
ITEM 5.
|
35
|
||
ITEM 6.
|
47
|
||
ITEM 7.
|
52
|
||
ITEM 8.
|
56
|
||
ITEM 9.
|
57
|
||
ITEM 10.
|
57
|
||
ITEM 11.
|
73
|
||
ITEM 12.
|
73
|
||
74 |
|||
ITEM 13.
|
74
|
||
ITEM 14.
|
74
|
||
ITEM 15.
|
74
|
||
ITEM 16.
|
75
|
||
ITEM 16A.
|
75
|
||
ITEM 16B.
|
75
|
||
ITEM 16C.
|
75
|
||
ITEM 16D.
|
76
|
||
ITEM 16E.
|
76
|
||
ITEM 16F.
|
76
|
||
ITEM 16G.
|
76
|
||
ITEM 16H.
|
77
|
||
ITEM 16I.
|
77
|
||
ITEM 16J.
|
77
|
||
ITEM 16K.
|
77
|
||
78 | |||
ITEM 17.
|
78
|
||
ITEM 18.
|
78
|
||
ITEM 19.
|
78
|
Term
|
Definition
|
annual survey
|
The inspection of a vessel pursuant to international conventions by a classification society surveyor, on behalf of the flag state, that takes place every year.
|
bareboat charter
|
A charter under which a charterer pays a fixed daily or monthly rate for a fixed period of time for use of the vessel. The charterer pays all voyage and vessel operating expenses, including crewing and vessel insurance. Bareboat
charters are usually long term. Also referred to as a “demise charter.”
|
bunker
|
Fuel oil used to operate a vessel’s engines, generators and boilers.
|
charter
|
Contract for the use of a vessel, generally consisting of either a voyage, time or bareboat charter.
|
charterer
|
The company that hires a vessel pursuant to a charter.
|
charter hire
|
Money paid by a charterer to the shipowner for the use of a vessel under a time charter or bareboat charter.
|
classification society
|
An independent society that certifies that a vessel has been built and maintained according to the society’s rules for that type of vessel and complies with the applicable rules and regulations of the country in which the vessel is
registered, as well as the international conventions which that country has ratified. A vessel that receives its certification is referred to as being “in class” as of the date of issuance.
|
double-hull
|
A hull construction design in which a vessel has an inner and outer side and bottom separated by void space, usually two meters in width.
|
drydocking
|
The removal of a vessel from the water for inspection or repair of those parts of a vessel which are below the water line. During drydockings, which are required to be carried out periodically, certain mandatory classification society
inspections are carried out and relevant certifications issued. Drydockings are generally required once every 30 to 60 months.
|
dwt
|
Deadweight tons, which refers to the total carrying capacity of a vessel by weight.
|
EGCS
|
EGCS is the abbreviation for “exhaust gas cleaning system”, a system that is placed in the funnel of a seagoing vessel and removes sulfur (SOx) from the engine exhaust gas emissions.
|
hull
|
Shell or body of a ship.
|
IMO
|
International Maritime Organization, a United Nations agency that issues international regulations and standards for shipping.
|
IMO 2020
|
On January 1, 2020, a new limit on the Sulphur content in the fuel oil used on board ships came into force, with the objective to improve air quality, preserve the environment and protect human health.
|
In connection with IMO 2020, refiners began to produce fuels with very low Sulphur content to the industry, however with varying processes and specifications.
|
|
Before the entry into force of the new limit, most ships were using heavy fuel oil. Now, ships must either use Very Low Sulphur Fuel Oil (VLSFO) to comply with the new limit or continue to use heavy fuel oil in combination with an
exhaust gas cleaning system.
|
|
Known as “IMO 2020”, the rule limits the Sulphur in the fuel oil used on board ships operating outside designated emission control areas to 0.50% m/m (mass by mass) — a significant reduction from the previous limit of 3.5%. Within
specific designated emission control areas the limits were already stricter (0.10%).
|
|
newbuilding
|
A new vessel under construction or just completed.
|
off-hire
|
The period a vessel is unable to perform services and generate revenue. Off-hire periods typically include days spent undergoing repairs and drydocking, whether planned or not.
|
OPA
|
U.S. Oil Pollution Act of 1990, as amended.
|
OPEC
|
Organization of Petroleum Exporting Countries, an international organization of oil-exporting developing nations that coordinates and unifies the petroleum policies of its member countries.
|
petroleum products
|
Refined crude oil products, such as fuel oils, gasoline and jet fuel.
|
protection and indemnity insurance
|
Commonly known as “P&I insurance,” the insurance obtained through mutual associations, or “clubs,” formed by shipowners to provide liability insurance protection against a financial loss by one member through contribution towards
that loss by all members. To a great extent, the risks are reinsured.
|
scrapping
|
The disposal of vessels by demolition for scrap metal.
|
special survey
|
An extensive inspection of a vessel by classification society surveyors that must be completed at least once during each five-year period. Special surveys require a vessel to be drydocked.
|
spot market
|
The market for immediate chartering of a vessel, usually for single voyages.
|
tanker
|
A ship designed for the carriage of liquid cargoes in bulk with cargo space consisting of several segregated tanks. Tankers carry a variety of products including crude oil, refined petroleum products, liquid chemicals and liquefied
gas.
|
TCE
|
Time charter equivalent, a standard industry measure of the average daily revenue performance of a vessel. The TCE rate achieved on a given voyage is expressed in $/day and is generally calculated by subtracting voyage expenses,
including bunker and port charges, from voyage revenue and dividing the net amount (time charter equivalent revenues) by the round-trip voyage duration.
|
time charter
|
A charter under which a customer pays a fixed daily or monthly rate for a fixed period of time for use of the vessel. Subject to any restrictions in the charter, the customer decides the type and quantity of cargo to be carried and the
ports of loading and unloading. The customer pays the voyage expenses such as fuel, canal tolls, and port charges. The shipowner pays all vessel operating expenses such as the management expenses, crew costs and vessel insurance.
|
time charterer
|
The company that hires a vessel pursuant to a time charter.
|
vessel operating expenses
|
The costs of operating a vessel incurred during a charter, primarily consisting of crew wages and associated costs, insurance premiums, lubricants and spare parts, and repair and maintenance costs. Vessel operating expenses exclude
fuel and port charges, which are known as “voyage expenses.” For a time charter, the shipowner pays vessel operating expenses. For a bareboat charter, the charterer pays vessel operating expenses.
|
VLCC
|
VLCC is the abbreviation for “very large crude carrier,” a large crude oil tanker in the range of 270,000 to 320,000 dwt. Modern VLCCs can generally transport two million barrels or more of crude oil. These vessels are mainly used on
the longest (long haul) routes from the Arabian Gulf to North America, Europe, and Asia, and from West Africa and South America to the U.S. and Far Eastern destinations.
|
voyage charter
|
A charter under which a shipowner hires out a ship for a specific voyage between the loading port and the discharging port. The shipowner is responsible for paying both ship operating expenses and voyage expenses. Typically, the
customer is responsible for any delay at the loading or discharging ports. The shipowner is paid freight on the basis of the cargo movement between ports. Also referred to as a “spot charter”.
|
voyage expenses
|
Expenses incurred due to a vessel traveling to a destination, such as fuel cost and port charges.
|
• |
our future financial condition and liquidity, including our ability to make required payments under our credit facilities and comply with our loan covenants;
|
• |
our ability to finance our capital expenditures, acquisitions and other corporate activities;
|
• |
our future operating or financial results and future revenues and expenses;
|
• |
expectations relating to dividend payments and our ability to make such payments;
|
• |
future, pending or recent acquisitions, business strategy, areas of possible expansion and expected capital spending or operating expenses;
|
• |
tanker industry trends, including charter rates and vessel values and factors affecting vessel supply and demand;
|
• |
expectations about the availability of vessels to purchase, or the time which it may take to construct new vessels or vessels’ useful lives;
|
• |
the availability of insurance on commercially reasonable terms;
|
• |
our ability to comply with operating and financial covenants and to repay our debt under the secured credit facilities;
|
• |
our ability to obtain additional financing and to obtain replacement charters for our vessels;
|
• |
our ability to purchase emissions allowances and settle carbon taxes in relation to our transportation services, such as the EU ETS and FuelEU Maritime;
|
• |
fluctuations in currencies and interest rates;
|
• |
changes in production of or demand for oil and petroleum products, either globally or in particular regions;
|
• |
the severity and duration of any new outbreaks or new variants of COVID-19 that may emerge;
|
• |
greater than anticipated levels of newbuilding orders or less than anticipated rates of scrapping of older vessels;
|
• |
the availability of existing vessels to acquire or newbuilds to purchase, or the time that it may take to construct and take delivery of new vessels, including our newbuild vessels currently on order, or the useful lives of our
vessels;
|
• |
the availability of key employees and seafarers, the length and number of off-hire days, drydocking requirements and fuel and insurance costs;
|
• |
competitive pressures within the tanker industry;
|
• |
changes in trading patterns for particular commodities significantly impacting overall tonnage requirements;
|
• |
changes in the rate of growth of the world and various regional economies;
|
• |
the risk of incidents related to vessel operation, including discharge of pollutants;
|
• |
unanticipated changes in laws and regulations, including those in response to the increased focus on sustainability and other environmental, social and governance matters in recent years;
|
• |
delays and cost overruns in construction projects;
|
• |
any malfunction or disruption of information technology (“IT”) systems and networks that our operations rely on or any impact of a possible cybersecurity breach;
|
• |
potential liability from future litigation;
|
• |
corruption, piracy, militant activities, political instability, terrorism, ethnic unrest and regionalism in countries where we may operate;
|
• |
our business strategy and other plans and objectives for future operations;
|
• |
any non-compliance with the U.S. Foreign Corrupt Practices Act of 1977, or other applicable regulations relating to bribery; and
|
• |
other factors discussed in “Item 3. Key Information—Risk Factors” and “Item 5. Operating and Financial Review and Prospects—Management’s Discussion and Analysis of Financial Condition and Results of Operations” of this annual report.
|
ITEM 1. |
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISORS
|
ITEM 2. |
OFFER STATISTICS AND EXPECTED TIMETABLE
|
ITEM 3. |
KEY INFORMATION
|
A. |
RESERVED
|
B. |
CAPITALIZATION AND INDEBTEDNESS
|
C. |
REASONS FOR THE OFFER AND USE OF THE PROCEEDS
|
D. |
RISK FACTORS
|
• |
A contraction or tightening of the global credit markets and the resulting volatility in the financial markets could have a material adverse impact on credit availability, world oil demand and demand for our vessels, which could
adversely affect our results of operations, financial condition and cash flows, and could cause the market price of our common stock to decline.
|
• |
We may not be able to re-charter or employ our vessels profitably.
|
• |
We are dependent on performance by our charterers.
|
• |
We may have difficulty managing growth.
|
• |
We may elect to reduce our fleet.
|
• |
Restrictive covenants in the secured credit facilities may impose financial and other restrictions on us and our subsidiaries.
|
• |
If we fail to comply with certain corporate or ship-specific covenants, including as a result of declining vessel values, or are unable to meet our debt obligations under the secured credit facilities, our lenders could declare their
debt to be immediately due and payable and foreclose on our vessels.
|
• |
Vessel values and charter rates are volatile. The highly cyclical nature of the tanker industry may lead to changes in charter rates from time to time, which may adversely affect our earnings, financial condition and results of
operations.
|
• |
An oversupply of new vessels may adversely affect charter rates and vessel values.
|
• |
Political decisions may affect our vessels’ trading patterns and could adversely affect our business and operation results.
|
• |
Adverse conditions and disruptions in global economies could have a material adverse effect on our business.
|
• |
Compliance with environmental laws, regulations or carbon tax regimes and emissions regulation schemes, as well as increasing focus on sustainability and other environmental, social and governance matters, may adversely affect our
business.
|
• |
The market price of our common stock may be unpredictable and volatile.
|
• |
Future sales of our common stock could cause the market price of our common stock to decline.
|
• |
The anti-takeover provisions in our amended and restated bylaws may discourage a change of control.
|
• |
Certain adverse U.S. federal income tax consequences could arise for U.S. stockholders.
|
• |
Our operating income could fail to qualify for an exemption from U.S. federal income taxation, which will reduce our cash flow.
|
• |
We may be subject to taxation in Norway, which could have a material adverse effect on our results of operations and would subject dividends paid by us to Norwegian withholding taxes.
|
• |
Recently enacted income tax laws in Bermuda may adversely affect our business, financial condition or results of operation.
|
• |
identifying and acquiring vessels, fleets of vessels or companies owning vessels, contracting to build new vessels or entering into joint ventures that meet our requirements, including, but not limited to, price, specification and
technical condition;
|
• |
consummating acquisitions of vessels, fleets of vessels or companies owning vessels, contracting to build new vessels or acquisitions of companies or joint ventures; and
|
• |
obtaining required financing through equity or debt financing on acceptable terms.
|
• |
demand for oil and oil products, which affects the need for tanker capacity;
|
• |
global and regional economic and political conditions which, among other things, could impact the supply of oil as well as trading patterns and the demand for various types of vessels;
|
• |
changes in the production of crude oil, particularly by OPEC and other key producers, which could impact the need for tanker capacity;
|
• |
developments in international trade, protectionism and market fragmentation;
|
• |
changes in seaborne and other transportation patterns, including changes in the distances that cargoes are transported;
|
• |
environmental concerns and regulations;
|
• |
international sanctions, embargoes, import and export restrictions, nationalizations and wars;
|
• |
weather; and
|
• |
competition from alternative sources of energy.
|
• |
the factors that influence the supply of tanker capacity include:
|
• |
the number of newbuilding deliveries;
|
• |
the scrapping rate of older vessels;
|
• |
the number of vessels that are out of service; and
|
• |
environmental and maritime regulations.
|
• |
a classified board of directors with staggered three-year terms, elected without cumulative voting;
|
• |
removal of directors only for cause and with the affirmative vote of holders of at least a majority of the common stock issued and outstanding;
|
• |
advance notice for nominations of directors by stockholders and for stockholders to include matters to be considered at annual meetings;
|
• |
a limited ability for stockholders to call special stockholder meetings; and
|
• |
board of directors authority to determine the powers, preferences and rights of our preferred stock and to issue the preferred stock without stockholder approval.
|
ITEM 4. |
INFORMATION ON THE COMPANY
|
A. |
HISTORY AND DEVELOPMENT OF THE COMPANY
|
B. |
BUSINESS OVERVIEW
|
Vessel
|
Type of Employment
|
Expiry
|
VLCC
|
||
DHT Appaloosa
|
Spot
|
|
DHT Mustang
|
Spot
|
|
DHT Bronco
|
Spot
|
|
DHT Colt
|
Spot
|
|
DHT Stallion
|
Spot
|
|
DHT Tiger
|
Spot
|
|
DHT Harrier
|
Time charter
|
Q4 2024
|
DHT Puma
|
Time charter with profit sharing
|
Q1 2026
|
DHT Panther
|
Spot
|
|
DHT Osprey
|
Time charter
|
Q2 2027
|
DHT Lion
|
Spot
|
|
DHT Leopard
|
Time charter
|
Q2 2027
|
DHT Jaguar
|
Spot
|
|
DHT Taiga
|
Spot
|
|
DHT Opal
|
Spot
|
|
DHT Sundarbans
|
Time charter with profit sharing
|
Q1 2025
|
DHT Redwood
|
Spot
|
|
DHT Amazon
|
Spot
|
|
DHT Peony
|
Spot
|
|
DHT Lotus
|
Spot
|
|
DHT China
|
Spot
|
|
DHT Europe
|
Spot
|
|
DHT Bauhinia
|
Spot
|
|
DHT Scandinavia
|
Spot
|
Company
|
Vessel
|
Year
Built
|
Dwt
|
Flag*
|
Yard**
|
Classification
Society***
|
Percent of
Ownership
|
VLCC
|
|||||||
DHT Appaloosa Inc
|
DHT Appaloosa 7
|
2018
|
318,918
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Mustang Inc
|
DHT Mustang 5
|
2018
|
317,975
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Bronco Inc
|
DHT Bronco 5
|
2018
|
317,975
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Colt Inc
|
DHT Colt 4
|
2018
|
319,713
|
HK
|
DSME
|
LR
|
100 %
|
DHT Stallion Inc
|
DHT Stallion 4
|
2018
|
319,713
|
HK
|
DSME
|
LR
|
100 %
|
DHT Tiger Limited
|
DHT Tiger 2
|
2017
|
299,629
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Harrier Inc
|
DHT Harrier 6
|
2016
|
299,985
|
HK
|
DSME
|
LR
|
100 %
|
DHT Puma Limited
|
DHT Puma 2
|
2016
|
299,629
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Panther Limited
|
DHT Panther 2
|
2016
|
299,629
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Osprey Inc
|
DHT Osprey 6
|
2016
|
299,999
|
HK
|
DSME
|
LR
|
100 %
|
DHT Lion Limited
|
DHT Lion 2
|
2016
|
299,629
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Leopard Limited
|
DHT Leopard 2
|
2016
|
299,629
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Jaguar Limited
|
DHT Jaguar 2
|
2015
|
299,629
|
HK
|
HHI
|
ABS
|
100 %
|
Samco Iota Ltd
|
DHT Taiga 1
|
2012
|
318,130
|
HK
|
HHI
|
ABS
|
100 %
|
DHT Opal Inc
|
DHT Opal 3
|
2012
|
320,105
|
HK
|
DSME
|
LR
|
100 %
|
Samco Theta Ltd
|
DHT Sundarbans 1
|
2012
|
318,123
|
HK
|
HHI
|
LR
|
100 %
|
Samco Kappa Ltd
|
DHT Redwood 1
|
2011
|
318,130
|
HK
|
HHI
|
ABS
|
100 %
|
Samco Eta Ltd
|
DHT Amazon 1
|
2011
|
318,130
|
HK
|
HHI
|
LR
|
100 %
|
DHT Peony Inc
|
DHT Peony 3
|
2011
|
320,013
|
HK
|
BSHIC
|
ABS
|
100 %
|
DHT Lotus Inc
|
DHT Lotus 3
|
2011
|
320,142
|
HK
|
BSHIC
|
ABS
|
100%
|
Samco Epsilon Ltd
|
DHT China 1
|
2007
|
317,794
|
HK
|
HHI
|
LR
|
100 %
|
Samco Delta Ltd
|
DHT Europe 1
|
2007
|
317,713
|
HK
|
HHI
|
LR
|
100%
|
DHT Bauhinia Inc
|
DHT Bauhinia 3
|
2007
|
301,019
|
HK
|
DSME
|
LR
|
100 %
|
Samco Gamma Ltd
|
DHT Scandinavia 1
|
2006
|
317,826
|
HK
|
HHI
|
ABS
|
100%
|
1 |
Acquired on September 17, 2014.
|
2 |
Delivery dates from HHI for six newbuildings were as follows: DHT Jaguar on November 23, 2015, DHT Leopard on January 4, 2016, DHT Lion on March 15, 2016, DHT Panther on August 5, 2016, DHT Puma on August 31, 2016 and DHT Tiger on
January 16, 2017.
|
3 |
Delivery dates for the vessels acquired from BW Group Limited (“BW Group”) were as follows: DHT Opal on April 24, 2017, DHT Peony on April 29, 2017, DHT Bauhinia on June 13, 2017 and DHT Lotus on June 20, 2017.
|
4 |
Delivery dates from DSME for the two newbuildings acquired from BW Group were as follows: DHT Stallion on April 27, 2018 and DHT Colt on May 25, 2018.
|
5 |
Delivery dates from HHI for the two newbuildings were as follows: DHT Bronco on July 27, 2018 and DHT Mustang on October 8, 2018.
|
6 |
Delivery dates were as follows: DHT Harrier on February 18, 2021 and DHT Osprey on April 12, 2021.
|
7 |
Delivery date for DHT Appaloosa was on July 31, 2023.
|
• |
on-board installation of automatic information systems to enhance vessel-to-vessel and vessel-to-shore communications;
|
• |
on-board installation of ship security alert systems;
|
• |
the development of ship security plans; and
|
• |
compliance with flag state security certification requirements.
|
C. |
ORGANIZATIONAL STRUCTURE
|
Subsidiary
|
Vessel
|
State of Jurisdiction
or Incorporation
|
Percent of
ownership
|
DHT Management S.A.M.
|
Monaco
|
99%1
|
|
DHT Management AS
|
Norway
|
100%
|
|
DHT Ship Management (Singapore) Pte. Ltd.
|
Singapore
|
100%
|
|
DHT Chartering (Singapore) Pte. Ltd.
|
Singapore
|
100%
|
|
Goodwood Ship Management Pte. Ltd.
|
Singapore
|
53%
|
|
DHT Appaloosa, Inc.
|
DHT Appaloosa
|
Marshall Islands
|
100%
|
DHT Bauhinia, Inc.
|
DHT Bauhinia
|
Marshall Islands
|
100%
|
DHT Bronco, Inc.
|
DHT Bronco
|
Marshall Islands
|
100%
|
DHT Colt, Inc.
|
DHT Colt
|
Marshall Islands
|
100%
|
DHT Harrier Inc.
|
DHT Harrier
|
Marshall Islands
|
100%
|
DHT Jaguar Limited
|
DHT Jaguar
|
Marshall Islands
|
100%
|
DHT Leopard Limited
|
DHT Leopard
|
Marshall Islands
|
100%
|
DHT Lion Limited
|
DHT Lion
|
Marshall Islands
|
100%
|
DHT Lotus, Inc.
|
DHT Lotus
|
Marshall Islands
|
100%
|
DHT Mustang, Inc.
|
DHT Mustang
|
Marshall Islands
|
100%
|
DHT Opal, Inc.
|
DHT Opal
|
Marshall Islands
|
100%
|
DHT Osprey Inc.
|
DHT Osprey
|
Marshall Islands
|
100%
|
DHT Panther Limited
|
DHT Panther
|
Marshall Islands
|
100%
|
DHT Peony, Inc.
|
DHT Peony
|
Marshall Islands
|
100%
|
DHT Puma Limited
|
DHT Puma
|
Marshall Islands
|
100%
|
DHT Stallion, Inc.
|
DHT Stallion
|
Marshall Islands
|
100%
|
DHT Tiger Limited
|
DHT Tiger
|
Marshall Islands
|
100%
|
Samco Delta Ltd.
|
DHT Europe
|
Cayman Islands
|
100%
|
Samco Epsilon Ltd.
|
DHT China
|
Cayman Islands
|
100%
|
Samco Eta Ltd.
|
DHT Amazon
|
Cayman Islands
|
100%
|
Samco Gamma Ltd.
|
DHT Scandinavia
|
Cayman Islands
|
100%
|
Samco Iota Ltd.
|
DHT Taiga
|
Cayman Islands
|
100%
|
Samco Kappa Ltd.
|
DHT Redwood
|
Cayman Islands
|
100%
|
Samco Theta Ltd.
|
DHT Sundarbans
|
Cayman Islands
|
100%
|
1
|
The remaining 1% of DHT Management S.A.M is owned by the President & Chief Executive Officer
|
D. |
PROPERTY, PLANT AND EQUIPMENT
|
ITEM 4A. |
UNRESOLVED STAFF COMMENTS
|
ITEM 5. |
OPERATING AND FINANCIAL REVIEW AND PROSPECTS
|
• |
with respect to vessels on charter, the charter rate that we are paid;
|
• |
with respect to vessels operating in the spot market, the revenues earned by such vessels and cost of bunkers;
|
• |
our vessels’ operating expenses;
|
• |
our insurance premiums and vessel taxes;
|
• |
the required maintenance capital expenditures related to our vessels;
|
• |
the required capital expenditures related to newbuilding orders;
|
• |
our ability to access capital markets to finance our fleet;
|
• |
our vessels’ depreciation and potential impairment charges;
|
• |
our general and administrative and other expenses;
|
• |
our interest expense including any interest swaps;
|
• |
any future vessel sales and acquisitions;
|
• |
general market conditions when charters expire;
|
• |
fluctuations in the supply of and demand for oil transportation;
|
• |
the impact of any new outbreaks or new variants of COVID-19 that may emerge; and
|
• |
prepayments under our credit facilities to remain in compliance with covenants.
|
◾ |
an experienced organization focused on first rate operations and customer service;
|
◾ |
maintain a prudent capital structure and robust cash break-even levels for our fleet that promote staying power through the business cycles;
|
◾ |
combination of market exposure and fixed income for our fleet;
|
◾ |
disciplined philosophy with respects to investments, employment of our fleet and capital allocation; and
|
◾ |
transparent corporate structure maintaining a high level of integrity and good governance.
|
A. |
OPERATING RESULTS
|
B. |
LIQUIDITY AND CAPITAL RESOURCES
|
Operating Period
|
Total Payment
|
Per Common Share
|
Record Date
|
Payment Date
|
|||
Jan. 1 – Mar. 31, 2021
|
$6.8 million
|
$
|
0.04
|
May 19, 2021
|
May 26, 2021
|
||
Apr. 1 – Jun. 30, 2021
|
$3.3 million
|
$
|
0.02
|
Aug. 19, 2021
|
Aug. 26, 2021
|
||
Jul. 1 - Sep. 30, 2021
|
$3.3 million
|
$
|
0.02
|
Nov. 16, 2021
|
Nov. 23, 2021
|
||
Oct. 1 - Dec. 31, 2021
|
$3.3 million
|
$
|
0.02
|
Feb. 17, 2022
|
Feb. 24, 2022
|
||
Jan. 1 – Mar. 31, 2022
|
$3.3 million
|
$
|
0.02
|
May 19, 2022
|
May 26, 2022
|
||
Apr. 1 – Jun. 30, 2022
|
$6.5 million
|
$
|
0.04
|
Aug. 23, 2022
|
Aug. 30, 2022
|
||
Jul. 1 - Sep. 30, 2022
|
$6.5 million
|
$
|
0.04
|
Nov. 22, 2022
|
Nov. 29, 2022
|
||
Oct. 1 - Dec. 31, 2022
|
$61.9 million
|
$
|
0.38
|
Feb. 17, 2023
|
Feb. 24, 2023
|
||
Jan. 1 – Mar. 31, 2023
|
$37.5 million
|
$
|
0.23
|
May 18, 2023
|
May 25, 2023
|
||
Apr. 1 – Jun. 30, 2023
|
$56.7 million
|
$
|
0.35
|
Aug. 23, 2023
|
Aug. 30, 2023
|
||
Jul. 1 – Sep. 30, 2023
|
$30.6 million
|
$
|
0.19
|
Nov. 21, 2023
|
Nov. 28, 2023
|
||
Oct. 1 – Dec. 31, 2023
|
$35.5 million
|
$
|
0.22
|
Feb. 21, 2024
|
Feb. 28, 2024
|
2024
|
2025
|
2026
|
2027
|
2028
|
Thereafter
|
Total
|
||||||||||||||||||||||
Long-term debt 1
|
$
|
65,665
|
$
|
110,503
|
$
|
77,736
|
$
|
93,407
|
$
|
64,638
|
$
|
143,919
|
$
|
555,867
|
||||||||||||||
Total
|
$
|
65,665
|
$
|
110,503
|
$
|
77,736
|
$
|
93,407
|
$
|
64,638
|
$
|
143,919
|
$
|
555,867
|
C. |
Research and Development, Patents and Licenses
|
D. |
Trend Information
|
E. |
Critical Accounting Estimates
|
Vessel
|
Built
|
Vessel Type
|
Purchase Month
and Year
|
Carrying Value 1
|
Estimated
Charter-Free Fair
Market Value 2
|
(Dollars in thousands)
|
|||||
DHT Appaloosa
|
2018
|
VLCC
|
Jul. 2023
|
94,371
|
103,000
|
DHT Mustang
|
2018
|
VLCC
|
Oct. 2018
|
64,630
|
103,000
|
DHT Bronco
|
2018
|
VLCC
|
Jul. 2018
|
63,866
|
103,000
|
DHT Colt
|
2018
|
VLCC
|
May 2018
|
66,220
|
103,000
|
DHT Stallion
|
2018
|
VLCC
|
Apr. 2018
|
66,203
|
103,000
|
DHT Tiger
|
2017
|
VLCC
|
Jan. 2017
|
67,945
|
98,000
|
DHT Harrier
|
2016
|
VLCC
|
Jan.2021
|
57,619
|
93,000
|
DHT Puma
|
2016
|
VLCC
|
Aug. 2016
|
66,481
|
93,000
|
DHT Panther
|
2016
|
VLCC
|
Aug. 2016
|
66,333
|
93,000
|
DHT Osprey
|
2016
|
VLCC
|
Jan.2021
|
58,090
|
93,000
|
DHT Lion
|
2016
|
VLCC
|
Mar. 2016
|
65,297
|
93,000
|
DHT Leopard
|
2016
|
VLCC
|
Jan. 2016
|
64,299
|
93,000
|
DHT Jaguar
|
2015
|
VLCC
|
Nov. 2015
|
64,203
|
88,000
|
DHT Taiga
|
2012
|
VLCC
|
Sep. 2014
|
50,443
|
74,000
|
DHT Opal
|
2012
|
VLCC
|
Apr. 2017
|
44,560
|
74,000
|
DHT Sundarbans
|
2012
|
VLCC
|
Sep. 2014
|
49,364
|
74,000
|
DHT Redwood
|
2011
|
VLCC
|
Sep. 2014
|
48,419
|
70,000
|
DHT Amazon
|
2011
|
VLCC
|
Sep. 2014
|
46,699
|
70,000
|
DHT Peony
|
2011
|
VLCC
|
Apr. 2017
|
39,299
|
66,000
|
DHT Lotus
|
2011
|
VLCC
|
Jun. 2017
|
38,371
|
66,000
|
DHT China
|
2007
|
VLCC
|
Sep. 2014
|
28,119
|
54,000
|
DHT Europe
|
2007
|
VLCC
|
Sep. 2014
|
24,892
|
54,000
|
DHT Bauhinia
|
2007
|
VLCC
|
Jun. 2017
|
22,640
|
54,000
|
DHT Scandinavia
|
2006
|
VLCC
|
Sep. 2014
|
25,347
|
50,500
|
1 |
Carrying value does not include value of time charter contracts.
|
2 |
Estimated charter-free fair market value is provided for informational purposes only. These estimates are based solely on third-party broker valuations as of the reporting date and may not represent the price we would receive upon sale
of the vessel. They have been provided as a third party’s indicative estimate of the sales price less cost to sell which we could expect, if we decide to sell one of our vessels, free of any charter arrangement. Management uses these
broker valuations in calculating compliance with debt covenants. Management also uses them as one consideration point in determining if there are indicators of impairment; however, management does not believe that a broker value lower
than book value in itself is an indicator of impairment. Management calculates recoverable amounts, using the value-in-use model, only when indicators of impairment exist. In connection with the vessels’ increasing age and market
development, a decline in market value of the vessels could take place in 2025.
|
ITEM 6. |
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
|
A. |
DIRECTORS AND SENIOR MANAGEMENT
|
Name
|
Age
|
Position
|
||
Erik A. Lind
|
68
|
Class III Director and Chairman
|
||
Einar Michael Steimler
|
75
|
Class II Director
|
||
Joseph H. Pyne
|
76
|
Class II Director
|
||
Jeremy Kramer
|
62
|
Class I Director
|
||
Sophie Rossini
|
42
|
Class III Director
|
||
Ana Zambelli
|
51
|
Class I Director
|
||
Svein Moxnes Harfjeld
|
59
|
President & Chief Executive Officer
|
||
Laila Cecilie Halvorsen
|
49
|
Chief Financial Officer
|
B. |
COMPENSATION
|
• |
all options outstanding as of the date the change of control is determined to have occurred will become fully exercisable and vested as of immediately prior to the change of control;
|
• |
all outstanding restricted shares that are still subject to restrictions on forfeiture will become fully vested and all restrictions and forfeiture provisions related thereto will lapse as of immediately prior to the change in control;
|
• |
all cash incentive awards will be paid out as if the date of the change of control were the last day of the applicable performance period and “target” performance levels had been attained; and
|
• |
all other outstanding awards will automatically be deemed exercisable or vested and all restrictions and forfeiture provisions related thereto will lapse as of immediately prior to such change of control.
|
• |
the consummation of a merger, reorganization or consolidation or sale or other disposition of all or substantially all of our assets;
|
• |
the approval by our stockholders of a plan of our complete liquidation or dissolution; or
|
• |
an acquisition by any individual, entity or group of beneficial ownership of 50% or more of either the then outstanding shares of our common stock or the combined voting power of our then outstanding voting securities entitled to vote
generally in the election of directors.
|
C. |
BOARD PRACTICES
|
D. |
EMPLOYEES
|
E. |
SHARE OWNERSHIP
|
ITEM 7. |
MAJOR STOCKHOLDERS AND RELATED PARTY TRANSACTIONS
|
A. |
MAJOR STOCKHOLDERS
|
Number of Shares of
Common Stock
|
Percentage
of
Shares of
Common
Stock1
|
|||||||
Owners of more than 5% of a class of our equity securities
|
||||||||
BW Group2
|
25,784,227
|
16.0
|
%
|
|||||
FMR LLC3
|
18,178,072
|
11.3
|
%
|
|||||
Dimensional Fund Advisors LP4
|
13,361,401
|
8.3
|
%
|
|||||
Directors
|
||||||||
Erik A. Lind
|
154,455
|
*
|
||||||
Einar Michael Steimler
|
139,967
|
*
|
||||||
Joseph H. Pyne
|
178,812
|
*
|
||||||
Jeremy Kramer
|
71,332
|
*
|
||||||
Sophie Rossini
|
75,826
|
*
|
||||||
Executive Officers
|
||||||||
Svein Moxnes Harfjeld
|
1,047,621
|
*
|
||||||
Laila Cecilie Halvorsen
|
185,309
|
*
|
||||||
Directors and executive officers as a group (8 persons)
|
1,853,322
|
1.1
|
%
|
1 |
Calculated based on Rule 13d-3(d)(1) under the Securities Exchange Act of 1934 (the “Exchange Act”), using 161,329,352 shares of common stock issued and outstanding as of March 15, 2024.
|
2 |
Based on Schedule 13D/A filed with the SEC on March 31, 2020, by BW Group Limited, the BW Group possesses the sole voting power over 25,704,652 shares. For purposes of the reporting requirements of the Exchange Act, BW Group Limited
was deemed to be a beneficial owner of such shares as of March 31, 2020. On June 1, 2020, 47,130 common shares were issued to BW Group as part of the 2016 Incentive Compensation Plan. On June 18, 2020, 32,445 common shares were issued to
BW Group as part of 2019 Incentive Compensation Plan. All shares beneficially owned are shares of common stock.
|
3 |
Based on a Schedule 13G/A filed with the SEC on February 9, 2024, by FMR LLC, which, as investment manager, possesses the power to direct investments or power to vote shares owned by various investment companies, commingled group
trusts and separate accounts. For purposes of the reporting requirements of the Exchange Act, FMR LLC was deemed to be a beneficial owner of such shares as of February 9, 2024. As of February 9, 2024, FMR LLC possessed the sole power to
vote or direct the vote of 18,174,883 shares and the sole power to dispose or to direct the disposition of 18,178,072 shares. All shares beneficially owned are shares of common stock.
|
4 |
Based on a Schedule 13G/A filed with the SEC on February 9, 2024, by Dimensional Fund Advisors LP (“Dimensional”), which, as investment manager, possesses the power to direct investments or power to vote shares owned by various
investment companies, commingled group trusts and separate accounts. For purposes of the reporting requirements of the Exchange Act, Dimensional was deemed to be a beneficial owner of such shares as of February 9, 2024. As of February 9,
2024, Dimensional possessed the sole power to vote or direct the vote of 13,185,426 shares and the sole power to dispose or to direct the disposition of 13,361,401 shares. All shares beneficially owned are shares of common stock.
|
B. |
RELATED PARTY TRANSACTIONS
|
C. |
INTEREST OF EXPERTS AND COUNSEL
|
ITEM 8. |
FINANCIAL INFORMATION
|
A. |
CONSOLIDATED STATEMENTS AND OTHER FINANCIAL INFORMATION
|
1.
|
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
2.
|
THREE YEARS COMPARATIVE FINANCIAL STATEMENTS
|
3.
|
AUDIT REPORTS
|
4.
|
LATEST AUDITED FINANCIAL STATEMENTS MAY BE NO OLDER THAN 15 MONTHS
|
5.
|
INTERIM FINANCIAL STATEMENTS IF DOCUMENT IS MORE THAN NINE MONTHS SINCE LAST AUDITED FINANCIAL YEAR
|
6.
|
EXPORT SALES IF SIGNIFICANT
|
7.
|
LEGAL PROCEEDINGS
|
8.
|
DIVIDENDS
|
B. |
SIGNIFICANT CHANGES
|
ITEM 9. |
THE OFFER AND LISTING
|
A. |
OFFER AND LISTING DETAILS
|
B. |
PLAN OF DISTRIBUTION
|
C. |
MARKETS FOR STOCK
|
D. |
SELLING SHAREHOLDERS
|
E. |
DILUTION FROM OFFERING
|
F. |
EXPENSES OF OFFERING
|
ITEM 10. |
ADDITIONAL INFORMATION
|
A. |
SHARE CAPITAL
|
B. |
ARTICLES OF INCORPORATION AND BYLAWS
|
• |
the designation of the series;
|
• |
the number of shares of the series;
|
• |
the preferences and relative, participating, option or other special rights, if any, and any qualifications, limitations or restrictions of such series; and
|
• |
the voting rights, if any, of the holders of the series.
|
Marshall Islands
|
Delaware
|
|
Stockholder Meetings
|
||
Held at a time and place as designated in the bylaws
|
May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as determined by the board of directors
|
|
May be held in or outside of the Marshall Islands
|
May be held in or outside of Delaware
|
|
Notice:
|
Notice:
|
|
• Whenever stockholders are required to take action at a meeting, written notice shall state the place, date and hour of the meeting and
indicate that it is being issued by or at the direction of the person calling the meeting
|
• Whenever stockholders are required to take action at a meeting, a written notice of the meeting shall state the place, if any, date and hour of the meeting and the means of remote
communication, if any
|
|
• A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before meeting
|
• Written notice shall be given not less than 10 nor more than 60 days before the meeting
|
|
Stockholder’s Voting Rights
|
||
Any action required to be taken by a meeting of stockholders may be taken without a meeting if unanimous consent is in writing and is signed by all the stockholders entitled to vote on the subject matter
|
Any action which may be taken at any meeting of stockholders may be taken without a meeting, if consent is in writing and signed by the holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize such action at a meeting at which all shares entitled to vote thereon were present and voted
|
|
Any person authorized to vote may authorize another person or persons to act for him by proxy
|
Any person authorized to vote may authorize another person to act for him by proxy
|
|
Unless otherwise provided in the articles of incorporation a majority of shares entitled to vote, in person or by proxy, constitutes a quorum. In no event shall a quorum consist of fewer than one-third of the shares entitled to vote at
a meeting
|
For non-stock companies, a certificate of incorporation or bylaws may specify the number of members to constitute a quorum
|
|
No provision for cumulative voting
|
For stock corporations, a certificate of incorporation or bylaws may specify the number to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of
such specifications, a majority of shares entitled to vote shall constitute a quorum
|
Marshall Islands
|
Delaware
|
|
The certificate of incorporation may provide for cumulative voting
|
Directors
|
||
The board of directors must consist of at least one member
|
The board of directors must consist of at least one member
|
|
Number of members can be changed by an amendment to the bylaws, by the stockholders, or by action of the board
|
Number of board members shall be fixed by the bylaws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number shall be made only by amendment of the certificate of incorporation
|
|
If the board of directors is authorized to change the number of directors, it can only do so by an absolute majority (majority of the entire board)
|
||
Dissenter’s Rights of Appraisal
|
||
Stockholders have a right to dissent from a merger or sale of all or substantially all assets not made in the usual course of business, and receive payment of the fair value of their shares
|
Appraisal rights shall be available for the shares of any class or series of stock of a corporation in a merger or consolidation
|
|
A holder of any adversely affected shares who does not vote on or consent in writing to an amendment to the articles of incorporation has the right to dissent and to receive payment for such shares if the amendment:
|
||
• Alters or abolishes any preferential right of any outstanding shares having preference;
|
||
• Creates, alters, or abolishes any provision or right with respect to the redemption of any outstanding shares;
|
||
• Alters or abolishes any preemptive right of such holder to acquire shares or other securities; or
|
||
• Excludes or limits the right of such holder to vote on any matter, except as such right may be limited by the voting rights given to new shares then being authorized of any
existing or new class
|
||
Stockholder’s Derivative Actions
|
||
An action may be brought in the right of a corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates or of a beneficial interest in such shares or certificates. It shall be made to appear
that the plaintiff is such a holder at the time of bringing the action and that he was such a holder at the time of the transaction of which he complains, or that his shares or his interest therein devolved upon him by operation of law
|
In any derivative suit instituted by a stockholder or a corporation, it shall be averred in the complaint that the plaintiff was a stockholder of the corporation at the time of the transaction of which he complains or that such
stockholder’s stock thereafter devolved upon such stockholder by operation of law
|
Marshall Islands
|
Delaware
|
|
Complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort
|
||
Such action shall not be discontinued, compromised or settled without the approval of the High Court of the Republic
|
||
Attorney’s fees may be awarded if the action is successful
|
||
Corporation may require a plaintiff bringing a derivative suit to give security for reasonable expenses if the plaintiff owns less than 5% of any class of stock and the shares have a value of less than $50,000
|
C. |
MATERIAL CONTRACTS
|
D. |
EXCHANGE CONTROLS
|
E. |
TAXATION
|
1. |
we are organized in a foreign country (the “country of organization”) that grants an “equivalent exemption” to corporations organized in the U.S.; and
|
2. |
either:
|
(A) |
more than 50% of the value of our stock is owned, directly or indirectly, by individuals who are “residents” of our country of organization or of another foreign country that grants an “equivalent exemption” to corporations organized
in the U.S., referred to as the “50% Ownership Test,” or
|
(B) |
our stock is “primarily and regularly traded on an established securities market” in our country of organization, in another country that grants an “equivalent exemption” to U.S. corporations or in the U.S., referred to as the
“Publicly Traded Test.”
|
(i) |
our common stock represents more than 50% of the total combined voting power of all classes of our stock entitled to vote and of the total value of all of our outstanding stock, referred to as the “trading threshold test”;
|
(ii) |
our common stock is traded on the market, other than in minimal quantities, on at least 60 days during the taxable year or 1/6 of the days in a short taxable year, referred to as the “trading frequency test”; and
|
(iii) |
the aggregate number of shares of our common stock traded on such market during the taxable year is at least 10% of the average number of shares of our common stock outstanding during such year (as appropriately adjusted in the case of
a short taxable year), referred to as the “trading volume test.”
|
• |
we had, or were considered to have, a fixed place of business in the U.S. involved in the earning of U.S. source gross transportation income and
|
• |
substantially all of our U.S. source gross transportation income was attributable to regularly scheduled transportation, such as the operation of a vessel that followed a published schedule with repeated sailings at regular intervals
between the same points for voyages that begin or end in the U.S.
|
• |
is an individual who is a U.S. citizen or resident, a U.S. corporation (or other entity that is classified as a corporation for U.S. income tax purposes), an estate the income of which is subject to U.S. federal income taxation
regardless of its source, or a trust if (1) a court within the U.S. is able to exercise primary jurisdiction over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the
trust or (2) the trust has validly elected to be treated as a U.S. trust,
|
• |
owns our common stock as a capital asset, and
|
• |
owns actually and constructively less than 10% of our common stock by vote and value.
|
• |
at least 75% of our gross income for such taxable year consists of “passive income” (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business), or
|
• |
at least 50% of the average value of our assets during such taxable year consists of “passive assets” (i.e., assets that produce, or are held for the production of, passive income).
|
• |
the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for the common stock,
|
• |
the amount allocated to the current taxable year and any taxable year prior to the first taxable year in which we were a PFIC during the Non-Electing Holder’s holding period would be taxed as ordinary income, and
|
• |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be
imposed with respect to the resulting tax attributable to each such other taxable year.
|
• |
the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the U.S. (and, if the Non-U.S. Holder is entitled to the benefits of an applicable U.S. income tax treaty with respect to that gain, that
gain is attributable to a permanent establishment maintained by the Non-U.S. Holder in the U.S.); or
|
• |
the Non-U.S. Holder is an individual who is present in the U.S. for 183 days or more during the taxable year of disposition and other conditions are met.
|
• |
fail to provide an accurate taxpayer identification number;
|
• |
are notified by the IRS that you have failed to report all interest or dividends required to be shown on your U.S. federal income tax returns; or
|
• |
in certain circumstances, fail to comply with applicable certification requirements.
|
F. |
DIVIDENDS AND PAYING AGENTS
|
G. |
STATEMENT OF EXPERTS
|
H. |
DOCUMENTS ON DISPLAY
|
I. |
SUBSIDIARY INFORMATION
|
J. |
ANNUAL REPORT TO SECURITY HOLDERS
|
ITEM 11. |
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
ITEM 12. |
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
|
ITEM 13. |
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
|
ITEM 14. |
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
|
ITEM 15. |
CONTROLS AND PROCEDURES
|
A. |
DISCLOSURE CONTROLS AND PROCEDURES
|
B. |
MANAGEMENT’S ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
|
C. |
ATTESTATION REPORT OF THE REGISTERED PUBLIC ACCOUNTING FIRM
|
D. |
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
|
ITEM 16. |
RESERVED
|
ITEM 16A. |
AUDIT COMMITTEE FINANCIAL EXPERT
|
ITEM 16B. |
CODE OF ETHICS
|
ITEM 16C. |
PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
Fees
|
2023
|
2022
|
||||||
Audit Fees 1
|
$
|
584,869
|
$
|
459,956
|
||||
Audit-Related Fees 2
|
44,307
|
37,018
|
||||||
Tax Fees 3
|
8,935
|
-
|
||||||
All Other Fees
|
-
|
-
|
||||||
Total
|
$
|
638,111
|
$
|
496,673
|
1 |
Audit fees for 2023 and 2022 represent fees for professional services provided in connection with the audit of our consolidated financial statements as of and for the periods ended December 31, 2023 and 2022, respectively.
|
2 |
Audit-related fees for 2023 consisted of $44,307 in respect of quarterly procedures. Audit-related fees for 2022 consisted of $37,018 in respect of quarterly procedures.
|
3 |
Tax fees for 2023 represent fees for professional services provided in connection with tax compliance.
|
ITEM 16D. |
EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
|
ITEM 16E. |
PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
|
Number of shares
purchased1
|
Average price paid
per share
|
Total number of shares
purchased as part of our
publicly announced
program
|
Maximum dollar value of shares
that may yet be purchased under
the program (USD millions)
|
|||||||||||||
January 2023
|
-
|
$
|
-
|
-
|
$
|
50.0
|
||||||||||
February 2023
|
-
|
-
|
-
|
50.0
|
||||||||||||
March 2023
|
-
|
-
|
-
|
100.0
|
||||||||||||
April 2023
|
-
|
-
|
-
|
100.0
|
||||||||||||
May 2023
|
-
|
-
|
-
|
100.0
|
||||||||||||
June 2023
|
1,072,344
|
8.25
|
1,072,344
|
91.2
|
||||||||||||
July 2023
|
249,739
|
8.46
|
249,739
|
89.0
|
||||||||||||
August 2023
|
-
|
-
|
-
|
89.0
|
||||||||||||
September 2023
|
887,844
|
8.80
|
887,844
|
81.2
|
||||||||||||
October 2023
|
-
|
-
|
-
|
81.2
|
||||||||||||
November 2023
|
-
|
-
|
-
|
81.2
|
||||||||||||
December 2023
|
-
|
-
|
-
|
81.2
|
||||||||||||
Total
|
2,209,927
|
$
|
8.49
|
2,209,927
|
$
|
81.2
|
1 |
These shares were repurchased under the authorized share repurchase program of up to $100 million covering the period from March 2023 to March 2024, approved by our board in March 2023.
|
ITEM 16G. |
CORPORATE GOVERNANCE
|
ITEM 16H. |
MINE SAFETY DISCLOSURE
|
ITEM 16I. |
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
|
ITEM 16J. |
INSIDER TRADING POLICIES
|
ITEM 16K. |
CYBERSECURITY
|
ITEM 17. |
FINANCIAL STATEMENTS
|
ITEM 18. |
FINANCIAL STATEMENTS
|
DHT Holdings, Inc. Consolidated Financial Statements
|
Page
|
Reports of Independent Registered Public Accounting Firm - Ernst & Young AS (PCAOB ID: 1572)
|
F-2
|
Consolidated Statement of Financial Position as of December 31, 2023 and 2022
|
F-4
|
Consolidated Income Statement for the years ended December 31, 2023, 2022 and 2021
|
F-5
|
Consolidated Statement of Comprehensive Income for the years ended December 31, 2023, 2022 and 2021
|
F-6
|
Consolidated Statement of Changes in Stockholders’ Equity for the years ended December 31, 2023, 2022 and 2021
|
F-7
|
Consolidated Statement of Cash Flow for the years ended December 31, 2023, 2022 and 2021
|
F-8
|
Notes to the Consolidated Financial Statements for the years ended December 31, 2023, 2022 and 2021
|
F-9
|
ITEM 19. |
EXHIBITS
|
Amended and Restated Articles of Incorporation of DHT Holdings, Inc. (incorporated by reference to Exhibit 3.1 of the Current Report on Form 6-K of DHT
Holdings, Inc. for the month of June 2017, Commission File Number 001-32640).
|
|
Amended and Restated Bylaws of DHT Holdings, Inc. (incorporated by reference to Exhibit 3.1 of the Current Report on Form 6-K of DHT Holdings, Inc. for the
month of May 2022, Commission File Number 001-32640).
|
|
Form of Common Stock Certificate of DHT Holdings, Inc. (incorporated by reference to Exhibit 2.1 of the Annual Report on Form 20-F of DHT Holdings, Inc.
for the year ended December 31, 2014, Commission File Number 001-32640).
|
|
Description of DHT Holdings, Inc.’s Securities Registered Under Section 12 of the Exchange Act. (incorporated by reference to Exhibit 2.1 of the Annual
Report on the Form 20-F of DHT Holdings, Inc. for the year ended December 31, 2022, Commission File Number 001-32640).
|
|
Investor Rights Agreement, dated as of April 20, 2017, between DHT Holdings, Inc. and BW Group Limited (incorporated by reference to Exhibit 10.1 of the
Current Report on Form 6-K of DHT Holdings, Inc. for the month of April 2017, Commission File Number 001-32640).
|
|
Danish Ship Finance Credit Facility, dated October 27, 2023.
|
|
Credit Agricole Credit Facility, dated as of June 22, 2015, as amended and restated November 29, 2022, among DHT Tiger Limited, as borrower, DHT Holdings,
Inc., as guarantor, the lenders party thereto and Credit Agricole Corporate and Investment Bank, as Agent (incorporated by reference to Exhibit 4.3 of the Annual Report on the Form 20-F of DHT Holdings, Inc. for the year ended December 31,
2022, Commission File Number 001-32640).
|
|
Nordea Credit Facility, dated as of June 27, 2023, among the borrowers party thereto, DHT Holdings, Inc., as guarantor, the lenders party thereto and
Nordea Bank Abp, filial i Norge, as Agent.
|
|
ING Credit Facility, dated as of January 26, 2023, among the borrowers party thereto, DHT Holdings, Inc., as guarantor, the lenders party thereto and ING
Bank N.V., as Agent (incorporated by reference to Exhibit 4.5 of the Annual Report on the Form 20-F of DHT Holdings, Inc. for the year ended December 31, 2022, Commission File Number 001-32640).
|
|
Employment Agreement of Svein Moxnes Harfjeld with DHT Management S.A.M. (effective as of November 1, 2019) (incorporated by reference to Exhibit 4.8 of
the Annual Report on Form 20-F of DHT Holdings, Inc. for the year ended December 31, 2019, Commission File Number 001-32640).
|
|
Employment Agreement of Laila Cecilie Halvorsen with DHT Management AS. (incorporated by reference to Exhibit 4.8 of the Annual Report on Form 20-F of DHT
Holdings, Inc. for the year ended December 31, 2018, Commission File Number 001-32640).
|
Form of Indemnification Agreement (incorporated by reference to Exhibit 4.9 of the Annual Report on Form 20-F of DHT Holdings, Inc. for the year ended
December 31, 2018, Commission File Number 001-32640).
|
|
2019 Incentive Compensation Plan (filed as Exhibit 4.1 to our Registration Statement on Form S-8 (File No. 333-234062) with the SEC on September 26, 2019,
and incorporated herein by reference).
|
|
2022 Incentive Compensation Plan (filed as Exhibit 4.11 of the Annual Report on Form 20-F of DHT Holdings, Inc. for the year ended December 31, 2022,
Commission File Number 001-32640 and incorporated herein by reference).
|
|
List of Significant Subsidiaries.
|
|
Certification of President & Chief Executive Officer required by Rule 13a-14(a) (17 CFR 240.13a-14(a)) or Rule 15d-14(a) (17 CFR 240.15d-14(b)).
|
|
Certification of Chief Financial Officer required by Rule 13a-14(a) (17 CFR 240.13a-14(a)) or Rule 15d-14(a) (17 CFR 240.15d-14(b)).
|
|
Certification furnished pursuant to Rule 13a-14(b) (17 CFR 240.13a-14(b)) or Rule 15d-14(b) (17 CFR 240.15d-14(b)) and Section 1350 of Chapter 63 of Title
18.
|
|
Consent of Ernst & Young AS.
|
|
Clawback Policy
|
|
101.INS
|
XBRL Instance Document
|
101.SCH
|
XBRL Taxonomy Extension Schema Document
|
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
101.DEF
|
XBRL Taxonomy Extension Definition Linkbase Document
|
101.LAB
|
XBRL Taxonomy Extension Label Linkbase Document
|
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase
|
DHT HOLDINGS, INC.
|
|||
Date: March 20, 2024
|
By:
|
/s/ Svein Moxnes Harfjeld
|
|
Name:
|
Svein Moxnes Harfjeld
|
||
Title:
|
President & Chief Executive Officer
(Principal Executive Officer)
|
DHT Holdings, Inc. Consolidated Financial Statements
|
|
F-2
|
|
F-4
|
|
F-5
|
|
F-6
|
|
F-7
|
|
F-8
|
|
F-9
|
Vessel impairment indicators
|
|
Description of the Matter
|
The carrying value of the Company’s vessels was $1,284 million as of December 31, 2023. As explained in Notes 2 and 6 to the
consolidated financial statements, management assesses vessels for indicators of impairment at the end of each reporting period or whenever events or changes in circumstances indicate that the carrying value of a vessel may
not be recoverable.
Auditing
management’s assessment of vessel impairment indicators was complex and required significant auditor judgment as management’s assessment of external and internal factors to determine whether impairment indicators exist is
based on assumptions affected by expected future market conditions. The potential impairment indicators with significant judgment were the developments in market conditions including broker values, charter rates, and weighted
average cost of capital.
|
How We Addressed the Matter in Our Audit
|
We
obtained an understanding, evaluated the design, and tested the operating effectiveness of controls over the Company’s impairment indicator review process, including controls over management’s review of the significant
indicators described above.
To
test management’s impairment indicator assessment, our audit procedures included, among others, comparing management’s methodology against the accounting guidance under IAS 36 Impairment of Assets. We tested the developments in market conditions by performing an independent analysis over changes in independent broker values, newbuilding prices,
and recent acquisition activity for both new and second-hand Very Large Crude Carriers (VLCC’s). We assessed the reasonableness of estimated daily charter rates by comparing them to historical charter rates developed by an
independent market research firm, and recent charter activity achieved within the DHT fleet. We tested the source information underlying the Company’s weighted average cost of capital calculation as well as the mathematical
accuracy of the model. We involved our valuation specialists to assist in developing a range of independent weighted average cost of capital estimates and compared those to the weighted average cost of capital selected by
management.
We
also assessed the adequacy of the potential vessel impairment indicator disclosures as included in Note 6 of the consolidated financial statements.
|
December 31, | December 31, | |||||||||
(Dollars in thousands)
|
Note
|
2023
|
2022
|
|||||||
ASSETS
|
||||||||||
Current assets
|
||||||||||
Cash and cash equivalents
|
8,9
|
$
|
|
$
|
|
|||||
Accounts receivable and accrued revenues
|
8,9
|
|
|
|||||||
Capitalized voyage expenses
|
4
|
|
|
|||||||
Prepaid expenses
|
11 |
|
|
|||||||
Derivative financial assets | 8 | |||||||||
Bunker inventory
|
12 |
|
|
|||||||
Total current assets
|
$
|
|
$
|
|
||||||
Non-current assets
|
||||||||||
Vessels
|
6
|
|
|
|||||||
Advances for vessel upgrades
|
6
|
|
|
|||||||
Other property, plant and equipment
|
6 |
|
|
|||||||
Goodwill | 16 | |||||||||
Total non-current assets
|
$
|
|
$
|
|
||||||
Total assets
|
$
|
|
$
|
|
||||||
LIABILITIES AND EQUITY
|
||||||||||
Current liabilities
|
||||||||||
Accounts payable and accrued expenses
|
7,8
|
|
|
|||||||
Current portion long-term debt
|
8,9
|
|
|
|||||||
Other current liabilities
|
8 |
|
|
|||||||
Deferred shipping revenues
|
4
|
|
|
|||||||
Total current liabilities
|
$
|
|
$
|
|
||||||
Non-current liabilities
|
||||||||||
Long-term debt
|
8,9
|
|
|
|||||||
Other non-current liabilities
|
|
|
||||||||
Total non-current liabilities
|
$
|
|
$
|
|
||||||
Total liabilities
|
$
|
|
$
|
|
||||||
Equity
|
||||||||||
Common stock at par value
|
10
|
|
|
|||||||
Additional paid-in capital
|
|
|
||||||||
Accumulated deficit
|
(
|
)
|
(
|
)
|
||||||
Translation differences
|
|
|
||||||||
Other reserves
|
|
|
||||||||
Total equity attributable to the Company
|
$
|
|
$
|
|
||||||
Non-controlling interest
|
$
|
|
$
|
|
||||||
Total equity
|
$
|
|
$
|
|
||||||
Total liabilities and equity
|
$
|
|
$
|
|
Year ended | Year ended | Year ended | ||||||||||||
December 31, | December 31, | December 31, | ||||||||||||
(Dollars in thousands, except share and per share amounts)
|
Note
|
2023
|
2022
|
2021
|
||||||||||
Shipping revenues
|
3,4
|
$
|
|
$
|
|
$
|
|
|||||||
Other revenues | 4 | |||||||||||||
Total revenues | $ | $ | $ | |||||||||||
Gain on sale of vessels | ||||||||||||||
Other income | 4 | |||||||||||||
Operating expenses
|
||||||||||||||
Voyage expenses
|
11 |
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
Vessel operating expenses
|
11 |
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
Depreciation and amortization
|
6
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
General and administrative expense
|
11
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
Total operating expenses
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
|
|||||
Operating income
|
$
|
|
$
|
|
$
|
|
||||||||
Share of profit from associated companies
|
16
|
|
|
|
||||||||||
Interest income
|
|
|
|
|||||||||||
Interest expense
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Fair value gain/(loss) on derivative financial liabilities
|
(
|
)
|
|
|
||||||||||
Other financial (expense)/income
|
(
|
)
|
(
|
)
|
|
|||||||||
Profit/(loss) before tax
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||||
Income tax expense
|
15
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
Profit/(loss) for the year
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||||
Attributable to the owners of non-controlling interest
|
$
|
|
$
|
|
$
|
|
||||||||
Attributable to the owners of parent
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||||
Attributable to the owners of parent: | ||||||||||||||
Basic earnings/(loss) per share
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||||
Diluted earnings/(loss) per share
|
$ |
$
|
|
$
|
(
|
)
|
||||||||
Weighted average number of shares (basic)
|
5
|
|
|
|
||||||||||
Weighted average number of shares (diluted)
|
5
|
|
|
|
Year ended | Year ended | Year ended | |||||||||||
December 31, | December 31, | December 31, | |||||||||||
(Dollars in thousands)
|
Note
|
2023
|
2022
|
2021
|
|||||||||
Profit/(loss) for the year
|
$
|
|
$
|
|
$
|
(
|
)
|
||||||
Other comprehensive income/(loss):
|
|||||||||||||
Items that will not be reclassified subsequently to profit or loss:
|
|||||||||||||
Remeasurement of defined benefit obligation, net of tax
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
Items that may be reclassified subsequently to profit or loss:
|
|||||||||||||
Exchange gain/(loss) on translation of foreign currency denominated associate and subsidiary
|
|
|
(
|
)
|
|||||||||
Total comprehensive income/(loss) for the period net of tax
|
$
|
|
$
|
|
$
|
(
|
)
|
||||||
Attributable to the owners of non-controlling interest
|
$
|
|
$
|
|
$
|
|
|||||||
Attributable to the owners of parent
|
17 |
$
|
|
$
|
|
$
|
(
|
)
|
Paid-in | Non- | |||||||||||||||||||||||||||||||||||||||
(Dollars in thousands, except per share data) | Additional | Treasury | Accumulated | Translation | Other | Controlling | Total | |||||||||||||||||||||||||||||||||
Shares
|
Amount
|
Capital
|
Shares
|
Deficit
|
Differences
|
Reserves 1
|
Interest
|
Equity
|
||||||||||||||||||||||||||||||||
Balance at January 1, 2021
|
|
$
|
|
$
|
|
$
|
|
$
|
(
|
)
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||||||||||||||||
Loss for the year
|
5 |
-
|
|
|
|
(
|
)
|
|
|
|
(
|
)
|
||||||||||||||||||||||||||||
Other comprehensive income/(loss)
|
-
|
|
|
|
(
|
)
|
(
|
)
|
|
|
(
|
)
|
||||||||||||||||||||||||||||
Total comprehensive income/(loss)
|
-
|
|
|
|
(
|
)
|
(
|
)
|
|
|
(
|
)
|
||||||||||||||||||||||||||||
Cash dividends declared and paid
|
10
|
-
|
|
|
|
(
|
)
|
|
|
|
(
|
)
|
||||||||||||||||||||||||||||
Purchase of treasury shares | 10 |
( |
) | ( |
) | |||||||||||||||||||||||||||||||||||
Retirement of treasury shares | 10 |
( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||||||
Compensation related to options and restricted stock
|
11
|
|
|
|
|
|
|
(
|
)
|
|
|
|||||||||||||||||||||||||||||
Balance at December 31, 2021
|
|
$
|
|
$
|
|
$
|
|
$
|
(
|
)
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||||||||||||||||
Balance at January 1, 2022 | $ | $ | $ | $ | ( |
) | $ | $ | $ | $ | ||||||||||||||||||||||||||||||
Profit for the year
|
5 | - | ||||||||||||||||||||||||||||||||||||||
Other comprehensive income/(loss) | - | ( |
) | ( |
) | |||||||||||||||||||||||||||||||||||
Total comprehensive income/(loss) | - | |||||||||||||||||||||||||||||||||||||||
Cash dividends declared and paid | 10 | - | ( |
) | ( |
) | ||||||||||||||||||||||||||||||||||
Purchase of treasury shares | 10 | ( |
) | ( |
) | |||||||||||||||||||||||||||||||||||
Retirement of treasury shares | 10 | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||||||
Adjustment related to non-controlling interest | 16 |
- | ||||||||||||||||||||||||||||||||||||||
Compensation related to options and restricted stock | 10,11 | ( |
) | |||||||||||||||||||||||||||||||||||||
Balance at December 31, 2022 | $ | $ | $ | $ | ( |
) | $ | $ | $ | $ | ||||||||||||||||||||||||||||||
Balance at January 1, 2023 | $ | $ | $ | $ | ( |
) | $ | $ | $ | $ | ||||||||||||||||||||||||||||||
Profit for the year | 5 |
- | ||||||||||||||||||||||||||||||||||||||
Other comprehensive income/(loss) | - | ( |
) | ( |
) | |||||||||||||||||||||||||||||||||||
Total comprehensive income/(loss) | - | |||||||||||||||||||||||||||||||||||||||
Cash dividends declared and paid | 10 |
- | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||||
Purchase of treasury shares | 10 |
( |
) | ( |
) | |||||||||||||||||||||||||||||||||||
Retirement of treasury shares | 10 |
( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||||||
Compensation related to
options and restricted stock |
10,11 |
( |
) | |||||||||||||||||||||||||||||||||||||
Balance at December 31, 2023 | $ | $ | $ | $ | ( |
) | $ | $ | $ | $ |
Year ended | Year ended | Year ended | ||||||||||||||
December 31, | December 31, | December 31, | ||||||||||||||
(Dollars in thousands)
|
Note
|
2023
|
2022
|
2021
|
||||||||||||
Cash flows from operating activities
|
||||||||||||||||
Profit/(loss) for the year
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||||||
Items included in net income not affecting cash flows:
|
||||||||||||||||
Depreciation and amortization
|
6
|
|
|
|
||||||||||||
Amortization of deferred debt issuance cost
|
|
|
|
|||||||||||||
(Gain) / loss, disposal of property, plant and equipment
|
||||||||||||||||
(Gain)/loss, sale of vessel
|
|
(
|
)
|
(
|
)
|
|||||||||||
Fair value (gain)/loss on derivative financial liabilities
|
8
|
|
(
|
)
|
(
|
)
|
||||||||||
Impairment of equity accounted investment
|
16 |
|||||||||||||||
Compensation related to options and restricted stock
|
11
|
|
|
|
||||||||||||
Net foreign exchange differences
|
( |
) | ( |
) | ||||||||||||
(Gain)/loss modification of debt
|
8 |
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Share of profit in associated companies
|
16
|
|
(
|
)
|
(
|
)
|
||||||||||
Changes in operating assets and liabilities:
|
||||||||||||||||
Accounts receivable and accrued revenues
|
8
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Capitalized voyage expenses
|
4
|
|
(
|
)
|
(
|
)
|
||||||||||
Prepaid expenses
|
11 |
(
|
)
|
(
|
)
|
|
||||||||||
Accounts payable and accrued expenses
|
7
|
(
|
)
|
|
|
|||||||||||
Deferred shipping revenues
|
4 |
|
(
|
)
|
(
|
)
|
||||||||||
Bunker inventory
|
12 |
(
|
)
|
|
(
|
)
|
||||||||||
Net cash provided by operating activities
|
$
|
|
$
|
|
$
|
|
||||||||||
Cash flows from investing activities
|
||||||||||||||||
Investment in vessels
|
6
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Proceeds from sale of vessels
|
6 |
|
|
|
||||||||||||
Purchase of non-controlling interest in subsidiary | ( |
) | ||||||||||||||
Acquisition of subsidiary, net of cash paid | 16 |
|||||||||||||||
Dividend received from associated company
|
|
|
|
|||||||||||||
Proceeds from sale of derivatives | ||||||||||||||||
Investment in other property, plant and equipment
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
Net cash (used in)/provided by investing activities
|
$
|
(
|
)
|
$
|
|
$
|
(
|
)
|
||||||||
Cash flows from financing activities
|
||||||||||||||||
Cash dividends paid
|
10
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Dividends paid to non-controlling interest | ( |
) | ||||||||||||||
Repayment principal element of lease liability
|
8 |
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Issuance of long-term debt
|
8,9
|
|
|
|
||||||||||||
Purchase of treasury shares
|
10 |
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Repayment of long-term debt
|
8,9
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
Net cash (used in)/provided by financing activities
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
||||||||
Net (decrease)/increase in cash and cash equivalents
|
(
|
)
|
|
(
|
)
|
|||||||||||
Net foreign exchange difference | ||||||||||||||||
Cash and cash equivalents at beginning of period
|
|
|
|
|||||||||||||
Cash and cash equivalents at end of period
|
8,9
|
$
|
|
$
|
|
$
|
|
|||||||||
Specification of items included in operating activities:
|
||||||||||||||||
Interest paid
|
$ |
|
$ |
|
$ |
|
||||||||||
Interest received
|
$ |
|
$ |
|
$ |
|
•
|
Revenue from time charters
|
•
|
Revenue from spot charters
|
(a) |
Receivables
|
(b) |
Derivatives
|
• |
Note 8 – Financial Instruments
|
• |
Note 11 – Operating expenses
|
• |
Depreciation: As described above, the Company reviews estimated useful lives and residual values each year. Estimated useful lives may change due to changed end-user requirements, costs related to maintenance and upgrades,
technological development and competition as well as industry, environmental and legal requirements. In addition, residual value may vary due to changes in market prices on scrap.
|
• |
Drydock period: The drydock period impacts the depreciation rate applied to capitalized survey cost. The vessels are required by their respective classification societies to go through a drydock at regular intervals. In
general, vessels below the age of 15 years are docked every five years and vessels older than 15 years are docked every 2.5 years.
|
• |
Value in use: As described in Note 6, in assessing “value in use,” the estimated future cash flows are discounted to their present value. In developing estimates of future cash flows, we must make significant assumptions about
future charter rates, future use of vessels, ship operating expenses, drydocking expenditures, utilization rates, fixed commercial and technical management fees, residual value of vessels, the estimated remaining useful lives of
the vessels, and the discount rate.
|
• |
Impairment: Each of the Company’s vessels has been treated as a separate CGU as the vessels have cash inflows that are largely independent of the cash inflows from other assets and therefore can be subject to a
value-in-use analysis. Judgment, as disclosed in Note 6, has been applied in connection with the assessment of indicators of impairment or reversal of prior impairment.
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Time charter revenues 1
|
$
|
|
$
|
|
$
|
|
||||||
Voyage charter revenues
|
|
|
|
|||||||||
Shipping revenues
|
$
|
|
$
|
|
$
|
|
||||||
Other revenues 2
|
||||||||||||
Total revenues
|
$ | $ | $ |
1 |
|
2 |
|
Vessel
|
Type of Employment
|
Expiry
|
||||
VLCC
|
||||||
DHT Appaloosa |
||||||
DHT Mustang
|
|
|||||
DHT Bronco
|
|
|||||
DHT Colt
|
|
|||||
DHT Stallion
|
|
|||||
DHT Tiger
|
|
|||||
DHT Harrier
|
|
|
||||
DHT Puma
|
|
|||||
DHT Panther
|
|
|||||
DHT Osprey
|
|
|
||||
DHT Lion
|
|
|||||
DHT Leopard
|
|
|||||
DHT Jaguar
|
|
|||||
DHT Taiga
|
|
|||||
DHT Opal
|
|
|||||
DHT Sundarbans
|
|
|||||
DHT Redwood
|
|
|||||
DHT Amazon
|
|
|||||
DHT Peony
|
|
|||||
DHT Lotus
|
|
|||||
DHT China
|
|
|||||
DHT Europe
|
|
|||||
DHT Bauhinia
|
|
|||||
DHT Scandinavia
|
|
Year
|
Amount | |||
2024
|
$
|
|
||
2025
|
|
|||
2026
|
|
|||
2027
|
||||
Thereafter
|
|
|||
Net charter payments
|
$
|
|
Note
|
|||
Accounts receivable and accrued revenues
|
note 8,9
|
|
2023
|
2022
|
2021
|
|||||||||
Deferred shipping revenues
|
$
|
|
$
|
|
$
|
|
|
2023
|
2022
|
2021
|
|||||||||
Capitalized voyage expenses
|
$
|
|
$
|
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Profit/(loss) for the period used for calculation of EPS - basic
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||
Profit/(loss) for the period used for calculation of EPS - dilutive
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||
Basic earnings per share:
|
||||||||||||
Weighted average shares outstanding - basic
|
|
|
|
|||||||||
Diluted earnings per share:
|
||||||||||||
Weighted average shares outstanding - basic
|
|
|
|
|||||||||
Dilutive equity awards 1
|
|
|
|
|||||||||
Weighted average shares outstanding - dilutive
|
|
|
|
1 |
Company
|
Vessel name
|
Dwt
|
Flag State
|
Year Built
|
DHT Appaloosa |
||||
|
DHT Mustang
|
|
|
|
|
DHT Bronco
|
|
|
|
|
DHT Colt
|
|
|
|
|
DHT Stallion
|
|
|
|
|
DHT Tiger
|
|
|
|
DHT Harrier | ||||
|
DHT Puma
|
|
|
|
|
DHT Panther
|
|
|
|
DHT Osprey | ||||
|
DHT Lion
|
|
|
|
|
DHT Leopard
|
|
|
|
|
DHT Jaguar
|
|
|
|
|
DHT Taiga
|
|
|
|
DHT Opal
|
||||
DHT Sundarbans
|
||||
DHT Redwood
|
||||
DHT Amazon
|
||||
|
DHT Peony
|
|
|
|
|
DHT Lotus |
|
|
|
DHT China |
||||
DHT Europe |
||||
DHT Bauhinia |
||||
DHT Scandinavia |
(Dollars in thousands)
|
Vessels
|
Drydock
|
EGCS1
|
Total
|
||||||||||||
Cost
|
||||||||||||||||
As of January 1, 2023
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Additions |
||||||||||||||||
Transferred from vessel upgrades
|
|
|
|
|
||||||||||||
Disposals
|
|
(
|
)
|
|
(
|
)
|
||||||||||
As of December 31, 2023
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
|
||||||||||||||||
Accumulated depreciation and impairment
|
||||||||||||||||
As of January 1, 2023
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
||||
Charge for the period
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Disposals
|
|
|
||||||||||||||
As of December 31, 2023
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
||||
Net book value
|
||||||||||||||||
As of December 31, 2023
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Cost
|
||||||||||||||||
As of January 1, 20222
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Additions
|
( |
) | ||||||||||||||
Transferred from vessel upgrades
|
|
|
|
|
||||||||||||
Disposals
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
As of December 31, 2022
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Accumulated depreciation and impairment
|
||||||||||||||||
As of January 1, 20222
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
||||
Charge for the period
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Disposals
|
|
|
|
|
||||||||||||
As of December 31, 2022
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
$ |
(
|
)
|
||||
Net book value
|
||||||||||||||||
As of December 31, 2022
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Advances for vessel upgrades
|
||||||||||||||||
As of January 1, 2023
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Additions
|
|
|
|
|
||||||||||||
Transferred to vessels
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||
As of December 31, 2023
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
As of January 1, 2022
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Additions
|
|
|
|
|
||||||||||||
Transferred to vessels
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||
As of December 31, 2022
|
$ |
|
$ |
|
$ |
|
$ |
|
1
|
|
2
|
|
(Dollars in thousands)
|
2023
|
2022
|
||||||
Right-of-use assets
|
$
|
|
$
|
|
||||
Other property, plant and equipment
|
|
|
||||||
Total other property, plant and equipment
|
$
|
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
||||||
Accounts payable
|
$
|
|
$
|
|
||||
Accrued interest
|
|
|
||||||
Accrued voyage expenses
|
|
|
||||||
Accrued employee compensation
|
|
|
||||||
Other1
|
|
|
||||||
Total accounts payable and accrued expenses
|
$
|
|
$
|
|
1 |
(Dollars in thousands)
|
Carrying amount
|
|||||||
Financial assets
|
2023
|
2022
|
||||||
Cash and cash equivalents 1, 3
|
$
|
|
$
|
|
||||
Accounts receivable and accrued revenues 1
|
|
|
||||||
Derivative financial assets, current 2
|
||||||||
Total financial assets
|
$
|
|
$
|
|
||||
Financial liabilities
|
||||||||
Accounts payables and accrued expenses 1
|
$
|
|
$
|
|
||||
Current portion long term debt 1
|
|
|
||||||
Long term debt 1
|
|
|
||||||
Total financial liabilities
|
$
|
|
$
|
|
1 |
|
2 |
|
3 |
|
Notional amount
|
Fair value - Financial asset
|
||||||||||||||||
(Dollars in thousands)
|
Expires
|
2023
|
2022
|
2023
|
2022
|
||||||||||||
Swap pays
|
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Swap pays
|
|
|
|
|
|
||||||||||||
Total carrying amount
|
|
$
|
|
$
|
|
$
|
|
$
|
|
|
|
Remaining |
Carrying amount
|
||||||||||||||
(Dollars in thousands) |
Interest
|
Maturity |
notional
|
2023 |
2022 |
||||||||||||
Credit Agricole Credit Facility
|
SOFR +
|
$ |
|
$ | $ | ||||||||||||
Danish Ship Finance Credit Facility
|
SOFR + CAS1 +
|
|
|||||||||||||||
Nordea Credit Facility
|
SOFR + CAS2 +
|
|
|||||||||||||||
ING Credit Facility | SOFR + |
||||||||||||||||
ING Credit Facility
|
SOFR + |
|
|||||||||||||||
ABN AMRO Credit Facility3 | |||||||||||||||||
Total carrying amount
|
$ |
|
$ | $ |
1 | |
2 |
|
3 |
Non-cash changes | ||||||||||||||||||||
As of January
1, 2023
|
Financing cash
flows 1
|
Amortization
|
Other
changes 2
|
As of
December 31,
2023
|
||||||||||||||||
Bank loans 3
|
$
|
|
$
|
|
$
|
|
$
|
(
|
)
|
$
|
|
|||||||||
Office leases 4
|
|
(
|
)
|
|
|
|||||||||||||||
Total 5
|
$
|
|
$
|
|
$
|
|
$
|
|
$
|
|
Non-cash changes | ||||||||||||||||||||
As of January
1, 2022
|
Financing cash
flows 1
|
Amortization
|
Other
changes 2
|
As of
December 31,
2022
|
||||||||||||||||
Bank loans 3
|
$
|
|
$
|
(
|
)
|
$
|
|
$
|
(
|
)
|
$
|
|
||||||||
Office leases 4
|
|
(
|
)
|
|
|
|||||||||||||||
Total 5
|
$
|
|
$
|
(
|
)
|
$
|
|
$
|
|
$
|
|
1 |
|
2 |
|
3 |
|
4 |
|
5 |
|
● |
profit for the year ended December 31, 2023 would decrease/increase by $
|
● |
other comprehensive income would not be affected.
|
● |
profit for the year ended December 31, 2022 would decrease/increase by $
|
● |
other comprehensive income would not be affected.
|
● |
loss for the year ended December 31, 2021 would decrease/increase by $
|
● |
other comprehensive income would not be affected.
|
(Dollars in thousands)
|
2023
|
2022
|
||||||
Cash and cash equivalents
|
$
|
|
$
|
|
||||
Accounts receivable and accrued revenues
|
|
|
||||||
Maximum credit exposure
|
$
|
|
$
|
|
As of December 31, 2023
|
||||||||||||||||
2 to 5
|
More than
|
|||||||||||||||
(Dollars in thousands)
|
1 year
|
years
|
5 years
|
Total
|
||||||||||||
Interest bearing loans
|
$ |
|
$ |
|
$ |
|
$ |
|
||||||||
Total
|
$
|
|
$
|
|
$
|
|
$
|
|
As of December 31, 2022
|
||||||||||||||||
2 to 5
|
More than
|
|||||||||||||||
(Dollars in thousands)
|
1 year |
years |
5 years |
Total |
||||||||||||
Interest bearing loans
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
Interest rate swaps
|
(
|
)
|
|
|
(
|
)
|
||||||||||
Total
|
$
|
|
$
|
|
$
|
|
$
|
|
(Dollars in thousands, except per share data)
|
Common stock
|
Preferred stock | ||||||
Issued at December 31, 2021
|
|
|||||||
Restricted stock issued
|
|
|||||||
Retirement of treasury shares |
(
|
)
|
||||||
Issued at December 31, 2022
|
|
|||||||
Restricted stock issued
|
|
|||||||
Retirement of treasury shares
|
(
|
)
|
||||||
Issued at December 31, 2023
|
|
|||||||
Par value
|
$
|
|
$ |
|||||
Number of shares authorized for issue at December 31, 2023
|
|
Dividend payments as of December 31, 2023:
|
Per share
|
||||
Payment date:
|
Total payment
|
Common
|
|||
February 24, 2023
|
$ |
|
$
|
|
|
May 25, 2023
|
$ |
|
$
|
|
|
August 30, 2023
|
$ |
|
$
|
|
|
November 28, 2023
|
$ |
|
$
|
|
|
Total payments as of December 31, 2023
|
$ |
|
$
|
|
Dividend payments as of December 31, 2022:
|
Per share |
||||
Payment date:
|
Total payment
|
Common
|
|||
February 24, 2022
|
$ |
|
$
|
|
|
May 26, 2022
|
$ |
|
$
|
|
|
August 30, 2022
|
$ |
|
$
|
|
|
November 29, 2022
|
$ |
|
$
|
|
|
Total payments as of December 31, 2022
|
$ |
|
$
|
|
Dividend payments as of December 31, 2021:
|
Per share |
||||
Payment date:
|
Total payment |
Common
|
|||
February 25, 2021
|
$ |
|
$
|
|
|
May 26, 2021
|
$ |
|
$
|
|
|
August 26, 2021
|
$ |
|
$
|
|
|
November 23, 2021
|
$ |
|
$
|
|
|
Total payments as of December 31, 2021
|
$ |
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Bunkers
|
$
|
|
$
|
|
$
|
|
||||||
Other voyage related expenses |
|
|
|
|||||||||
Total voyage expenses
|
$
|
|
$
|
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Operating expenses |
$
|
|
$
|
|
$
|
|
||||||
Insurance
|
|
|
|
|||||||||
Total vessel operating expenses |
$
|
|
$
|
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Total compensation to employees and Directors |
$
|
|
$
|
|
$
|
|
||||||
Office and administrative expenses |
|
|
|
|||||||||
Audit, legal and consultancy |
|
|
|
|||||||||
Total general and administrative expenses |
$
|
|
$
|
|
$
|
|
Number of
|
Vesting
|
Fair value
|
||||||
shares/ options
|
Period
|
at grant date
|
||||||
Granted January 2020, restricted shares
|
|
|
$
|
|
||||
Granted January 2020, restricted shares
|
|
|
|
|||||
Granted January 2020, restricted shares
|
|
|
|
|||||
Granted January 2021, restricted shares
|
|
|
|
|||||
Granted January 2021, restricted shares
|
|
|
|
|||||
Granted January 2021, restricted shares
|
|
|
|
|||||
Granted January 2022, restricted shares
|
|
|
|
|||||
Granted January 2022, restricted shares
|
|
|
|
|||||
Granted January 2022, restricted shares
|
|
|
|
|||||
Granted January 2023, restricted shares
|
|
|
|
|||||
Granted January 2023, restricted shares
|
|
|
|
|||||
Granted January 2023, restricted shares
|
|
|
$
|
|
Restricted
common stock
|
||||
Outstanding at December 31, 2020
|
|
|||
Granted
|
|
|||
Exercised 1
|
|
|||
Forfeited
|
|
|||
Outstanding at December 31, 2021
|
|
|||
Outstanding at December 31, 2021
|
|
|||
Granted
|
|
|||
Exercised 1
|
|
|||
Forfeited
|
|
|||
Outstanding at December 31, 2022
|
|
|||
Outstanding at December 31, 2022
|
|
|||
Granted
|
|
|||
Exercised 1
|
|
|||
Forfeited
|
|
|||
Outstanding at December 31, 2023
|
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Expense recognized from stock compensation
|
$
|
|
$
|
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Cash compensation
|
$
|
|
$
|
|
$
|
|
||||||
Pension cost
|
|
|
|
|||||||||
Share compensation 1
|
|
|
|
|||||||||
Total remuneration
|
$
|
|
$
|
|
$
|
|
2023
|
2022
|
2021
|
||||||||||
Executives and Directors as a group 1
|
|
|
|
(Dollars in thousands)
|
2023 | 2022 | ||||||
Prepaid voyage expenses
|
$
|
|
$ | |||||
Prepaid vessel operating expenses
|
|
|||||||
Other
|
|
|||||||
Total prepaid expenses
|
$
|
|
$ |
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Income tax payable
|
$
|
|
$
|
|
$
|
|
||||||
Tax expenses related to previous year
|
|
(
|
)
|
(
|
)
|
|||||||
Change in deferred tax
|
|
(
|
)
|
|
||||||||
Total income tax expense
|
$
|
|
$
|
|
$
|
|
December 31, | December 31, | December 31, | ||||||||||
(Dollars in thousands) | 2023 |
2022 |
2021 |
|||||||||
Property, plant and equipment
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||
Pensions
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Total basis for deferred tax
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
|
|||
Deferred tax liability(asset), net 1
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
|
|||
Deferred tax (asset), gross 2
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Deferred tax liability, gross 2
|
|
|
|
1 |
|
2 |
|
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Profit/(loss) before income tax
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||
Expected income tax assessed at the tax rate for the Parent company (
|
|
|
|
|||||||||
Adjusted for tax effect of the following items:
|
||||||||||||
Income in subsidiary, subject to income tax
|
|
|
|
|||||||||
Total income tax expense
|
$
|
|
$
|
|
$
|
|
(Dollars in thousands)
|
2023
|
2022
|
|||||
Investment in associate company
|
$
|
|
$
|
|
(Dollars in thousands)
|
||||||||||||
Company’s share of
|
2023
|
2022
|
2021
|
|||||||||
Profit after taxation
|
$
|
|
$
|
|
$
|
|
||||||
Other comprehensive income for the year, net of tax
|
$ |
$ |
( |
) | $ |
( |
) | |||||
Total comprehensive income for the year
|
$
|
|
$
|
|
$
|
|
(Dollars in thousands)
|
FV recognized on
acquisition
|
|||
ASSETS
|
||||
Current assets
|
$
|
|
||
Non-current assets
|
|
|||
Total assets
|
$
|
|
||
LIABILITIES
|
||||
Current liabilities
|
$
|
(
|
)
|
|
Non-current liabilities
|
(
|
)
|
||
Total liabilities
|
$
|
(
|
)
|
|
TOTAL IDENTIFIABLE NET ASSETS AT FAIR VALUE
|
$
|
|
||
Previously held equity interest measured at fair value
|
$
|
(
|
)
|
|
Non-controlling interest measured at fair value
|
(
|
)
|
||
Goodwill arising on acquisition
|
|
|||
PURCHASE CONSIDERATION TRANSFERRED
|
$
|
|
(Dollars in thousands)
|
Cash flow
on
acquisition
|
|||
Net cash acquired with the subsidiary
|
$
|
|
||
Cash paid
|
(
|
)
|
||
NET CASH FLOW ON ACQUISITION
|
$
|
|
December 31,
|
December 31,
|
|||||||
(Dollars in thousands)
|
2023
|
2022
|
||||||
ASSETS
|
||||||||
Current assets
|
||||||||
Cash and cash equivalents
|
$
|
|
$
|
|
||||
Accounts receivable and prepaid expenses
|
|
|
||||||
Amounts due from related parties
|
|
|
||||||
Total current assets
|
$
|
|
$
|
|
||||
Investments in subsidiaries
|
$
|
|
$
|
|
||||
Loan to subsidiaries
|
|
|
||||||
Total non-current assets
|
$
|
|
$
|
|
||||
Total assets
|
$
|
|
$
|
|
||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
||||||||
Current liabilities
|
||||||||
Accounts payable and accrued expenses
|
$
|
|
$
|
|
||||
Total current liabilities
|
$
|
|
$
|
|
||||
Stockholders’ equity
|
||||||||
Stock
|
$
|
|
$
|
|
||||
Paid-in additional capital
|
|
|
||||||
Accumulated deficit
|
(
|
)
|
(
|
)
|
||||
Total stockholders’ equity
|
$
|
|
$
|
|
||||
Total liabilities and stockholders’ equity
|
$
|
|
$
|
|
|
Year ended |
Year ended | Year ended | |||||||||
December 31, |
December 31, |
December 31, | ||||||||||
(Dollars
in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Revenues | $ | $ | $ | |||||||||
Impairment charge
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Dividend income
|
|
|
|
|||||||||
General and administrative expense
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Operating income/(loss)
|
$
|
|
$
|
|
$
|
|
||||||
Interest income
|
$
|
|
$
|
|
$
|
|
||||||
Other financial (expense)/income
|
(
|
)
|
(
|
)
|
|
|||||||
Profit/(loss) for the year
|
$
|
|
$
|
|
$
|
|
|
Year ended |
Year ended | Year ended | |||||||||
December 31, |
December 31, |
December 31, |
||||||||||
(Dollars
in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Profit/(loss) for the year
|
$
|
|
$
|
|
$
|
|
||||||
Total comprehensive income/(loss) for the period
|
$
|
|
$
|
|
$
|
|
||||||
Attributable to the owners
|
$
|
|
$
|
|
$
|
|
|
Year ended |
Year ended | Year ended |
|||||||||
December 31, | December 31, | December 31, |
||||||||||
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Cash flows from operating activities
|
||||||||||||
Profit/(loss) for the year
|
$
|
|
$
|
|
$
|
|
||||||
Items included in net income not affecting cash flows:
|
||||||||||||
Impairment charge
|
|
|
|
|||||||||
Compensation related to options and restricted stock
|
|
|
|
|||||||||
Changes in operating assets and liabilities:
|
||||||||||||
Accounts receivable and prepaid expenses
|
|
(
|
)
|
|
||||||||
Accounts payable and accrued expenses
|
|
(
|
)
|
|
||||||||
Amounts due to related parties
|
|
(
|
)
|
(
|
)
|
|||||||
Net cash provided by/(used in) operating activities
|
$
|
|
$
|
|
$
|
|
||||||
Cash flows from investing activities
|
||||||||||||
Investments in subsidiaries
|
$ | $ | ( |
) | $ | |||||||
Loan to subsidiaries
|
$
|
|
$
|
|
$
|
(
|
)
|
|||||
Net cash provided by/(used in) investing activities |
$
|
|
$
|
|
$
|
(
|
)
|
|||||
Cash flows from financing activities
|
||||||||||||
Cash dividends paid
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
|
|||
Purchase of treasury shares
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Net cash used in financing activities |
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
|
|||
Net increase/(decrease) in cash and cash equivalents |
$
|
(
|
)
|
$
|
|
$
|
|
|||||
Cash and cash equivalents at beginning of period
|
|
|
|
|||||||||
Cash and cash equivalents at end of period
|
$
|
|
$
|
|
$
|
|
Year ended |
Year ended |
Year ended | ||||||||||
December 31, | December 31, |
December 31, |
||||||||||
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Profit/(loss) of the parent company only under cost method of accounting
|
$
|
|
$
|
|
$
|
|
||||||
Additional profit/(loss) if subsidiaries had been accounted for using equity method of accounting as opposed to cost method of accounting
|
|
(
|
)
|
(
|
)
|
|||||||
Profit/(loss) of the parent company only under equity method of accounting
|
$
|
|
$
|
|
$
|
(
|
)
|
December 31, | December 31, | December 31, | ||||||||||
(Dollars in thousands)
|
2023
|
2022
|
2021
|
|||||||||
Equity of the parent company only under cost method of accounting
|
$
|
|
$
|
|
$ | |||||||
Additional profit if subsidiaries had been accounted for using equity method of accounting as opposed to cost method of accounting
|
|
|
||||||||||
Equity of the parent company only under equity method of accounting
|
$
|
|
$
|
|
$ |
EXECUTION VERSION
|
(1)
|
DHT JAGUAR LIMITED, incorporated under the laws of the Republic of the Marshall Islands as borrower (the "Borrower");
|
(2) |
DHT HOLDINGS, INC., The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands as guarantor (the "Guarantor");
|
(3)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 of the Facility Agreement as lenders (the "Original Lenders"); and
|
(4) |
DANISH SHIP FINANCE A/S, registration no. (CVR-nr) 27 49 26 49 of Sankt Annæ Plads 3, 1250 København K, Denmark as agent (the "Agent").
|
(A) |
Pursuant to the up to USD 49,400,000 original facility agreement dated 26 November 2014 (the "Original Facility Agreement") made between the Parties, the Original Lenders made available to the
Borrower the loan on the terms set out therein.
|
(B) |
The Parties have agreed to amend and restate the Original Facility Agreement in particular for the purpose of changing the floating interest rate element from LIBOR to Term SOFR (or compounded SOFR if switched) + CAS, subject to the
terms and conditions of this Amendment No. 4.
|
1 |
INTERPRETATION AND DESIGNATION
|
(a) |
In this Amendment No. 4:
|
(b) |
Capitalised words and expressions used herein and not otherwise defined herein are used as defined in the New Facility Agreement.
|
(c) |
References herein to the "Facility Agreement" shall be construed as references to the Original Facility Agreement up until the Effective Date and as references to the New Facility Agreement upon and any time after the Effective Date or
as the context otherwise may require.
|
(d) |
The principles of construction set out in Clause 1.2 (Construction) of the Facility Agreement shall have effect as if set out in this Amendment No. 4.
|
(e) |
This Amendment No. 4 and the New Facility Agreement shall be deemed to be Finance Documents.
|
2 |
AMENDMENTS TO THE ORIGINAL FACILITY AGREEMENT
|
3 |
AMENDMENT AND RESTATEMENT OF FACILITY AGREEMENT AS OF EFFECTIVE DATE
|
(a) |
As of the Effective Date the Original Facility Agreement shall automatically be amended and restated in the form of the New Facility Agreement, including for the avoidance of doubt so that the Guarantor shall automatically provide the
Guarantee on the terms as set out in Clause 19 (Guarantee and Indemnity) of the New Facility Agreement.
|
(b) |
This Amendment No. 4 shall, except for clause 2 (Amendments to the Original Facility Agreement) and clause 6 (Miscellaneous), each of which is effective
from the date hereof, be effective from and including the first new Interest Period commencing after 30 June 2023 (the "Effective Date").
|
(c) |
The Borrower undertakes to provide the Agent (in a form and substance acceptable to it) with all the documents and evidence listed in schedule 1 (Conditions precedent documents) hereto prior to
the Effective Date.
|
4 |
REPETITION
|
5 |
CONFIRMATIONS
|
6 |
MISCELLANEOUS
|
(a) |
The Borrower shall pay to the Agent upon demand, all legal and other expenses incurred by the Agent in connection with this Amendment No. 4 and any other documents incidental hereto.
|
(b) |
This Amendment No. 4 shall be governed by and interpreted under Norwegian law with venue as set out in the Facility Agreement.
|
1. |
Corporate documents relating to the Borrower and the Guarantor
|
(a) |
Certified copies of the constitutional documents, certificate of incorporation, extract from the relevant company registry and/or updated certificate of good standing of the relevant company;
|
(b) |
A certified copy of a resolution of the board of directors of the relevant company (i) approving the terms of, and the transactions contemplated by, the Amendment No. 4 and other relevant Finance Documents to which it is a party and
resolving that it execute such documents to which it is a party, (ii) authorising a specified person or persons to execute the Amendment No. 4 and other relevant Finance Documents to which it is a party on its behalf and (iii) authorising
a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Amendment No. 4 and other relevant Finance Documents to which it is a
party.
|
(c) |
Certified copies of the resolutions of the Borrower's shareholder(s) approving the terms of, and the transactions contemplated by, the Amendment No. 4 and other relevant Finance Documents to which it is a party, if applicable.
|
(d) |
If relevant, an original Power of Attorney (notarised if requested by the Agent); and
|
(e) |
A certificate of an authorised signatory (including any authorised director, secretary, treasurer or chief financial officer) of the relevant company setting out the name of the Directors of the relevant Obligor certifying that each
copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of the Amendment No. 4.
|
2. |
Finance Documents
|
(a) |
All and any new documentation or amendments to for the Existing Security (including but not limited to any amendment agreements, letters, notices, acknowledgements, registrations, filings etc.) deemed relevant by the Agent in order to
ensure and verify that the Existing Security become or remain, as the case might be, in full force and effect according to the terms of the Amendment No. 4.
|
3. |
Miscellaneous
|
(a) |
A legal opinion from the legal advisers to the Agent in the relevant jurisdiction, substantially in the form distributed to and approved by all Lenders.
|
(b) |
Any other documents as reasonably requested by the Agent.
|
7 |
SIGNATORIES
|
Borrower:
|
||
DHT JAGUAR LIMITED
|
||
By:
|
/s/ Laila C. Halvorsen | |
Name: Laila C. Halvorsen | ||
Title: Attorney-in-Fact | ||
Guarantor: | ||
DHT HOLDINGS, INC. | ||
By: | /s/ Laila C. Halvorsen | |
Name: Laila C. Halvorsen | ||
Title: Attorney-in-Fact |
Original Lender and Agent:
|
||
DANMARKS SKIBSKREDIT A/S
|
||
By: |
/s/ Eline Hammerlund Fangel | |
Name: Eline Hammerlund Fangel |
||
Title: Attorney-in-Fact |
The process agent
|
||
DHT MANAGEMENT AS
|
||
By: | /s/ Laila C. Halvorsen | |
Name: Laila C. Halvorsen | ||
Title: CEO |
CONTENTS
|
|
Clause
|
Page
|
1.
|
Definitions and Interpretation
|
4 |
2.
|
The Facility
|
24 |
3.
|
Purpose
|
24 |
4.
|
Conditions of Utilisation
|
24 |
5.
|
Utilisation
|
26 |
6.
|
Repayment
|
27 |
7.
|
Prepayment and cancellation
|
27 |
8.
|
Optional Rate Switch
|
30 |
9.
|
Interest
|
31 |
10.
|
Interest Periods
|
32 |
11.
|
Changes to the calculation of interest
|
32 |
12.
|
Fees and costs
|
34 |
13.
|
Tax gross up and indemnities
|
35 |
14.
|
Increased costs
|
39 |
15.
|
Other indemnities
|
41 |
16.
|
Mitigation by the Lenders
|
42 |
17.
|
Costs and expenses
|
42 |
18.
|
Security
|
44 |
19.
|
Guarantee and indemnity
|
45 |
20.
|
Representations
|
48 |
21.
|
Information undertakings
|
53 |
22.
|
Financial covenants
|
57 |
23.
|
General undertakings
|
57 |
24.
|
Vessel undertakings
|
62 |
25.
|
Events of Default
|
68 |
26.
|
Changes to the Lenders
|
72 |
27.
|
Changes to the Obligors
|
75 |
28.
|
Role of the Agent
|
77 |
29.
|
Conduct of business by the Finance Parties
|
82 |
30.
|
Sharing among the Finance Parties
|
83 |
31.
|
Payment mechanics
|
85 |
32.
|
Set-off
|
87 |
33.
|
Bail-in
|
87 |
34.
|
Notices
|
87 |
35.
|
Calculations and certificates
|
90 |
36.
|
Partial invalidity
|
90 |
37.
|
Remedies and waivers
|
90 |
38.
|
Amendments and waivers
|
90 |
39.
|
Guarantor's liability
|
94 |
40.
|
Counterparts
|
94 |
41.
|
Conflict
|
94 |
42.
|
Governing law
|
95 |
43.
|
Enforcement
|
95 |
SCHEDULE 1 THE ORIGINAL LENDERS
|
96
|
SCHEDULE 2 CONDITIONS PRECEDENT
|
97
|
SCHEDULE 3 UTILISATION REQUEST
|
102
|
SCHEDULE 4 OPTIONAL RATE SWITCH NOTICE
|
103
|
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE
|
104
|
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE
|
106
|
SCHEDULE 7 FORM OF ACCESSION LETTER
|
108
|
SCHEDULE 8 REPAYMENT SCHEDULE
|
110
|
SCHEDULE 9 FA ACT SECTION 3-12
|
111
|
SCHEDULE 10 DAILY NON-CUMULATIVE COMPOUNDED RFR RATE
|
112
|
(1) |
DHT JAGUAR LIMITED, incorporated under the laws of the Republic of the Marshall Islands as borrower (the "Borrower");
|
(2) |
DHT HOLDINGS, INC., The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands as guarantor (the "Guarantor");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1 of the Original Facility Agreement as lenders (the "Original Lenders"); and
|
(4) |
DANISH SHIP FINANCE A/S, registration no. (CVR-nr) 27 49 26 49 of Sankt Annæ Plads 3, 1250 København K, Denmark as agent (the "Agent").
|
1. |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in the Loan or Unpaid Sum to the last day of the current Interest Period in respect of the Loan or Unpaid
Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the relevant market for the applicable Reference Rate for a period
starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a) |
Interest Periods of 1 month: 0.11448%;
|
(b) |
Interest Periods between 1 month plus 1 day and 2 months: 0.18456%;
|
(c) |
Interest Periods between 2 months plus 1 day and 3 months: 0.26161%.
|
(d) |
Interest Periods between 3 months plus 1 day and 6 months: 0.42826%;
|
(e) |
if relevant, Interest Periods shorter than 1 month or longer than 6 months, as determined in the reasonable opinion of the Agent (however in no event lower than zero).
|
(a) |
that cash is repayable on demand or within 1 day after the relevant date of calculation;
|
(b) |
repayment of that cash is not contingent on the prior discharge of any other indebtedness of the Guarantor or of any other person whatsoever or on the satisfaction of any other condition;
|
(c) |
there is no Security over that cash except for the Security Documents; and
|
(d) |
is freely and (except as mentioned in paragraph (a) above) immediately available to be applied in repayment or prepayment of the Facility.
|
(a) |
The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or
|
(b) |
if that target is not a single figure, the arithmetic mean of:
|
(i) |
the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and
|
(ii) |
the lower bound of that target range.
|
(a) |
the Reference Rate (Term SOFR or SOFR as relevant) for that day; and
|
(b) |
the Central Bank Rate prevailing at close of business on that day. "Change of Control" means
|
(a) |
any person or group of persons acting in concert, other than BW Group, gains direct or indirect control of the Guarantor; and/or
|
(b) |
where the Guarantor ceases directly or indirectly to cast, or control the casting of, at least 100% of the maximum number of votes that might be cast at a general meeting of the Borrower and/or to hold beneficially 100% or more of the
issued share capital of the Borrower.
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
(i) |
cast, or control the casting of, more than 33 1/3% of the maximum number of votes that might be cast at a general meeting of the Guarantor;
|
(ii) |
appoint or remove all, or a majority, of the directors or other equivalent officers of the Guarantor; or
|
(iii) |
give directions and prevent any other person from giving directions with respect to the operating and financial policies of the Guarantor with which the directors or other equivalent officers of the Guarantor are obliged to comply;
|
(b) |
the holding beneficially of more than 33 1/3 % of the issued share capital of the Guarantor (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either
profits or capital).
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Schedule 1 (The Lenders) and the amount of any other Commitment transferred to it
under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a) |
is agreed in writing by the Borrower, the Agent (acting in such capacity) and the Agent (acting on the instructions of the Majority Lenders);
|
(b) |
specifies a calculation methodology for SOFR; and
|
(c) |
has been made available to the Borrower and each Finance Party.
|
(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,
|
(a) |
all freight, hire and passage moneys payable to the Borrower, including (without limitation) payments of any nature under any contract or any other agreement for the employment, use, possession, management and/or operation of the
Vessel;
|
(b) |
any claim under any guarantees related to hire payable to the Vessel as a consequence of the operation of the Vessel;
|
(c) |
any compensation payable to the Borrower in the event of any requisition of the Vessel or for the use of the Vessel by any government authority or other competent authority;
|
(d) |
remuneration for salvage, towage and other services performed by the Vessel payable to the Borrower;
|
(e) |
demurrage and retention money receivable by the Borrower in relation to the Vessel;
|
(f) |
all moneys which are at any time payable under the Insurances in respect of loss of earnings from the Vessel;
|
(g) |
if and whenever the Vessel is employed on terms whereby any moneys falling within paragraph a) to f) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement
which is attributable to such Vessel; and
|
(h) |
any other money which arise out of the use of or operation of the Vessel and moneys whatsoever due or to become due to the Borrower from third parties in relation to the Vessel.
|
(a) |
the pollution or protection of the environment or to the carriage of material which is capable of polluting the environment;
|
(b) |
harm to or the protection of human health;
|
(c) |
the conditions of the workplace; or
|
(d) |
any emission or substance capable of causing harm to any living organism or the environment.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of
paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b) |
in relation to a "pass thru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
|
(a) |
the increase in a payment made by an Obligor to a Finance Party under Clause 13.7 (FATCA Deduction and gross-up by Obligor) or paragraph (b) of Clause 13.8 (FATCA Deduction by Finance Party); or
|
(b) |
a payment under paragraph (d) of Clause 13.8 (FATCA Deduction by Finance Party).
|
(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 respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) 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 shall be
taken into account);
|
(h) |
any counter-indemnity obligation in respect of 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 respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
either:
|
(i) |
the applicable Term SOFR (as of the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of the Loan or that Unpaid Sum; or
|
(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of the Loan, SOFR for the day which is two US Government Securities Business Days before the Quotation Day for Term SOFR,
|
(b) |
the applicable Term SOFR (as of the Quotation Day) for the shortest period (for which Term SOFR is applicable) which exceeds the Interest Period of the Loan.
|
(a) |
any Original Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 26 (Changes to the Lenders),
|
(a) |
if there is no Loan then outstanding, a Lender or Lenders whose Commitments aggregate more than 51% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 51% of the Total Commitments
immediately prior to the reduction); or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan then outstanding aggregate more than 51% of all the Loan then outstanding.
|
(a) |
the business, condition (financial or otherwise) or operations of an Obligor; or
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to, any Finance Document; or
|
(a) |
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.
|
(a) |
the Vessel;
|
(b) |
the Earnings;
|
(c) |
the Insurances;
|
(d) |
the Shares; and
|
(e) |
the Earnings Accounts.
|
(i) |
the Original Lender's cost of funding the Facility as of the date of the signed facility offer, being 21 April 2020 in dollars in the form of a spread above LIBOR calculated for the remaining Interest Periods taking into account the
amount, tenor and repayment profile of the prepaid part of the Loan and/or cancelled part of the Facility; and
|
(ii) |
the Original Lender's cost of funding such prepaid part of the Loan and/or cancelled part of the Facility as of the date of the prepayment or cancellation on the basis of an identical tenor and repayment profile as that of the prepaid
part of the Loan and/or cancelled part of the Facility (as determined by the Original Lender in its sole discretion) in USD in the form of a spread above the aggregate of the relevant Reference Rate and the relevant CAS calculated for the
remaining Interest Periods taking into account the amount and the repayment profile of the prepaid part of the Loan and/or cancelled part of the Facility.
|
(a) |
in relation to any period for which an interest rate is to be determined on basis of Term SOFR or Interpolated Term SOFR, two (2) US Government Securities Business Days before the first day of that period (unless market practice
differs in the relevant syndicated loan market, in which case the Quotation Day will be determined by the Agent in accordance with that market practice (and if quotations would normally be given on more than one day, the Quotation Day
will be the last of those days)); and
|
(b) |
in relation to any period for which an interest rate is to be determined on basis of SOFR or Central Bank Rate, the Business Day which follows the day which is five (5) US Government Securities Business Days prior to the last day of
that period.
|
(a) |
before any Optional Rate Switch has occurred, the applicable Term SOFR as of the Quotation Day and for a period equal in length to the Interest Period of the Loan;
|
(b) |
after any Optional Rate Switch has occurred, SOFR in relation to any day during the Interest Period of the Loan; or
|
(c) |
as otherwise determined pursuant to Clause 11 (Changes to the calculation of interest),
|
(a) |
that is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person);
|
(b) |
that is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of, a country which is subject to Sanctions Laws (including, without limitation, at the Signing Date Cuba, Iran,
Myanmar (Burma), North Korea, Syria and Sudan);
|
(c) |
that is directly or indirectly owned or controlled by a person referred to in (i) and/or
|
(d) |
with which any Lender is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions Laws; or
|
(e) |
is otherwise a target of Sanctions Laws.
|
(a) |
the "Specially Designated Nationals and Blocked Persons" list maintained by OFAC;
|
(b) |
the "Consolidated List of Financial Sanctions Targets" maintained by HMT;
|
(c) |
the Consolidated List of persons, groups and entities subject to the European Union financial sanctions; or
|
(d) |
any similar list maintained by, or public announcement of Sanctions Laws designation made by, any other Sanctions Authority.
|
(a) |
all amounts which have become due for payment by the Borrower under the Finance Documents have been paid;
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under any of the Finance Documents;
|
(c) |
none of the Obligors have any future or contingent liability under any provision of this Agreement, the other Finance Documents; and
|
(d) |
the Agent or the other Finance Parties do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible
future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security created by a Finance Document.
|
(a) |
the actual, constructive, compromised, agreed, arranged or other total loss of that Vessel; and;
|
(b) |
any expropriation, abandonment, confiscation, condemnation, requisition or acquisition of the Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration,
which is effected by any government or official authority or by any person or persons claiming to be or to represent a governmental or official authority, excluding a requisition for hire for a fixed period not exceeding one (1) year
without any right to extension) unless it is within one (1) month from the Total Loss Date redelivered to the full control of the Borrower; and
|
(c) |
any theft, capture, seizure, piracy or hijacking of the Vessel unless it is within one (1) month from the Total Loss Date redelivered to the full control of the Borrower.
|
(a) |
in the case of an actual total loss of the Vessel, the date on which it occurred or, if that is unknown, the date when that Vessel was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Vessel, the earlier of: (i) the date on which a notice of abandonment is given to the insurers (provided a claim for total loss is admitted by such
insurers) or, if such insurers do not forthwith admit such a claim, at the date at which either a total loss is subsequently admitted by the insurers or a total loss is subsequently adjudged by a competent court of law or arbitration
panel to have occurred or, if earlier, the date falling three (3) months after notice of abandonment of that Vessel was given to the insurers; and (ii) the date of compromise, arrangement or agreement made by or on behalf of the
Borrower with the Vessel's insurers in which the insurers agree to treat that Vessel as a total loss; or
|
(c) |
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
(a) |
the proposed Transfer Date specified in the Transfer Certificate; and
|
(b) |
the date on which the Agent executes the Transfer Certificate.
|
(a) |
a Saturday or a Sunday; and
|
(b) |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government
securities.
|
(a) |
the Borrower which is resident for tax purposes in the US; or
|
(b) |
an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, any reference in this Agreement to:
|
(i) |
the "Agent", any "Obligor" any "Finance Party", any "Lender", or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
a Lender's "cost of funds" in relation to its participation in the Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it
were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of the Loan;
|
(iii) |
"assets" includes present and future properties, revenues and rights of every description;
|
(iv) |
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(v) |
"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;
|
(vi) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having
separate legal personality);
|
(vii) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body,
agency, department or of any regulatory, self-regulatory or other authority or organisation;
|
(viii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(ix) |
words importing the singular shall include the plural and vice versa; and
|
(x) |
a time of day is a reference to Copenhagen time unless specified otherwise.
|
(b) |
Section, Clause and Schedule headings are for ease of reference only.
|
(c) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d) |
A Default (other than an 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.
|
(e) |
In case of conflict between this Agreement and any of the Security Documents, the provisions of this Agreement shall prevail.
|
(f) |
A Compounding Methodology Supplement relating to SOFR overrides anything relating to that rate in:
|
(i) |
Schedule 10 (Daily Non-Cumulative Compounded RFR Rate); or
|
(ii) |
any earlier Compounding Methodology Supplement.
|
2. |
THE FACILITY
|
2.1 |
The Facility
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and
independent debt.
|
(c) |
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
2.3 |
FA Act
|
3. |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4. |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
(a) |
The Finance Parties' obligations hereunder are subject to the Agent's receipt of all of the documents and other evidence listed in Schedule 2 (Conditions precedent) Part I no later than
30 November 2014. The Agent shall notify the Obligors and the Lender promptly upon being so satisfied.
|
(b) |
The Borrower may not deliver an Utilisation Request unless the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions precedent) Part II at least two
(2) Banking Days prior to the delivery of the Utilisation Request (except those documents which are expressly stated to be deliverable on the Utilisation Date). The Agent shall notify the Borrower and the Lenders promptly upon being so
satisfied.
|
4.2 |
Further conditions precedent
|
(a) |
no Default is continuing or would result from the proposed Loan;
|
(b) |
the Repeating Representations to be made by each of the Obligors are true in all material respects;
|
(c) |
there has been no Material Adverse Effect since the Original Financial Statements;
|
(d) |
there has been no Disruption Event or Market Disruption Event; and
|
(e) |
there has been no unforeseen occurrences or changes in legislation or events outside the control of the Lenders preventing the Lenders from either advancing or funding the Utilisation.
|
4.3 |
Maximum number of drawings
|
4.4 |
Form and content
|
(a) |
be in form and substance satisfactory to the Agent;
|
(b) |
if required by the Agent, be in original; and
|
(c) |
if required by the Agent, be certified, notarized, legalized or attested in a manner acceptable to the Agent.
|
4.5 |
Waiver of conditions precedent
|
5. |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
5.2 |
Completion of a Utilisation Request
|
(a) |
the proposed Utilisation Date is a Business Day within the Availability Period;
|
(b) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
(c) |
the proposed Interest Period complies with Clause 10 (Interest Periods).
|
5.3 |
Currency and amount
|
(a) |
The currency specified in the Utilisation Request must be USD.
|
(b) |
The amount of the proposed Loan must be an amount which is not more than the Total Commitments.
|
5.4 |
Lender' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Loan available by the Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender's participation in the Loan will be equal to the proportion borne by its Commitment to the Available Facility immediately prior to making the Loan.
|
(c) |
The Agent shall notify each Lender of the amount of the and the amount of its participation in the Loan upon receipt of the Utilisation Notice from the Borrower.
|
5.5 |
Cancellation of Commitment
|
6. |
REPAYMENT
|
6.1 |
Repayment of the Loan
|
(a) |
The Borrower shall repay the Loan on each Payment Date by consecutive semi- annual instalments, each in an amount as set out in Schedule 8 (Repayment schedule) hereto, plus a balloon payment
of the remaining amount payable concurrently with the last instalment.
|
(b) |
Any Outstanding Indebtedness is due and payable on the Maturity Date.
|
6.2 |
Re-borrowing
|
7. |
PREPAYMENT AND CANCELLATION
|
7.1 |
Voluntary cancellation
|
7.2 |
Voluntary prepayment of the Loan
|
7.3 |
Illegality
|
(a) |
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(b) |
upon the Agent notifying the Borrower, or the Guarantor if no Borrower has acceded to the Agreement, the Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall repay that Lender's participation in the Loan made to the Borrower on the Payment Date for the Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the relevant Lender in
the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
7.4 |
Total Loss or sale of the Vessel
|
(a) |
in case of a sale, on or before the date on which the sale is completed by delivery of the Vessel to the buyer; or
|
(b) |
in the case of a Total Loss, on the earlier of the date falling hundred and twenty (120) days after the Total Loss Date and the receipt by the Agent (on behalf of the Finance Parties) of the proceeds of Insurance or requisition
compensation relating to such Total Loss;
|
7.5 |
Market Value
|
(a) |
If the Market Value of the Vessel is less than 135% of the Outstanding Indebtedness at any time, the Borrower shall, upon written demand from the Agent (on behalf of the Lenders), either
|
(i) |
prepay the Loan or a part of the Loan (as the case may be); or
|
(ii) |
provide the Lenders with such additional security, which in the opinion of the Agent has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent may approve or require,
|
(b) |
Any prepayment under this Clause 7.5 (Market Value) shall be applied pro-rata against the Loan, first against the balloon payment and then against the instalments in inverse order of maturity.
|
7.6 |
Change of Control
|
(a) |
the Borrower shall promptly notify the Agent upon becoming aware of that event;
|
(b) |
a Lender shall not be obliged to fund the Utilisation;
|
(c) |
the Agent shall cancel the Total Commitments; and
|
(d) |
the Borrower shall within ten (10) Business Days prepay the Outstanding Indebtedness in full.
|
7.7 |
Right of replacement or 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 13.2 (Tax gross-up);
|
(ii) |
any Lender claims indemnification from the Borrower under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs); or
|
(iii) |
at any time on or after the date which is six (6) months before the earliest FATCA Application Date for any payment by a Party to a Lender (or to the Agent for the account of that Lender), that Lender is not, or has ceased to be, a
FATCA Exempt Party and, as a consequence, a Party will be required to make a FATCA Deduction from a payment to that Lender (or to the Agent for the account of that Lender) on or after that FATCA Application Date,
|
(b) |
On receipt of a notice of cancellation referred to in paragraph (a) above, the Total Commitment of that Lender shall immediately be reduced to zero.
|
(c) |
On the last day of each Interest Period which ends after the Borrower have given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that
Lender's participation in the Loan.
|
(d) |
The replacement of a Lender pursuant to paragraph (a) above shall be subject to the following conditions:
|
(i) |
the Borrower shall have no right to replace the Agent;
|
(ii) |
neither the Agent nor any Lender shall have any obligation to find a replacement Lender; and
|
(iii) |
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.
|
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 and the amount of that cancellation or prepayment.
|
(b) |
Any partial prepayment under this Agreement (except voluntary prepayments) shall be applied in inverse order of maturity firstly against the balloon and then the remaining repayments instalments.
|
(c) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs and Prepayment Cost.
|
(d) |
Any cancellation under this Agreement shall be made together with any Prepayment Cost.
|
(e) |
The Borrower may not re-borrow any part of the Facility which is prepaid.
|
(f) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(g) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(h) |
If the Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
|
(i) |
If all or part of the Loan is repaid or prepaid and is not available for redrawing, an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or
prepayment. Any cancellation under this paragraph (h) shall reduce the Commitments of the Lenders proportionately.
|
8. |
OPTIONAL RATE SWITCH
|
8.1 |
Optional Rate Switch
|
(a) |
The Borrower may in its sole discretion one (1) time during the lifetime of the Facility freely chose to switch the Reference Rate from Term SOFR to SOFR by delivering a duly executed Optional Rate Switch Notice at latest five (5)
Business Days before the end of the nearest ending current Interest Period for the Loan (an "Optional Rate Switch").
|
(b) |
Provided that the Optional Rate Switch Notice complies with the requirements of this Agreement and accrued interest is paid according to Clause 9.2 (Payment of interest), the Optional Rate
Switch shall take effect from the first day in the next Interest Period for the Loan meaning that the use of Term SOFR will be replaced by SOFR as Reference Rate from that date (the "Optional Rate Switch
Date").
|
(c) |
Any Optional Rate Switch shall be binding and applicable for the Loan.
|
8.2 |
Notification by Agent
|
9. |
INTEREST
|
9.1 |
Calculation of interest
|
(a) |
The rate of interest on the Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
(i) |
Margin;
|
(ii) |
CAS; and
|
(iii) |
Reference Rate.
|
(b) |
If any day during an Interest Period for the Loan for which SOFR is the applicable Reference Rate is not US Government Securities Business Day, the rate of interest on the Loan for that day will be the rate applicable to the
immediately preceding US Government Securities Business Day.
|
9.2 |
Payment of interest
|
9.3 |
Default interest
|
(a) |
If an Obligor fails to pay the amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which,
subject to paragraph
|
(b)
|
below, is two (2) per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted the Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 9.3 (Default interest) shall be immediately payable by the
Obligors on demand by the Agent.
|
(b) |
If any Unpaid Sum consists of all or part of the Loan for which Term SOFR is the applicable Reference Rate which became due on a day which was not the last day of an Interest Period relating to the Loan:
|
(i) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan; and
|
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be two (2) per cent higher than the rate which would have applied if the overdue amount had not become due.
|
(c) |
Default interest (if unpaid) arising on an overdue amount will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
9.4 |
Notification of rates of interest
|
(a) |
The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
(b) |
The Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan.
|
(c) |
This Clause 9.4 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.
|
10. |
INTEREST PERIODS
|
10.1 |
Duration
|
(a) |
Each Interest Period shall be for a period of six (6) months.
|
(b) |
An Interest Period shall not extend beyond the Maturity Date.
|
(c) |
The first Interest Period shall start on the Utilisation Date and each subsequent Interest Period shall start on the first day in the Month falling sixth months after the Utilisation Date and in six monthly intervals thereafter.
|
10.2 |
Non-Business Days
|
11. |
CHANGES TO THE CALCULATION OF INTEREST
|
11.1 |
Absence of quotations
|
(a) |
Interpolated Term SOFR: If Term SOFR is the applicable Reference Rate and no Term SOFR is available for the Interest Period of the Loan, the applicable Reference Rate shall be the Interpolated
Term SOFR for a period equal in length to the Interest Period of the Loan.
|
(b) |
Central Bank Rate: If the applicable Reference Rate (Term SOFR or SOFR) is not available, as relevant on any day during the Interest Period of a Loan and in case of Term SOFR it is not possible
to calculate the Interpolated Term SOFR, the applicable Reference Rate shall be the percentage rate per annum which is the aggregate of (i) the arithmetic mean of the Central Bank Rate for the relevant days in the Interest Period of the
Loan, provided that the Central Bank Rate applicable to the day falling five (5) days prior to the last day of the relevant Interest Period shall be deemed to be the Central Bank Rate for the final five (5) days of that Interest Period
and (ii) the applicable Central Bank Rate Adjustment.
|
11.2 |
Interest calculation if no Term SOFR, SOFR or Central Bank Rate
|
11.3 |
Market disruption
|
11.4 |
Cost of funds
|
(a) |
If this Clause 11.4 applies, the rate of interest on each Lender's share 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) |
in respect of each relevant Lender, the rate notified to the Agent by that Lender as soon as practicable and in any event within 2 Business Days before the date on which interest is due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per annum its cost of funds relating to its participation in the Loan.
|
(b) |
If this Clause 11.4 applies and the Agent or the Borrower so require, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining
the rate of interest.
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
(d) |
If an alternative basis is not agreed pursuant to paragraph (b) above, the Borrower shall have the option to (i) cancel and prepay the Loan according to Clause 7.1 (Voluntary cancellation) and
7.2 (Voluntary prepayment of the Loan) or (ii) continue to pay interest calculated under Clause 11.4 (Cost of funds). For the avoidance of doubt, Clause
38.3 (Changes to Reference Rates) shall in any event apply if and when relevant according to its terms.
|
(e) |
The Borrower shall continue to pay interest calculated under Clause 11.4 (Cost of funds) as long as no agreed substitute basis for determining the rate of interest has been implemented.
|
(f) |
If this Clause 11.4 applies and:
|
(i) |
a Lender's Funding Rate is less than the Market Disruption Rate; or
|
(ii) |
a Lender does not supply a quotation by the time specified in sub-paragraph (a)(ii) above,
|
11.5 |
Notification of market disruption
|
11.6 |
Break Costs
|
(a) |
The Borrower shall, within three (3) 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 that Borrower on a day other than the
last day of the Interest Period for the Loan or Unpaid Sum.
|
(b) |
Each relevant Finance Party shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they become, or may become, payable.
|
12. |
FEES AND COSTS
|
12.1 |
Commitment fee
|
(a) |
The Borrower, or the Guarantor if no Borrower has acceded to the Agreement, shall pay to the Agent (for the account of each Lender) a fee computed at the rate of forty per cent (40%) of the Margin per annum and calculated on the
undrawn portion of the Facility from 1 July 2014.
|
(b) |
The accrued commitment fee is payable quarterly in arrears first time on 30 September 2014 and in addition on the Utilisation Date, on the last day of the Availability Period and if cancelled, on the cancelled amount of the Commitment
at the time the cancellation is effective.
|
12.2 |
Up-front fee
|
12.3 |
Agency fee
|
12.4 |
Payment of fees and costs - general
|
13. |
TAX GROSS UP AND INDEMNITIES
|
13.1 |
Definitions
|
13.2 |
Tax gross-up
|
(a) |
All payments under the Facility shall be made free and clear of all present and future taxes, levies or duties of any nature whatsoever, levied either now or at any future time.
|
(b) |
Each Obligor shall make all payments to be made by it without any Tax Deduction whatsoever, unless a Tax Deduction is required by law.
|
(c) |
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the
Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Obligors.
|
(d) |
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.
|
(e) |
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.
|
(f) |
Within thirty (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 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.
|
13.3 |
Tax indemnity
|
(a) |
The Obligors shall (within three (3) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 13.2 (Tax gross- up), Clause 13.7 (FATCA Deduction and gross-up by Obligor) or paragraph
|
(B) |
is compensated for by an increased payment under Clause 13.2 (Tax gross- up); or
|
(C) |
is compensated for by a payment under paragraph (d) of Clause 13.8 (FATCA Deduction by a Finance Party).
|
(c) |
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 13.3 (Tax indemnity), notify the Agent.
|
13.4 |
Stamp taxes
|
13.5 |
VAT
|
(a) |
All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of
any VAT which is chargeable on such supply or supplies, that Party shall pay to the 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 such VAT (and such
Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
(b) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense,
including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
13.6 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable "passthru payment percentage" or other information required under the US Treasury Regulations or
other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA.
|
(b) |
If a Party confirms to another Party pursuant to 13.6 (a) (i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party
reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:
|
(i) |
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
|
(ii) |
if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage"
is 100%, until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
13.7 |
FATCA Deduction and gross-up by Obligor
|
(a) |
If an Obligor is required to make a FATCA Deduction, that Obligor shall make that FATCA Deduction and any payment required in connection with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA.
|
(b) |
If a FATCA Deduction is required 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 FATCA Deduction) leaves an amount equal to the payment which would have
been due if no FATCA Deduction had been required.
|
(c) |
An Obligor shall promptly upon becoming aware that an Obligor must make a FATCA Deduction (or that there is any change in the rate or the basis of a FATCA Deduction) notify the Agent accordingly. Similarly, a Finance Party shall notify
the Agent on becoming so aware in respect of a payment payable to that Finance Party. If the Agent receives such notification from a Finance Party it shall notify the Obligors.
|
(d) |
Within thirty (30) days of making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Obligor making that FATCA Deduction or payment shall deliver to the Agent (on behalf of the Finance Party
entitled to the payment) evidence reasonably satisfactory to that Finance Party that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.
|
13.8 |
FATCA Deduction by a Finance Party
|
(a) |
Each Finance Party may make any FATCA Deduction it is required by FATCA to make, and any payment required in connection with that FATCA Deduction, and no Finance 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. A Finance Party which becomes aware that it must make a FATCA Deduction in respect of a payment to another Party (or that there is
any change in the rate or the basis of such FATCA Deduction) shall notify that Party and the Agent.
|
(b) |
If the Agent is required to make a FATCA Deduction in respect of a payment to a Finance Party under Clause 31.2 (Distributions by the Agent) which relates to a payment by an Obligor, the amount
of the payment due from that Obligor shall be increased to an amount which (after the Agent has made such FATCA Deduction), leaves the Agent with an amount equal to the payment which would have been made by the Agent if no FATCA Deduction
had been required.
|
(c) |
The Agent shall promptly upon becoming aware that it must make a FATCA Deduction in respect of a payment to a Finance Party under Clause 31.2 (Distributions by the Agent) which relates to a
payment by an Obligor (or that there is any change in the rate or the basis of such a FATCA Deduction) notify the relevant Obligor and the relevant Finance Party.
|
(d) |
The relevant Obligor shall (within three (3) Business Days of demand by the Agent) pay to a Finance Party an amount equal to the loss, liability or cost which that Finance Party determines will be or has been (directly or indirectly)
suffered by that Finance Party as a result of another Finance Party making a FATCA Deduction in respect of a payment due to it under a Finance Document. This paragraph shall not apply to the extent a loss, liability or cost is compensated
for by an increased payment under paragraph (b) above.
|
(e) |
A Finance Party making, or intending to make, a claim under paragraph (d) above shall promptly notify the Agent of the FATCA Deduction which will give, or has given, rise to the claim, following which the Agent shall notify the
Obligors.
|
13.9 |
Tax Credit and FATCA
|
(a) |
a Tax Credit is attributable to an increased payment of which that FATCA Payment forms part, to that FATCA Payment or to a FATCA Deduction in consequence of which that FATCA Payment was required; and
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit,
|
14. |
INCREASED COSTS
|
14.1 |
Increased costs
|
(a) |
Subject to Clause 14.3 (Exceptions) the Borrower shall and the Guarantor shall (until the Borrower has acceded to the Agreement), within three (3) Business Days of a demand by the 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, (ii) compliance with any law or regulation made after the Signing Date or (iii) compliance with the implementation by the applicable authorities of the matters set out in the statement of the Basel Committee on
Banking Regulations and Supervisory Practices labelled "Basel III" and the continuing application of the same
|
(b) |
In this Agreement "Increased Costs" means:
|
(i) |
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
14.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify
the Borrower.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
14.3 |
Exceptions
|
(a) |
Clause 14.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor
|
(ii) |
attributable to a FATCA Deduction required to be made by an Obligor or a Finance Party;
|
(iii) |
compensated for by paragraph (d) of Clause 13.8 (FATCA Deduction by a Finance Party);
|
(iv) |
compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely
because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied);
|
(v) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(vi) |
attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June
2004 in the form existing on the Signing Date (but excluding any amendment arising out of Basel III) ("Basel II") or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a
government, regulator, Lender or any of its Affiliates)
|
(b) |
In this Clause 14.3 (Exceptions),
|
(i) |
a reference to a "Tax Deduction" has the same meaning given to the term in Clause 13.1 (Definitions); and
|
(ii) |
“Basel III" means the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking
systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking
Supervision in December 2010, each as amended, supplemented or restated, and any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III”.
|
15. |
OTHER INDEMNITIES
|
15.1 |
Currency indemnity
|
(a) |
If any sum due from the Obligors 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;
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
15.2 |
Other indemnities
|
(a) |
the occurrence of any Event of Default;
|
(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing among the
Finance Parties);
|
(c) |
funding, or making arrangements to fund, its participation in the Loan requested by the Borrower in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement;
|
(d) |
a third party claim related to the Finance Documents, the Obligors or the Vessel, hereunder any Environmental Claims or any non-compliance by any Obligor, the Technical Manager, the Commercial Manager and/or any Charterer with
applicable laws including Sanctions Laws;
|
(e) |
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by the Agent or any other
Finance Party as a result of conduct of any Obligor or any of their partners, directors, officers, employees, agents or advisors, that violates any Sanctions Laws; or
|
(f) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.,
|
15.3 |
Indemnity to the Agent
|
(a) |
investigating any event which it reasonably believes is a Default; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
16. |
MITIGATION BY THE LENDERS
|
16.1 |
Mitigation
|
(a) |
Each Finance Party shall, in consultation with the Borrower or the Guarantor if no Borrower has acceded to the Agreement, 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 7.3 (Illegality), Clause 13 (Tax gross-up and indemnities) or Clause 14 (Increased costs) 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.
|
16.2 |
Limitation of liability
|
(a) |
The Borrower or the Guarantor if no Borrower has acceded to the Agreement shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause
16.1 (Mitigation).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
17. |
COSTS AND EXPENSES
|
17.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement; and
|
(b) |
any other Finance Documents executed after the Signing Date.
|
17.2 |
Amendment and enforcement costs
|
(a) |
responding to, evaluating, negotiating or complying with a request or requirement for any amendment, waiver or consent;
|
(b) |
the granting of any release, waiver or consent under the Finance Documents;
|
(c) |
any amendment or variation of a Finance Document; and
|
(d) |
the enforcement of, or the preservation, protection or maintenance of, or attempt to preserve or enforce, any of the rights of the Finance Parties under the Finance Documents.
|
18. |
SECURITY
|
18.1 |
Security
|
(a) |
the Mortgage;
|
(b) |
the Deed of Covenants;
|
(c) |
the Guarantee;
|
(d) |
the Assignment Agreement; and
|
(e) |
the Deed of Charge, including customary power of attorney for sale of the Shares and signed but undated letters of resignation from each director.
|
18.2 |
Perfection etc.
|
18.3 |
Further assignment of Earnings
|
(a) |
In the event that the Borrower enters into any Charterparty, the Borrower shall prior to the commencement date do its best endeavours to assign any Earnings accruing thereunder in favour of the Agent (on behalf of the Finance
Parties).
|
(b) |
Notwithstanding paragraph (a) above, upon on the occurrence of an Event of Default, the Borrower shall do its best endeavours to assign any Earnings accruing under any contract of employment for the Vessel.
|
19. |
GUARANTEE AND INDEMNITY
|
19.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party the punctual performance by the Borrower of all the Borrower’s obligations under the Finance Documents.
|
(b) |
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was 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 the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have
been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 19 (Guarantee and indemnity) if the amount claimed had been
recoverable on the basis of a guarantee;
|
19.2 |
Continuing guarantee
|
19.3 |
Reinstatement
|
19.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, the Borrower or other person;
|
(b) |
the release of the Borrower or any other person under the terms of any composition or arrangement with any creditor of the Borrower;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, the 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;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Borrower or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the
purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
19.5 |
Immediate recourse
|
19.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order
as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 19 (Guarantee and indemnity).
|
19.7 |
Deferral of the Guarantor's rights
|
(a) |
to be indemnified by the Borrower;
|
(b) |
to claim any contribution from any other guarantor of the Borrower’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 Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by any Finance Party;
|
(d) |
to bring legal or other proceedings for an order requiring the Borrower to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 19.1 (Guarantee and indemnity);
|
(e) |
to exercise any right of set-off against the Borrower; and/or
|
(f) |
to claim or prove as a creditor of the Borrower in competition with any Finance Party.
|
19.8 |
Additional security
|
19.9 |
Guarantee Limitations
|
20. |
REPRESENTATIONS
|
20.1 |
Status
|
(a) |
Each Obligor is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.
|
(b) |
Each Obligor and each of its Subsidiaries have the power to own its assets and carry on its business as it is being conducted.
|
(c) |
No Obligor is a FATCA FFI or a US Tax Obligor.
|
(d) |
In accordance with the FA Act section 3-12 (2) and the Norwegian Anti-Money Laundering Act 2018/23 (in No: hvitvaskingsloven) section 13 (1) the Obligors confirm that the information set out in
Schedule 9 (FA Act section 3-12) is true and accurate as of the date of the Amendment No. 4.
|
20.2 |
Binding obligations
|
(a) |
The obligations expressed to be assumed by the relevant Obligor in each Finance Document are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation), legal, valid, binding and enforceable obligations.
|
(b) |
Save as provided herein or therein and/or as have been or shall be completed prior to the Utilisation Date, no registration, filing, payment of tax or fees or other formalities are necessary or desired to render the Finance Documents
enforceable against the Obligors, and in respect of the Vessel, for the Mortgage to constitute valid and enforceable first priority mortgage over the Vessel.
|
20.3 |
No conflict with other obligations
|
(a) |
any law, statute, rule or regulation applicable to it, or any order, judgment, decree or permit to which it is subject, including any law, statute, rule or regulation implemented to combat money laundering and bribery;
|
(b) |
its or any of its Subsidiaries' constitutional documents; or
|
(c) |
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets.
|
20.4 |
Power and authority
|
(a) |
Each Obligor has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents and the Transaction Documents to which it is a party and
the transactions contemplated by those Finance Documents and Transaction Documents.
|
(b) |
All necessary corporate, shareholder and other action have been taken by each Obligor to approve and authorize the execution of the Finance Documents and the Transaction Documents, the compliance with the provisions thereof and the
performance of its obligations thereunder.
|
(c) |
The Borrower acts for its own account by entering into the Finance Documents and obtaining the Facility.
|
20.5 |
Validity and admissibility in evidence
|
(a) |
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents and the Transaction Documents to which it is a party;
|
(b) |
to make the Finance Documents and the Transaction Documents admissible in evidence in its jurisdiction of incorporation; and
|
(c) |
in connection with each Obligor’s business and ownership of assets,
|
20.6 |
Governing law and enforcement
|
(a) |
The choice of Norwegian law and any other applicable law respectively as the governing law of the Finance Documents will be recognised and enforced in the relevant Obligor's jurisdiction of incorporation.
|
(b) |
Any judgment obtained in Norway and/or any other applicable jurisdiction in relation to a Finance Document will be recognised and enforced in the relevant Obligor’s jurisdiction of incorporation.
|
20.7 |
Insolvency
|
20.8 |
Deduction of Tax
|
20.9 |
No filing or stamp taxes
|
20.10 |
No default
|
(a) |
No Default has occurred or might reasonably be expected to result from the making of the Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on any Obligor or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are
subject which might have a Material Adverse Effect.
|
20.11 |
No misleading information
|
(a) |
Any factual information provided by any Obligor 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 information provided by any Obligor has been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted and no information has been given or withheld that results in the information provided by any Obligor being untrue or misleading in any material respect.
|
20.12 |
Financial statements
|
(a) |
Its Original Financial Statements were prepared in accordance with GAAP consistently applied.
|
(b) |
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Guarantor) during the relevant financial year.
|
(c) |
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of any Obligor) since the date of delivery of its latest financial statements.
|
20.13 |
Pari passu ranking
|
20.14 |
No proceedings pending or threatened
|
20.15 |
Title
|
20.16 |
No security
|
20.17 |
No immunity
|
20.18 |
Ranking of Security Documents
|
20.19 |
Taxation
|
(a) |
No Obligor is overdue in the filing of any Tax returns.
|
(b) |
To the best of its knowledge and belief, no claims or investigations are being, or are reasonably likely to be, made or conducted against any Obligor with respect to Taxes which is reasonably likely to have a material adverse effect on
its ability to perform its obligations under the Finance Documents.
|
(c) |
The relevant Obligor is resident for Tax purposes only in the jurisdiction of its incorporation, unless the Agent shall have been otherwise informed in writing.
|
20.20 |
Environmental compliance
|
20.21 |
Environmental Claims
|
20.22 |
Laws and regulations
|
20.23 |
ISM Code, ISPS Code and MLC compliance
|
20.24 |
The Vessel
|
(a) |
in the absolute ownership of the Borrower free and clear of all encumbrances (other than current crew wages, the Mortgage and the Deed of Covenants) and the Borrower will be the sole, legal and beneficial owner of the Vessel;
|
(b) |
registered in the name of the Borrower with the relevant Approved Ship Registry under the laws and flag applicable for the relevant Approved Ship Registry;
|
(c) |
operationally seaworthy in every way and fit for service; and
|
(d) |
classed with American Bureau of Shipping (with notation +A1, Oil Carrier, +AMS,
|
20.25 |
Financial Indebtedness
|
(a) |
No Obligor is in breach of or in default under any agreement or other instrument relating to Financial Indebtedness to which it is a party or by which it is bound (nor would it be with the giving of notice or lapse of time or both).
|
(b) |
The Borrower has not incurred any Financial Indebtedness other than as permitted pursuant to letter (e) of Clause 22.4 (Disposals and acquisitions) of this Agreement.
|
20.26 |
Sanctions
|
(a) |
Each Obligor, each of their Affiliates (and, to the extent not included, any other Affiliate of the DHT Group), their joint ventures, and their respective directors, officers, employees, agents or representatives has been and is in
compliance with Sanctions Laws;
|
(b) |
No Obligor, nor any of their Affiliates (or, to the extent not included, any other Affiliate of the DHT Group), their joint ventures, and their respective directors, officers, employees, agents or representatives:
|
(i) |
is a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party;
|
(ii) |
owns or controls a Restricted Party; or
|
(iii) |
is subject to or involved in or has received notice of or is otherwise aware of any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions Laws by any Sanctions Authority.
|
(c) |
The Vessel is not a vessel with which any person is prohibited or restricted from dealing with under any Sanctions Laws.
|
(d) |
Each Obligor has instituted and maintains policies and procedures designed to promote and achieve compliance by the Obligors and the DHT Group with Sanctions Laws.
|
(e) |
No proceeds of any part of the Loan shall be made available directory or indirectly, to or for the benefit of a Restricted Party contrary to Sanctions Laws in a manner that could result in any Finance Party being in violation of
Sanctions Laws or in a manner that would be contrary to Sanctions Laws nor shall they be otherwise directly or indirectly applied in a manner or for a purpose prohibited by Sanctions Laws.
|
20.27 |
Ownership
|
20.28 |
No other business
|
20.29 |
Repetition
|
21. |
INFORMATION UNDERTAKINGS
|
21.1 |
Financial statements
|
(i) |
as soon as the same become available, but in any event within 60 days after the end of each quarter the unaudited consolidated financial statements, balance sheets and cash- flow projections of the Guarantor for such quarter;
|
(ii) |
as soon as the same become available, but in any event within one hundred and eighty
|
(iii) |
as soon as the same become available, but in any event within the end of each financial year, the consolidated financial forecasts including profit and loss statements and cash flow projections, for the next year, specifying major
assumptions.
|
21.2 |
Compliance Certificate
|
21.3 |
Requirements as to financial statements
|
(a) |
Each set of financial statements delivered by the Borrower or the Guarantor if no Borrower has acceded to the Agreement pursuant to Clause 21.1 (Financial statements) shall be certified by an
authorised officer of the Borrower (if delivered by the Borrower) and the chief financial officer of the Guarantor (if delivered by the Guarantor) as fairly representing its financial condition as at the date as at which those financial
statements were drawn up.
|
(b) |
The Borrower or the Guarantor if no Borrower has acceded to the Agreement shall procure that each set of financial statements delivered pursuant to Clause 21.1 (Financial statements) is prepared
using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies
the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the relevant Obligor) deliver to the Agent:
|
(i) |
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lender to determine whether Clause 22 (Financial covenants) has been complied with and
make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
21.4 |
Information: miscellaneous
|
(a) |
all documents dispatched by the Obligors to their shareholders generally (or any class of them) or their 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 which are current, threatened or pending against any Obligor, and which might, if adversely determined, have a Material
Adverse Effect;
|
(c) |
promptly, such further information regarding the financial condition, business and operations of any Obligor as any Finance Party (through the Agent) may reasonably request, promptly, such information about the Vessel’ classification
records and status as the Agent may reasonably request;
|
(d) |
promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions Laws by any Sanctions Authority against it, any of its direct or indirect owners, Affiliates, any
of their joint ventures or any of their respective directors, officers, employees, agents or representatives, as well as information on what steps are being taken with regards to answer or oppose such; and
|
(e) |
promptly upon becoming aware that it, any of its direct or indirect owners, Affiliates, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives has become or is likely to become
a Restricted Party.
|
21.5 |
Notification of default
|
(a) |
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
|
(b) |
Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).
|
21.6 |
Notification of Environmental Claims
|
(a) |
if any Environmental Claim has been commenced or (to the best of its knowledge and belief) is threatened against the Borrower (or any of its Affiliates), any Charterers, the Technical Manager or the Vessel; and
|
(b) |
of any fact and circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against the Borrower (or any of their Affiliates), any Charterers, the Technical Manager or the
Vessel,
|
21.7 |
Market Value
|
(a) |
Arrange for, at their own expense, the Market Value of the Vessel to be determined immediately prior to Utilisation and semi-annually thereafter on 30 June and 31 December, and deliver such market valuations to the Agent (on behalf of
the Finance Parties) immediately thereafter; and
|
(b) |
Should the Agent reasonably assume that a Default has occurred or may occur, or should the Vessel be sold or suffer a Total Loss, the Agent may arrange, or require the Borrower to arrange, additional determinations of the Market Value
of the Vessel at such frequency as the Agent (on behalf of Finance Parties) may request and at the Borrower's expense.
|
21.8 |
"Know your customer" checks
|
(a) |
The Obligors shall at the request of the Agent at any time supply to the Agent any documentation or other evidence which is requested by the Agent to enable the Agent, any Lender or prospective new Lender to carry out and be satisfied
with the results of all know your customer requirements applicable to it at any time.
|
(b) |
Each Lender shall at the request of the Agent at any time supply to the Agent any documentation and other evidence which is requested by the Agent to enable the Agent to carry out and be satisfied with the results of all know your
customer requirements applicable to it at any time.
|
21.9 |
Poseidon Principles
|
21.10 |
Disclosure of information
|
22. |
FINANCIAL COVENANTS – THE GUARANTOR
|
(a) |
unencumbered consolidated Cash of minimum the higher of (i) USD 30,000,000 and
|
(b) |
a Value Adjusted Tangible Net Worth of at least USD 300,000,000, but in any event the Value Adjusted Tangible Net Worth shall at all times be no less than twenty five per cent (25 %) of the Value Adjusted Total Assets; and
|
(c) |
a positive Working Capital.
|
23. |
GENERAL UNDERTAKINGS
|
23.1 |
Authorisations
|
23.2 |
Compliance with laws
|
(a) |
Each Obligor shall, and shall procure that their Affiliates, the Technical Manager, the Commercial Manager and any Charterer, shall comply in all respects with all laws, directives, regulations, decrees, rulings and such analogous
rules to which it or its business may be subject.
|
(b) |
Each Obligor shall, and shall procure that any Affiliate, the Technical Manager, the Commercial Manager and any Charterer comply in all respect with all Sanctions Laws and the laws of the Approved Ship Registry.
|
(c) |
Each Obligor and parties acting on its behalf shall observe and abide with any law, official requirement or other regulatory measure or procedure implemented to combat (a) money laundering (as defined in Article 1 of the Directive
(2005/60/EC) of the council of the European Communities (as amended, supplemented and/or replaced from time to time)) and (b) bribery and corrupt practices.
|
23.3 |
Negative pledge
|
(a) |
The Borrower shall (i) not create or permit to subsist any Security over the Vessel, any of their assets or (ii) grant any floating charges or issue any factoring agreement in respect of its Earnings.
|
(b) |
The Guarantor shall not create or permit to subsist any Security over the Shares.
|
(c) |
The Borrower shall not:
|
(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 any 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,
|
(d) |
Paragraphs (a) and (b) above do not apply to any Security listed below:
|
(i) |
any netting or set-off arrangement entered into by the Borrower in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances, hereunder any rights of pledge and set-off in relation to a cash
pool arrangement approved by the Agent (on behalf of the Finance Parties);
|
(ii) |
any lien arising by operation of law and in the ordinary course of trading and securing obligations not more than thirty (30) days overdue;
|
(iii) |
any Security entered into pursuant to any Finance Document;
|
(iv) |
arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to the Borrower in the ordinary course of trading on arm's length terms and on the
supplier's standard and usual terms; or
|
(v) |
Security consented to in writing by the Agent (on behalf of the Finance Parties).
|
23.4 |
Disposals and acquisitions
|
(a) |
decrease its capital;
|
(b) |
whether by a single transaction or a series of related or unrelated transactions and whether at the same time or over a period of time, sell, transfer, lease out, grant options, grant rights of first refusal or otherwise dispose of the
whole or any part of its undertakings, assets, including but not limited to the Vessel, or revenues (present or future) or agree to do so; or
|
(c) |
acquire or replace an asset or acquire any shares; or
|
(d) |
charter in any vessel; or
|
(e) |
make any investment other than in the normal course of business related to the operation of the Vessel or incur any Financial Indebtedness other than in the normal course of business related to the operation of the Vessel, provided,
however, that the Borrower shall be entitled to obtain non-amortizing, interest free Intra Group Loans from the Guarantor as long as such loans are fully subordinated to the Borrower’s obligations under the Finance Documents.
|
23.5 |
Merger
|
23.6 |
Shareholding
|
23.7 |
Business and Change of business
|
(a) |
No substantial change shall be made to the general nature of the business of Obligors from that carried on at the Signing Date, and the Borrower shall not engage in any other business other than ownership and operation of the Vessel.
The Guarantor shall always remain listed at the New York Stock Exchange.
|
(b) |
Any business undertaken by the Borrower with the Guarantor or companies associated with the Borrower or Guarantor shall be made on arm’s length basis and in accordance with accepted transfer pricing principles and any inter-company or
shareholder loans shall be on a fully subordinated basis.
|
23.8 |
Title
|
23.9 |
Insurances – general
|
23.10 |
Earnings Accounts
|
23.11 |
Distribution restrictions and subordination of inter-company debt
|
(a) |
The Borrower shall be entitled to make or pay an annual dividend to its shareholders of up to 50% of the previous year's net result excluding unrealised agio/disagio from currency.
|
(b) |
No Obligor shall distribute any dividends if a Default has occurred and is continuing.
|
(c) |
All (i) Intra Group Loans to the Borrower, (ii) claims of the Guarantor against the Borrower and (iii) amounts owed to the Technical Managers and/or Commercial Managers (provided the Technical Managers and/or Commercial Managers are
Affiliates of the Borrower or the Guarantor) shall always be fully subordinated to the obligations of the Borrower under the Finance Documents.
|
23.12 |
Transaction Documents
|
23.13 |
Taxation
|
23.14 |
No change of name etc.
|
(a) |
its fiscal year;
|
(b) |
its nature of business;
|
(c) |
its constitutional documents (applicable to the Borrower only);
|
(d) |
its legal name;
|
(e) |
its type of organization; or
|
(f) |
its jurisdiction;
|
23.15 |
Guarantor's management
|
23.16 |
Sanctions
|
(a) |
Without prejudice to the other provisions of this Agreement, each of the Obligors undertakes to the Finance Parties from the Signing Date that it (and that it shall ensure that any Affiliate of any of them):
|
(i) |
shall comply in all respects with Sanctions Laws;
|
(ii) |
is not and shall not be, and that no director, officer, agent, employee, representative or person acting on behalf of any of them is not and shall not be, a Restricted Party and does not act directly or indirectly on behalf of a
Restricted Party;
|
(iii) |
shall not use any revenue or benefit derived from any activity or dealing with a Restricted Party in discharging any obligation due or owing to the Finance Parties;
|
(iv) |
shall not receive payments from any Restricted Party and shall procure that no proceeds from any activity or dealing with a Restricted Party are credited to any bank account held with any Finance Party in its name or in the name of any
Affiliate of any of them;
|
(v) |
shall institute and maintain policies and procedures designed to promote and achieve compliance by each of them with Sanctions Laws;
|
(vi) |
shall, to the extent permitted by law promptly upon becoming aware of them supply to the Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions Laws by any Sanctions Authority;
|
(vii) |
shall not accept, obtain or receive any goods or services from any Restricted Party, except (without limiting Clause 22.2 (Compliance with laws)), to the extent relating to any warranties and/or guarantees given and/or liabilities
incurred in respect of an activity or dealing with a Restricted Party by an Obligor in accordance with this Agreement; and
|
(viii) |
will not engage in any activities, business or transactions that could result in it or any other member of the DHT Group or Finance Party being designated as a Restricted Party.
|
(b) |
The Obligors shall not, and shall procure that any Affiliate of any of them shall not, permit or authorise any other person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any
part of the proceeds of the Facility or other transactions contemplated by this Agreement to fund or facilitate trade, business or other activities: (i) involving or for the benefit of any Restricted Party; or (ii) in any other manner
that could result in any Obligor or a Finance Party being in breach of any Sanctions Laws or becoming a Restricted Party.
|
23.17 |
Application of FATCA
|
23.18 |
Most favoured Lender
|
(a) |
notify the Agent immediately if the Borrower or any other member of the DHT Group has granted or intends to grant to any other lender or creditor under any loan agreement, financing agreement of a similar nature or guarantee any
guarantee, preference, financial reporting requirement, representation, warranty, covenant, undertaking and/or event of default (howsoever described) not being included in the Finance Documents or that is more beneficial or favourable to
the lender or creditor than those set out in the Finance Documents; and
|
(b) |
if required by any Lender, agree to amend the Finance Documents to include any such provision, whereunder it shall apply for as long as it applies under such other loan agreement, financing agreement or guarantee to which the relevant
member of the DHT Group is party.
|
24. |
VESSEL UNDERTAKINGS
|
24.1 |
General
|
24.2 |
Insurance – Vessel
|
(a) |
The Borrower shall maintain or ensure that the Vessel is insured against such risks, including but not limited to, hull and machinery, protection & indemnity (including cover for pollution liability as normally adopted by the
industry for similar units, however always in the minimum amount of USD 1,000,000,000 or such highest level of cover from time to time available under basic protection and indemnity club entry), hull interest, freight interest and war
risk insurances, including blocking and trapping, confiscation, terrorism and piracy, in such amounts, on such terms and placed through first class insurance brokers with such first class insurers as the Agent shall approve (such approval
not to be unreasonably withheld of delayed), and always subject to the Nordic Marine Insurance Plan of 2013 or later version (if relevant).
|
(b) |
The aggregate insurance value, except for protection & indemnity and loss of hire, shall be at least equal to the higher of (i) the aggregate Market Value of the Vessel and (ii) one hundred and twenty per cent (120%) of the Loan,
whereof the hull and machinery insurance (less hull interest and freight interest) shall at all times cover at least eighty per cent (80%) of Market Value of the Vessel. The loss payable clause in the hull and machinery insurance shall be
not higher than USD 3,000,000. The deductible of the hull and machinery insurance shall always be in such amount as the Agent may from time to time approve (such approval not to be unreasonably withheld of delayed).
|
(c) |
The Borrower shall procure that the Agent (on behalf of the Finance Parties) is (i) noted as first priority mortgagee in the insurance contracts, together with the confirmation from the underwriters to the Agent thereof that the notice
of assignment with regards to the Insurances and the loss payable clauses are noted in the insurance contracts and that standard letters of undertaking/cover notes/policies/certificates of entry are executed by the insurers and/or the
insurance broker(s) and (ii) copied in on all insurance documentation.
|
(d) |
The Borrower shall no later than 15 days prior to the Utilisation Date inform the Agent of with whom the Insurances will be placed and on what main terms they will be effected, and within reasonable time prior to the expiry date of the
relevant Insurances, the Borrower shall procure the delivery to the Agent of a certificate from the insurance broker(s) through whom the Insurances referred to in paragraph (a) above have been renewed and taken out in respect of the
Vessel with insurance values as required by paragraph (b) above, that such Insurances are in full force and effect and that the Agent (on behalf of the Finance Parties) have been noted as first priority mortgagee by the relevant insurers.
|
(e) |
The Borrower shall allow for the Agent and/or any other Finance Party to take out for the Borrower's account a Mortgagee’s Interest Insurance and a Mortgagee’s Interest - Additional Perils Pollution Insurance (covering one hundred and
twenty per cent (120%) of the Loan).
|
(f) |
The Agent may also for the account of the Borrower take out such other Insurances as the Finance Parties may reasonably require considering the trading and flag of the Vessel and taking into consideration any requirements by any public
body, classification society or similar entity having authority over the Borrower, the Vessel or any manager relating thereto.
|
(g) |
If any of the Insurances referred to in paragraph (a) above form part of a fleet cover, the Borrower shall procure, except for protection & indemnity (where the Borrower shall procure to obtain standard market undertakings in
favour of the Agent with respect to protection & indemnity from the insurers or the insurance broker), that the insurers or the insurance broker shall undertake to the Agent that they shall neither set-off against any claims in
respect of the Vessel any premiums due in respect of other units under such fleet cover or any premiums due for other insurances, nor cancel this Insurance for reason of non-payment of premiums for other units under such fleet cover or of
premiums for such other insurances, and shall undertake to issue a separate policy in respect of the Vessel if and when so requested by the Agent.
|
(h) |
The Borrower shall procure that the Vessel always are employed in conformity with the terms of the instruments of Insurances (including any warranties expressed or implied therein) and comply with such requirements as to extra premium
or otherwise as the insurers may prescribe.
|
(i) |
The Borrower will not make any material change, compromises, settlements or claims adjustments to the insurances described under (a) above without the prior written consent of the Agent.
|
(j) |
The Borrower shall pay for an insurance opinion commissioned by the Agent to be prepared by an independent insurance consultant, in form and contents acceptable to the
|
24.3 |
Flag, name and registry
|
24.4 |
Classification and repairs
|
(a) |
The Borrower shall, and shall procure that any Charterer or Technical Manager shall, keep or shall procure that the Vessel is kept in a good, safe and efficient condition consistent with first class ownership and management practice
and in particular: so as to maintain its class at the highest level with American Bureau of Shipping (with notation +A1, Oil Carrier, +AMS, +ACCU, ESP, CSR, AB-CM, UWILD, TCM, SPMA, CPS,
|
(b) |
so as to comply with the laws and regulations (statutory or otherwise) applicable to units registered under the flag state of the Vessel or to vessels trading to any jurisdiction to which the Vessel may trade from time to time;
|
(c) |
not, without the prior written consent of the Agent (which shall not be unreasonably withheld), change the classification society of the Vessel;
|
(d) |
not, without the prior written consent of the Agent, bring the Vessel or allow the Vessel to be brought to any yard for repairs or for the purpose of work being done upon her where the costs of such repairs or work is likely to exceed
USD 5,000,000 (or the equivalent thereof in any other currency), unless such person shall first have given to the Agent and in terms reasonably satisfactory to it, a written undertaking not to exercise any lien on the Vessel or her
Insurances or Earnings for the cost of such repairs or work or otherwise; and
|
(e) |
not, without the prior written consent of the Agent, permit any major change or structural alteration to the Vessel.
|
24.5 |
Inspections and class records
|
(a) |
The Borrower shall, and shall procure that the Technical Manager shall, procure that the Agent's surveyor at the Borrower’s cost, is permitted to inspect the condition of the Vessel once a year, if so requested by the Agent, provided
always that such arrangement shall not interfere with the operation of the Vessel and subject to satisfactory indemnities approved by the P&I insurers.
|
(b) |
The Borrower shall, and shall ensure that any charterers shall, instruct the classification society, to give the Agent access to class records and other information from the classification society in respect of the Vessel, by sending a
written instruction in such form and substance as the Agent may require. The Agent shall also be granted electronic access to class records.
|
24.6 |
Surveys
|
24.7 |
Notification of certain events
|
(a) |
any accident to the Vessel involving repairs where the costs will or is likely to exceed five per cent (5 %) of the insurance value of the Vessel;
|
(b) |
any requirement or recommendation made by any insurer or classification society or by any competent authority which is not, or cannot be, complied with immediately;
|
(c) |
any exercise or purported exercise of any arrest or lien on the Vessel, their Earnings or the Insurances;
|
(d) |
any occurrence as a result of which the Vessel has become or is, by the passing of time or otherwise, likely to become a Total Loss; and
|
(e) |
any claim for a material breach of the ISM Code, the ISPS Code or the MLC being made against the Borrower or the Technical Manager or otherwise in connection with the Vessel.
|
24.8 |
Operation of the Vessel
|
(a) |
The Borrower shall procure that the Vessel is managed by the Technical Manager pursuant to the Technical Management Agreement and the Commercial Manager pursuant to the Commercial Management Agreement and shall not, without the prior
written consent of the Agent (which shall not be unreasonably withheld), change or allow the change of the technical or commercial management of the Vessel, such consent always being subject to the execution by the relevant manager of a
letter of undertaking in respect of its duties under the relevant management agreement and the subordination of claims for payment thereunder, in terms and form acceptable to the Agent.
|
(b) |
The Borrower shall procure that each of the Technical Manager and the Commercial Manager signs, executes and deliver a manager’s undertaking in such form as the Agent (on behalf of the Finance Parties) may require.
|
(c) |
The Borrower shall, and shall procure that the Technical Manager shall, comply, or procure the compliance in all material respects with the ISM Code and the ISPS Code, all Environmental Laws, all Sanction Laws, the laws of the Approved
Ship Registry, the United States Oil Pollution Act 1990 and all other laws or regulations relating to the Vessel, their ownership, operation and management or to the business of the Borrower and the Technical Manager and shall not employ
the Vessel nor allow their employment:
|
(i) |
in any manner contrary to law or regulation in any relevant jurisdiction including but not limited to the ISM Code; and
|
(ii) |
in the event of hostilities in any part of the world (whether war is declared or not), in any zone which is declared a war zone by any government or by the war risk insurers of the Vessel unless the Borrower have (at their own expense)
effected any special, additional or modified insurance cover which shall be necessary or customary for first class unit owners within the territorial waters of such country at such time and has provided evidence of such cover to the
Agent.
|
24.9 |
ISM Code compliance
|
(a) |
procure that the Vessel remains subject to a SMS;
|
(b) |
procure that a valid and current SMC is maintained for the Vessel;
|
(c) |
procure that the Technical Manager maintains a valid and current DOC;
|
(d) |
immediately notify the Agent in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the SMC of the Vessel or of the DOC of the Technical Manager; and
|
(e) |
immediately notify the Agent in writing of any "accident" or "major nonconformity", each as those terms is defined in the Guidelines in the application of the IMO International Safety Management Code issued by the International Chamber
of Shipping and International Shipping Federation.
|
24.10 |
Environmental compliance
|
24.11 |
Arrest
|
(a) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Vessel, the Earnings or the Insurances;
|
(b) |
all tolls, taxes, dues, fines, penalties and other amounts charged in respect of the Vessel, the Earnings or the Insurances; and
|
(c) |
all other outgoings whatsoever in respect of the Vessel, the Earnings and the Insurances,
|
24.12 |
Chartering
|
(a) |
let the Vessel on bareboat charter for any period;
|
(b) |
enter into any other agreement related to the chartering and operation of the Vessel exceeding twelve (12) Months or any pooling arrangements related to the Earnings of the Vessel; and
|
(c) |
terminate, cancel, amend or supplement any Charterparty nor assign such Charterparty or other contract of employment to any other person.
|
24.13 |
Sanctions
|
(a) |
The Borrower shall prevent the Vessel from being used, directly or indirectly
|
(i) |
by, or for the benefit of, any Restricted Party in breach of Sanctions Laws; and/or
|
(ii) |
in any trade which could expose the Vessel, any Finance Party, any manager of the Vessel, the ship's crew or the Vessel's insurers to enforcement proceedings or any other consequences whatsoever arising from Sanctions Laws.
|
(b) |
Any charter party in respect of the Vessel entered into after the Signing Date shall include standard clauses on "Sanctions and Designated Entities" included in BIMCO's standard documentation.
|
24.14 |
Inventory of Hazardous Materials
|
24.15 |
Sustainable vessel recycling
|
(a) |
The Borrower shall ensure that if the Vessel is taken out of service for dismantling while in its ownership or sold to an intermediary with the intention of being dismantled, it is recycled at a recycling facility which conducts its
recycling business in a socially and environmentally responsible manner, in accordance with the provisions of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships.
|
(b) |
The Borrower shall ensure that the Vessel is not scrapped or dismantled by the Borrower unless it has been established an Inventory of Hazardous Materials or equivalent documentation for hazardous materials.
|
25. |
EVENTS OF DEFAULT
|
25.1 |
Non-payment
|
(a) |
its failure to pay is caused by:
|
(i) |
administrative or technical error; or
|
(ii) |
a Disruption Event; and
|
(b) |
payment is made within three (3) Business Days of its due date.
|
25.2 |
Financial covenants
|
25.3 |
Other obligations
|
25.4 |
Misrepresentation
|
25.5 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d) |
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 25.5 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to
(d) above is less than USD 100,000 in respect of the Borrower and USD 5,000,000 of the Guarantor.
|
25.6 |
Insolvency
|
(a) |
Any Obligor is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities) or if the equity of any Obligor is negative.
|
(c) |
A moratorium is declared in respect of any indebtedness of any Obligor.
|
25.7 |
Insolvency proceedings
|
(a) |
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;
|
(b) |
a composition, compromise, assignment or arrangement with any Obligor;
|
(c) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor or any of their assets; or
|
(d) |
enforcement of any Security over any assets of any Obligor,
|
25.8 |
Creditors' process
|
25.9 |
Change of Control
|
25.10 |
Unlawfulness
|
25.11 |
Repudiation
|
(a) |
An Obligor repudiates a Transaction Document or evidences an intention to repudiate a Transaction Document.
|
(b) |
Any Transaction Document ceases to be legal, valid, binding, enforceable or effective or fails to become effective for any reason whatsoever.
|
25.12 |
Permits
|
25.13 |
Material adverse change
|
25.14 |
Arrest or seizure of the Vessel
|
25.15 |
Cessation of business
|
25.16 |
Insurances
|
25.17 |
Acceleration
|
(a) |
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
and/or
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or
|
(d) |
exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
26. |
CHANGES TO THE LENDERS
|
26.1 |
Assignments and transfers by the Lenders
|
(a) |
to another Lender or an Affiliate of a Lender;
|
(b) |
to a reputable shipping bank which has a minimum rating of "BBB" at S&P or "Baa" at Moody's; or
|
(c) |
made at a time when an Event of Default has occurred and is continuing.
|
26.2 |
Conditions of assignment or transfer
|
(a) |
A transfer will only be effective if the procedure set out in Clause 26.4 (Procedure for transfer) is complied with.
|
(b) |
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 13 (Tax gross-up and indemnities) or Clause 14 (Increased Costs),
|
(c) |
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the
requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the
Existing Lender would have been had it remained a Lender.
|
26.3 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties 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 in connection with any Finance Document; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(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 26 (Changes to the Lenders); or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
26.4 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 26.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to 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 the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all
applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause 26.6 (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 each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents 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 Agent, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the transfer and to that extent the Agent and the Existing Lender 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".
|
26.5 |
Copy of Transfer Certificate to the Borrower
|
26.6 |
Pro rata interest settlement
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer
than six (6) Months, on the next of the dates which falls at six (6) Monthly intervals after the first day of that Interest Period); and
|
(b) |
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 26.6 (Pro rata interest settlement), have been payable to it on that
date, but after deduction of the Accrued Amounts.
|
26.7 |
Security over Lenders' rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as Security for those
obligations or securities,
|
(c) |
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
|
(d) |
require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
27. |
CHANGES TO THE OBLIGORS
|
27.1 |
Assignments and transfer by Obligors
|
27.2 |
Accession as Borrower
|
27.3 |
Compulsory resignation of FATCA FFIs and US Tax Obligors
|
28. |
ROLE OF THE AGENT
|
28.1 |
Appointment of the Agent
|
(a) |
Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents and to act as its security agent for the purpose of the Security Documents.
|
(b) |
Each other Finance Party authorises the Agent, to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights,
powers, authorities and discretions
|
28.2 |
Duties of the Agent
|
(a) |
Subject to paragraph (b) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(b) |
Without prejudice to Clause 26.5 (Copy of Transfer Certificate to the Borrower), paragraph (a) above shall not apply to any Transfer Certificate.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
(e) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
(f) |
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
28.3 |
No fiduciary duties
|
(a) |
Nothing in this Agreement constitutes the Agent as a trustee or fiduciary of any other Party.
|
(b) |
The Agent shall not be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
28.4 |
Business with any Obligor
|
28.5 |
Rights and discretions of the Agent
|
(a) |
The Agent may rely on:
|
(i) |
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
(ii) |
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
(b) |
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 25.1 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party has not been exercised; and
|
(iii) |
any notice or request made by the Borrower is made on behalf of and with the consent and knowledge of the Obligors.
|
(c) |
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
(d) |
The Agent may act in relation to the Finance Documents through its personnel and agents.
|
(e) |
The Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(f) |
Notwithstanding any other provision of any Finance Document to the contrary, the 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.
|
28.6 |
Majority Lenders' instructions
|
(a) |
Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance
with an instruction of the Majority Lenders.
|
(b) |
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
(c) |
The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any
associated VAT) which it may incur in complying with the instructions.
|
(d) |
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
(e) |
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Party’s consent) in any legal or arbitration proceedings relating to any Finance Document.
|
28.7 |
Responsibility for documentation
|
(a) |
responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, an Obligor or any other person given in or in connection with any Finance Document; or
|
(b) |
responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any
Finance Document.
|
28.8 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below, the Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful misconduct.
|
(b) |
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause.
|
(c) |
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Agent to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender and each Lender confirms to the 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 Agent.
|
28.9 |
Lenders' indemnity to the Agent
|
28.10 |
Resignation of the Agent
|
(a) |
The Agent may resign as Agent and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively the Agent may resign as Agent by giving thirty (30) days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Borrower) may appoint a successor
Agent.
|
(d) |
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents.
|
(e) |
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(f) |
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation as Agent) in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 28 (Role of the Agent). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g) |
After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require it to resign as Agent in accordance with paragraph (b) above. In this event, the Agent shall resign as Agent and/or Security Agent in
accordance with paragraph (b) above.
|
(h) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three (3)
months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i) |
the Agent fails to respond to a request under Clause 13.6 (FATCA Information) and a
Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii) |
the information supplied by the Agent pursuant to Clause 13.6 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date; or
|
(iii) |
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
28.11 |
Confidentiality
|
(a) |
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
28.12 |
Relationship with the Lenders
|
(a) |
Subject to Clause 26.6 (Pro rata Interest Settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as
notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or 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 34.5 (Electronic communication)) electronic mail address and/or any other
information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute
address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and paragraph (a)(iii) of Clause 34.5 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
28.13 |
Credit appraisal by the Lenders
|
(a) |
the financial condition, status and nature of each Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document;
|
(c) |
whether that Lender have recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(d) |
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
28.14 |
Deduction from amounts payable by the Agent
|
29. |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party or 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.
|
30. |
SHARING AMONG THE FINANCE PARTIES
|
30.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent;
|
(b) |
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with
Clause 30 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(c) |
the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount
which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 31.5 (Partial payments).
|
30.2 |
Redistribution of payments
|
30.3 |
Recovering Finance Party's rights
|
30.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount");
and
|
(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.
|
30.5 |
Exceptions
|
(a) |
This Clause 30 (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.
|
31. |
PAYMENT MECHANICS
|
31.1 |
Payments to the 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 the same available to the 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 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 with such bank as the Agent specifies.
|
31.2 |
Distributions by the Agent
|
31.3 |
Distributions to an Obligor
|
31.4 |
Clawback
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.
|
(b) |
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the
Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
31.5 |
Partial payments
|
(a) |
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the
Finance Documents in the following order:
|
(i) |
firstly, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent under the Finance Documents;
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest, fee or costs due but unpaid under this Agreement;
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
(b) |
The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a) (ii) to (iv) above.
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
31.6 |
No set-off by Borrower and Guarantor
|
31.7 |
Business Days
|
(a) |
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
31.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, USD 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 USD shall be paid in that other currency.
|
31.9 |
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
Agent (after consultation with the Borrower); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent
(acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
32. |
SET-OFF
|
33. |
BAIL-IN
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
34. |
NOTICES
|
34.1 |
Communications in writing
|
34.2 |
Addresses
|
(a) |
in the case of the Borrower and the Guarantor, that identified with its name below;
|
(b) |
in the case of the Agent, that identified with its name below;
|
34.3 |
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 (5) Business Days after being couriered 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 34.2 (Addresses), if addressed to that department or officer.
|
(b) |
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the
Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
34.4 |
Notification of address, e-mail and fax number
|
34.5 |
Electronic communication
|
(a) |
Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:
|
(i) |
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(ii) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(iii) |
notify each other of any change to their address or any other such information supplied by them.
|
(b) |
Any electronic communication made between the Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed in
such a manner as the Agent shall specify for this purpose.
|
34.6 |
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 Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
35. |
CALCULATIONS AND CERTIFICATES
|
35.1 |
Accounts
|
35.2 |
Certificates and Determinations
|
35.3 |
Day count convention
|
36. |
PARTIAL INVALIDITY
|
37. |
REMEDIES AND WAIVERS
|
38. |
AMENDMENTS AND WAIVERS
|
38.1 |
Required consents
|
(a) |
Subject to Clause 38.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the relevant Obligors and any such amendment or
waiver will be binding on all Parties.
|
(b) |
The consent of the Borrower is not required for any matters between the Lenders only, unless such amendment or waiver would be onerous to the Borrower.
|
(c) |
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
|
38.2 |
Exceptions
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(ii) |
an extension to the date of payment of any amount under the Finance Documents;
|
(iii) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or costs payable (including the avoidance of doubt any commitment fees as referred to in Clause 12 (Fees
and costs));
|
(iv) |
an increase in or an extension of any Commitment;
|
(v) |
any change of currency;
|
(vi) |
any provision which expressly requires the consent of all the Lenders;
|
(vii) |
Clause 2.2 (Finance Parties' rights and obligations), Clause 7 (Prepayment and Cancellation), Clause 26 (Changes to the
Lenders), Clause 31.5 (Partial Payments) or this Clause 38 (Amendments and waivers);
|
(viii) |
the nature or scope of the guarantee and indemnity granted under Clause 19 (Guarantee and indemnity);
|
(ix) |
release of any Security created by the Security Documents unless permitted under the Finance Documents or undertaken by the Agent acting on instruction of the Majority Lenders following an Event of Default which is continuing;
|
(x) |
change to any Obligor;
|
(xi) |
governing law and jurisdiction;
|
(xii) |
the manner in which the proceeds after enforcement are being applied; or
|
(xiii) |
any change to the Security Documents
|
(b) |
An amendment or waiver which relates to the rights or obligations of the Agent (each in their capacity as such) may not be effected without the consent of the Agent.
|
38.3 |
Changes to reference rates
|
(a) |
Subject to Clause 38.2 (Exceptions) paragraph (b), if a Published Rate Replacement Event has occurred in relation to any Published Rate, any amendment or waiver which relates to:
|
(i) |
providing for the use of a Replacement Reference Rate in place of that Published Rate; and
|
(ii) |
|
(A) |
aligning any provision of any Finance Document to the use of that Replacement Reference Rate;
|
(B) |
enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the
purposes of this Agreement);
|
(C) |
implementing market conventions applicable to that Replacement Reference Rate;
|
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or
|
(E) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or
method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Borrower and the Agent may agree) of
that request being made:
|
(i) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the Facility 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.
|
(c) |
In this Clause 38.3:
|
(a) |
Term SOFR for any Quoted Tenor;
|
(b) |
SOFR;
|
(c) |
Central Bank Rate; or
|
(d) |
any replacement Reference Rate to the extent that it has previously replaced any Published Rate pursuant to this clause.
|
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders and the Borrower materially changed;
|
(A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Published Rate is insolvent,
|
(ii) |
the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide
that Published Rate;
|
(iii) |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or
|
(iv) |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used.
|
(c) |
the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published Rate) determines that that Published Rate should be calculated in accordance with its reduced
submissions or other contingency or fallback policies or arrangements and either:
|
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Obligors) temporary; or
|
(ii) |
that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than 20 days; or
|
(d) |
in the opinion of the Majority Lenders and the Borrower, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by:
|
(i) |
the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or
|
(ii) |
any Relevant Nominating Body,
|
(b) |
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Published Rate; or
|
(c) |
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Published Rate.
|
39. |
GUARANTOR'S LIABILITY
|
40. |
COUNTERPARTS
|
41. |
CONFLICT
|
42. |
GOVERNING LAW
|
43. |
ENFORCEMENT
|
43.1 |
Jurisdiction
|
(a) |
The courts of Norway, the venue to be Oslo city court (in Norwegian: Oslo tingrett) have jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a
dispute relating to the existence, validity or termination of this Agreement (a "Dispute").
|
(b) |
The Parties agree that the courts of Norway are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c) |
This Clause 43.1 (Jurisdiction) is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other
courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
43.2 |
Service of process
|
(a) |
irrevocably appoints DHT Management AS, Haakon VII's gate 1, P.O. Box 2039 Vika, 0125 Oslo, Norway as its agent for service of process in relation to any proceedings before the Norwegian courts in connection with any Finance
Document; and
|
(b) |
agrees that failure by a process agent to notify the Borrower and/or Guarantor of the process will not invalidate the proceedings concerned.
|
Name of Original Lenders:
|
Commitment:
|
||
Danish Ship Finance A/S
registration no. (CVR-nr) 27 49 26 49
Sankt Annæ Plads 3,
1250 København K
Denmark
|
The lower of (i) 65% of the Market Value of the Vessel upon Utilisation and (ii) USD 49,400,000
|
1. |
Borrower and Guarantor
|
(a) |
Certified copies of the articles of association and bylaws of the relevant company.
|
(b) |
Certificate of Incorporation, extract from the relevant Company Registry and/or updated Certificate of Good Standing;
|
(c) |
A certified copy of a resolution of the board of directors of the relevant company, and if required by the Agent shareholders resolutions of the Guarantor:
|
(i) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(ii) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
(d) |
A copy of the passports of any Director of the relevant company and of each other person signing any Finance Documents, and specimen of the signature of such persons if not evidenced by the passport copy;
|
(e) |
An original power of attorney (notarised and legalised if requested by the Agent);
|
(f) |
Evidence of the shareholder structure of the Borrower and the 10 largest shareholders of the Guarantor based on latest publicly available filings; and
|
(g) |
Any shareholders' agreements.
|
2. |
Authorisations
|
3. |
Finance Documents
|
(a) |
The Agreement;
|
4. |
Vessel Documents
|
(a) |
Copy of the Shipbuilding Contracts;
|
5. |
Legal opinions
|
(a) |
A legal opinion from the legal advisers to the Agent in the relevant jurisdiction (including Norway, the Marshall Islands and Hong Kong (if the Borrower has acceded to the Agreement), substantially in the form distributed to the
Lenders prior to signing this Agreement; and
|
(b) |
Any such other favourable legal opinions in form and substance satisfactory to the Agent from lawyers appointed by the Agent on matters concerning all relevant jurisdictions.
|
6. |
Other documents and evidence
|
(a) |
Evidence that any process agent referred to in Clause 43.2 (Service of process), if not an Obligor, has accepted its appointment;
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Guarantor accordingly) in connection with the entry into and performance of
the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document;
|
(c) |
Evidence that all instalments due under the Shipbuilding Contract prior to signing of the Agreement have been paid;
|
(d) |
Evidence that the fees, costs and expenses then due from the Borrower (or the Guarantor if no Borrower has acceded to the Agreement) pursuant to Clause 12 (Fees and costs) and Clause 17 (Costs and expenses) have been paid or will be paid by the Signing Date; and
|
(e) |
Any other documents as reasonably requested by the Agent, hereunder any additional documentation required for any Finance Party to comply with their Know Your Customer requirements;
|
1. |
Borrower and Guarantor
|
(a) |
Certified copies of the constitutional documents of the relevant company;
|
(b) |
Certificate of Incorporation, extract from the relevant Company Registry and/or updated Certificate of Good Standing;
|
(c) |
A certified copy of a resolution of the board of directors, and if required by the Agent shareholders resolutions, of the relevant company:
|
(i) |
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;
|
(ii) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
(d) |
A copy of the passports of any Director of the relevant company and of each other person signing any Finance Documents, and specimen of the signature of such persons if not evidenced by the passport copy;
|
(e) |
An original Power of Attorney (notarised and legalised if requested by the Agent);
|
(f) |
Evidence of the shareholder structure of the Borrower and the 10 largest shareholders of the Guarantor based on latest publicly available filings; and
|
(g) |
A certificate of an authorised signatory of the relevant company setting out the name of the Directors of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and
in full force and effect as at a date no earlier than the Signing Date.
|
2. |
Authorisations
|
3. |
Finance Documents
|
(h) |
The Assignment Agreement;
|
(i) |
A Notice of Assignment of Insurances and acknowledgement thereof or standard letters of undertaking;
|
(j) |
A Notice of Assignment of Earnings and acknowledgement thereof;
|
(k) |
The Deed of Charge with the notices, transcripts and evidence required thereunder;
|
(l) |
The duly executed and effective Accession Letter.
|
4. |
Documents relating to the Vessel
|
(a) |
Copies of insurance policies/cover notes documenting that insurance cover has been taken out in respect of the Vessel in accordance with Clause 24.2 (Insurances - Vessel), and evidencing
that the Agent's Security in the insurance policies have been noted in accordance with the relevant notices as required under the Assignment Agreement;
|
(b) |
A copy of any Charterparty (if relevant);
|
(c) |
A copy of the current DOC;
|
(d) |
A copy of any Technical Management Agreement;
|
(e) |
A copy of any Commercial Management Agreement (including an amendment evidencing that the Vessel is included under such agreement);
|
(f) |
A survey report in respect of the Vessel;
|
(g) |
A copy of updated confirmations of class (or equivalent) in respect of the Vessel from the relevant classification society, confirming that the Vessel is classed in accordance with Clause 24.4 (Classification
and repairs), free of extensions and overdue recommendations;
|
(h) |
A copy of the Vessel’s current SMC;
|
(i) |
A copy of the Vessel’s ISSC;
|
(j) |
A copy of the maritime labour certificates (MLC) and the declarations of maritime labour compliance (DMLC) for the Vessel; and
|
(k) |
Updated valuation certificate in respect of the Vessel issued no more than thirty (30) days prior to the Utilisation Date showing the Market Value.
|
(l) |
The Mortgage;
|
(m) |
The Deed of Covenants;
|
(n) |
A copy of the Builder’s Certificate;
|
(o) |
A copy of the Bill of Sale;
|
(p) |
A copy of the Protocol of Delivery and Acceptance under the Shipbuilding Contract;
|
(q) |
A copy of the international tonnage certificate;
|
(r) |
Evidence (by way of transcript of registry) that the Vessel is registered in the name of the Borrower in an Approved Ship Registry acceptable to the Agent, that the Mortgage has been, or will in connection with Utilisation of the
Facility be, executed and recorded with their intended first priority against the Vessel and that no other encumbrances, maritime liens, Mortgage or debts whatsoever are registered against the Vessel.
|
5. |
Legal opinions
|
(a) |
A legal opinion from the legal advisers to the Agent in the relevant jurisdiction (including Norway, the Marshall Islands and Hong Kong), substantially in the form distributed to the Original Lenders prior to signing this
Agreement;
|
(b) |
Any such other favourable legal opinions in form and substance satisfactory to the Agent from lawyers appointed by the Agent on matters concerning all relevant jurisdictions.
|
6. |
Other documents and evidence
|
(a) |
Evidence that any process agent referred to in the Security Documents, if not a Party to this Agreement, has accepted its appointment;
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document;
|
(c) |
The Utilisation Request at least two (2) Business Days prior to the Utilisation Date;
|
(d) |
Evidence that all instalments under the Shipbuilding Contract prior to the Utilisation Date have been paid (including the invoices from the Yard);
|
(e) |
A favourable opinion from the Agent's insurance consultants at the expense of the Borrower confirming that the required insurances have been placed and are acceptable to the Agent and that the underwriters are acceptable to the
Agent;
|
(f) |
An original Compliance Certificate confirming that the Obligors are in compliance with the financial covenants as set out in Clause 22 (Financial covenants);
|
(g) |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 12 (Fees and costs) and Clause 17 (Costs and expenses) have
been paid or will be paid by the Utilisation Date;
|
(h) |
Manager’s undertakings from the Technical Manager and the Commercial Manager in such form as the Agent may require;
|
(i) |
The latest Financial Statements of each Obligor; and
|
(j) |
Any other documents as reasonably requested by the Agent, hereunder any additional documentation required for any Finance Party to comply with their Know Your Customer requirements.
|
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 Loan on the following terms:
|
Proposed Utilisation Date:
|
[ ] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
49,400,000 or, if less, the Available Facility
|
Interest Period:
|
6 months Interest Periods shall apply. First Interest Period shall be [ ]
|
3. |
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4.
|
The proceeds of this Loan should be credited to [account].
|
5. |
This Utilisation Request is irrevocable.
|
1. |
We hereby request the Agent to switch the Reference Rate for the Loan from Term SOFR to SOFR starting as of [the first day in the next Interest Period for the Loan].
|
2. |
The Interest Period on the Loan shall be six (6) Months.
|
3. |
This Optional Rate Switch Notice is irrevocable.
|
1. |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2. |
We refer to Clause 26.4 (Procedure for transfer):
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with
Clause 26.4 (Procedure for transfer).
|
(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 34.2 (Addresses) are set out in the Schedule.
|
3. |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 26.3 (Limitation of responsibility of Existing Lenders).
|
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 is governed by Norwegian law.
|
6. |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
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 as of [insert date] the Guarantor has on a consolidated basis:
|
a) |
Minimum Value Adjusted Tangible Net Worth
|
Requirement: |
Value Adjusted Tangible Net Worth of at least USD 300,000,000, but the Value Adjusted Tangible Net Worth shall in any event be minimum 25 % of the Value Adjusted Total Assets
|
b) |
Minimum Cash
|
Requirement: |
The higher of USD 30,000,000 and 6 % of the Total Interest Bearing Debt
|
c) |
Working Capital
|
3. |
We confirm that no Default is continuing.
|
DHT Jaguar Limited
|
|
DHT Holdings, Inc.
|
||
[title]
|
|
CFO
|
1. |
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning when used in this Accession Letter.
|
2. | By its signature hereto, [ ], reg. no. [ ], incorporated under the laws of [ ] hereby accedes as Borrower under the Agreement and the Security Documents with effect from the date hereof, and to be bound by the terms of the Agreement and the Security Documents relating to the Borrower in its capacity as a borrower under the Agreement. The Borrower hereby undertakes and agrees to sign and execute such additional Security Documents as may be required under the Agreement. |
3. |
By their signatures hereto, each of the Borrower, the Guarantor, the Lender and the Agent accepts the accession of the Borrower to the Agreement.
|
4. |
The Borrower's address and fax number for the purpose of Clause 34.2 of the Agreement is [ ].
|
5. |
The Borrower hereby confirm that no Default is continuing or would occur as a result of it becoming the Borrower.
|
6. |
The Borrower confirms that all representations and warranties in Clause 20 (Representations) are correct as of the date hereof.
|
7. |
The following amendments shall be made to the Agreement with effect from the accession of the Borrower: [ ].
|
8. |
This Accession Letter is governed by Norwegian law. Clauses 42 and 43 of the Agreement apply to this Accession Letter, and the Borrower hereby appoints the process agent described in Clause 43.2 of the Agreement.
|
Borrower:
|
||
[ ] | ||
By: |
Name:
|
Guarantor:
|
||
DHT HOLDINGS, INC.
|
||
By: |
Name: | ||
Agent: | ||
DANISH SHIP FINANCE A/S
|
||
By: |
Name: |
Original Lender:
|
||
DANISH SHIP FINANCE A/S
|
||
By: |
Name: |
Date
|
Instalment
(USD)
|
Outstanding
(USD)
|
|||
Utilisation date
|
17 November 2015
|
0
|
49,400,000
|
||
Instalment 1
|
2 May 2016
|
1,300,000
|
48,100,000
|
||
Instalment 2
|
2 November 2016
|
1,300,000
|
46,800,000
|
||
Instalment 3
|
2 May 2017
|
1,300,000
|
45,500,000
|
||
Instalment 4
|
2 November 2017
|
1,300,000
|
44,200,000
|
||
Instalment 5
|
2 May 2018
|
1,300,000
|
42,900,000
|
||
Instalment 6
|
2 November 2018
|
1,300,000
|
41,600,000
|
||
Instalment 7
|
2 May 2019
|
1,300,000
|
40,300,000
|
||
Instalment 8
|
2 November 2019
|
1,300,000
|
39,000,000
|
||
Instalment 9
|
2 May 2020
|
1,300,000
|
37,700,000
|
||
Instalment 10
|
2 November 2020
|
1,300,000
|
36,400,000
|
||
Instalment 11
|
2 May 2021
|
1,213,333
|
35,186,667
|
||
Instalment 12
|
2 November 2021
|
1,213,333
|
33,973,334
|
||
Instalment 13
|
2 May 2022
|
1,213,333
|
32,760,001
|
||
Instalment 14
|
2 November 2022
|
1,213,333
|
31,546,668
|
||
Instalment 15
|
2 May 2023
|
1,213,333
|
30,333,335
|
||
Instalment 16
|
2 November 2023
|
1,213,333
|
29,120,002
|
||
Instalment 17
|
2 May 2024
|
1,213,333
|
27,906,669
|
||
Instalment 18
|
2 November 2024
|
1,213,333
|
26,693,336
|
||
Instalment 19
|
2 May 2025
|
1,213,333
|
25,480,003
|
||
Instalment 20
|
2 November 2025
|
1,213,333
|
24,266,670
|
||
Balloon
|
2 November 2025
|
24,266,670
|
0
|
Obligor
|
Name and
organization
number:
|
Organisation
form
|
Address
|
Name of general
manager and
directors (or
persons holding
equivalent
positions)
|
|||||
Borrower
|
DHT Jaguar Limited (no. 77008)
|
Marshall Islands corporation
|
Trust Company Compiex, Ajeltake Road, Ajeltake Island, Majuro, MH 96960,
Republic of the Marshall lslands
|
Director: Svein Moxnes Harfjeld President: Svein Moxnes Harfjeld Treasurer: Laila Cecilie Halvorsen Secretary: Conyers Corporate Services (Bermuda) Limited.
|
|||||
Guarantor
|
DHT Holdings, Inc. (no.
39572)
|
Marshall Islands corporation limited by shares
|
The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960,
Republic of the Marshall Islands
|
Directors: Erik Andreas Lind (chairman), Joseph Howland Pyne, Einar Michael Steimler, Jeremy Rafael Kramer, and Sophie Rossini CEO/President:
Svein Moxnes Harfjeld
|
Borrower:
|
|
DHT JAGUAR LIMITED
|
|
By: |
Name: | |
Title: |
Guarantor:
|
|
DHT HOLDINGS, INC.
|
|
By: |
Name: | |
Title:
|
Agent:
|
|
DANISH SHIP FINANCE A/S
|
|
By: |
Name: | |
Title:
|
|
Original Lender:
|
||
DANISH SHIP FINANCE A/S
|
||
By: |
Name: | |
Title: |
|
Page 2 of
10 |
(1) |
THE ENTITIES set out as owners of the Original Vessels in Schedule 1B (Original Borrowers, Original Vessels and Tranches) of the Facilities
Agreement, as joint and several original borrowers (each an “Original Borrower” and together the “Original Borrowers”);
|
(2) |
DHT HOLDINGS, INC., The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands as guarantor (the “Guarantor”);
|
(3) |
NORDEA BANK ABP, FILIAL I NORGE as coordinator (the “Coordinator”);
|
(4) |
NORDEA BANK ABP, FILIAL I NORGE, ING BANK N.V., ABN AMRO BANK N.V., OSLO BRANCH,
|
(5) |
NORDEA BANK ABP, FILIAL I NORGE, ING BANK N.V., ABN AMRO BANK N.V., OSLO BRANCH, DANMARKS SKIBSKREDIT A/S, DNB BANK ASA, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as mandated lead
|
(6) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1A (The Original Lenders) of the Facilities Agreement as original lenders (the “Original Lenders”);
|
(7) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1A (The Original Lenders) of the Facilities Agreement as original hedging banks (the “Original Hedging Banks”);
|
(8) |
NORDEA BANK ABP, FILIAL I NORGE as agent and security agent of the other Finance Parties (respectively, the “Agent” and the “Security Agent”).
|
(A) |
Pursuant to the up to USD 566,224,247 original facilities agreement dated 14 May 2021 (the “Original Facilities Agreement”) made between the Parties, the Original Lenders made available to the
Original Borrowers certain loan facilities on the terms set out therein.
|
(B) |
The Parties have agreed to amend and restate the Original Facilities Agreement in particular for the purpose of changing the floating interest rate element from LIBOR to Term SOFR (or compounded SOFR if switched) + CAS, subject to the
terms and conditions of this Amendment No. 1.
|
1 |
INTERPRETATION AND DESIGNATION
|
(a) |
In this Amendment No. 1:
|
|
Page 3 of
10 |
(b) |
Capitalised words and expressions used herein and not otherwise defined herein are used as defined in the New Facilities Agreement.
|
(c) |
References herein to the “Facilities Agreement” shall be construed as references to the Original Facilities Agreement up until the Effective Date and as references to the New Facilities Agreement upon and any time after the Effective
Date or as the context otherwise may require.
|
(d) |
The principles of construction set out in Clause 1.2 (Construction) of the Facilities Agreement shall have effect as if set out in this Amendment No. 1.
|
(e) |
This Amendment No. 1 and the New Facilities Agreement shall be deemed to be Finance Documents.
|
2 |
AMENDMENTS TO THE ORIGINAL FACILITIES AGREEMENT
|
(a) |
the definition of “Charterparty” in Clause 1.1 (Definitions) of the Original Facilities Agreement shall be amended by adding the following underscored wording and by deleting the words marked to
such effect below:
|
(b) |
paragraph (c) of Clause 25.13 (Chartering) of the Original Facilities Agreement shall be amended by adding the following underscored wording and by deleting the words marked to such effect below:
|
3 |
AMENDMENT AND RESTATEMENT OF FACILITIES AGREEMENT AS OF EFFECTIVE DATE
|
(a) |
As of the Effective Date the Original Facilities Agreement shall automatically be amended and restated in the form of the New Facilities Agreement, including for the avoidance of doubt so that the Guarantor shall automatically provide
the Guarantee on the terms as set out in Clause 20 (Guarantee and Indemnity) of the New Facilities Agreement.
|
(b) |
This Amendment No. 1 shall, except for clause 2 (Amendments to the Original Facilities Agreement) and clause 6 (Miscellaneous), each of which is effective
from the date hereof, be effective from and including the first new Interest Period commencing after 30 June 2023 (the “Effective Date”).
|
(c) |
The Borrower undertakes to provide the Agent (in a form and substance acceptable to it) with all the documents and evidence listed in schedule 1 (Conditions precedent documents) hereto prior to
the Effective Date.
|
|
Page 4 of
10 |
4 |
REPETITION
|
5 |
CONFIRMATIONS
|
6 |
MISCELLANEOUS
|
(a) |
The Borrowers shall pay to the Agent upon demand, all legal and other expenses incurred by the Agent in connection with this Amendment No. 1 and any other documents incidental hereto.
|
(b) |
This Amendment No. 1 shall be governed by and interpreted under Norwegian law with venue as set out in the Facilities Agreement.
|
|
Page 5 of
10 |
1. |
Corporate documents relating to each of the Borrowers and the Guarantor
|
(a) |
Certified copies of the constitutional documents, certificate of incorporation, extract from the relevant company registry and/or updated certificate of good standing of the relevant company;
|
(b) |
A certified copy of a resolution of the board of directors of the relevant company (i) approving the terms of, and the transactions contemplated by, the Amendment No. 1 and other relevant Finance Documents to which it is a party and
resolving that it execute such documents to which it is a party, (ii) authorising a specified person or persons to execute the Amendment No. 1 and other relevant Finance Documents to which it is a party on its behalf and (iii) authorising a
specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Amendment No. 1 and other relevant Finance Documents to which it is a party.
|
(c) |
Certified copies of the resolutions of the Borrowers’ shareholder(s) approving the terms of, and the transactions contemplated by, the Amendment No. 1 and other relevant Finance Documents to which it is a party, if applicable.
|
(d) |
If relevant, an original Power of Attorney (notarised if requested by the Agent); and
|
(e) |
A certificate of an authorised signatory (including any authorised director, secretary, treasurer or chief financial officer) of the relevant company setting out the name of the Directors of the relevant Obligor certifying that each copy
document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of the Amendment No. 1.
|
2. |
Finance Documents
|
(a) |
All and any new documentation or amendments to for the Existing Security (including but not limited to any amendment agreements, letters, notices, acknowledgements, registrations, filings etc.) deemed relevant by the Agent in order to
ensure and verify that the Existing Security become or remain, as the case might be, in full force and effect according to the terms of the Amendment No. 1.
|
3. |
Miscellaneous
|
(a) |
A legal opinion from the legal advisers to the Agent in the relevant jurisdiction, substantially in the form distributed to and approved by all Lenders.
|
(b) |
Any other documents as reasonably requested by the Agent.
|
|
Page 6 of
10 |
7 |
SIGNATORIES
|
Borrower:
|
Borrower:
|
||||
DHT Opal, Inc. |
DHT Peony, Inc. |
||||
By: |
/s/ Hallvard Haskjold | By: | /s/ Hallvard Haskjold | ||
Name: Hallvard Haskjold |
Name: Hallvard Haskjold |
||||
Title: Attorney-in-Fact |
Title: Attorney-in-Fact |
Borrower:
|
Borrower:
|
||||
DHT Lotus, Inc. |
DHT Colt, Inc. |
||||
By: | /s/ Hallvard Haskjold | By: | /s/ Hallvard Haskjold | ||
Name: Hallvard Haskjold | Name: Hallvard Haskjold | ||||
Title: Attorney-in-Fact | Title: Attorney-in-Fact |
Borrower:
|
Borrower:
|
||||
DHT Bauhinia, Inc. |
Samco Eta Ltd. |
||||
By: | /s/ Hallvard Haskjold | By: | /s/ Hallvard Haskjold | ||
Name: Hallvard Haskjold | Name: Hallvard Haskjold | ||||
Title: Attorney-in-Fact | Title: Attorney-in-Fact |
Borrower:
|
Borrower:
|
||||
DHT Stallion, Inc. |
Samco Gamma Ltd. |
||||
By: | /s/ Hallvard Haskjold | By: | /s/ Hallvard Haskjold | ||
Name: Hallvard Haskjold | Name: Hallvard Haskjold | ||||
Title: Attorney-in-Fact | Title: Attorney-in-Fact |
Borrower:
|
Borrower:
|
||||
Samco Delta Ltd. | DHT Harrier Inc. |
||||
By: | /s/ Hallvard Haskjold | By: | /s/ Hallvard Haskjold | ||
Name: Hallvard Haskjold | Name: Hallvard Haskjold | ||||
Title: Attorney-in-Fact | Title: Attorney-in-Fact |
Borrower:
|
||
DHT Osprey Inc. |
||
By: | /s/ Hallvard Haskjold | |
Name: Hallvard Haskjold |
||
Title: Attorney-in-Fact |
Borrower:
|
||
DHT Holdings Inc. | ||
By: | /s/ Hallvard Haskjold | |
Name: Hallvard Haskjold | ||
Title: Attorney-in-Fact |
|
Page 7 of
10 |
Original Lender, Mandated Lead Arranger,
Bookrunner and Original Hedging Bank:
|
Original Lender, Mandated Lead Arranger,
Bookrunner and Original Hedging Bank:
|
|||||
ING Bank N.V. | ABN AMRO Bank N.V., Oslo Branch | |||||
By: | /s/ Stefan Engel | /s/ Aydin Celik | By: | |||
Name: Stefan Engel | Aydin Celik |
Name:
|
||||
Title: Director | Director |
Title:
|
Original Lender, Mandated Lead Arranger
and Bookrunner:
|
Original Lender, Mandated Lead Arranger,
Bookrunner and Original Hedging Bank:
|
||||
Danmarks Skibskredit A/S |
DNB Bank ASA
|
||||
By: | By: | ||||
Name: | Name: | ||||
Title: | Title: |
Original Lender, Mandated Lead Arranger
and Original Hedging Bank:
|
Original Lender, Mandated Lead Arranger
and Original Hedging Bank:
|
||||
Crédit Agricole Corporate and Investment Bank
|
Skandinaviska Enskilda Banken AB (publ) | ||||
By: | By: | ||||
Name: | Name: | ||||
Title: | Title: |
Original Lender, Mandated Lead Arranger,
Bookrunner and Coordinator:
|
Original Hedging Bank:
Nordea Bank Abp
|
||||
Nordea Bank Abp, filial i Norge
|
|
||||
By: | By: | ||||
Name: | Name: | ||||
Title: | Title: |
Agent and Security Agent:
|
||
Nordea Bank Abp, filial i Norge
|
||
By: | ||
Name: | ||
Title: |
|
Page 8 of
10 |
Original Lender, Mandated Lead Arranger,
Bookrunner and Original Hedging Bank:
|
Original Lender, Mandated Lead Arranger,
Bookrunner and Original Hedging Bank:
|
||||
ING Bank N.V. | ABN AMRO Bank N.V., Oslo Branch | ||||
By: | By: | /s/ Dag-Anders Engberg Breili | |||
Name;
|
Name; Dag-Anders Engberg Breili
|
||||
Title:
|
Title: Attorney-in-Fact
|
Original Lender, Mandated Lead Arranger
and Bookrunner:
|
Original Lender, Mandated Lead Arranger,
Bookrunner and Original Hedging Bank:
|
||||
Danmarks Skibskredit A/S
|
DNB Bank ASA |
||||
By: | /s/ Dag-Anders Engberg Breili | By: | /s/ Dag-Anders Engberg Breili | ||
Name; Dag-Anders Engberg Breili
|
Name; Dag-Anders Engberg Breili
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact
|
Original Lender, Mandated Lead Arranger
and Original Hedging Bank:
|
Original Lender, Mandated Lead Arranger
and Original Hedging Bank:
|
||||
Credit Agricole Corporate and Investment Bank
|
Skandinaviska Enskilda Banken AB (publ)
|
||||
By: | /s/ Dag-Anders Engberg Breili | By: | /s/ Dag-Anders Engberg Breili | ||
Name; Dag-Anders Engberg Breili
|
Name; Dag-Anders Engberg Breili
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact
|
Original Lender, Mandated Lead Arranger,
Bookrunner and Coordinator:
|
Original Hedging Bank:
Nordea Bank Abp
|
||||
Nordea Bank Abp, filial i Norge | |||||
By: | /s/ Dag-Anders Engberg Breili | By: | /s/ Dag-Anders Engberg Breili | ||
Name; Dag-Anders Engberg Breili
|
Name; Dag-Anders Engberg Breili
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact
|
Agent and Security Agent:
|
||
Nordea Bank Abp, filial i Norge
|
||
By: | /s/ Dag-Anders Engberg Breili | |
Name; Dag-Anders Engberg Breili
|
||
Title: Attorney-in-Fact
|
|
Page 9 of
10 |
The process agent
|
||
DHT MANAGEMENT AS
|
||
By: | /s/ Laila C. Halvorsen | |
Name: Laila C. Halvorsen | ||
Title: CEO |
|
Page 10 of
10 |
Clause |
Page
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
5
|
2.
|
THE FACILITIES
|
31
|
3.
|
PURPOSE
|
33
|
4.
|
CONDITIONS OF UTILISATION
|
33
|
5.
|
UTILISATION
|
36
|
6.
|
ESTABLISHMENT OF INCREMENTAL FACILITIES
|
37
|
7.
|
REPAYMENT
|
42
|
8.
|
PREPAYMENT AND CANCELLATION
|
43
|
9.
|
OPTIONAL RATE SWITCH
|
47
|
10.
|
INTEREST
|
47
|
11.
|
INTEREST PERIODS
|
49
|
12.
|
CHANGES TO THE CALCULATION OF INTEREST
|
49
|
13.
|
FEES
|
51
|
14.
|
TAX GROSS UP AND INDEMNITIES
|
53
|
15.
|
INCREASED COSTS
|
56
|
16.
|
OTHER INDEMNITIES
|
58
|
17.
|
MITIGATION BY THE LENDERS
|
59
|
18.
|
COSTS AND EXPENSES
|
59
|
19.
|
SECURITY
|
61
|
20.
|
GUARANTEE AND INDEMNITY
|
62
|
21.
|
REPRESENTATIONS
|
66
|
22.
|
INFORMATION UNDERTAKINGS
|
71
|
23.
|
FINANCIAL COVENANTS
|
76
|
24.
|
GENERAL UNDERTAKINGS
|
76
|
25.
|
VESSEL UNDERTAKINGS
|
83
|
26.
|
EVENTS OF DEFAULT
|
90
|
27.
|
CHANGES TO THE LENDERS
|
94
|
28.
|
CHANGES TO THE OBLIGORS
|
98
|
29.
|
ROLE OF THE AGENT, THE SECURITY AGENT AND THE MANDATED LEAD ARRANGERS
|
100
|
30.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
108
|
31.
|
SHARING AMONG THE FINANCE PARTIES
|
108
|
32.
|
PAYMENT MECHANICS
|
111
|
33.
|
SET-OFF
|
113
|
34.
|
NOTICES
|
113
|
35.
|
CALCULATIONS AND CERTIFICATES
|
115
|
36.
|
PARTIAL INVALIDITY
|
116
|
37.
|
REMEDIES AND WAIVERS
|
116
|
38.
|
AMENDMENTS AND WAIVERS
|
116
|
39.
|
CONFIDENTIALITY
|
120
|
40.
|
CONFIDENTIALITY OF FUNDING RATES
|
124
|
41.
|
COUNTERPARTS
|
125
|
42.
|
CONFLICT
|
125
|
43.
|
GOVERNING LAW
|
127
|
44.
|
ENFORCEMENT
|
127
|
SCHEDULE 1A THE ORIGINAL LENDERS
|
128
|
|
SCHEDULE 1B ORIGINAL BORROWERS, ORIGINAL VESSELS AND TRANCHES
|
129
|
|
SCHEDULE 1C REPAYMENT SCHEDULE – TERM LOAN FACILITY*
|
130
|
|
SCHEDULE 2 CONDITIONS PRECEDENT
|
131
|
|
SCHEDULE 3 REQUESTS
|
138
|
|
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE
|
141
|
|
SCHEDULE 5 FORM OF ACCESSION LETTER
|
143
|
|
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE
|
145
|
|
SCHEDULE 7 FORM OF VALUATION CERTIFICATE
|
147
|
|
SCHEDULE 8 FORM OF INCREMENTAL FACILITY NOTICE
|
149
|
|
SCHEDULE 9 FA ACT SECTION 3-12
|
153
|
|
SCHEDULE 10 DAILY NON-CUMULATIVE COMPOUNDED RFR RATE
|
154
|
|
EXECUTION PAGE
|
156
|
(1) |
THE ENTITIES set out as owners of the Original Vessels in Schedule 1B (Original Borrowers, Original Vessels and Tranches), as joint and several original
borrowers (each an “Original Borrower” and together the “Original Borrowers”);
|
(2) |
DHT HOLDINGS, INC., The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands as guarantor (the “Guarantor”);
|
(3) |
NORDEA BANK ABP, FILIAL I NORGE as coordinator (the “Coordinator”);
|
(4) |
NORDEA BANK ABP, FILIAL I NORGE, ING BANK N.V., ABN AMRO BANK N.V., OSLO BRANCH,
|
(5) |
NORDEA BANK ABP, FILIAL I NORGE, ING BANK N.V., ABN AMRO BANK N.V., OSLO BRANCH, DANMARKS SKIBSKREDIT A/S, DNB BANK ASA, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as mandated lead
|
(6) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1A (The Original Lenders) as original lenders (the “Original Lenders”);
|
(7) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1A (The Original Lenders) as original hedging banks (the “Original Hedging
Banks”);
|
(8) |
NORDEA BANK ABP, FILIAL I NORGE as agent of the other Finance Parties (the “Agent”); and
|
(9) |
NORDEA BANK ABP, FILIAL I NORGE as security agent of the other Finance Parties (the “Security Agent”).
|
1. |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
for the Term Loan Facility, the period from and including the Signing Date up to and including 30 June 2021;
|
(b) |
for the Revolving Credit Facilities, the period from and including the Signing Date up to and including the date falling three (3) months prior to the Maturity Date; and
|
(c) |
for any Incremental Facility, the period from and including the Establishment Date for that Incremental Facility up to and including the date falling three (3) months prior to the Maturity Date.
|
(a) |
relating to any Original Vessel, any Available Term Loan Facility Commitment and/or any Available Revolving Credit Facility Commitment pertaining to that Vessel; and
|
(b) |
relating to any Additional Vessel, any Available Incremental Facility Commitment pertaining to that Vessel.
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time;
|
(b) |
in relation to the United Kingdom, the UK Bail-In Legislation; and
|
(c) |
in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that
law or regulation.
|
(a) |
in relation to the Vessel “DHT Amazon”, (i) the head bareboat charter originally dated 11 June 2012 entered into between Samco Eta Ltd. as owner and the Bareboat Charterer as Charterer and (ii) the related sub bareboat charter
originally dated 11 June 2012 entered into between the Bareboat Charterer as disponent owner and Samco Eta Ltd. as bareboat charterer; and
|
(b) |
in relation to any other Vessel, (i) any head bareboat charter entered into between the relevant Borrower as owner and the Bareboat Charterer as Charterer and (ii) any related sub bareboat charter entered into between the Bareboat
Charterer as disponent owner and the relevant Borrower as bareboat charterer, each entered into according to Clause 25.13 (Chartering) and designated as “Bareboat Charters” by the Agent and the
Borrowers,
|
(a) |
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of a Loan or Unpaid Sum,
had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the relevant market for the applicable Reference Rate for a period
starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a) |
the average efficiency ratio of that Vessel for all voyages performed by it over that calendar year using ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI in respect of
that calendar year; and
|
(b) |
the climate alignment of that Vessel for such calendar year, |
(a) |
Interest Periods of 1 month: 0.11448%;
|
(b) |
Interest Periods between 1 month plus 1 day and 2 months: 0.18456%;
|
(c) |
Interest Periods between 2 months plus 1 day and 3 months: 0.26161%;
|
(d) |
Interest Periods between 3 months plus 1 day and 6 months: 0.42826%; and
|
(e) |
if relevant, Interest Periods shorter than 1 month or longer than 6 months, as determined in the reasonable opinion of the Agent (however in no event lower than zero).
|
(a) |
The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or
|
(b) |
if that target is not a single figure, the arithmetic mean of:
|
(i) |
the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and
|
(ii) |
the lower bound of that target range.
|
(a) |
the Reference Rate (Term SOFR or SOFR as relevant) for that day; and
|
(b) |
the Central Bank Rate prevailing at close of business on that day.
|
(a) |
if any person or a group of persons acting in concert, gain direct or indirect control over the Guarantor; or
|
(b) |
there is a change of ownership in any of the Borrowers (direct or indirect) or a person other than the Guarantor controls the appointment of the board of directors for any Borrower.
|
(a) |
is agreed in writing by the Borrowers, the Agent (acting in such capacity) and the Agent (acting on the instructions of the Majority Lenders);
|
(b) |
specifies a calculation methodology for SOFR; and
|
(c) |
has been made available to the Borrowers and each Finance Party.
|
(a) |
any Obligor or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Obligor or any of its advisers,
|
(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidentiality); or
|
(ii) |
is identified in writing at the time of delivery as non-confidential by any Obligor or any of its advisers; or
|
(iii) |
is known by that Finance Party before the date the information is disclosed to it in accordance with (a) or (b) or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is
aware, unconnected with any Obligor and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a) |
all freight, hire and passage moneys payable to a Borrower, including (without limitation) payments of any nature under any contract or any other agreement for the employment, use, possession, management and/or operation of a Vessel;
|
(b) |
any claim under any guarantees related to hire payable to a Vessel as a consequence of the operation of such Vessel;
|
(c) |
any compensation payable to a Borrower in the event of any requisition of a Vessel or for the use of such Vessel by any government authority or other competent authority;
|
(d) |
remuneration for salvage, towage and other services performed by a Vessel payable to a Borrower;
|
(e) |
demurrage and retention money receivable by a Borrower in relation to a Vessel;
|
(f) |
all moneys which are at any time payable under the Insurances in respect of loss of earnings from a Vessel;
|
(g) |
if and whenever a Vessel is employed on terms whereby any moneys falling within paragraphs (a) to (f) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement
which is attributable to such Vessel; and
|
(h) |
any other money which arise out of the use of or operation of a Vessel and moneys whatsoever due or to become due to a Borrower from third parties in relation to a Vessel.
|
(a) |
the pollution or protection of the environment or to the carriage of material which is capable of polluting the environment;
|
(b) |
harm to or the protection of human health;
|
(c) |
the conditions of the workplace; or
|
(d) |
any emission or substance capable of causing harm to any living organism or the environment.
|
(a) |
the proposed Establishment Date specified in the relevant Incremental Facility Notice; and
|
(b) |
the date on which the Agent executes the relevant Incremental Facility Notice.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of
any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other
jurisdiction.
|
(a) |
in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or
|
(b) |
in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
|
(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 respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) 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 shall be
taken into account);
|
(h) |
any counter-indemnity obligation in respect of 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 respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
in relation to a Lender, the amount set opposite its name under the heading “Incremental Facility Commitment” in the relevant Incremental Facility Notice and the amount of any other Incremental Facility Commitment transferred to it
under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Incremental Facility Commitment transferred to it under this Agreement,
|
(a) |
if there are no amounts then outstanding, a Lender or Lenders whose Incremental Facility Commitments relating to that Incremental Facility aggregate more than sixty-six and two-thirds per cent (66 ⅔%) of the Total Incremental Facility
Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose aggregate participations in the Incremental Facility Loans and any Available Incremental Facility Commitment relating to that Incremental Facility aggregate more than sixty-six and
two-thirds per cent (66 ⅔%) of the Incremental Facility Loans and the Available Incremental Facility Commitments relating to that Incremental Facility.
|
(a) |
the Total Incremental Facility Commitments;
|
(b) |
the Margin;
|
(c) |
the Additional Borrower to which that Incremental Facility is to be made available;
|
(d) |
the Additional Vessel being financed by that Incremental Facility; and
|
(e) |
such other terms approved by the Agent,
|
(a) |
either:
|
(i) |
the applicable Term SOFR (as of the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Loan; or
|
(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of that Loan, SOFR for the day which is two US Government Securities Business Days before the Quotation Day for Term SOFR; and
|
(b) |
the applicable Term SOFR (as of the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Loan.
|
(a) |
any Original Lender being a Lender at the Signing Date;
|
(b) |
any New Lender which has become a Party in accordance with Clause 27 (Changes to the Lenders); and
|
(c) |
any Incremental Facility Lender which has become a Party in accordance with Clause 6 (Establishment of Incremental Facilities),
|
(a) |
if there are no amounts then outstanding, a Lender or Lenders whose Commitments aggregate more than sixty-six and two-thirds per cent (66 ⅔%) of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loans and any Available Vessel Commitments aggregate more than sixty-six and two-thirds per cent (66 ⅔%) of the Loans and Available Vessel Commitments.
|
(a) |
in relation to the Term Loan Facility, one point ninety per cent (1.90%) per annum;
|
(b) |
in relation to the Revolving Credit Facilities, one point ninety per cent (1.90%) per annum; and
|
(c) |
in relation to any Incremental Facility, the percentage rate per annum specified as such in the Facility’s Incremental Facility Notice.
|
(a) |
the business, condition (financial or otherwise), operations or prospects of the Guarantor since the date at which its latest audited financial statements were prepared; or
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to, any Finance Document; or
|
(d) |
the right or remedy of a Finance Party in respect of a Finance Document. “Maturity Date” means 31 January 2027. |
(a) |
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; and
|
(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.
|
(a) |
in relation to any period for which an interest rate is to be determined on basis of Term SOFR or Interpolated Term SOFR, two (2) US Government Securities Business Days before the first day of that period (unless market practice
differs in the relevant syndicated loan market, in which case the Quotation Day will be determined by the Agent in accordance with that market practice (and if quotations would normally be given on more than one day, the Quotation Day
will be the last of those days)); and
|
(b) |
in relation to any period for which an interest rate is to be determined on basis of SOFR or Central Bank Rate, the Business Day which follows the day which is five (5) US Government Securities Business Days prior to the last day of
that period.
|
(a) |
before any Optional Rate Switch has occurred, the applicable Term SOFR as of the Quotation Day and for a period equal in length to the Interest Period of a Loan;
|
(b) |
after any Optional Rate Switch has occurred, SOFR in relation to any day during the Interest Period of a Loan; or
|
(c) | as otherwise determined pursuant to Clause 12 (Changes to the calculation of interest), and if, in either case, that rate is less than zero, the Reference Rate shall be deemed to be zero. |
(a) |
that is the target of any Sanctions Laws or is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person);
|
(b) |
that is domiciled, organized, registered as located or having its place of business in, or is incorporated under the laws of, a country which is the subject of Sanctions Laws;
|
(c) |
that is directly or indirectly owned (by fifty per cent (50%) or more) or controlled by, or acting on behalf of, a person referred to in paragraphs (a) and/or (b) above; or
|
(d) |
with which any Lender is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions Laws.
|
(a) |
in relation to a Lender being a Lender at the Signing Date, the amount set opposite its name under the heading “Revolving Credit Facility A Commitment” in Schedule 1A (The Original Lenders) and
the amount of any other Revolving Credit Facility A Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Revolving Credit Facility A Commitment transferred to it under this Agreement,
|
(a) |
in relation to a Lender being a Lender at the Signing Date, the amount set opposite its name under the heading “Revolving Credit Facility B Commitment” in Schedule 1A (The Original Lenders) and
the amount of any other Revolving Credit Facility B Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Revolving Credit Facility B Commitment transferred to it under this Agreement,
|
(a) |
a breach by an Obligor of any obligations under Clauses 22.4 (Information: miscellaneous) paragraph (d) or (f), 24.2 (Compliance with laws and Sanctions Laws)
(as relates to Sanctions Laws only), 24.17 (Use of proceeds and repayments), 25.7 (Notification of certain events) paragraph (e), or 25.8 (Operation of the Vessels) paragraph (d) (as relates to Sanctions Laws only);
|
(b) |
any mis-representations under Clause 21.25 (Sanctions); or
|
(c) |
an Obligor is or becomes a Restricted Party.
|
(a) |
the Vessels;
|
(b) |
the Earnings;
|
(c) |
the Shares;
|
(d) |
any Secured Hedging Agreement;
|
(e) |
any Intra Group Loans;
|
(f) |
the Insurances;
|
(g) |
the Earnings Accounts; and
|
(h) |
any Charterparty.
|
(a) |
the master agreement on the form of ISDA 2002 and related schedule both originally dated 11 July 2018 (as amended, restated and replaced on or about the Signing Date) and entered into between DHT Colt, Inc. and Nordea Bank Abp as
Hedging Bank for the purpose of hedging the interest rate risk in relation to the Facilities;
|
(b) |
the master agreement on the form of ISDA 2002 and related schedule both originally dated 11 July 2018 (as amended, restated and replaced on or about the Signing Date) and entered into between DHT Stallion, Inc. and Nordea Bank Abp as
Hedging Bank for the purpose of hedging the interest rate risk in relation to the Facilities; and
|
(c) |
any other master agreement on the form of ISDA 2002 entered or to be into between any Borrower and a Hedging Bank for the purpose of hedging the interest rate risk in relation to any Facility,
|
(a) |
all amounts which have become due for payment by the Obligors under the Finance Documents have been paid;
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under any of the Finance Documents;
|
(c) |
none of the Obligors have any future or contingent liability under any provision of this Agreement or the other Finance Documents; and
|
(d) |
the Agent and the other Finance Parties do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible
future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security created by a Finance Document.
|
(a) |
in relation to a Lender being a Lender at the Signing Date, the amount set opposite its name under the heading “Term Loan Facility Commitment” in Schedule 1A (The Original Lenders) and the
amount of any other Term Loan Facility Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Term Loan Facility Commitment transferred to it under this Agreement,
|
(a) |
the actual, constructive, compromised, agreed, arranged or other total loss of such Vessel; and
|
(b) |
any expropriation, confiscation, requisition or acquisition of a Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any
government or official authority or by any person or persons claiming to be or to represent a governmental or official authority (excluding a requisition for hire for a fixed period not exceeding one (1) year without any right to
extension) unless it is within one (1) month from the Total Loss Date redelivered to the full control of the relevant Borrower.
|
(a) |
in the case of an actual total loss of a Vessel, the date on which it occurred or, if that is unknown, the date when such Vessel was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of a Vessel, the earlier of: (i) the date on which a notice of abandonment is given to the insurers (provided a claim for total loss is admitted by such
insurers) or, if such insurers do not forthwith admit such a claim, at the date at which either a total loss is subsequently admitted by the insurers or a total loss is subsequently adjudged by a competent court of law or arbitration
panel to have occurred or, if earlier, the date falling three (3) months after notice of abandonment of such Vessel was given to the insurers; and (ii) the date of compromise, arrangement or agreement made by or on behalf of the relevant
Borrower with such Vessel’s insurers in which the insurers agree to treat such Vessel as a total loss; or
|
(c) |
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
(a) |
the proposed Transfer Date specified in the relevant Transfer Certificate; and
|
(b) |
the date on which the Agent executes the relevant Transfer Certificate.
|
(a) |
a Saturday or a Sunday; and
|
(b) |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government
securities.
|
(a) |
an Obligor which is resident for tax purposes in the US; or
|
(b) |
an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
relating to any Original Vessel, the aggregate of the Loans outstanding under the Term Loan Facility and/or the Revolving Credit Facilities pertaining to that Vessel; and
|
(b) |
relating to any Additional Vessel, the aggregate of the Incremental Facility Loans pertaining to that Vessel,
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
(b) |
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank,
investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or
any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(c) |
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, any reference in this Agreement to:
|
(i) |
the “Agent”, the “Security Agent”, the “Coordinator”, any “Mandated Lead Arranger”,
any “Bookrunner”, any “Finance Party”, any “Lender”, any “Incremental Facility Lender”.
the “Hedging Banks”, or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
a Lender’s “cost of funds” in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it
may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan;
|
(iii) |
“assets” includes present and future properties, revenues and rights of every description;
|
(iv) |
a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(v) |
“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;
|
(vi) |
a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having
separate legal personality);
|
(vii) |
a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body,
agency, department or of any regulatory, self-regulatory or other authority or organisation;
|
(viii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(ix) |
words importing the singular shall include the plural and vice versa; and
|
(x) |
a time of day is a reference to Oslo time unless specified otherwise.
|
(b) |
Section, Clause and Schedule headings are for ease of reference only.
|
(c) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d) |
A Default (other than an 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.
|
(e) |
In case of conflict between this Agreement and any of the Security Documents, the provisions of this Agreement shall prevail.
|
(f) |
A Compounding Methodology Supplement relating to SOFR overrides anything relating to that rate in:
|
(i) |
Schedule 10 (Daily Non-Cumulative Compounded RFR Rate); or
|
(ii) |
any earlier Compounding Methodology Supplement.
|
2. |
THE FACILITIES
|
2.1 |
The Term Loan Facilities and the Revolving Credit Facilities
|
(a) |
the Term Loan Facility consisting of up to nine (9) cross-collateralised Term Loan Tranches (one per relevant Original Vessel) each in the maximum amount set out opposite each relevant Original Vessel under the heading “Term Loan
Facility” in Schedule 1B (Original Borrowers, Original Vessels and Tranches) hereto, in aggregate being USD 119,800,000;
|
(b) |
the Revolving Credit Facility A consisting of up to nine (9) cross-collateralised Revolving Credit Facility A Tranches (one per relevant Original Vessel) each in the maximum amount set out opposite each relevant Original Vessel under
the heading “Revolving Credit Facility A” in Schedule 1B (Original Borrowers, Original Vessels and Tranches) hereto, in aggregate being USD 136,424,247, which may be incurred on a revolving basis
at any time within the applicable Availability Period provided that the amount drawn shall never exceed the Available Revolving Credit Facility A Commitment; and
|
(c) |
the Revolving Credit Facility B consisting of up to three (3) cross-collateralised Revolving Credit Facility B Tranches (one per relevant Original Vessel) each in the maximum amount set out opposite each relevant Original Vessel under
the heading “Revolving Credit Facility B” in Schedule 1B (Original Borrowers, Original Vessels and Tranches) hereto, in aggregate being USD 60,000,000 which may be incurred on a revolving basis at
any time within the applicable Availability Period provided that the amount drawn shall never exceed the (subsequently reducing) Available Revolving Credit Facility B Commitment.
|
2.2 |
The Incremental Facilities
|
(a) |
Subject to Clause 6 (Establishment of Incremental Facilities) and other terms of this Agreement, the Incremental Facility Lenders may make available to the Additional Borrowers up to eight (8)
cross-collateralised Incremental Facilities (one per Additional Vessel) each in the maximum amount set out in the Incremental Facility Notice relating to that Incremental Facility and in aggregate for all Incremental Facilities not
exceeding USD 250,000,000, which may be incurred on a revolving basis at any time within the applicable Availability Period provided that the amount drawn shall never exceed the (subsequently reducing) Available Incremental Facility
Commitment.
|
(b) |
The Parties acknowledge and agree that the Incremental Facilities are uncommitted in all respects until such time the respective Incremental Facility is established according to the terms of this Agreement, and in any case the
establishment and participation in an Incremental Facility by an Incremental Facility Lender is fully subject to each such Lender’s credit approval and other applicable internal approvals.
|
2.3 |
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 the Borrowers and/or the Guarantor shall be
a separate and independent debt.
|
(c) |
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents. The rights of the Hedging Banks under any Secured Hedging Agreement shall be subordinated to the
rights of the other Finance Parties under the other Finance Documents.
|
2.4 |
Borrowers’ liabilities and obligations
|
(a) |
The liabilities and obligations of the Borrowers under this Agreement shall be joint and several and shall not be affected by:
|
(i) |
any Finance Document being or later becoming void, unenforceable or illegal as regards any other Borrower; or
|
(ii) |
any Finance Party entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower; or
|
(iii) |
any Finance Party releasing any other Borrower.
|
(b) |
For so long as any Commitment is in force or any amount is outstanding under the Finance Documents (including for the avoidance of doubt due to both the Original Facilities and any Incremental Facility established under this
Agreement), each Borrower shall remain a principal debtor for all amounts owing under any Finance Document (whether or not it is a party to that document) and no Borrower shall be construed to be a surety for the obligations of any other
Borrower under this Agreement.
|
(c) |
For so long as any Commitment is in force or any amount is outstanding under the Finance Documents, no Borrower shall:
|
(i) |
claim any amount which may be due to it from any other Borrower whether in respect of a payment made, or matter arising out of, any Finance Document; or
|
(ii) |
take or enforce any form of security from any other Borrower for such an amount; or
|
(iii) |
set off such an amount against any sum due from it to any other Borrower; or
|
2.5 |
FA Act
|
(a) |
To the extent the joint and several liabilities and obligations of the Borrowers are considered as guarantees, each Borrower’s maximum liability hereunder, in its capacity as guarantor only, is limited to USD 680,000,000.
|
(b) |
Each Obligor specifically waives all rights under the provisions of the FA Act not being mandatory provisions.
|
3. |
PURPOSE
|
3.1 |
Purpose
|
(a) |
The Borrowers shall apply all amounts borrowed by them under the Term Loan Facility and the Revolving Credit Facilities towards:
|
(i) |
refinancing of the Existing Facility; and
|
(ii) |
the general corporate and working capital purpose of the Original Borrowers.
|
(b) |
The Borrowers shall apply all amounts borrowed by them under an Incremental Facility for the purpose of:
|
(i) |
part-financing (or refinancing as the case might be) the purchase price of the Additional Vessel being financed by that Incremental Facility; and
|
(ii) |
the general corporate and working capital purpose of the Additional Borrower owning the Additional Vessel being financed by that Incremental Facility.
|
3.2 |
Monitoring
|
4. |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
(a) |
The Finance Parties’ obligations hereunder are subject to the Agent’s receipt of all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) Part I (Conditions precedent to signing of the Agreement). The Agent shall notify the Borrowers and the Lenders promptly upon being so satisfied.
|
(b) |
The Borrowers may not deliver a Utilisation Request for the initial Utilisation of the Original Facilities unless the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions
Precedent) Part II (Conditions precedent to a Utilisation of the Original Facilities), except those documents which specifically will only be available on the relevant Utilisation Date or
within another specified date, in a form and substance satisfactory to the Agent. The Agent shall notify the Borrowers and the Lenders promptly upon being so satisfied.
|
(c) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraphs (a) and (b) above, the Lenders authorise (but do not require) the Agent to
give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
(d) |
The Incremental Facility Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any initial Utilisation of an Incremental Facility if:
|
(i) |
on or before the Establishment Date, the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) Part III (Conditions
Precedent to accession of an Additional Borrower) relating to the Additional Borrower relevant for that Incremental Facility; and
|
(ii) |
on or before the date for delivery of the Utilisation Request the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) Part IV (Conditions precedent to a Utilisation of an Incremental Facility) relevant for that Incremental Facility, except those documents which specifically will only be available on the relevant Utilisation
Date or within another specified date, in a form and substance satisfactory to the Agent,
|
(e) |
Other than to the extent that the Incremental Facility Majority Lenders under the relevant Incremental Facility notify the Agent in writing to the contrary before the Agent gives a notification described in paragraph (d) above, the
Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.2 |
Further conditions precedent
|
(a) |
no Default is continuing or would result from the proposed Loan;
|
(b) |
all fees, costs and expenses then due from the Borrowers pursuant to Clause 13 (Fees), Clause 18 (Costs and expenses) and any Fee Letters and otherwise
pursuant to this Agreement have been paid or will be paid by the Utilisation Date; and
|
(c) |
the Repeating Representations to be made by each Obligor are true in all material respects.
|
4.3 |
Maximum number of Loans
|
(a) |
The Term Loan Facility may be drawn in nine (9) Loans, one (1) per Term Loan Tranche.
|
(b) |
No more than three (3) Loans may at any time be outstanding under any Tranche of the Revolving Credit Facilities and the Incremental Facilities.
|
4.4 |
Form and content
|
(a) |
be in form and substance satisfactory to the Agent;
|
(b) |
if required by the Agent, be in original; and
|
(c) |
if required by the Agent, be certified, notarized, legalized or attested in a manner acceptable to the Agent.
|
4.5 |
Waiver of conditions precedent
|
5. |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
5.2 |
Completion of a Utilisation Request
|
(a) |
the proposed Utilisation Date is a Business Day within the relevant Availability Period;
|
(b) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
(c) |
the proposed Interest Period complies with Clause 11 (Interest Periods).
|
5.3 |
Currency and amount
|
(a) |
The currency specified in a Utilisation Request must be USD.
|
(b) |
The aggregate amount of the Loans requested for the initial Utilisation of the Term Loan Facility and the Revolving Credit Facility A may not exceed the lesser of (i) the amount of each relevant Tranche and (ii) sixty per cent (60%) of
the Market Value of the Original Vessels relating to such Tranches as determined by valuations not being older than thirty (30) calendar days calculated from the proposed Utilisation Date.
|
(c) |
The amount of the initial proposed Loan under each Revolving Credit Facility B Tranche must be in an amount which does not exceed the lower of (i) the Available Revolving Credit Facility B Commitment relating to that Tranche at the
proposed Utilisation Date and (ii) sixty per cent (60%) of the Market Value of the Original Vessel relating to such Tranche as determined by valuations not being older than thirty (30) calendar days calculated from the proposed
Utilisation Date.
|
(d) |
The amount of each initial proposed Loan under an Incremental Facility must be in an amount which does not exceed the lower of (i) the Available Incremental Facility Commitment for that Incremental Facility at the proposed Utilisation
Date and (ii) sixty per cent (60%) of the Market Value of the Additional Vessel being financed by that Incremental Facility as determined by valuations not being older than thirty (30) calendar days calculated from the proposed
Utilisation Date.
|
(e) |
Any subsequent proposed Loans under any Revolving Credit Facility and any Incremental Facility must never exceed the Available Commitment for the relevant Tranche prior to the delivery of a Utilisation Request in respect of such Loan.
|
5.4 |
Lenders’ participation
|
(a) |
If the conditions set out in this Agreement have been met, each relevant Lender shall make its participation in a Loan available by the Utilisation Date through its Facility Office.
|
(b) |
The amount of each relevant Lender’s participation in such Loan will be equal to the proportion that its Commitment under the relevant Facility bears to the Total Commitments under that Facility immediately prior to making the Loan.
|
(c) |
The Agent shall notify each relevant Lender of the amount of a Loan and the amount of its participation in such Loan upon receipt of the relevant Utilisation Notice from the Borrowers.
|
5.5 |
Limitations on Utilisations
|
(a) |
The initial Utilisation under this Agreement must relate to a simultaneous drawdown of all Tranches under the Term Loan Facility and the Revolving Credit Facility A to the extent necessary to settle all debt for the Existing Facility
at latest on the initial Utilisation Date.
|
(b) |
No Utilisation of the Revolving Credit Facility B nor an Incremental Facility may take place before the initial Utilisation referred to in paragraph (a) above has taken place.
|
5.6 |
Cancellation of Commitments
|
(a) |
The Term Loan Facility Commitments shall be cancelled as follows:
|
(i) |
any Term Loan Facility Commitments which are un-utilised at the end of the applicable Availability Period shall be immediately cancelled;
|
(ii) |
any part of a Term Loan Tranche outstanding after the Utilisation of a Loan pursuant to such Tranche shall be immediately cancelled; and
|
(iii) |
in accordance with Clause 8 (Prepayment and cancellation).
|
(b) |
The Revolving Credit Facilities Commitments and any Incremental Facility Commitment shall be cancelled as follows:
|
(i) |
in accordance with Clause 7.2 (Reduction);
|
(ii) |
any Commitment which respectively are un-utilised at the end of the applicable Availability Period shall be immediately cancelled; and
|
(iii) |
in accordance with Clause 8 (Prepayment and cancellation).
|
6. |
ESTABLISHMENT OF INCREMENTAL FACILITIES
|
6.1 |
Selection of Incremental Facility Lenders
|
(a) |
Only an entity which is an Eligible Institution may be an Incremental Facility Lender.
|
(b) |
The Lenders shall have the right of first refusal on whether to participate in any Incremental Facility on a pro rata basis and the Guarantor shall provide the Agent and each of the Lenders with a fifteen (15) Business Day prior
written notice of its intention to establish an Incremental Facility before contacting other Eligible Institutions.
|
(c) |
Lenders choosing to participate in the Incremental Facility shall provide the Agent and the Guarantor with a written notice of its decision (subject to credit approval and other applicable internal approvals) within the Guarantor’s
fifteen (15) Business Day notice period.
|
(d) |
If Lenders choose to participate in an Incremental Facility, reasonable endeavours shall (taking into consideration the characteristics of the Additional Vessel proposed financed by the Incremental Facility, the market conditions and
other relevant circumstances at the prevailing time) be used to provide such Incremental Facility on similar commercial terms as the existing Facilities.
|
6.2 |
Delivery of Incremental Facility Notice
|
6.3 |
Completion of an Incremental Facility Notice
|
(a) |
Each Incremental Facility Notice is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
it sets out the Incremental Facility Terms applicable to the Incremental Facility to which it relates;
|
(ii) |
the Incremental Facility Lenders and the Incremental Facility Commitments set out in that Incremental Facility Notice have been selected and allocated in accordance with Clause 6.1 (Selection of
Incremental Facility Lenders); and
|
(iii) |
all terms of the Incremental Facility Notice comply with the applicable limits and terms of this Agreement and other Finance Documents.
|
(b) |
Only one Incremental Facility may be requested in an Incremental Facility Notice.
|
6.4 |
Maximum number of Incremental Facilities
|
6.5 |
Restrictions on Incremental Facility Terms
|
(a) |
Currency and Size:
|
(i) |
Any Incremental Facility shall be denominated in USD.
|
(ii) |
The Aggregate Total Incremental Facility Commitments shall not, at any time, exceed USD 250,000,000.
|
(iii) |
The Total Incremental Facility Commitment for any Incremental Facility shall be in the minimum amount of USD 30,000.000.
|
(b) |
Borrowers: Any Incremental Facility shall be available only to one (1) Additional Borrower.
|
(c) |
Vessels: Any Incremental Facility may only finance one (1) Additional Vessel which meets the following requirements:
|
(i) |
Type: VLCC;
|
(ii) |
Size: between 275,000 and 325,000 dwt;
|
(iii) |
Built: 2015 or younger;
|
(iv) |
Yard: built at a reputable yard;
|
(v) |
Owner: One hundred per cent (100%) owned by the Additional Borrower acting as Borrower under the relevant Incremental Facility; and
|
(vi) |
Other: Vessel otherwise being compliant with all requirements, including but not limited to class, flag and management, applicable to Vessels under the terms of this Agreement and other Finance
Documents.
|
(d) |
No procurement of breach: Satisfaction of any Incremental Facility Conditions Precedent shall not breach any term of any Finance Document.
|
6.6 |
Conditions to establishment
|
(a) |
The establishment of an Incremental Facility will only be effected in accordance with Clause 6.7 (Establishment of Incremental Facility) if:
|
(i) |
the Establishment Date occurs on a date no later than 31 December 2022;
|
(ii) |
on the date of the Incremental Facility Notice and on the Establishment Date:
|
(A) |
no Default is continuing or would result from the establishment of the proposed Incremental Facility; and
|
(B) |
the Repeating Representations to be made by each Obligor are true in all material respects;
|
(iii) |
the Additional Borrower for the Incremental Facility has, at latest by the Establishment Date, acceded as Borrower in accordance with Clause 28.2 (Additional Borrowers);
|
(iv) |
each Incremental Facility Lender fulfils the requirements of Clause 6.1 (Selection of Incremental Facility Lenders);
|
(v) |
the Agent has received in form and substance satisfactory to it:
|
(A) |
the Incremental Facility Conditions Precedent referred to in Clause 4.1 (Initial conditions precedent) sub-paragraph (d)(i);
|
(B) |
such documents (if any) as are reasonably necessary as a result of the establishment of that Incremental Facility to maintain the effectiveness of the Security, guarantees, indemnities and other assurance against loss provided to the
Finance Parties pursuant to the Finance Documents; and
|
(C) |
any applicable Incremental Facility Supplemental Security.
|
(b) |
The Agent shall notify the Obligors and the Lenders promptly upon being satisfied under sub-paragraph (a)(v) above.
|
(c) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that
notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
6.7 |
Establishment of Incremental Facility
|
(a) |
If the conditions set out in this Agreement have been met the establishment of an Incremental Facility is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Incremental Facility Notice.
The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Incremental Facility Notice appearing on its face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Incremental Facility Notice.
|
(b) |
The Agent shall only be obliged to execute an Incremental Facility Notice delivered to it once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in
relation to the establishment of the relevant Incremental Facility.
|
(c) |
On the Establishment Date for any Incremental Facility:
|
(i) |
subject to the terms of this Agreement the Incremental Facility Lenders make available a loan facility in an aggregate amount equal to the Total Incremental Facility Commitments specified in the Incremental Facility Notice which will
be available to the Additional Borrower specified in the Incremental Facility Notice;
|
(ii) |
each Incremental Facility Lender shall assume all the obligations of a Lender corresponding to the Incremental Facility Commitment (the “Assumed Incremental Facility Commitment”) specified
opposite its name in the Incremental Facility Notice as if it had been an Original Lender in respect of that Incremental Facility Commitment;
|
(iii) |
each of the Obligors and each Incremental Facility Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and that Incremental Facility Lender would have assumed and/or acquired
had that Incremental Facility Lender been an Original Lender in respect of the Assumed Incremental Facility Commitment;
|
(iv) |
each Incremental Facility Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Incremental Facility Lender and those Finance Parties would have assumed
and/or acquired had the Incremental Facility Lender been an Original Lender in respect of the Assumed Incremental Facility Commitment;
|
(v) |
all Incremental Facilities and all Incremental Facility Lenders’ rights shall rank pari passu with respectively all other Facilities and the other Lenders and benefit with the same priority
for all Security; and
|
(vi) |
all terms of this Agreement and other Finance Documents, whether specifically relating to Incremental Facilities or with general relevance shall apply to any Incremental Facility, unless specified to the contrary in this Agreement; and
|
(vii) |
each Incremental Facility Lender shall become a Party as a “Lender”.
|
6.8 |
Notification of establishment
|
6.9 |
Incremental Facility fees
|
(a) |
commitment fee in accordance with Clause 13.1 (Commitment fee); and
|
(b) |
any other fees in amounts and at such times agreed in separate Fee Letters.
|
6.10 |
Incremental Facility costs and expenses
|
6.11 |
Prior amendments binding
|
6.12 |
Limitation of responsibility
|
(a) |
an “Existing Lender” were references to all the Lenders immediately prior to the Establishment Date;
|
(b) |
the “New Lender” were references to an “Incremental Facility Lender”; and
|
(c) |
a “re-transfer” and “re-assignment” were references respectively to a “transfer” and “assignment”.
|
7. |
REPAYMENT
|
7.1 |
Repayment of Loans
|
(a) |
The Borrowers shall repay each Loan outstanding under the Term Loan Facility by consecutive quarterly repayment instalments on each Scheduled Repayment Date, each in an amount as set out in Schedule 1C (Repayment Schedule – Term Loan Facility) hereto.
|
(b) |
Always subject to Clause 7.2 (Reduction), each Loan under the Revolving Credit Facilities and any Incremental Facility will on the last day of its Interest Period (which date is to align with
the Scheduled Repayment Dates, meaning that all Loans have coinciding Repayment Dates and dates for interest payment (unless otherwise agreed for the Interest Periods according to the terms of this Agreement)), shall automatically be
renewed with a new Interest Period of three (3) Months without the need for any Utilisation Request, unless the Borrowers instruct otherwise in writing to the Agent. Any such renewed Loan will only be made available as long as all other
requirements under this Agreement for the availability of that Loan (as relevant) in the same amount as the renewed Loan are fulfilled on the Utilisation Date, including but not limited to the terms of Clause 4 (Conditions of utilisation) and this Clause 7 (Repayment).
|
(c) |
If the Borrowers in accordance with paragraph (b) above give instructions that any such Loan shall not automatically be renewed, and the date for payment of such existing Loan falls on the same date as the Utilisation Date of a new
Loan, the Agent shall set off the amounts against each other, and only the net amount (if any) shall be payable by the Borrowers.
|
(d) |
Any Outstanding Indebtedness is due and payable to the Agent for the account of the Finance Parties on the Maturity Date.
|
7.2 |
Reduction
|
(a) |
The Available Commitment for each Tranche under the Revolving Credit Facility B shall be reduced and cancelled by an amount of USD 625,000 on each Scheduled Repayment Date up until such time the Available Commitment for each Tranche,
in aggregate with the amount of any Loans outstanding for such Tranche, is USD 15,000,000.
|
(b) |
The Available Commitment for each Incremental Facility shall be reduced and cancelled by an amount of USD 625,000 on each Scheduled Repayment Date occurring after its Establishment Date.
|
(c) |
Any Available Commitment for any Tranche under a Revolving Credit Facility or Incremental Facility relating to a Vessel shall automatically be cancelled in its entirety on the date that Vessel reaches twenty (20) years of age.
|
(d) |
The reductions described in this Clause 7.2 shall be effective regardless of any Loan having been made or not.
|
(e) |
(i) If, as a result of a scheduled reduction under paragraph (a) above becoming effective, the outstanding Loans under a Tranche exceeds the Available Commitment for that Tranche, any such excess amount shall be repaid by the Borrowers
on the Scheduled Repayment Date coinciding with the date of the relevant scheduled reduction and (ii) if, as a result of a total cancellation and reduction under paragraph (b) above becoming effective, all Loans relating to such Vessel
shall be repaid in its entirety on the next Scheduled Repayment Date.
|
7.3 |
Re-borrowing
|
(a) |
The Borrowers may not re-borrow any part of the Term Loan Facility which is repaid or prepaid.
|
(b) |
The Borrowers may re-borrow any part of the Revolving Credit Facilities and Incremental Facilities in accordance with the terms of this Agreement as long as the outstanding Loans under the relevant Tranche do not exceed the respective
Available Commitment at that time.
|
8. |
PREPAYMENT AND CANCELLATION
|
8.1 |
Voluntary cancellation
|
(a) |
The Borrowers may, if they give the Agent not less than five (5) Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part of any Facility or Tranche. Any cancellation under
this Clause 8.1 (Voluntary cancellation) shall be in the minimum amount of USD 1,000,000 and reduce the relevant Commitments of the Lenders proportionately and may not be reinstated.
|
(b) |
Any amount outstanding after a cancellation under a Revolving Credit Facility and/or an Incremental Facility that exceeds the respective relevant Available Revolving Credit Facility Commitment (as reduced) and/or the Available
Incremental Facility Commitment (as reduced), as the case may be, must immediately be repaid in connection with the cancellation.
|
8.2 |
Voluntary prepayment of Loans
|
(a) |
The Borrowers may, if they give the Agent not less than five (5) Business Days (or such shorter period as the Majority Lenders may agree) prior written notice, prepay the whole or any part of a Loan (but, if in part, being an amount
that reduces the amount of the Loans by a minimum amount of USD 1,000,000 or multiples thereof). The Borrowers shall in its notice of the prepayment designate which Loan or Facility which the prepayment relates to.
|
(b) |
Subject to paragraph (c) below, any prepayment under this Clause 8.2 (Voluntary prepayment of Loans) shall be applied against the Loan or Facility as determined by the Borrowers and described in
the relevant prepayment notice.
|
(c) |
The Borrowers shall have the option to apply the voluntary prepayment against any scheduled instalments of any Term Loan Tranche, provided that the Borrowers have given ten (10) Business Days’ prior notice to the Agent.
|
8.3 |
Illegality
|
(a) |
that Lender may, at its discretion, at any time notify the Agent upon becoming aware of that event and the Agent shall promptly notify the Borrowers and the other Finance Parties of the same;
|
(b) |
upon the Agent notifying the Borrowers, the Commitment, or the relevant part of the Commitment, of that Lender will be immediately cancelled; and
|
(c) |
the Borrowers shall repay that Lender’s participation in the relevant Loan on the last day of the Interest Period for that Loan occurring after the Agent has notified the Borrowers or, if earlier, the date specified by the relevant
Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law (including any general license or other exception pursuant to Sanctions Laws)).
|
8.4 |
Total Loss or sale of a Vessel
|
(a) |
If a Vessel is sold or suffers a Total Loss the then outstanding Vessel Loans and any Available Vessel Commitments pertaining to that Vessel shall be respectively prepaid and cancelled in its entirety.
|
(b) |
Any prepayment and cancellation under this Clause 8.4 (Total Loss or sale of a Vessel) shall:
|
(i) |
in case of a sale, be made on or before the date on which the sale is completed by transfer of title of that Vessel to the buyer; or
|
(ii) |
in the case of a Total Loss, on the earlier of the date falling one hundred and eighty (180) days after the Total Loss Date and the receipt by the Agent of the proceeds of Insurance relating to such Total Loss (or in the event of a
requisition for title of a Vessel, immediately after the occurrence of such requisition of title),
|
and be applied in accordance with paragraph (a) above (as applicable).
|
8.5 |
Market Value
|
(a) |
If the aggregate Market Value of the Vessels (then serving as collateral hereunder) is less than one hundred and thirty-five per cent (135%) of the Loans the Borrowers shall, unless otherwise agreed with the Agent (on behalf of the
Lenders) within fifteen (15) Business Days calculated from the occurrence of such non-compliance, either:
|
(i) |
prepay the Loans or a part of the Loans (as the case may be) required to restore the aforesaid ratio; or
|
(ii) |
provide the Lenders with such additional security, in form and substance satisfactory to all Lenders (it being understood that cash collateral in USD in an aggregate amount sufficient to restore the aforesaid ratio shall be deemed
acceptable and be valued at par).
|
(b) |
Unless otherwise requested by the Borrowers and agreed in writing by all Lenders any prepayment (or cancellation as relevant) under this Clause 8.5 (Market Value) shall be applied on a pro rata
basis between the Vessels and further distributed in the following internal order between each Vessel’s Vessel Loans:
|
(i) |
for the Vessel Loans of any Original Vessel with outstanding Loans under both the Term Loan Facility and the Revolving Credit Facility A, (A) firstly, towards any outstanding Loans under the Revolving Credit Facility A on a pro rata,
and thereafter (B) secondly, against the remaining instalments and balloon of the Loan relating to such Vessel under the Term Loan Facility in inverse order of maturity, and thereafter, (C) thirdly, towards cancellation of any Available
Vessel Commitments pertaining to such Vessel;
|
(ii) |
for the Vessel Loans of any Original Vessel with outstanding Loans under the Revolving Credit Facility B, (A) firstly, towards any outstanding Loans under the Revolving Credit Facility B on a pro rata basis against the remaining
instalments and balloon in inverse order of maturity, and thereafter, (B) secondly, towards cancellation of any Available Vessel Commitments pertaining to such Vessel; and
|
(iii) |
for the Vessel Loans of any Additional Vessel, (A) firstly, towards any outstanding Loans under the Incremental Facility on a pro rata basis against the remaining instalments and balloon in inverse order of maturity, and thereafter,
(B) secondly, towards cancellation of any Available Vessel Commitments pertaining to such Vessel.
|
8.6 |
Change of Control
|
(a) |
the Borrowers shall promptly notify the Agent upon becoming aware of that event whereupon the Agent shall notify the Lenders;
|
(b) |
a Lender shall not be obliged to fund any Utilisation; and
|
(c) |
the Agent shall, with thirty (30) Business Days prior written notice to the Borrowers cancel the Total Commitments and require the Borrowers to prepay all of the Outstanding Indebtedness in full.
|
8.7 |
Right of replacement or repayment and cancellation in relation to a single Lender
|
(a) |
If:
|
(i) |
any sum payable to any Lender by the Borrowers and/or the Guarantor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or
|
(ii) |
any Lender claims indemnification from the Borrowers under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs),
|
(b) |
On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
(c) |
On the last day of each Interest Period which ends after the Borrowers have given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrowers in that notice), the Borrowers shall repay that
Lender’s participation in the Loans.
|
(d) |
The replacement of a Lender pursuant to paragraph (a) above shall be subject to the following conditions:
|
(i) |
the Borrowers shall have no right to replace the Agent;
|
(ii) |
neither the Agent nor any Lender shall have any obligation to find a replacement Lender; and
|
(iii) |
in no event shall the Lender replaced under paragraph (a) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.
|
8.8 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 8 (Prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement,
shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
(c) |
The Borrowers may not re-borrow any part of any Loan which is prepaid according to this Clause 8 (Prepayment and cancellation).
|
(d) |
The Borrowers shall not repay or prepay all or any part of a Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f) |
If the Agent receives a notice under this Clause 8 (Prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrowers or the affected Lender, as appropriate.
|
(g) |
Unless otherwise specified herein, mandatory prepayments or cancellations of the Facilities shall be applied firstly on a pro rata basis between the respective Facilities and then, secondly, in an inverse order against the remaining
instalments including the balloon.
|
9. |
OPTIONAL RATE SWITCH
|
9.1 |
Optional Rate Switch
|
(a) |
The Borrowers may in their sole discretion one (1) time during the lifetime of the Facilities freely chose to switch the Reference Rate from Term SOFR to SOFR by delivering a duly executed Optional Rate Switch Notice at latest five (5)
Business Days before the end of the nearest ending current Interest Period for any of the Loans (an “Optional Rate Switch”).
|
(b) |
Provided that the Optional Rate Switch Notice complies with the requirements of this Agreement and accrued interest is paid according to Clause 10.2 (Payment of interest), the Optional Rate
Switch shall take effect from the first day in the next Interest Period for the Loans meaning that the use of Term SOFR will be replaced by SOFR as Reference Rate from that date (the “Optional Rate Switch
Date”).
|
(c) |
Any Optional Rate Switch shall be binding and applicable for all existing Loans, all undrawn Commitments and any Incremental Facilities established after the Optional Rate Switch.
|
9.2 |
Notification by Agent
|
10. |
INTEREST
|
10.1 |
Calculation of interest
|
(a) |
The rate of interest on any Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
(i) |
Margin;
|
(ii) |
CAS; and
|
(iii) |
Reference Rate.
|
(b) |
If any day during an Interest Period for a Loan for which SOFR is the applicable Reference Rate is not US Government Securities Business Day, the rate of interest on that Loan for that day will be the rate applicable to the immediately
preceding US Government Securities Business Day.
|
10.2 |
Payment of interest
|
10.3 |
Default interest
|
(a) |
If a Borrower or the Guarantor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of the actual payment (both before and after
judgment), at a rate which, subject to paragraph (b) below, is two hundred basis points higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a part of the Loan in the
currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably) above the Margin. Any interest accruing under this Clause 10.3 (Default
interest) shall be immediately payable by the Borrowers and/or the Guarantor on demand by the Agent.
|
(b) |
If any overdue amount consists of all or part of a Loan for which Term SOFR is the applicable Reference Rate which became due on a day which was not the last day of an Interest Period relating to such Loan:
|
(i) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be two (2) per cent higher than the rate which would have applied if the overdue amount had not become due.
|
(c) |
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
10.4 |
Notification of rates of interest
|
(a) |
The Agent shall promptly notify the relevant Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
|
(b) |
The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
|
(c) |
This Clause 10.4 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.
|
11. |
INTEREST PERIODS
|
11.1 |
Selection of Interest Periods
|
(a) |
The Borrowers may select an Interest Period for a Loan under the Term Loan Facility of three (3) Months or any such other periods as all Lenders may agree in the relevant Utilisation Request.
|
(b) |
The Interest Period for any Loans under the Revolving Credit Facilities and any Incremental Facility shall be three (3) Months, however so that the first Interest Period for any such Loan shall be shortened to the extent necessary so
that it ends on the next Scheduled Repayment Date.
|
(c) |
In respect of any Loan already utilised under the Term Loan Facility, the Borrowers may select an Interest Period for such Loan in a Selection Notice on the following terms:
|
(i) |
each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by the Borrowers not later than 12:00 noon Oslo time on the date falling three (3) Business Days prior to the last day of the current Interest Period;
and
|
(ii) |
the Borrowers may select an Interest Period for a Loan under the Term Loan Facility of a period of three (3) Months or any other periods as all Lenders may agree.
|
(d) |
If the Borrowers fail to deliver a Selection Notice to the Agent in accordance with paragraph (c) above, the relevant Interest Period will be three (3) Months.
|
(e) |
An Interest Period for a Loan shall not extend beyond the Maturity Date.
|
(f) |
The first Interest Period for a Loan shall start on the relevant Utilisation Date and each subsequent Interest Period shall start on the last day of its preceding Interest Period.
|
11.2 |
Non-Business Days
|
12. |
CHANGES TO THE CALCULATION OF INTEREST
|
12.1 |
Absence of quotations
|
(a) |
Interpolated Term SOFR: If Term SOFR is the applicable Reference Rate and no Term SOFR is available for the Interest Period of a Loan, the applicable Reference Rate shall be the Interpolated
Term SOFR for a period equal in length to the Interest Period of that Loan.
|
(b) |
Central Bank Rate: If the applicable Reference Rate (Term SOFR or SOFR) is not available, as relevant on any day during, the Interest Period of a Loan and in case of Term SOFR it is not possible
to calculate the Interpolated Term SOFR, the applicable Reference Rate shall be the percentage rate per annum which is the aggregate of (i) the arithmetic mean of the Central Bank Rate for the relevant days in the Interest Period of the
Loan(s), provided that the Central Bank Rate applicable to the day falling five (5) days prior to the last day of the relevant Interest Period shall be deemed to be the Central Bank Rate for the final five (5) days of that Interest Period
and (ii) the applicable Central Bank Rate Adjustment.
|
12.2 |
Interest calculation if no Term SOFR, SOFR or Central Bank Rate
|
12.3 |
Market disruption
|
12.4 |
Cost of funds
|
(a) |
If this Clause 12.4 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i) |
the Margin; and
|
(ii) |
in respect of each relevant Lender, the rate notified to the Agent by that Lender as soon as practicable and in any event within 2 Business Days before the date on which interest is due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan.
|
(b) |
If this Clause 12.4 applies and the Agent or the Borrowers so require, the Agent and the Borrowers shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for
determining the rate of interest.
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all Lenders and the Borrowers, be binding on all Parties.
|
(d) |
If an alternative basis is not agreed pursuant to paragraph (b) above, the Borrowers shall have the option to (i) cancel and prepay the relevant Loan(s) according to Clause 8.1 (Voluntary cancellation)
and 8.2 (Voluntary prepayment of Loans) or (ii) continue to pay interest calculated under Clause 12.4 (Cost of funds). For the avoidance of doubt, Clause
38.3 (Changes to Reference Rates) shall in any event apply if and when relevant according to its terms.
|
(e) |
The Borrower shall continue to pay interest calculated under Clause 12.4 (Cost of funds) as long as no agreed substitute basis for determining the rate of interest has been implemented.
|
(f) |
If this Clause 12.4 applies and:
|
(i) |
a Lender’s Funding Rate is less than the Market Disruption Rate; or
|
(ii) |
a Lender does not supply a quotation by the time specified in sub-paragraph (a)(ii) above,
|
12.5 |
Notification of market disruption
|
12.6 |
Break Costs
|
(a) |
The Borrowers shall, within three (3) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrowers on a day other than the
last day of an Interest Period for that Loan or Unpaid Sum.
|
(b) |
Each relevant Finance Party shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they become, or may become, payable.
|
13. |
FEES
|
13.1 |
Commitment fee
|
(a) |
The Borrowers shall pay to the Agent (for the account of each relevant Lender) a fee in USD computed at the rate of forty per cent (40%) of the relevant Margin per annum and calculated on the undrawn portion of the Total Commitments
during the relevant Availability Period.
|
(b) |
The accrued commitment fee is payable (i) quarterly in arrears on the last day of each fiscal quarter, (ii) on the last day of the relevant Availability Period and (iii) if cancelled in full, on the cancelled amount at the time the
cancellation is effective.
|
13.2 |
Other fees
|
14. |
TAX GROSS UP AND INDEMNITIES
|
14.1 |
Definitions
|
14.2 |
Tax gross-up
|
(a) |
All payments by the Obligors under the Finance Documents shall be made free and clear of any Tax Deduction or any other governmental or public payment imposed by the laws of any jurisdiction from which or through which such payment is
made, unless a Tax Deduction or withholding 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 Agent accordingly. Similarly, a Lender shall notify the
Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Obligors.
|
(c) |
If a Tax Deduction is required by law to be made by any 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 thirty (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 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.
|
14.3 |
Tax indemnity
|
(a) |
The Obligors shall (within three (3) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 14.2 (Tax gross- up); or;
|
(B) |
relates to a FATCA Deduction 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 Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrowers.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3 (Tax indemnity), notify the Agent.
|
14.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit,
|
14.5 |
Stamp taxes
|
14.6 |
VAT
|
(a) |
All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of
any VAT which is chargeable on such supply or supplies, that Party shall pay to the 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 such VAT (and such
Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
(b) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense,
including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
14.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable “passthru payment percentage” or other information required under the US Treasury Regulations or
other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; 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 (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other
Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph
|
(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 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 made 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.
|
14.8 |
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 the Borrowers and the Agent shall notify the other Finance Parties.
|
14.9 |
Secured Hedging Agreements
|
15. |
INCREASED COSTS
|
15.1 |
Increased costs
|
(a) |
Subject to Clause 15.3 (Exceptions) the Borrowers shall, within three (3) Business Days of a demand by the 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;
|
(ii) |
compliance with any law or regulation made after the Signing Date; or
|
(iii) |
the implementation or application of, or compliance with:
|
(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 on 16 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 (together with (A) collectively referred to as “Basel III”);
|
(C) |
Directive 2013/36/EU of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directive 2006/48/EC and
2006/49/EC (“CRD IV”);
|
(D) |
Regulation (EU) no. 575/2013 of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012 (“CRR”);
|
(E) |
any law or regulation that implements or applies to Basel III, CRD IV or CRR; and
|
(F) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III or “Basel IV”.
|
(b) |
In this Agreement “Increased Costs” means:
|
(i) |
a reduction in the rate of return from the Facilities or on a Finance Party’s (or its Affiliate’s) overall capital;
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
15.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify
the Borrowers.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
15.3 |
Exceptions
|
(a) |
Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
(i) |
attributable to a Tax Deduction required by law to be made by the Borrowers and/or the Guarantor;
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party;
|
(iii) |
compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely
because any of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied); or
|
(iv) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
(b) |
In this Clause 15.3 (Exceptions), a reference to a “Tax Deduction” has the same meaning given to the term in Clause 12.1 (Definitions).
|
16. |
OTHER INDEMNITIES
|
16.1 |
Currency indemnity
|
(a) |
If any sum due from the Obligors 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;
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
16.2 |
Other indemnities
|
(a) |
the occurrence of any Event of Default or Sanctions Event;
|
(b) |
a failure by the Borrowers and/or the Guarantor 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 31 (Sharing among the Finance Parties);
|
(c) |
funding, or making arrangements to fund, its participation in a Loan 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;
|
(d) |
a third party claim related to the Finance Documents, the Obligors or the Vessels, hereunder any Environmental Claims or any non-compliance by any Obligor, the Technical Manager, the Commercial Manager and/or any Charterer with
applicable laws including Sanctions Laws;
|
(e) |
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by the Agent or any other
Finance Party as a result of conduct of any Obligor or any of their partners, directors, officers, employees, agents or advisors, in relation to any Sanctions Laws; or
|
(f) |
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers,
|
16.3 |
Indemnity to the Agent
|
(a) |
investigating any event which it reasonably believes is a Default or Sanctions Event; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
17. |
MITIGATION BY THE LENDERS
|
17.1 |
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 8.3 (Illegality), Clause 14 (Tax gross up and indemnities) or Clause 15 (Increased costs) 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.
|
17.2 |
Limitation of liability
|
(a) |
The Borrowers shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 (Mitigation).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
18. |
COSTS AND EXPENSES
|
18.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement; and
|
(b) |
any other Finance Documents executed after the Signing Date.
|
18.2 |
Amendment and enforcement costs
|
(a) |
responding to, evaluating, negotiating or complying with a request or requirement for any amendment, waiver or consent;
|
(b) |
the granting of any release, waiver or consent under the Finance Documents;
|
(c) |
any amendment or variation of a Finance Document; and
|
(d) |
the enforcement of, or the preservation, protection or maintenance of, or attempt to preserve or enforce, any of the rights of the Finance Parties under the Finance Documents.
|
18.3 |
Agent’s and Security Agent’s management time
|
19. |
SECURITY
|
19.1 |
Security
|
(a) |
The obligations and liabilities of the Borrowers and the Guarantor under the Finance Documents, whether present and future, actual or contingent, whether as primary obligor or as guarantor, including (without limitation) the Borrowers’
obligation to repay the Loans together with all unpaid interest, default interest, commissions, charges, expenses and any other derived liability whatsoever of the Borrowers towards the Finance Parties in connection with this Agreement or
any Secured Hedging Agreement, shall at any time until all amounts due to the Finance Parties under any Finance Document have been paid and/or repaid in full, be secured on a cross-collateralized basis by the following security:
|
(i) |
the Mortgages;
|
(ii) |
the Guarantee;
|
(iii) |
the Assignment Agreements;
|
(iv) |
any Intra Group Loans Assignment Agreements;
|
(v) |
the Pledges of Shares, including but not limited to, any customary power of attorney for sale of the Shares and signed but undated letters of resignation from each director;
|
(vi) |
if relevant. any Charterparty Assignment; and
|
(vii) |
any other document that may have been or shall from time to time hereafter be executed as Security for the Borrowers’ obligations under or pursuant to the Finance Documents.
|
(b) |
The Security Documents shall rank with first priority.
|
19.2 |
Perfection etc.
|
19.3 |
Further assignment of Earnings, Charterparty and Intra Group Loans
|
(a) |
In the event that a Borrower enters into a Charterparty, the relevant Borrower shall prior to the relevant commencement date, or if not practical, promptly thereafter assign such Charterparty (if legally possible and required by any
Lender) or (if not legally possible to assign such charter or contract) any Earnings accruing thereunder in favour of the Security Agent (on behalf of the Finance Parties).
|
(b) |
In the event that any of the Obligors enter into any Intra Group Loans, the relevant Obligor shall prior to the relevant commencement date assign by way of an Intra Group Loans Assignment Agreement such claims the relevant Obligor may
have thereunder in favour of the Security Agent (on behalf of the Finance Parties).
|
19.4 |
Security – Secured Hedging Agreement
|
(a) |
The Borrowers’ obligations and liabilities under any Secured Hedging Agreement, whether present and future, actual or contingent, whether as primary obligor or as guarantor, together with all unpaid interest, default interest,
commissions, charges, expenses and any other derived liability whatsoever of the Borrowers towards a Hedging Bank in connection with any Secured Hedging Agreement, shall at any time until all amounts due to a Hedging Bank under any
Secured Hedging Agreement have been paid and/or repaid in full, be secured by the Security Documents and the guarantee liabilities of the Guarantor pursuant to Clause 20 (Guarantee and indemnity),
however on subordinated basis to the rights of the other Finance Parties as per Clause 32.5 (Partial payments).
|
(b) |
The relevant Hedging Bank shall immediately upon execution of a master agreement in respect of a Secured Hedging Agreement inform the Security Agent and provide a copy of the relevant master agreement to the Security Agent. The
relevant Obligor shall also take such steps as the Security Agent may require to perfect the assignment over the Borrowers’ rights under the relevant Secured Hedging Agreement as per the relevant Assignment Agreement. Further, each
Hedging Bank shall keep the Security Agent updated on any transactions made under a Secured Hedging Agreement.
|
20. |
GUARANTEE AND INDEMNITY
|
20.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by the Borrowers of all the Borrowers’ obligations under the Finance Documents.
|
(b) |
undertakes with each Finance Party that whenever the Borrowers do not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was 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 the Borrowers 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 relevant Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 20 (Guarantee and indemnity) if the amount claimed
had been recoverable on the basis of a guarantee;
|
20.2 |
Continuing guarantee
|
20.3 |
Reinstatement
|
20.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, the Borrowers or other person;
|
(b) |
the release of the Borrowers or any other person under the terms of any composition or arrangement with any creditor of the Borrowers;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, a 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;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Borrowers 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.
|
20.5 |
Immediate recourse
|
20.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order
as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor’s liability under this Clause 20 (Guarantee and indemnity).
|
20.7 |
Deferral of the Guarantor’s rights
|
(a) |
to be indemnified by the Borrowers;
|
(b) |
to claim any contribution from any other guarantor of the Borrowers’ 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 Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by any Finance Party;
|
(d) |
to bring legal or other proceedings for an order requiring the Borrowers to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 20.1 (Guarantee and indemnity);
|
(e) |
to exercise any right of set-off against the Borrowers; and/or
|
(f) |
to claim or prove as a creditor of the Borrowers in competition with any Finance Party.
|
20.8 |
Additional security
|
20.9 |
Norwegian FA Act
|
20.10 |
Guarantee Limitations
|
21. |
REPRESENTATIONS
|
21.1 |
Status
|
(a) |
Each Obligor is a corporation or company, duly incorporated, with good standing and validly existing under the law of its jurisdiction of incorporation.
|
(b) |
Each Obligor and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
(c) |
No Obligor is a US Tax Obligor.
|
(d) |
In accordance with the FA Act section 3-12 (2) and the Norwegian Anti-Money Laundering Act 2018/23 (in No: hvitvaskingsloven) section 13 (1) the Obligors confirm that the information set out in
Schedule 9 (FA Act section 3-12) is true and accurate as of the date of the Amendment No. 1.
|
21.2 |
Binding obligations
|
(a) |
The obligations expressed to be assumed by the relevant Obligor in each Finance Document are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation), legal, valid, binding and enforceable obligations.
|
(b) |
Save as provided herein or therein and/or as have been or shall be completed prior to a Utilisation Date, no registration, filing, payment of tax or fees or other formalities are necessary or desired to render the Finance Documents
enforceable against the Obligors, and in respect of the Vessels, for the Mortgages to constitute valid and enforceable first priority mortgage over the Vessels.
|
21.3 |
Non-conflict with other obligations
|
(a) |
any law, statute, rule or regulation applicable to it, or any order, judgment, decree or permit to which it is subject, including any law, statute, rule or regulation implemented to combat money laundering and bribery;
|
(b) |
its or any of its Subsidiaries’ constitutional documents; or
|
(c) |
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets.
|
21.4 |
Power and authority
|
(a) |
Each Obligor has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents and the Transaction Documents to which it is a party and
the transactions contemplated by those Finance Documents and Transaction Documents.
|
(b) |
All necessary corporate, shareholder and other action have been taken by each Obligor to approve and authorize the execution of the Finance Documents and the Transaction Documents, the compliance with the provisions thereof and the
performance of its obligations thereunder.
|
(c) |
Each Borrower acts for its own account by entering into the Finance Documents and obtaining the Facilities.
|
21.5 |
Validity and admissibility in evidence
|
(a) |
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents and the Transaction Documents to which it is a party;
|
(b) |
to make the Finance Documents and the Transaction Documents admissible in evidence in its jurisdiction of incorporation; and
|
(c) |
in connection with each Obligor’s business and ownership of assets,
|
21.6 |
Governing law and enforcement
|
(a) |
The choice of Norwegian law and any other applicable law respectively as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.
|
(b) |
Any judgment obtained in Norway and/or any other applicable jurisdiction in relation to a Finance Document will be recognised and enforced in the relevant Obligor’s jurisdiction of incorporation.
|
21.7 |
Insolvency
|
21.8 |
Deduction of Tax
|
21.9 |
No filing or stamp taxes
|
21.10 |
No default
|
(a) |
No Event of Default is continuing or might reasonably be expected to result from the making of a Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on any Obligor or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are
subject which has or might have a Material Adverse Effect.
|
21.11 |
No misleading information
|
(a) |
Any factual information provided by any Obligor or otherwise relevant to matters contemplated by the Finance Documents 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 information provided by any Obligor has been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted and no information has been given or withheld that results in the information provided by any Obligor being incomplete, untrue or misleading in any material respect.
|
21.12 |
Financial statements
|
(a) |
Its Original Financial Statements were prepared in accordance with GAAP consistently applied.
|
(b) |
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Guarantor) during the relevant financial year.
|
(c) |
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of any Obligor) since the date of delivery of its latest financial statements.
|
21.13 |
Pari passu ranking
|
21.14 |
No proceedings pending or threatened
|
21.15 |
Title
|
21.16 |
No security
|
21.17 |
No immunity
|
21.18 |
Ranking of Security Documents
|
21.19 |
Taxation
|
(a) |
No Obligor is overdue in the filing of any Tax returns.
|
(b) |
To the best of its knowledge and belief, no claims or investigations are being, or are reasonably likely to be, made or conducted against any Obligor with respect to Taxes which is reasonably likely to have a Material Adverse Effect on
its ability to perform its obligations under the Finance Documents.
|
(c) |
The relevant Obligor is resident for Tax purposes only in the jurisdiction of its incorporation, unless the Agent shall have been otherwise informed in writing.
|
21.20 |
Environmental compliance
|
21.21 |
Environmental Claims
|
21.22 |
ISM Code and ISPS Code compliance
|
21.23 |
The Vessels
|
(a) |
in the absolute ownership of the relevant Borrower free and clear of all encumbrances (other than current crew wages and the Mortgage and a security created pursuant to any of the Security Documents) and the relevant Borrower will be
the sole, legal and beneficial owner of such Vessel;
|
(b) |
registered in the name of the relevant Borrower with the relevant Approved Ship Registry under the laws and flag applicable for the relevant Approved Ship Registry;
|
(c) |
operationally seaworthy in every way and fit for service; and
|
(d) |
classed with ABS, Lloyd’s Register, DNV or such other IACS classification society as approved by the Agent (on behalf of the Majority Lenders), free of all overdue recommendations/conditions of class.
|
21.24 |
Financial Indebtedness
|
21.25 |
Sanctions
|
(a) |
Each Obligor, their respective directors, officers, and employees, and to the best of its knowledge and belief (having made due and careful inquiry), each of their Affiliates, their joint ventures, and their respective directors,
officers, employees, agents or representatives has been and is in compliance with Sanctions Laws.
|
(b) |
No Obligor, or any of their respective directors, officers, employees is, nor is, to the Obligor’s best knowledge and belief (having made due and careful inquiry), any of its Affiliates and their joint ventures, and their respective
directors, officers, employees, agents or representatives:
|
(i) |
a Restricted Party, does not act directly or indirectly on behalf of, or for the benefit of, a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party; or
|
(ii) |
subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions Laws by any Sanctions Authority or has received notice of or is aware of any such inquiry, claim, action,
suit, proceeding or investigation.
|
(c) |
None of the Vessels are a vessel with which any person is prohibited or restricted from dealing with under any Sanctions Laws.
|
21.26 |
Anti-bribery, anti-corruption and anti-money laundering
|
21.27 |
Shares
|
(a) |
The Borrowers are wholly owned indirect or direct Subsidiaries of the Guarantor (unless and until the Shares are transferred and the Loans are prepaid in accordance with this Agreement).
|
(b) |
The Shares are fully paid, non-assessable and not subject to any option to purchase or similar rights. The constitutional documents of each Borrower do not and could not restrict or inhibit any transfer of those Shares on creation or
enforcement of any of the Secured Assets. There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share or loan capital of any Borrower
(including any option or right of pre-emption or conversion).
|
21.28 |
Charterparty
|
21.29 |
Repetition
|
(a) |
The Repeating Representations being each of the representations set out in Clause 21 (Representations) subject to paragraph (b) below, are deemed to be made by each Obligor by reference to the
facts and circumstances then existing on the date of a Utilisation Request and the first day of each Interest Period and on the date of delivery of each Compliance Certificate (or, if no such Compliance Certificate is forwarded, on each
day such certificate should have been forwarded to the Agent at the latest).
|
(b) |
The representations set out in Clauses 21.7 (Insolvency) until and including 21.9 (No filing or stamp taxes), 21.14 (No
proceedings pending or threatened) and 21.19 (Taxation) are not repeating and shall only be made by each Obligor by reference to the facts and circumstances then existing on the date of a
Utilisation Request.
|
22. |
INFORMATION UNDERTAKINGS
|
22.1 |
Financial statements
|
(a) |
as soon as they are available and public, but in any event with one hundred and twenty (120) days after the end of its financial year;
|
(i) |
the audited consolidated financial statements of the Guarantor for that financial year;
|
(ii) |
the unaudited management accounts (profit and loss statement and balance sheet) of the Borrowers for that financial year;
|
(b) |
as soon as they are available and public, but in any event within ninety (90) days after the last day of each quarter the unaudited consolidated financial statements of the Guarantor for that financial quarter;
|
(c) |
as soon as they are available, but in any event within ninety (90) days after the end of its financial year, the financial projections of the Guarantor on an annual basis; and
|
(d) |
such other financial and other information of any Obligor as the Lenders shall reasonably require from time to time (including but not limited to in relation to Sanctions Laws).
|
22.2 |
Compliance Certificate
|
22.3 |
Requirements as to financial statements
|
(a) |
The Guarantor shall procure that each set of financial statements delivered pursuant to Clause 22.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference
periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the
accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the relevant Obligor) deliver to the Agent:
|
(i) |
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which that Obligor’s Original Financial Statements were prepared; and
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 23 (Financial covenants) has been complied with and
make an accurate comparison between the financial position indicated in those financial statements and that Obligor’s Original Financial Statements.
|
22.4 |
Information: miscellaneous
|
(a) |
all documents dispatched by the Borrowers and the Guarantor to their shareholders generally (or any class of them) or their 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 which are current, threatened or pending against any Obligor, and which might, if adversely determined, have a Material
Adverse Effect;
|
(c) |
promptly, such further information regarding the financial condition, business and operations of any Obligor as any Finance Party (through the Agent) may reasonably request, promptly, such information about the Vessels’ classification
records and status as the Agent may reasonably request;
|
(d) |
promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions Laws by any Sanctions Authority against it, any of its direct or indirect owners, Affiliates, any
of their joint ventures or any of their respective directors, officers, employees, agents or representatives, as well as information on what steps are being taken with regards to answer or oppose such;
|
(e) |
promptly upon becoming aware of them, any details of any material claims or amendments under any Transaction Document (other than Finance Documents); and
|
(f) |
promptly upon becoming aware that it, any of its direct or indirect owners, Affiliates, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives has become or is likely to become
a Restricted Party.
|
22.5 |
Notification of default
|
(a) |
Each of the Borrowers and the Guarantor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) and any Sanctions Event promptly upon becoming aware of its occurrence.
|
(b) |
Promptly upon a request by the Agent, the Borrowers shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it) and that no Sanctions Event has occurred.
|
22.6 |
Notification of Environmental Claims
|
(a) |
if any Environmental Claim has been commenced or (to the best of its knowledge and belief) is threatened against the Borrowers (or any of its Affiliates), any Charterers, the Technical Manager or the Vessels; and
|
(b) |
of any fact and circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against any of the Borrowers (or any of their Affiliates), any Charterers, the Technical Manager or
the Vessels,
|
22.7 |
Market Value
|
(a) |
The Borrowers shall arrange for, at its own expense, the Market Value of each Vessel individually to be determined on a quarterly basis.
|
(b) |
The Borrowers shall forward the market valuations obtained pursuant to paragraph (a) above to the Agent (on behalf of the Finance Parties) together with the Valuation Certificate within ten (10) days after the end of each financial
quarter and such valuations shall be issued no more than thirty (30) days prior to the date provided to the Agent.
|
(c) |
Should the Agent reasonably assume that a Default has occurred or may occur, or should a Vessel be sold or suffer a Total Loss, the Agent may arrange, or require the Borrowers to arrange, additional determinations of the Market Value
of the Vessels at such frequency as the Agent (on behalf of Finance Parties) may request and at the Borrowers’ expense.
|
22.8 |
“Know your customer” checks
|
(a) |
If:
|
(i) |
the Agent’s or any Lender’s internal requirements or any laws or regulations applicable to it at any time;
|
(ii) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signing Date;
|
(iii) |
any change in the status of the Borrowers or the Guarantor after the Signing Date; or
|
(iv) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied
it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
(c) |
The Guarantor shall, by not less than ten (10) Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional
Borrower pursuant to Clause 28.2 (Additional Borrowers).
|
(d) |
Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Borrower obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances
where the necessary information is not already available to it, the Guarantor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or 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 accession of such Subsidiary to this Agreement as an Additional Borrower.
|
(e) |
The Lenders to carry out and be satisfied with the results of all applicable “know your customer” requirements.
|
(f) |
Without limiting any other provision of this Agreement, the Parties authorise and empower the Agent to collect, hold and circulate (on a need to know basis) any documentation and other information relating to “know your customer” or
similar identification procedures requested or delivered by any Party under the terms of this Agreement or any other Finance Document.
|
22.9 |
Disclosure of information
|
23. |
FINANCIAL COVENANTS
|
23.1 |
Financial covenants - the Guarantor
|
(a) |
unencumbered consolidated Cash of minimum the higher of (i) six per cent (6%) of the Total Interest Bearing Debt and (ii) USD 30,000,000;
|
(b) |
Value Adjusted Tangible Net Worth of at least USD 300,000,000, but in any event the Value Adjusted Tangible Net Worth shall at all times be no less than twenty-five per cent (25%) of the Value Adjusted Total Assets; and
|
(c) |
a positive Working Capital.
|
23.2 |
Amended financial covenants – Obligors
|
24. |
GENERAL UNDERTAKINGS
|
24.1 |
Authorisations
|
24.2 |
Compliance with laws and Sanctions Laws
|
(a) |
Each Obligor shall, and shall procure that each of their Affiliates, the Technical Manager, the Commercial Manager and any Charterer, and to the best of each Obligor’s knowledge the Subsidiaries’ respective officers, directors,
employees, is, and shall remain:
|
(i) |
in compliance with all laws, directives, regulations, decrees, rulings and such analogous rules:
|
(A) |
to which it or its business may be subject; and
|
(B) |
applicable to any Vessel, its ownership, employment, operation, management and registration,
|
(ii) |
in compliance with any Environmental Permits; and
|
(b) |
Each Obligor shall, and shall procure that any Affiliate, the Technical Manager, the Commercial Manager and any Charterer comply in all respect with all Sanctions Laws and the laws of the Approved Ship Registry.
|
(c) |
Each Obligor shall institute and maintain policies and procedures designed to promote and achieve compliance by the Obligors and each of their Subsidiaries with applicable Sanctions Laws.
|
(d) |
Each Obligor shall, and shall procure that none of them, nor any officer, employee or director will, take any action or make any omission that results, or is reasonably likely to result, in it or any Finance Party becoming a Restricted
Party or a breach of Sanctions Laws by any Finance Party.
|
(e) |
Each Obligor and parties acting on its behalf shall observe and abide with any law, official requirement or other regulatory measure or procedure implemented to combat (i) money laundering (as defined in Article 1 of the Directive (EU)
2015/849 of the European Parliament and of the Council of 20 May 2015 (as amended, supplemented and/or replaced from time to time)) and (ii) bribery and corrupt practices.
|
24.3 |
Negative pledge
|
(a) |
The Borrowers shall not create or permit to subsist any Security over the Vessels or any of its assets.
|
(b) |
The Obligors shall not create or permit to subsist any Security over the Shares or any Intra Group Loans.
|
(c) |
The Borrowers shall not:
|
(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 any 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,
|
(d) |
Paragraphs (a) and (b) above do not apply to any Security listed below:
|
(i) |
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, hereunder any rights of pledge and set-off in relation to a cash
pool arrangement approved in advance by the Agent (on behalf of the Finance Parties);
|
(ii) |
any lien (including but not limited to maritime liens defined as such pursuant to applicable law) arising by operation of law and in the ordinary course of trading and securing obligations not more than thirty (30) days overdue;
|
(iii) |
any Security entered into pursuant to any Finance Document;
|
(iv) |
any cash collateral from an Obligor to any Hedging Bank as security (for its own account) for any transaction to be entered into between that Hedging Bank and a Borrower under a Secured Hedging Agreement, and any cash collateral so
placed by an Obligor with a Hedging Bank shall be released, discharged and (if required) deregistered immediately after evidence of registration of the Mortgages on both of the Vessels;
|
(v) |
arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Borrower in the ordinary course of trading on arm’s length terms and on the
supplier’s standard and usual terms;
|
(vi) |
if any Obligors hold bank accounts in the Netherlands, any Security arising under general banking conditions of a financial institution in the Netherlands with whom an Obligor holds a bank account; or
|
(vii) |
security consented to in advance in writing by the Agent (on behalf of the Finance Parties).
|
24.4 |
Disposals, loans and acquisitions
|
(a) |
whether by a single transaction or a series of related or unrelated transactions and whether at the same time or over a period of time, sell, transfer, lease out (except for the Bareboat Charters), grant options, grant rights of first
refusal or otherwise dispose of the whole or any part of its undertakings, assets, including but not limited to the Vessels, or revenues (present or future) or agree to do so unless the Borrowers comply with the provisions of Clause 8.4 (Total Loss or sale of a Vessel) or such steps otherwise are made in accordance with the terms of this Agreement; or
|
(b) |
acquire or replace any material asset or acquire any shares; or
|
(c) |
charter in any vessel or make any investment other than in the normal course of business related to the operation of the Vessels; or
|
(d) |
incur any Financial Indebtedness other than in the normal course of business related to the operation of the Vessels, provided, however, that the Borrowers shall be entitled to obtain Intra Group Loans from the Guarantor as long as
such loans are unsecured and fully subordinated to the Borrowers’ obligations under the Finance Documents and pledged/assigned to the Agent (on behalf of the Finance Parties) under an Intra Group Loans Assignment Agreement, provided that
payment of interest and principal thereunder is allowed so long as (i) such payment of interest and/or principal is made from funds being available for distribution of dividends from the respective Borrower, and (ii) there is no Default
hereunder and no Default will occur as a result of such payment or distribution; or
|
(e) |
make or grant any loans, guarantees or any other form of financial support other than in the normal course of business.
|
24.5 |
Merger
|
24.6 |
Shareholding
|
(a) |
The Borrowers shall remain wholly owned indirect or direct Subsidiaries of the Guarantor unless transferred in accordance with this Agreement (unless and until the Shares are transferred and the Loans are prepaid in accordance with
this Agreement);
|
(b) |
The Guarantor shall inform the Agent (on behalf of the Finance Parties) of any intended sale of any Shares, and any such sale will be subject to prepayment in accordance with Clause 8.6 (Change of
Control); and
|
(c) |
no Borrower shall purchase, cancel, redeem or increase any of its issued shares or share capital.
|
24.7 |
Change of business
|
24.8 |
Title
|
24.9 |
Insurances – general
|
24.10 |
Earnings Accounts
|
(a) |
The Borrowers shall maintain the Earnings Accounts with the Account Bank and ensure that all Earnings are paid to the Earnings Accounts without delays or deduction.
|
(b) |
The amounts in the Earnings Accounts shall be freely available to the Borrowers until and unless an Event of Default has occurred and is continuing, whereupon the Earnings Accounts shall be blocked with no rights for the Borrowers to
make withdrawals or otherwise dispose over the Earnings Accounts without the prior written consent of the Agent.
|
24.11 |
Derivative transactions
|
24.12 |
Distribution restrictions and subordination of inter-company debt
|
(a) |
No Obligor shall (i) distribute any dividends, or make other distributions to its shareholders and/or (ii) buy-back its own common stock and convertible notes if a Default has occurred and is continuing or will occur as a result of
such payment, distribution or buy-back, or after giving effect to such distribution, the Borrowers or the Guarantor is not in compliance with the financial covenants or other representations or covenants of this Agreement.
|
(b) |
All (i) Intra Group Loans to the Borrowers, and (ii) claims of the Guarantor or other relevant Affiliate against the Borrowers shall always be unsecured and fully subordinated to the obligations of the Borrowers under the Finance
Documents, provided that payment of such claims is allowed so long as (i) such payment of interest and/or principal is made from funds being available for distribution of dividends from the respective Borrower, and (ii) there is no
Default under any of the Finance Documents and no Default will occur as a result of such payment or distribution.
|
(c) |
All amounts owed to the Technical Managers and/or Commercial Managers (provided the Technical Managers and/or Commercial Managers are Affiliates of the Borrowers or the Guarantor) shall always be unsecured and fully subordinated to the
obligations of the Borrowers under the Finance Documents any of the Finance Documents, provided that payment of such claims is allowed so long as there is no Default any of the Finance Documents and no Default will occur as a result of
such payment or distribution.
|
(d) |
All agreements and transactions entered into between the members of the Group and their affiliates shall be entered into and made on arm’s length terms.
|
24.13 |
Transaction Documents
|
24.14 |
Taxation
|
24.15 |
No change of name etc.
|
(a) |
the end of its fiscal year;
|
(b) |
its nature of business;
|
(c) |
(applicable for the Borrowers only) its constitutional documents;
|
(d) |
its legal name;
|
(e) |
its type of organization; or
|
(f) |
its jurisdiction,
|
24.16 |
US Tax Obligor
|
24.17 |
Use of proceeds and repayments
|
(a) |
No proceeds of any advance of a Loan shall be made available, directly or indirectly, to or for the benefit of a Restricted Party nor shall they otherwise be applied in a manner or for a purpose prohibited by Sanctions Laws.
|
(b) |
No Borrower shall, and shall procure that no other Obligor shall, repay or prepay any Loan or any part thereof or fund all or any part of any payment under the Finance Documents out of proceeds from funds or assets that:
|
(i) |
constitute property of, or that are beneficially owned directly or indirectly by, any Restricted Party;
|
(ii) |
is obtained or derived from transactions with or relating to any Restricted Party or transactions in violation of Sanctions Laws; or
|
(iii) |
in any manner that would cause any Lender or the Agent to be in violation of Sanctions Laws.
|
24.18 |
Listing
|
25. |
VESSEL UNDERTAKINGS
|
25.1 |
General
|
25.2 |
Insurance – Vessels
|
(a) |
The Borrowers shall maintain or ensure that the Vessels are insured against such risks, including but not limited to, hull and machinery, protection & indemnity (including cover for pollution liability as normally adopted by the
industry for similar units for an amount not less than USD 1,000,000,000, and freight, demurrage and defence cover), hull interest, freight interest (dependent upon the level of the Hull and Machinery policy), loss of hire and war risk
insurances (including blocking and trapping, confiscation, terrorism, hijacking and piracy), in such amounts, on such terms and placed through first class insurance brokers with such first class insurers as the Agent shall approve (not to
be unreasonably withheld), and always subject to the Nordic Marine Insurance Plan of 2013 latest version.
|
(b) |
The insured value of each Vessel shall be at least equal to the Market Value of such Vessel and the aggregate insurance value, except for protection & indemnity and Loss of Hire, shall be at least one hundred and twenty per cent
(120%) of the Loans plus any Available Vessel Commitments. Furthermore, the (i) hull and machinery insurance for each Vessel shall at all times cover at least eighty per cent (80%) of the insurable value (Hull and Machinery and Hull
Interest) of such Vessel and (ii) aggregate hull and machinery insurance of all the Vessels shall cover at least one hundred per cent (100%) of the Loans plus any Available Vessel Commitments (while the remaining cover may be taken out by
way of Hull and Freight Interest insurances). The deductible of the Hull and Machinery insurance shall never be higher than such amount as the Agent may from time to time approve.
|
(c) |
The Borrowers shall procure that the Security Agent (on behalf of the Finance Parties) is noted as first priority mortgagee in the insurance contracts, together with the confirmation from the underwriters, or confirmations from insurance
brokers confirming this on behalf of underwriters, to the Security Agent thereof that the notice of assignment with regards to the Insurances and the loss payable clauses are noted in the insurance contracts and that standard letters of
undertaking/cover notes/policies/certificates of entry are executed by the insurers and/or the insurance broker(s). The loss payable clause shall be in excess of USD 3,000,000.
|
(d) |
The Borrowers shall within fifteen (15) calendar days prior to the relevant Utilisation Date inform the Agent of with whom the Insurances will be placed and on what main terms they will be effected, and within reasonable time prior to
the expiry date of the relevant Insurances, the Borrowers shall procure the delivery to the Agent of a certificate from the insurance broker(s) through whom the Insurances referred to in paragraph (a) above have been renewed and taken out
in respect of the Vessels with insurance values as required by paragraph (b) above, that such Insurances are in full force and effect and that the Security Agent (on behalf of the Finance Parties) have been noted as first priority mortgagee
by the relevant insurers.
|
(e) |
The Borrowers shall allow for the Agent to take out for the Borrowers’ accounts a Mortgagee’s Interest Insurance and a Mortgagee’s Interest - Additional Perils Pollution Insurance covering one hundred and twenty per cent (120%) of the
Loans plus any Available Vessel Commitments.
|
(f) |
The Agent may also for the account of the Borrowers take out such other Insurances as the Finance Parties may reasonably require considering the trading and flag of the Vessels.
|
(g) |
If any of the Insurances referred to in paragraph (a) above form part of a fleet cover, the Borrowers shall procure, except for protection & indemnity (where the Borrowers shall procure to obtain standard market undertakings in
favour of the Security Agent with respect to protection & indemnity from the insurers or the insurance broker), that the insurers or the insurer broker shall undertake to the Security Agent that they shall neither set-off against any
claims in respect of the Vessels any premiums due in respect of other units under such fleet cover or any premiums due for other insurances, nor cancel this Insurance for reason of non-payment of premiums for other units under such fleet
cover or of premiums for such other insurances, and shall undertake to issue a separate policy in respect of the Vessels if and when so requested by the Security Agent.
|
(h) |
The Borrowers shall procure that the Vessels always are employed in conformity with the terms of the instruments of Insurances (including any warranties expressed or implied therein) and comply with such requirements as to extra premium
or otherwise as the insurers may prescribe.
|
(i) |
The Borrowers will not make any material change to the insurances described under paragraph (a) above without the prior written consent of the Agent.
|
(j) |
The Borrowers shall pay for an insurance opinion commissioned by the Agent to be prepared by an independent insurance consultant, in form and contents acceptable to the Agent.
|
25.3 |
Flag, ownership, name and registry
|
(a) |
Each Borrower shall remain the sole owner of its Vessel and shall keep its Vessel registered in an Approved Ship Registry.
|
(b) |
The Finance Parties approve the dual registration of the Vessel “DHT Amazon” in the Bareboat Registry.
|
(c) |
The Borrowers may:
|
(i) |
move a Vessel to another Approved Ship Registry;
|
(ii) |
subject to the relevant Vessel being registered with another Approved Ship Registry, arrange for dual registration of the Vessel in the Bareboat Registry if this is required under the terms of the contract of employment for that Vessel;
or
|
(iii) |
subject to the Agent’s (on behalf of the Majority Lenders) written consent (such consent not to be unreasonably withheld) move any Vessel to any other ship registry,
|
(d) |
On and at any time after the occurrence of an Event of Default which is continuing, the Borrowers undertake to ensure that (i) the bareboat registration of each relevant Vessel in the Bareboat Registry is immediately terminated and
deleted, and the original registration in the Approved Ship Registry re-activated and/or (ii) each Bareboat Charter is terminated, should the Security Agent (on behalf of the Finance Parties) so require.
|
25.4 |
Classification and repairs
|
(a) |
so as to maintain its class with ABS, Lloyd’s Register, DNV GL or another IACS classification society approved by the Agent, free of overdue recommendations/conditions of class; and
|
(b) |
so as to comply with the laws and regulations (statutory or otherwise) applicable to units registered under the flag state of the Vessels or to vessels trading to any jurisdiction to which the Vessels may trade from time to time;
|
(c) |
not, without the prior written consent of the Agent (which shall not be unreasonably withheld), change the classification society of the Vessels; and
|
(d) |
not, without the prior written consent of the Agent, conduct modifications, repairs or remove parts which may reduce the value of the Vessels.
|
25.5 |
Inspections and class records
|
(a) |
The Borrowers shall procure that the Agent’s surveyor at the Borrowers’ cost, is permitted to inspect the condition of the Vessels once a year, if so requested by the Agent, and at any time required by a Lender (at such Lender’s cost),
provided always that such arrangement shall not interfere with the operation of the Vessels and subject to satisfactory indemnities approved by the P&I insurers.
|
(b) |
The Borrowers shall instruct the classification society to give the Agent access to class records and other information from the classification society in respect of the Vessels, by sending a written instruction in such form and
substance as the Agent may require. The Agent shall also be granted electronic access to class records.
|
25.6 |
Surveys
|
25.7 |
Notification of certain events
|
(a) |
any accident to a Vessel involving repairs where the costs will or is likely to exceed five per cent (5%) of the insurance value of such Vessel;
|
(b) |
any requirement or recommendation made by any insurer or classification society or by any competent authority which is not, or cannot be, complied with immediately;
|
(c) |
any exercise or purported exercise of any arrest or lien on the Vessels, their Earnings or the Insurances;
|
(d) |
any occurrence as a result of which a Vessel has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(e) |
the details of any claim, inquiry, action, suit, proceeding or investigation pursuant to Sanctions Laws against it, or any of its direct or indirect owners, Subsidiaries, and any of its respective directors, officers, employees, agents
or representatives, as well as information on what steps are being taken to answer or oppose such;
|
(f) |
any of its direct or indirect owners, Subsidiaries, or any of its directors, officers, employees, agents or representatives becoming a Restricted Party; and
|
(g) |
any claim for a material breach of the ISM Code or the ISPS Code being made against the Borrowers or the Technical Manager or otherwise in connection with the Vessels.
|
25.8 |
Operation of the Vessels
|
(a) |
The Borrowers shall procure that the Vessels are managed by the Technical Manager pursuant to a Technical Management Agreement and the Commercial Manager pursuant to the Commercial Management Agreement and shall not, without the prior
written consent of the Agent (which shall not be unreasonably withheld), change or allow the change of the technical or commercial management of the Vessels.
|
(b) |
The Borrowers may subject to the Agent’s written consent (such consent not to be unreasonably withheld) change the technical or commercial management of the Vessels to respectively another Technical Manager or Commercial Manager by
notifying the Agent in writing ten (10) Business Days in advance of such change.
|
(c) |
The Borrowers shall procure that each of the Technical Manager and the Commercial Manager signs, executes and deliver a Manager’s Undertaking in such form as the Agent (on behalf of the Finance Parties) reasonably may require.
|
(d) |
The Borrowers shall, and shall procure that the Technical Manager shall, comply, or procure the compliance with all Sanctions Laws and in all material respects with the ISM Code and the ISPS Code, all Environmental Laws, the laws of the
Approved Ship Registry, the United States Oil Pollution Act of 1990 and all other laws or regulations relating to the Vessel, their ownership, operation and management or to the business of the Borrowers and the Technical Manager and shall
not employ the Vessels nor allow their employment:
|
(i) |
in any manner contrary to law or regulation in any relevant jurisdiction including but not limited to the ISM Code;
|
(ii) |
directly or indirectly by or for the benefit of any Restricted Party or in any manner contrary to any Sanctions Laws; and
|
(iii) |
in the event of hostilities in any part of the world (whether war is declared or not), in any zone which is declared a war zone by any government or by the war risk insurers of the Vessels unless the Borrowers have (at their own expense)
effected any special, additional or modified insurance cover which shall be necessary or customary for first class unit owners within the territorial waters of such country at such time and has provided evidence of such cover to the Agent.
|
(e) |
Without limitation to the generality of this Clause 25.8 (Operation of the Vessels), the Borrowers and the Technical Manager shall comply or procure compliance, with, as applicable, all
requirements of the International Convention for the Safety of Life at Sea (SOLAS) of 1974 as adopted, amended or replaced from time to time including, but not limited to, the ISM Code or the ISPS Code. The Vessels shall not under any
circumstances carry any nuclear waste/material.
|
25.9 |
ISM Code compliance
|
(a) |
procure that the Vessels remain subject to a SMS;
|
(b) |
procure that a valid and current SMC is maintained for the Vessels;
|
(c) |
procure that the Technical Manager maintains a valid and current DOC;
|
(d) |
immediately notify the Agent in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the SMC of the Vessels or of the DOC of the Technical Manager; and
|
(e) |
immediately notify the Agent in writing of any “accident” or “major nonconformity”, each as those terms is defined in the Guidelines in the application of the IMO International Safety Management Code issued by the International Chamber
of Shipping and International Shipping Federation.
|
25.10 |
Environmental compliance
|
(a) |
The Borrowers shall, and shall to the extent reasonably possible procure that the Technical Manager and any Charterers shall, comply in all respects with all Environmental Laws applicable to any of them or the Vessels, including without
limitation, requirements relating to manning and establishment of financial responsibility and to obtain and comply with all Environmental Permits applicable to any of them and/or the Vessels.
|
(b) |
Each Vessel shall throughout the lifetime of the relevant Vessel have a Green Passport available.
|
(c) |
The Obligors shall procure that the Vessels and any other vessel owned or controlled by the Obligors or any of their Subsidiaries, including where any such vessel is sold to an intermediary with the intention of being scrapped,
dismantled or recycled, is recycled at a recycling yard which conducts it recycling business in a socially and environmentally responsible manner in accordance with the Hong Kong International Convention for the Safe and Environmentally
Sound Recycling of Ships (2009) and/or the EU Ship Recycling Regulation (2013).
|
25.11 |
Poseidon Principles
|
25.12 |
Arrest
|
(a) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Vessels, the Earnings or the Insurances;
|
(b) |
all tolls, taxes, dues, fines, penalties and other amounts charged in respect of the Vessels, the Earnings or the Insurances; and
|
(c) |
all other outgoings whatsoever in respect of the Vessels, the Earnings and the Insurances,
|
25.13 |
Chartering
|
(a) |
The Borrowers shall procure that any Charterparty entered into for a Vessel shall be entered into and made on arm’s length terms.
|
(b) |
The Borrowers shall not:
|
(i) |
without the prior written consent (such consent not to be unreasonably withheld) of the Agent (acting on the instructions of all Lenders), let a Vessel on bareboat charter for any period except for:
|
(A) |
the chartering of the Vessel “DHT Amazon” under the relevant Bareboat Charters; and
|
(ii) |
the chartering of any other Vessel under Bareboat Charters in connection with the Vessel’s dual registration in the Bareboat Registry according to Clause 25.3 (Flag, ownership, name and registry);
or
|
(iii) |
without the prior written consent (such consent not to be unreasonably withheld) of the Agent (acting on the instructions of the Majority Lenders), terminate, cancel, amend or supplement any Charterparty in any material respect, nor
assign such Charterparty to any other person.
|
(c) |
The Borrowers shall notify the Agent promptly in writing (but without any requirement for consent from the Agent) of any agreement related to the chartering and operation of a Vessel other than those covered by sub-paragraph (b)(i)
above, exceeding thirty-six (36) Months and shall arrange for assignment of such contract to the extent relevant pursuant to the terms of this Agreement.
|
26. |
EVENTS OF DEFAULT
|
26.1 |
Non-payment
|
(a) |
its failure to pay is caused by administrative or technical error in the banking system; and
|
(b) |
payment is made within three (3) Business Days of its due date.
|
26.2 |
Financial covenants
|
26.3 |
Other obligations
|
26.4 |
Misrepresentation
|
26.5 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d) |
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 26.5 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to
(d) above is less than USD 1,000,000 in respect of the Borrowers and USD 5,000,000 of the Guarantor.
|
26.6 |
Insolvency
|
(a) |
Any Obligor is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of 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.
|
26.7 |
Insolvency proceedings
|
(a) |
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;
|
(b) |
a composition, compromise, assignment or arrangement with any Obligor;
|
(c) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor or any of their assets; or
|
(d) | enforcement of any Security over any assets of any Obligor, |
26.8 |
Creditors’ process
|
26.9 |
Unlawfulness
|
26.10 |
Repudiation
|
(a) |
An Obligor or the Bareboat Charterer repudiates a Transaction Document or evidences an intention to repudiate a Transaction Document.
|
(b) |
Any Transaction Document ceases to be legal, valid, binding, enforceable or effective.
|
26.11 |
Material adverse change
|
26.12 |
Cessation of business
|
26.13 |
Insurances
|
26.14 |
Failure of security
|
26.15 |
Litigation
|
26.16 |
Breach of the terms of a Secured Hedging Agreement
|
26.17 |
Sanctions
|
(a) |
An Obligor or any of their Affiliates, their joint ventures, and their respective directors, officers, employees, agents or representatives becomes a Restricted Party.
|
(b) |
An act or omission of an Obligor or any of their Affiliates, their joint ventures, and their respective directors, officers, employees, agents or representatives causes a breach of Sanctions Laws by any Finance Party.
|
26.18 |
Acceleration
|
(a) |
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of a Loan, 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;
|
(c) |
declare that all or part of a Loan be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or
|
(d) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
27. |
CHANGES TO THE LENDERS
|
27.1 |
Assignments and transfers by the Lenders
|
(a) |
Subject to this Clause 27 (Changes to the Lenders), a Lender (the “Existing Lender”) may assign, sub-participate and/or transfer any of its rights and/or
obligations under any Finance Document to another Eligible Institution (the “New Lender”).
|
(b) |
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 or a related fund of a Lender;
|
(ii) |
to a Central Bank, Federal Reserve or to another state-owned entity;
|
(iii) |
to any sub-participant where the Existing Lender retains all its obligations in respect of the transferred, assigned or participated amounts; or
|
(iv) |
made at a time when an Event of Default is continuing or a Sanctions Event has occurred.
|
(c) |
The consent of the Borrowers to an assignment or a transfer must not be unreasonably withheld or delayed. The Borrowers shall be deemed to have given their consent five (5) Business Days after that Lender has requested them in writing to
do so unless consent is expressly refused by the Borrowers within that time.
|
27.2 |
Conditions of assignment or transfer
|
(a) |
An assignment or a transfer requiring the Borrowers’ consent shall only be effective:
|
(i) |
on receipt by the Agent of:
|
(A) |
written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender shall assume the same obligations to the other Finance Parties as it would have been under if it was an Existing Lender; and
|
(B) |
all required “know your customer” documentation,
|
(ii) |
on the New Lender’s payment of a transfer fee of USD 5,000 to the Agent; and
|
(iii) |
if the Commitment that is to be transferred to the New Lender is in the minimum amount of USD 10,000,000 (or, if less, such amount constituting the Total Commitment of that transferring Lender).
|
(b) |
A transfer will only be effective if the procedure set out in Clause 27.4 (Procedure for transfer) is complied with.
|
(c) |
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, the Borrowers or the Guarantor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under
Clause 14 (Tax gross up and indemnities) or Clause 15 (Increased Costs),
|
(d) |
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite
Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing
Lender would have been had it remained a Lender.
|
27.3 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties 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 in connection with any Finance Document; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27 (Changes to the Lenders); or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
27.4 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to 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 the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all
applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause 27.6 (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 each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents 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 Agent, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Existing Lender
with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Mandated Lead Arrangers and the Existing Lender shall each be released from further obligations to each other under
the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a “Lender”.
|
27.5 |
Copy of Transfer Certificate to the Borrowers
|
27.6 |
Pro rata interest settlement
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“Accrued Amounts”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer
than three (3) Months, on the next of the dates which falls at three (3) Monthly intervals after the first day of that Interest Period); and
|
(b) |
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 27.6 (Pro rata interest settlement), have been payable to it on that date,
but after deduction of the Accrued Amounts.
|
27.7 |
Securitisation
|
(a) |
Keep bank accounts where requested by the Agent and procure that the Earnings are paid to any such account; and
|
(b) |
Procure that the Insurances according to Clause 25.2 (Insurance – Vessels) are placed with insurers of the requisite rating;
|
27.8 |
Security over Lenders’ rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as Security for those
obligations or securities,
|
(a) |
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
|
(b) |
require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
28. |
CHANGES TO THE OBLIGORS
|
28.1 |
Assignments and transfer by Obligors
|
28.2 |
Additional Borrowers
|
(a) |
Subject to compliance with the provisions of Clause 22.8 (“Know your customer” checks) and the below requirements, the Guarantor may request that one of its Subsidiaries becomes a Borrower.
|
(b) |
That Subsidiary shall become a Borrower on the date the Agent executes the related Accession Letter if:
|
(i) |
the Subsidiary:
|
(A) |
is a direct or indirect wholly owned Subsidiary of the Guarantor; and
|
(B) |
is (or shall as the case might be) become the owner of the Additional Vessel to be financed by the Incremental Facility being established in connection with the Subsidiary’s accession as Borrower;
|
(ii) |
it is incorporated in the same jurisdiction as an existing Borrower and the Majority Lenders approve the addition of that Subsidiary or otherwise if all the Lenders approve the addition of that Subsidiary (in each case such consent not
to be unreasonably withheld or delayed);
|
(iii) |
the Guarantor and that Subsidiary deliver to the Agent a duly completed and executed Accession Letter;
|
(iv) |
the Guarantor confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and
|
(v) |
the Agent has received all of the documents and other evidence referred to in Clause 4.1 (Initial conditions precedent) sub-paragraph (d)(i) in relation to that Additional Borrower, each in form
and substance satisfactory to the Agent.
|
(c) |
The Agent shall notify the Obligors and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Clause 4.1 (Initial conditions precedent) sub-paragraph (d)(i).
|
(d) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (c) above, the Lenders authorise (but do not require) the Agent to give that
notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
28.3 |
Repetition of Representations
|
29. |
ROLE OF THE AGENT, THE SECURITY AGENT AND THE MANDATED LEAD ARRANGERS
|
29.1 |
Appointment of the Agent
|
(a) |
Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents and each Lender, the Hedging Banks and the Agent appoints the Security Agent to act as its security agent and security
trustee for the purpose of the Security Documents.
|
(b) |
Each of the Mandated Lead Arrangers and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c) |
Except where the context otherwise requires, references in this Clause 29 (Role of the Agent, the Security Agent and the Mandated Lead Arrangers) to the “Agent”
shall mean the Agent and the Security Agent individually and collectively.
|
29.2 |
Instructions
|
(a) |
The 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 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;
|
(B) |
the Incremental Facility Majority Lenders if the relevant Finance Document stipulates the matter is an Incremental Facility Majority Lender decision; and
|
(C) |
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.
|
(b) |
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from
that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The 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 Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by
the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
The Agent may refrain from acting in accordance with any instructions of the Majority Lenders (or, if appropriate, any Lender or group of Lenders) until it has received any indemnification and/or security that it may in its discretion
require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any associated VAT) which it may incur in complying with those
instructions.
|
(e) |
In the absence of instructions from the Majority Lenders, (or, if appropriate, any Lender or group of Lenders), the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
(f) |
The Agent is not authorised to act on behalf of a Lender or the Hedging Banks (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.
|
29.3 |
Duties of the Agent
|
(a) |
The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause 27.5 (Copy of Transfer Certificate to the Borrowers), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d) |
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Mandated Lead Arrangers) under this Agreement, it shall promptly notify the other
Finance Parties.
|
(g) |
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
29.4 |
Role of the Mandated Lead Arrangers
|
29.5 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person, save as set out in Clause 29.1 (Appointment of the Agent) (a).
|
(b) |
Neither the Agent nor any Mandated Lead Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
29.6 |
Business with any Obligor
|
29.7 |
Rights and discretions
|
(a) |
The 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 Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders and the Hedging Banks) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.1 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
(iii) |
any notice or request made by the Guarantor (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The 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 Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers
instructed by the Lenders or any Hedging Bank) if the Agent in its reasonable opinion deems this to be necessary.
|
(e) |
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages,
costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for, any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor any Mandated Lead Arrangers is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach
of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities
or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
29.8 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, any Mandated Lead Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions
contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or
otherwise.
|
29.9 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
29.10 |
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 Agent), the 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 Finance Document, 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 Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under
or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or
|
(iii) |
without prejudice to the generality of sub-paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever, (but not including any claim based on the fraud of the Agent)
arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause.
|
(c) |
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Agent or any Mandated Lead Arranger to carry out:
|
(i) |
any “know your customer” or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss
which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to
the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or
consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
29.11 |
Lenders’ indemnity to the Agent
|
29.12 |
Resignation of the Agent
|
(a) |
The Agent may resign as Agent and/or Security Agent and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b) |
Alternatively the Agent may resign as Agent and/or Security Agent by giving thirty (30) days’ notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders (after consultation with the Borrowers) may appoint a
successor Agent and/or Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Agent and/or Security Agent in accordance with paragraph (b) above within twenty (20) days after notice of resignation was given, the retiring Agent (after consultation with the
Borrowers) may appoint a successor Agent and/or Security Agent.
|
(d) |
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents.
|
(e) |
The Agent’s resignation notice shall only take effect upon the appointment of a successor.
|
(f) |
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation as Agent and/or Security Agent (as the case may be) in respect of the Finance Documents but shall remain entitled to the benefit of
this Clause 29 (Role of the Agent, the Security Agent and the Mandated Lead Arrangers) (and any agency fees for the account of the retiring 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) |
After consultation with the Borrowers, the Majority Lenders may, by notice to the Agent, require it to resign as Agent and/or Security Agent in accordance with paragraph (b) above. In this event, the Agent shall resign as Agent and/or
Security Agent in accordance with paragraph (b) above.
|
(h) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three (3) months
before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i) |
the Agent fails to respond to a request under Clause 14.7 (FATCA Information) and a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or
after that FATCA Application Date;
|
(ii) |
the information supplied by the Agent pursuant to Clause 14.7 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date; or
|
(iii) |
the Agent notifies the Borrowers and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
29.13 |
Confidentiality
|
(a) |
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
29.14 |
Relationship with the Lenders
|
(a) |
Subject to Clause 27.6 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as
notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the
address, e-mail and any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a
notification of a substitute address, e- mail, department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and Clause 34.5 (Electronic
communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
29.15 |
Credit appraisal by the Lenders and the Hedging Banks
|
(a) |
the financial condition, status and nature of each Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document;
|
(c) |
whether that Lender or Hedging Banks have recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(d) |
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
29.16 |
Deduction from amounts payable by the Agent
|
30. |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
31. |
SHARING AMONG THE FINANCE PARTIES
|
31.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent;
|
(b) |
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with
Clause 32 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(c) |
the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 32.5 (Partial payments).
|
31.2 |
Redistribution of payments
|
31.3 |
Recovering Finance Party’s rights
|
31.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “Redistributed Amount”); and
|
(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.
|
31.5 |
Exceptions
|
(a) |
This Clause 31 (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.
|
32. |
PAYMENT MECHANICS
|
32.1 |
Payments to the 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 the same available to the 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 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 with such bank as the Agent specifies.
|
32.2 |
Distributions by the Agent
|
32.3 |
Distributions to an Obligor
|
32.4 |
Clawback
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.
|
(b) |
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent
shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
32.5 |
Partial payments
|
(a) |
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the 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 the Agent and Security Agent under the Finance Documents (other than a Secured Hedging Agreement);
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement;
|
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents (other than a Secured Hedging Agreement); and
|
(v) |
fifthly, in or towards any periodic payments and any other amounts due but unpaid under any Secured Hedging Agreement.
|
(b) |
The Agent shall, if so directed by all Lenders, vary the order set out in sub-paragraphs (a)(i) to (iv) above.
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
32.6 |
No set-off by the Obligors
|
32.7 |
Business Days
|
(a) |
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
32.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, USD 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 USD shall be paid in that other currency.
|
32.9 |
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
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 Agent
(acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrowers) specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the London interbank market and otherwise to reflect the change in currency.
|
33. |
SET-OFF
|
34. |
NOTICES
|
34.1 |
Communications in writing
|
34.2 |
Addresses
|
(a) |
in the case of the Obligors;
|
(b) |
in the case of the Security Agent and Agent, that identified with its name below,
|
(c) |
to each Lender and other Finance Party at such details as it has informed the Agent of in writing,
|
34.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will, unless otherwise stated herein, only be effective:
|
(i) |
if by way of email, when actually received in readable form; or
|
(ii) |
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
(b) |
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the
Agent’s signature below (or any substitute department or officer as the Agent shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
(d) |
Any communication or document made or delivered to any of the Obligors in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
34.4 |
Notification of address and e-mail
|
34.5 |
Electronic communication
|
(a) |
Any communication to be made between the Agent and the other Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means as an accepted form of communication unless and until the
relevant Party notifies the Agent to the contrary.
|
(b) |
The Parties agree to:
|
(i) |
notify the Agent in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by electronic communication; and
|
(ii) |
notify the Agent in writing of any change to their address or any other such information supplied by them.
|
(c) |
Subject to paragraph (d) below, any electronic communication made between the Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Agent only if it
is addressed in such a manner as the Agent shall specify for this purpose.
|
(d) |
The Finance Parties confirm that they have consented to the use of the Agent’s Debtdomain systems as an accepted method of communication under and in connection with the Finance Documents and agree that the Debtdomain system will be the
primary method of communication between the Agent and the other Finance Parties until and unless the Agent notifies them of a replacing system of communication. The Finance Parties acknowledge that a communication via Debtdomain (or
replacing system) will be effective once the communication is posted to Debtdomain (or replacing system) by the Agent.
|
34.6 |
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 Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
35. |
CALCULATIONS AND CERTIFICATES
|
35.1 |
Accounts
|
35.2 |
Certificates and Determinations
|
35.3 |
Day count convention
|
36. |
PARTIAL INVALIDITY
|
37. |
REMEDIES AND WAIVERS
|
38. |
AMENDMENTS AND WAIVERS
|
38.1 |
Required consents
|
(a) |
Subject to Clause 38.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Guarantor and any such amendment or waiver will
be binding on all Parties.
|
(b) |
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38 (Amendments and waivers).
|
(c) |
Without prejudice to the generality of paragraphs (c), (d) and (e) of Clause 29.7 (Rights and discretions), the Agent may engage, pay for and rely on the services of lawyers in determining the
consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
(d) |
Each Obligor agrees to any such amendment or waiver permitted by this Clause 38 (Amendments and waivers) which is agreed to by the Guarantor. This includes any amendment or waiver which would, but
for this paragraph (d), require the consent of all or any of the Borrowers and/or Obligors.
|
38.2 |
Exceptions
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
an extension to the date of payment of any amount under the Finance Documents;
|
(ii) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
(iii) |
any change of currency;
|
(iv) |
an increase in or an extension of any Commitment;
|
(v) |
an extension of an Availability Period;
|
(vi) |
Clause 2.3 (Finance Parties’ rights and obligations), Clause 27 (Changes to the Lenders) or this Clause 38 (Amendments
and waivers);
|
(vii) |
the release, nature or scope or any other change of the guarantee and indemnity granted under Clause 20 (Guarantee and indemnity);
|
(viii) |
governing law and jurisdiction;
|
(ix) |
change to any provisions in respect of Sanctions Laws, Sanctions Authority, Restricted Party (and any other elements relating to sanctions);
|
(x) |
the manner in which any payment and proceeds are being applied;
|
(xi) |
the nature or scope or any other change to the Security Documents or the Security granted thereunder;
|
(xii) |
the definition of “Majority Lenders” or “Incremental Facility Majority Lenders” in Clause 1.1 (Definitions);
|
(xiii) |
any provision which expressly requires the consent of all the Lenders;
|
(xiv) |
a change to any Obligor or any change to the definition “Change of Control”;
|
(xv) |
the joint and several liability of the Obligors and/or the nature or scope of the joint and several liability of the Obligors; or
|
(xvi) |
release of any Security created by the Security Documents unless permitted under the Finance Documents or undertaken by the Agent acting on instruction of the Majority Lenders following an Event of Default which is continuing;
|
(b) |
An amendment or waiver which relates to the rights or obligations of the Agent or any Mandated Lead Arranger (each in their capacity as such) may not be effected without the consent of the Agent or, as the case may be, the relevant
Mandated Lead Arranger.
|
(c) |
Clause 38.1 (Required consents) and the above paragraphs (a) – (b) shall not apply to any Secured Hedging Agreement which shall be amended solely according to its terms and with only consent
required by the Borrower(s) and the Hedging Bank being parties thereto and any amendment or waiver of any other Finance Document which relates to the rights or obligations of a Hedging Bank (each in its capacity as such) may not be effected
without the consent of the relevant Hedging Bank.
|
38.3 |
Changes to reference rates
|
(a) |
Subject to Clause 38.2 (Exceptions) paragraph (b), if a Published Rate Replacement Event has occurred in relation to any Published Rate, any amendment or waiver which relates to:
|
(i) |
providing for the use of a Replacement Reference Rate in place of that Published Rate; and
|
(ii) |
|
(A) |
aligning any provision of any Finance Document to the use of that Replacement Reference Rate;
|
(B) |
enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the
purposes of this Agreement);
|
(C) |
implementing market conventions applicable to that Replacement Reference Rate;
|
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or
|
(E) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or
method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Borrowers and the Agent may agree) of
that request being made:
|
(i) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies 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.
|
(c) |
In this Clause 38.3: “Published Rate” means:
|
(a) |
Term SOFR for any Quoted Tenor;
|
(b) |
SOFR;
|
(c) |
Central Bank Rate; or
|
(d) |
any replacement Reference Rate to the extent that it has previously replaced any Published Rate pursuant to this clause.
|
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders and the Borrowers materially changed;
|
(b) |
|
(i) |
|
(A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Published Rate is insolvent,
|
(ii) |
the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Published Rate;
|
(iii) |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or
|
(iv) |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used.
|
(c) |
the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published Rate) determines that that Published Rate should be calculated in accordance with its reduced submissions
or other contingency or fallback policies or arrangements and either:
|
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Obligors) temporary; or
|
(ii) |
that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than 20 days; or
|
(d) |
in the opinion of the Majority Lenders and the Borrowers, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by:
|
(i) |
the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or
|
(ii) |
any Relevant Nominating Body,
|
(b) |
in the opinion of the Majority Lenders and the Borrowers, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Published Rate; or
|
(c) |
in the opinion of the Majority Lenders and the Borrowers, an appropriate successor to a Published Rate.
|
39. |
CONFIDENTIALITY
|
39.1 |
Confidential information
|
39.2 |
Disclosure of Confidential Information
|
(a) |
to any of its Affiliates and related funds any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives and any of its insurers, reinsurers, insurance brokers, reinsurance brokers and
other credit risk protection providers 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 and 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 the 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) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without
limitation, any person appointed under paragraph (b) of Clause 29.14 (Relationship with the Lenders));
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
(vii) |
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates a security interest (or may do so) pursuant to Clause 27.8 (Security over Lenders’ rights);
|
(viii) |
who is a Party; or
|
(ix) |
with the consent of the Obligors;
|
(A) |
in relation to sub-paragraphs (i), (ii) and (iii) above, the person to whom the Confidential Information is to be given has entered into a confidentiality undertaking except that there shall be no requirement for a confidentiality
undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B) |
in relation to sub-paragraph (iv) above, the person to whom the Confidential Information is to be given has entered into a confidentiality undertaking or is otherwise bound by requirements of confidentiality in relation to the
Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; and
|
(C) |
in relation to sub-paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be
price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c) |
to any person appointed by that Finance Party or by a person to whom sub-paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without
limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in
this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered 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 Obligors 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;
|
(e) |
as set out in Clause 27.7 (Securitisation) of this Agreement.
|
39.3 |
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 Facilities and/or the Obligors the
following information:
|
(i) |
name of the Obligors;
|
(ii) |
country of domicile of the Obligors;
|
(iii) |
place of incorporation of the Obligors;
|
(iv) |
date of the Original Facilities Agreement;
|
(v) |
the names of the Agent and the Mandated Lead Arrangers;
|
(vi) |
date of each amendment and restatement of this Agreement;
|
(vii) |
amount of Total Commitments;
|
(viii) |
currencies of the Facilities;
|
(ix) |
type of Facilities;
|
(x) |
ranking of Facilities;
|
(xi) |
the Maturity Date;
|
(xii) |
changes to any of the information previously supplied pursuant to sub- paragraphs (i) to (xi) above; and
|
(xiii) |
such other information agreed between such Finance Party and the Borrowers,
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or the Obligors by a numbering service provider and the information associated with each such number may be disclosed to
users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c) |
The Obligors represent that none of the information set out in sub-paragraphs (i) to (xiii) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
39.4 |
Agent’s publication
|
39.5 |
Entire agreement
|
39.6 |
Inside information
|
39.7 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (b)(v) of Clause 39.2 (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 39 (Confidentiality).
|
39.8 |
Continuing obligations
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
40. |
CONFIDENTIALITY OF FUNDING RATES
|
40.1 |
Confidentiality and disclosure
|
(a) |
The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.
|
(b) |
The Agent may disclose:
|
(i) |
any Funding Rate to the relevant Borrower pursuant to Clause 10.4 (Notification of rates of interest); and
|
(ii) |
any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service
provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender.
|
(c) |
The Agent and each Obligor may disclose any Funding Rate to:
|
(i) |
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this sub-paragraph (i) is
informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the
confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;
|
(ii) |
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange
or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no
requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate
is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the 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.
|
40.2 |
Related obligations
|
(a) |
The Agent and each Obligor acknowledge that each Funding Rate is or may be price- sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and
market abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.
|
(b) |
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender:
|
(i) |
of the circumstances of any disclosure made pursuant to sub-paragraph (c)(ii) of Clause 40.1 (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 40 (Confidentiality of Funding Rates)
|
40.3 |
No Event of Default
|
41. |
COUNTERPARTS
|
42. |
CONFLICT
|
42.1 |
Conflict
|
42.2 |
Contractual recognition of bail-in
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
43. |
GOVERNING LAW
|
44. |
ENFORCEMENT
|
44.1 |
Jurisdiction
|
(a) |
The courts of Norway, the venue to be Oslo District Court (in Norwegian: Oslo tingrett) have jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a
dispute relating to the existence, validity or termination of this Agreement (a “Dispute”)).
|
(b) |
The Parties agree that the courts of Norway are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c) |
This Clause 44.1 (Jurisdiction) is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
44.2 |
Service of process
|
(a) |
irrevocably appoints DHT Management AS, Haakon VIIs gate 1, P.O. Box 2039 Vika, 0125 Oslo, Norway as its agent for service of process in relation to any proceedings before the Norwegian courts in connection with any Finance Document;
|
(b) |
agrees that failure by a process agent to notify the relevant Borrower and/or Guarantor of the process will not invalidate the proceedings concerned, and
|
(c) |
consents to the service of process to any such proceedings before the Norwegian courts by delivering of a copy of the process to DHT Management AS’ from time to time officially registered address in Norway.
|
#
|
Name:
|
Title:
|
Term Loan
Facility
Commitment
(USD):
|
Revolving Credit
Facility A
Commitment
(USD):
|
Revolving Credit
Facility B
Commitment
(USD):
|
Commitment
|
1.
|
Nordea Bank Abp, filial i Norge
|
Original Lender, Mandated Lead Arranger, Bookrunner, Coordinator, Agent and Security Agent
|
18,915,789.76
|
21,540,670.90
|
9,473,684.34
|
49,930,145
|
2.
|
Nordea Bank Abp
|
Original Hedging Bank
|
N/A
|
N/A
|
N/A
|
N/A
|
3.
|
ING Bank N.V.
|
Original Lender, Mandated Lead Arranger, Bookrunner and Original Hedging Bank
|
18,915,789.37
|
21,540,670.47
|
9,473,684.16
|
49,930,144
|
4.
|
ABN AMRO Bank
N.V., Oslo Branch
|
Original Lender, Mandated Lead Arranger, Bookrunner and Original Hedging Bank
|
18,915,789.37
|
21,540,670.47
|
9,473,684.16
|
49,930,144
|
5.
|
Danmarks Skibskredit A/S
|
Original Lender, Mandated Lead Arranger and Bookrunner
|
18,915,789.37
|
21,540,670.47
|
9,473,684.16
|
49,930,144
|
6.
|
DNB Bank ASA
|
Original Lender, Mandated Lead Arranger, Bookrunner and Original Hedging Bank
|
18,915,789.37
|
21,540,670.47
|
9,473,684.16
|
49,930,144
|
7.
|
Crédit Agricole Corporate and Investment Bank
|
Original Lender, Mandated Lead Arranger and Original Hedging Bank
|
12,610,526.38
|
14,360,447.11
|
6,315,789.51
|
33,286,763
|
8.
|
Skandinaviska Enskilda Banken AB (publ)
|
Original Lender, Mandated Lead Arranger and Original Hedging Bank
|
12,610,526.38
|
14,360,447.11
|
6,315,789.51
|
33,286,763
|
Total Commitments:
|
Up to USD
119,800,000
|
Up to USD
136,424,247
|
Up to USD
60,000,000
|
Up to USD
316,224,247
|
#
|
Original Borrower
|
Original Vessel
|
Built
|
Type
|
Term Loan
Facility
(USD)
|
Revolving
Credit
Facility A
(USD)
|
Revolving
Credit
Facility B
(USD)
|
Total Loans
(USD)
|
1.
|
DHT Opal, Inc. (MI)
|
“DHT Opal”, IMO no.
9455662 (HK)
|
25.06.2012
|
VLCC
|
13,125,000
|
13,093,151
|
N/A
|
26,218,151
|
2.
|
DHT Peony, Inc. (MI)
|
“DHT Peony”, IMO no.
9385843 (HK)
|
28.04.2011
|
VLCC
|
12,900,000
|
10,390,685
|
N/A
|
23,290,685
|
3.
|
DHT Lotus, Inc. (MI)
|
“DHT Lotus”, IMO no. 9385037 (HK)
|
05.01.2011
|
VLCC
|
12,900,000
|
9,647,671
|
N/A
|
22,547,671
|
4.
|
DHT Edelweiss, Inc. (MI)
|
“DHT Edelweiss”, IMO no.
9315082 (HK)
|
03.01.2008
|
VLCC
|
12,225,000
|
2,427,945
|
N/A
|
14,652,945
|
5.
|
DHT Bauhinia, Inc. (MI)
|
“DHT Bauhinia”, IMO no.
9315070 (HK)
|
18.01.2007
|
VLCC
|
11,400,000
|
614,795
|
N/A
|
12,014,795
|
6.
|
DHT Colt, Inc. (MI)
|
“DHT Colt”, IMO no.
9813450 (HK)
|
25.05.2018
|
VLCC
|
14,250,000
|
27,000,000
|
N/A
|
41,250,000
|
7.
|
DHT Stallion, Inc. (MI)
|
“DHT Stallion”, IMO no.
9813448 (HK)
|
27.04.2018
|
VLCC
|
14,250,000
|
27,000,000
|
N/A
|
41,250,000
|
8.
|
Samco Eta Ltd. (CI)
|
“DHT Amazon”, IMO no.
9528794 (MI) (RIF BB reg)
|
25.08.2011
|
VLCC
|
N/A
|
N/A
|
25,000,000
|
25,000,000
|
9.
|
Samco Delta Ltd. (CI)
|
“DHT Europe”, IMO no.
9315159 (HK)
|
11.04.2007
|
VLCC
|
N/A
|
N/A
|
17,500,000
|
17,500,000
|
10.
|
Samco Gamma Ltd. (CI)
|
“DHT Scandinavia”, IMO
no. 9315147 (HK)
|
22.11.2006
|
VLCC
|
N/A
|
N/A
|
17,500,000
|
17,500,000
|
11.
|
DHT Osprey Inc. (MI)
|
“DHT Osprey”, IMO no.
9734111 (HK)
|
03.08.2016
|
VLCC
|
14,375,000
|
23,125,000
|
N/A
|
37,500,000
|
12.
|
DHT Harrier Inc. (MI)
|
“DHT Harrier”, IMO no.
9762986 (HK)
|
13.09.2016
|
VLCC
|
14,375,000
|
23,125,000
|
N/A
|
37,500,000
|
Total (USD)
|
119,800,000
|
136,424,247
|
60,000,000
|
316,224,247
|
Aggregate scheduled repayments for the Term Loan Facility
|
||
Repayment
|
Repayment amounts
|
Outstanding amounts
|
USD 119,800,000
|
||
1.
|
USD 1,250,000
|
USD 118,550,000
|
2.
|
USD 1,250,000
|
USD 117,300,000
|
3.
|
USD 1,250,000
|
USD 116,050,000
|
4.
|
USD 1,250,000
|
USD 114,800,000
|
5.
|
USD 1,250,000
|
USD 113,550,000
|
6.
|
USD 1,250,000
|
USD 112,300,000
|
7.
|
USD 6,647,792
|
USD 105,652,208
|
8.
|
USD 6,647,792
|
USD 99,004,416
|
9.
|
USD 6,647,792
|
USD 92,356,624
|
10.
|
USD 6,647,792
|
USD 85,708,832
|
11.
|
USD 6,647,792
|
USD 79,061,040
|
12.
|
USD 6,647,792
|
USD 72,413,248
|
13.
|
USD 6,647,792
|
USD 65,765,456
|
14.
|
USD 6,647,792
|
USD 59,117,664
|
15.
|
USD 6,647,792
|
USD 52,469,872
|
16.
|
USD 6,647,792
|
USD 45,822,080
|
17.
|
USD 6,647,792
|
USD 39,174,288
|
18.
|
USD 6,647,792
|
USD 32,526,496
|
19.
|
USD 6,647,792
|
USD 25,878,704
|
20.
|
USD 6,647,792
|
USD 19,230,912
|
21.
|
USD 6,647,792
|
USD 12,583,120
|
22.
|
USD 6,647,792
|
USD 5,935,328
|
23.
|
USD 5,935,328
|
-
|
1. |
Relating to each of the Borrowers and the Guarantor
|
(a) |
Certified copies of the constitutional documents of the relevant company;
|
(b) |
Certificate of incorporation, extract from the relevant company registry and/or updated certificate of good standing;
|
(c) |
A certified copy of a resolution of the board of directors of the relevant company:
|
(i) |
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;
|
(ii) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
(d) |
Certified copies of the resolutions of the Borrowers’ shareholder(s) approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party, if applicable.
|
(e) |
A copy of the passports of any Director of the relevant company and of each other person signing any Finance Documents, and specimen of the signature of such persons if not evidenced by the passport copy;
|
(f) |
An original Power of Attorney (notarised and legalised if requested by the Agent);
|
(g) |
Evidence of any shareholders owning more than 25% of the Guarantor based on latest publicly available filings;
|
(h) |
A copy of the Original Financial Statements of the Guarantor; and
|
(i) |
A certificate of an authorised signatory (including any authorised director, secretary, treasurer or chief financial officer) of the relevant company setting out the name of the Directors of the relevant Obligor certifying that each copy
document relating to it specified in this Schedule 2 (Conditions precedent) is correct, complete and in full force and effect as at a date no earlier than the Signing Date.
|
2. |
Authorisations
|
3. |
Finance Documents
|
(a) |
The Agreement; and
|
4. |
Legal opinions
|
(a) |
A legal opinion from the legal advisers to the Agent in the relevant jurisdiction, substantially in the form distributed to and approved by all Lenders prior to signing this Agreement; and
|
(b) |
Any such other favourable legal opinions in form and substance satisfactory to all Lenders from lawyers appointed by the Agent on matters concerning all relevant jurisdictions.
|
5. |
Other documents and evidence
|
(a) |
Evidence that any process agent referred to in Clause 44.2 (Service of process), if not an Obligor, has accepted its appointment;
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrowers and/or the Guarantor accordingly) in connection with the entry into and
performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document;
|
(c) |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 13 (Fees), Clause 18 (Costs and expenses) and any Fee Letters
have been paid or will be paid by the Signing Date; and
|
(d) |
Any other documents as reasonably requested by the Agent, hereunder any additional documentation required for any Finance Party to comply with their “know your customer” requirements.
|
1. |
Relating to each of the Borrowers and the Guarantor
|
2. |
Authorisations
|
3. |
Finance Documents
|
(a) |
The Mortgages;
|
(b) |
The Assignment Agreements;
|
(c) |
A notice of assignment of Insurances and acknowledgement thereof or standard letters of undertaking;
|
(d) |
A notice of assignment of Earnings (if applicable) and acknowledgement thereof;
|
(e) |
A notice of assignment of claims under any Secured Hedging Agreements (if applicable) and acknowledgments thereof;
|
(f) |
The Pledges of Shares with the notices, transcripts, share certificates and other evidence required thereunder.
|
(g) |
Any Intra Group Loans Assignment Agreements with the notices, the acknowledgements, transcripts and evidence required thereunder;
|
(h) |
Any Charterparty Assignment; and
|
(i) |
A notice of assignment of Charterparty and acknowledgement thereof.
|
4. |
Documents relating to the relevant Vessel
|
(a) |
If relevant, copy of the Shipbuilding Contract and/or copy of the MOA with any amendments or additions;
|
(b) |
if relevant, a copy of the Builder Certificate and/or Bill of Sale (as applicable under the relevant Shipbuilding Contract or MOA);
|
(c) |
if relevant, a copy of the Protocol of Delivery and Acceptance under the relevant Shipbuilding Contract or MOA;
|
(d) |
Copies of insurance policies/cover notes documenting that insurance cover has been taken out in respect of the Vessel in accordance with Clause 25.2 (Insurance - Vessels), and evidencing that the
Agent’s Security in the insurance policies have been noted in accordance with the relevant notices as required under the Assignment Agreement;
|
(e) |
A copy of any Charterparty, hereunder any Bareboat Charter;
|
(f) |
The Letter of Undertaking;
|
(g) |
A copy of the current DOC;
|
(h) |
A copy of any Technical Management Agreement;
|
(i) |
A copy of any Commercial Management Agreement;
|
(j) |
A copy of updated confirmations of class (or equivalent) in respect of the Vessel from the relevant classification society, confirming that the Vessel is classed in accordance with Clause 25.4 (Classification
and repairs), free of extensions and overdue recommendations;
|
(k) |
A copy of the Vessel’s current SMC;
|
(l) |
A copy of the Vessel’s ISSC;
|
(m) |
A copy of the Vessel’s IAPPC;
|
(n) |
A Green Passport or an equivalent document in respect of the relevant Vessel; and
|
(o) |
Updated Valuation Certificates from one (or more) Approved Broker(s) in respect of the Vessel issued no more than thirty (30) days prior to the Utilisation Date.
|
(p) |
Evidence (by way of transcript of registry) that the Vessel is registered in the name of the relevant Borrower in an Approved Ship Registry acceptable to the Agent, and if relevant, bareboat registered in the Bareboat Registry, that the
Mortgage has been, or will in connection with Utilisation of the Loan be, executed and recorded with its intended first priority against the Vessel, hereunder if relevant in the Bareboat Registry, and that no other encumbrances, maritime
liens, mortgages or debts whatsoever are registered against the Vessel.
|
5. |
Legal opinions
|
(a) |
A legal opinion from the legal advisers to the Agent in the relevant jurisdiction, substantially in the form distributed to and approved by all Lenders; and
|
(b) |
Any such other favourable legal opinions in form and substance satisfactory to all Lenders from lawyers appointed by the Agent on matters concerning all relevant jurisdictions.
|
6. |
Other documents and evidence
|
(a) |
Evidence that any process agent referred to in the Security Documents, if not a Party to this Agreement, has accepted its appointment;
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document;
|
(c) |
The Utilisation Request at least three (3) Business Days prior to the Utilisation Date;
|
(d) |
If relevant, evidence that all instalments due under the relevant Shipbuilding Contract prior to the Utilisation Date have been paid;
|
(e) |
A favourable opinion from the Agent’s insurance consultants at the expense of the Borrowers confirming that the required insurances have been placed and are acceptable to the Agent and that the underwriters are acceptable to the Agent;
|
(f) |
A Compliance Certificate confirming compliance with the financial covenants as set out in Clause 23 (Financial covenants);
|
(g) |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 13 (Fees), Clause 18 (Costs and expenses) and any Fee Letters
have been paid or will be paid by the Utilisation Date;
|
(h) |
Any agreements in respect of Intra Group Loans and evidence that they are subordinated to the obligations of the Borrowers under the Finance Documents;
|
(i) |
Manager’s Undertakings from the Technical Manager and the Commercial Manager in such form as the Agent may reasonably require;
|
(j) |
A letter from the Guarantor confirming that there have been no Material Adverse Effect and that there is no Default; and
|
(k) |
Any other documents as reasonably requested by the Agent, hereunder any additional documentation required for any Finance Party to comply with their “know your customer” requirements.
|
(a) |
The conditions precedent set out in Schedule 2 Part I (Conditions precedent to signing of the Agreement) with any necessary and logical adjustments for the Accession Letter and the Additional
Borrower.
|
(b) |
Any other documents or other evidence reasonably requested by the Agent.
|
(a) |
Establishment of the Incremental Facility and receipt of documents and evidence according to Clause 6 (Establishment of Incremental Facilities);
|
(b) |
The conditions precedent set out in Schedule 2 Part II (Conditions precedent to a Utilisation of the Original Facilities) with any necessary and logical adjustments for the Incremental Facility;
and
|
(c) |
Any other documents or other evidence reasonably requested by the Agent.
|
From:
|
[●]
|
To:
|
Nordea Bank Abp, filial i Norge |
Date:
|
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 a Loan on the following terms:
|
Proposed Utilisation Date:
|
[●] (or, if that is not a Business Day, the next Business Day)
|
Facility:
|
[●]
|
[Tranche]
|
[●]
|
Amount:
|
[●] or, if less, the Available [Incremental Facility Commitment]
[Revolving Credit Facility [A][B] Commitment]
|
Interest period:
|
[3 Months]
|
3. |
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4. |
The proceeds of this Loan should be credited to [account/●].
|
5. |
This Utilisation Request is irrevocable.
|
From:
|
[●] |
To: |
Nordea Bank Abp, filial i Norge as Agent
|
Dated: |
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 refer to the [Description of Loan] with an Interest Period ending on [●].
|
3. |
We request that the next Interest Period for this Loan is [●].
|
4. |
This Selection Notice is irrevocable.
|
From:
|
[●] |
To: | Nordea Bank Abp, filial i Norge as Agent |
Dated: |
1. |
We refer to the Agreement. This is an Optional Rate Switch Notice. Terms defined in the Agreement have the same meaning in this notice unless given a different meaning herein.
|
2. |
We hereby request the Agent to switch the Reference Rate for all Loans (which shall apply also for all future Loans and Incremental Facilities whether or not established at the date hereof) from Term SOFR to SOFR starting as of [the
first day in the next Interest Period for the Loans].
|
3. |
The Interest Period on each of the Loans shall be [three (3) Months].
|
4. |
This Optional Rate Switch Notice is irrevocable.
|
To: | Nordea Bank Abp, filial i Norge as Agent |
From:
|
[The Existing Lender] (the “Existing Lender”) and [The New Lender] (the “New
Lender”)
|
Dated:
|
|
1. |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2. |
We refer to Clause 27.4 (Procedure for transfer):
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment, rights and obligations referred to in the Schedule in accordance with Clause
26.4 (Procedure for transfer).
|
(b) |
The proposed Transfer Date is [●].
|
(c) |
The Facility Office and address, e-mail and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) are set out in the Schedule.
|
3. |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 27.3 (Limitation of responsibility of Existing Lenders).
|
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 is governed by Norwegian law.
|
6. |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
To: |
Nordea Bank Abp, filial i Norge as Agent |
From:
|
[Additional Borrower] and DHT Holdings, Inc.
|
Dated: |
1. |
We refer to the Agreement. This letter (the “Accession Letter”) shall take effect as an Accession Letter for the purposes of the Agreement. Terms defined in the Agreement have the same meaning in
this Accession Letter unless given a different meaning in this Accession Letter.
|
2. |
[Additional Borrower] agrees to become an Additional Borrower and to be bound by the terms of the Agreement and the other Finance Documents as Borrower pursuant to Clause 28.2 (Additional Borrowers) of the Agreement, including for the avoidance of doubt to be bound by the terms of Clause 2.4 (Borrowers’ liabilities and obligations) and
Clause 2.5 (FA Act).
|
3. |
[Additional Borrower] is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a limited liability company with registered
address at [●].
|
4. |
The Guarantor confirms that no Default is continuing or would occur as a result of [Additional Borrower] becoming an Additional Borrower.
|
5. |
Clause 34.2 (Addresses) of the Agreement apply for [Additional Borrower’s] administrative details for the purposes of the Agreement.
|
6. |
This Accession Letter shall be deemed to be a Finance Document.
|
7. |
This Accession Letter is governed by Norwegian law with legal venue as set out in Clause 44 (Enforcement) of the Agreement.
|
.....................................
|
.....................................
|
authorised signatory for | authorised signatory for |
[Additional Borrower] | DHT Holdings, Inc. |
as Additional Borrower |
as Guarantor
|
|
This Accession Letter is accepted by the Agent on [●].
|
|
.....................................
|
|
authorised signatory for
|
|
Nordea Bank Abp, filial i Norge
|
as Agent |
To:
|
Nordea Bank Abp, filial i Norge as Agent
|
From:
|
[ ]
|
Date:
|
|
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 as of [insert date] the Guarantor has on a consolidated basis:
|
a) |
Minimum Value Adjusted Tangible Net Worth
|
Requirement:
|
Value Adjusted Tangible Net Worth of at least USD 300,000,000, but the Value Adjusted Tangible Net Worth shall in any event minimum 25% of the Value Adjusted Total Assets
|
Value Adjusted Tangible Net Worth* USD…………….
|
|
Value Adjusted Total Assets* USD …………….
|
|
In Compliance
|
Yes/No
|
b) |
Minimum Cash
|
Requirement:
|
The higher of USD 30,000,000 and 6% of the Total Interest Bearing Debt
|
Minimum Cash*
|
USD ……………./… %
|
Total Interest Bearing Debt*
|
USD……………../… %
|
In Compliance
|
Yes/No
|
c) |
Working Capital
|
Requirement:
|
Positive
|
Current Assets
|
USD……………, less
|
Current Debt
|
USD…………….
|
In Compliance
|
Yes/No
|
3. |
We confirm that no Default is continuing.
|
To:
|
Nordea Bank Abp, filial i Norge as Agent
|
From:
|
[●]
|
Date: |
1. |
We refer to the Agreement. This is a Valuation Certificate. Terms defined in the Agreement have the same meaning when used in this Valuation Certificate.
|
2. |
We confirm that the Market Value of the Vessels are [●]% and is thereby in compliance with Clause 8.5 (Market Value) (setting out that the Market Value shall not fall below 135%). The Market
Value for the Vessels are as follows:
|
Name of Vessel:
|
Valuation from
[Approved Broker]
|
Valuation from
[Approved Broker]
|
Average Market Value:
|
||||
3. |
Please see attached hereto relevant supporting documentation and calculations to ensure compliance with Clauses 22.7 (Market Value) and Clause 8.5 (Market Value):
|
By:
|
|||
Name:
|
|||
Title: [authorised signatory]
|
To:
|
Nordea Bank Abp, filial i Norge as Agent and Security Agent
|
From:
|
[●] as Additional Borrower;
|
|
DHT Holdings, Inc. as Guarantor; and | ||
the entities listed in the Schedule as Incremental Facility Lenders (the “Incremental Facility Lenders”) |
Dated:
|
|
1. |
We refer to the Agreement. This is an Incremental Facility Notice which shall take effect as an Incremental Facility Notice for the purposes of the Agreement and other Finance Documents. Terms defined in the Agreement have the same
meaning in this Incremental Facility Notice unless given a different meaning herein.
|
2. |
We refer to Clause 6.7 (Establishment of Incremental Facility) of the Agreement.
|
3. |
We request the establishment of an Incremental Facility with the following Incremental Facility Terms:
|
(a) |
Total Incremental Facility Commitments:
|
(b) |
Margin:
|
(c) |
Additional Borrower to which the Incremental Facility is to be made available:
|
(d) |
Additional Vessel being financed by the Incremental Facility:
|
Additional Vessel
|
Built (yard)
|
Built
(year)
|
Type
|
Market Value
per [date]
|
|||||
“[Name]”, IMO no.
[number] ([flag])
|
[●]
|
[●]
|
[●]
|
[●]
|
4. |
The proposed Establishment Date is [●].
|
5. |
The Additional Borrower and the Guarantor each confirms that:
|
(e) |
each of:
|
(i) |
the Incremental Facility Terms set out above; and
|
(ii) |
any fees payable in connection with the Incremental Facility,
|
(f) |
[Incremental Facility Conditions Precedent];
|
(g) |
[the Incremental Facility Lenders and the Incremental Facility Commitments set out in this Incremental Facility Notice have been selected and allocated in accordance with Clause 6.1 (Selection of
Incremental Facility Lenders) of the Agreement;]; and
|
(h) |
each condition specified in paragraph (a) of Clause 6.6 (Conditions to establishment) of the Agreement is satisfied on the date of this Incremental Facility Notice.
|
6. |
Each Incremental Facility Lender agrees to assume and will assume all of the obligations corresponding to the Incremental Facility Commitment set opposite its name in the Schedule as if it had been an Original Lender under the
Agreement in respect of that Incremental Facility Commitment.
|
7. |
On the Establishment Date each Incremental Facility Lender becomes party to the relevant Finance Documents as a Lender.
|
8. |
Each Incremental Facility Lender expressly acknowledges the limitations on the Lenders’ obligations referred to in Clause 6.12 (Limitation of responsibility) of the Agreement.
|
9. |
Each Incremental Facility Lender confirms that, as from the Establishment Date for this Incremental Facility, it agrees and accepts to be bound by the terms of the Agreement and other Finance Documents as Party in capacity as
“Incremental Facility Lender” and “Lender” and undertakes to perform all the obligations expressed to be assumed by it in such capacities as if it had been an original party to the Agreement and, if relevant, other Finance Documents.
|
10. |
This Incremental Facility Notice is irrevocable.
|
11. |
This Incremental Facility Notice shall be deemed to be a Finance Document.
|
12. |
This Incremental Facility Notice is governed by Norwegian law with legal venue as set out in Clause 44 (Enforcement) of the Agreement.
|
#
|
Name of Incremental
Facility Lender:
|
Administrative details:
|
Incremental Facility
Commitment:
|
|
1.
|
[●]
|
[●]
|
[●]
|
|
2.
|
[●]
|
[●]
|
[●]
|
|
3.
|
[●]
|
[●]
|
[●]
|
|
4.
|
[●]
|
[●]
|
[●]
|
|
5.
|
[●]
|
[●]
|
[●]
|
|
6.
|
[●]
|
[●]
|
[●]
|
|
7.
|
[●]
|
[●]
|
[●]
|
|
8.
|
[●]
|
[●]
|
[●]
|
|
Total Commitments:
|
Up to USD [●]
|
By:
|
…………………………………………
|
By:
|
…………………………………………
|
By:
|
…………………………………………
|
Obligor
|
Name and
organization number:
|
Organisation form:
|
Address:
|
Name of general
manager and
directors (or persons
holding an equivalent
position):
|
|||||
Borrowers
|
DHT Opal, Inc. (no. 89774)
DHT Peony, Inc. (no. 89775)
DHT Lotus, Inc. (no. 89773)
DHT Bauhinia, Inc. (no. 89771)
DHT Colt, Inc. (no. 89776)
DHT Stallion, Inc. (no. 89777)
DHT Osprey Inc. (no. 107608)
DHT Harrier Inc. (no. 107607)
|
Marshall Islands corporation limited by shares
|
The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands
|
Director: Svein Moxnes Harfjeld
President: Svein Moxnes Harfjeld
Treasurer: Laila Cecilie Halvorsen
|
|||||
Borrowers
|
Samco Eta Ltd. (no. 213929)
Samco Delta Ltd. (no. 132067)
Samco Gamma Ltd. (no. 109904)
|
Cayman Island exempted company limited by shares
|
c/o Ocorian Trust (Cayman) Limited
P. O. Box 1350
Windward 3 Regatta Office Park Grand Cayman KY1- 1108
Cayman Islands
|
Director: Svein Moxnes Harfjeld
President: Svein Moxnes Harfjeld
Treasurer: Laila Cecilie Halvorsen
|
|||||
Guarantor
|
DHT Holdings, Inc. (no. 39572)
|
Marshall Islands corporation limited by shares
|
The Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands
|
Directors: Erik Andreas Lind (chairman), Joseph Howland Pyne, Einar Michael Steimler, Jeremy Rafael Kramer, Sophie Rossini and Iman Hill
CEO/President: Svein Moxnes Harfjeld
|
Borrower:
|
Borrower:
|
||||
DHT Opal, Inc.
|
DHT Peony, Inc.
|
||||
By:
|
/s/ Laila C. Halvorsen |
By:
|
/s/ Laila C. Halvorsen | ||
Name: Laila C. Halvorsen |
Name: Laila C. Halvorsen
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact
|
||||
Borrower:
|
Borrower:
|
||||
DHT Lotus, Inc.
|
DHT Colt, Inc. | ||||
By: | /s/ Laila C. Halvorsen | By: | /s/ Laila C. Halvorsen | ||
Name: Laila C. Halvorsen
|
Name: Laila C. Halvorsen
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact | ||||
|
|||||
Borrower:
|
Borrower: | ||||
DHT Bauhinia, Inc.
|
Samco Eta Ltd. | ||||
By: | /s/ Laila C. Halvorsen | By: | Laila C. Halvorsen | ||
Name: Laila C. Halvorsen
|
Name: Laila C. Halvorsen
|
||||
Title: Attorney-in-Fact |
Title: Attorney-in-Fact
|
||||
|
|
||||
Borrower:
|
Borrower:
|
||||
DHT Stallion, Inc.
|
Samco Gamma Ltd.
|
||||
By: | /s/ Laila C. Halvorsen | By: | /s/ Laila C. Halvorsen | ||
Name: Laila C. Halvorsen
|
Name: Laila C. Halvorsen
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact | ||||
Borrower:
|
|||||
Samco Delta Ltd.
|
|||||
By:
|
/s/ Laila C. Halvorsen |
|
|||
Name: Laila C. Halvorsen | |||||
Title: Attorney-in-Fact
|
Borrower:
|
Borrower:
|
||||
DHT Osprey Inc.
|
DHT Harrier Inc.
|
||||
By:
|
/s/ Laila C. Halvorsen |
By:
|
/s/ Laila C. Halvorsen |
|
|
Name: Laila C. Halvorsen
|
Name: Laila C. Halvorsen
|
||||
Title: Attorney-in-Fact
|
Title: Attorney-in-Fact
|
||||
Guarantor: | |||||
DHT Holdings, Inc. | |||||
By: | /s/ Laila C. Halvorsen | ||||
Name: Laila C. Halvorsen | |||||
Title: Attorney-in-Fact
|
Original Lender, Mandated Lead Arranger,
|
|||||
Bookrunner and Original Hedging Bank: |
|||||
ING Bank N.V.
|
|||||
By:
|
By:
|
||||
Name: | Name: | ||||
Title: | Title: |
Original Lender, Mandated Lead Arranger,
|
|
Bookrunner and Original Hedging Bank: | |
ABN AMRO Bank N.V., Oslo Branch | |
By:
|
||
Name: | ||
Title: Attorney-in-Fact |
Original Lender, Mandated Lead Arranger
and Bookrunner:
|
||
Danmarks Skibskredit A/S | ||
By:
|
||
Name: | ||
Title: Attorney-in-Fact |
Original Lender, Mandated Lead Arranger,
|
||
Bookrunner and Original Hedging Bank: |
||
DNB Bank ASA | ||
By:
|
||
Name: | ||
Title: Attorney-in-Fact |
Original Lender, Mandated Lead Arranger
and Original Hedging Bank:
|
|||||
Crédit Agricole Corporate and Investment Bank | |||||
By:
|
By:
|
||||
Name: | Name: | ||||
Title: | Title: |
Original Lender, Mandated Lead Arranger
and Original Hedging Bank:
|
||
Skandinaviska Enskilda Banken AB (publ) | ||
By:
|
||
Name: | ||
Title: Attorney-in-Fact |
Original Lender, Mandated Lead Arranger,
Bookrunner and Coordinator:
|
Original Hedging Bank:
Nordea Bank Abp
|
||||
Nordea Bank Abp, filial i Norge
|
|||||
By:
|
By:
|
||||
Name: | Name: | ||||
Title: Attorney-in-Fact | Title: Attorney-in-Fact | ||||
Agent and Security Agent:
|
|||||
Nordea Bank Abp, filial i Norge
|
|||||
By:
|
|||||
Name: | |||||
Title: Attorney-in-Fact |
DHT MANAGEMENT AS
|
||
|
||
By:
|
/s/ Laila C. Halvorsen | |
Name: Laila C. Halvorsen | ||
Title: CEO |
Name
|
Jurisdiction
|
DHT Appaloosa, Inc.
|
Marshall Islands
|
DHT Bauhinia, Inc.
|
Marshall Islands
|
DHT Bronco, Inc.
|
Marshall Islands
|
DHT Chartering (Singapore) Pte. Ltd.
|
Singapore
|
DHT Colt, Inc.
|
Marshall Islands
|
DHT Harrier Inc.
|
Marshall Islands
|
DHT Jaguar Limited
|
Marshall Islands
|
DHT Leopard Limited
|
Marshall Islands
|
DHT Lion Limited
|
Marshall Islands
|
DHT Lotus, Inc.
|
Marshall Islands
|
DHT Management AS
|
Norway
|
DHT Management S.A.M.
|
Monaco
|
DHT Mustang, Inc.
|
Marshall Islands
|
DHT Opal, Inc.
|
Marshall Islands
|
DHT Osprey Inc.
|
Marshall Islands
|
DHT Panther Limited
|
Marshall Islands
|
DHT Peony, Inc.
|
Marshall Islands
|
DHT Puma Limited
|
Marshall Islands
|
DHT Ship Management (Singapore) Pte. Ltd.
|
Singapore
|
DHT Stallion, Inc.
|
Marshall Islands
|
DHT Tiger Limited
|
Marshall Islands
|
Goodwood Ship Management Pte. Ltd.
|
Singapore
|
Samco Delta Ltd.
|
Cayman Islands
|
Samco Epsilon Ltd.
|
Cayman Islands
|
Samco Eta Ltd.
|
Cayman Islands
|
Samco Gamma Ltd.
|
Cayman Islands
|
Samco Iota Ltd.
|
Cayman Islands
|
Samco Kappa Ltd.
|
Cayman Islands
|
Samco Theta Ltd.
|
Cayman Islands
|
1.
|
I have reviewed this annual report on Form 20-F of DHT Holdings, Inc.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
|
4.
|
The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material
information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that
has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
5.
|
The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the company’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial
reporting.
|
Date: March 20, 2024
|
|||
by
|
/s/ Svein Moxnes Harfjeld | ||
Name:
|
Svein Moxnes Harfjeld
|
||
Title:
|
President & Chief Executive Officer (Principal Executive Officer)
|
1.
|
I have reviewed this annual report on Form 20-F of DHT Holdings, Inc.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
|
4.
|
The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this
report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles;
|
(c)
|
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the company’s internal control over financial reporting that occurred
during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
5.
|
The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal
control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in
the company’s internal control over financial reporting.
|
Date: March 20, 2024
|
|||
by
|
/s/ Laila C. Halvorsen | ||
Name:
|
Laila C. Halvorsen
|
||
Title:
|
Chief Financial Officer (Principal Financial and Accounting Officer)
|
(a)
|
The report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended; and
|
(b)
|
The information contained in the report fairly presents, in all material respects, the financial condition and results
of operations of the registrant.
|
Date: March 20, 2024
|
|||
by
|
/s/ Svein Moxnes Harfjeld | ||
Name:
|
Svein Moxnes Harfjeld
|
||
Title:
|
President & Chief Executive Officer
(Principal Executive Officer)
|
||
|
|||
by | /s/ Laila C. Halvorsen | ||
Name:
|
Laila C. Halvorsen
|
||
Title:
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
(1) |
Registration Statement (Form F-3 No. 333-270800) of DHT Holdings, Inc.,
|
(2) |
Registration Statement (Form F-3 No. 333-239430) of DHT Holdings, Inc.,
|
(3) |
Registration Statement (Form S-8 No. 333-234062) pertaining to the 2019 Incentive Compensation Plan of DHT Holdings, Inc., and
|
(4) |
Registration Statement (Form S-8 No. 333-213686) pertaining to the 2016 Incentive Compensation Plan of DHT Holdings, Inc.;
|
A.
|
PURPOSE
|
B.
|
ADMINISTRATION
|
C.
|
COVERED INDIVIDUALS
|
D.
|
RECOVERY OF EXCESS INCENTIVE COMPENSATION
|
E.
|
GOVERNING LAW
|
F.
|
MISCELLANEOUS PROVISIONS
|
G.
|
DEFINITIONS
|