10127241/1 5 "Agreement" means this facility agreement, as it may be amended, supplemented and varied from time to time, including its Schedules and any Transfer Certificate. "Annex VI" means Annex VI of the Protocol of 1997 (as subsequently amended...
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EXECUTION VERSION 10127241/1 FACILITY AGREEMENT UP TO USD 150,000,000 FACILITY AGREEMENT for FLEX LNG ENTERPRISE LIMITED as Borrower with FLEX LNG LTD. and FLEX LNG FLEET LIMITED as Guarantors arranged by ING BANK N.V. SUMITOMO MITSUI TRUST BANK, LIMITED (LONDON BRANCH) as Mandated Lead Arrangers with ING BANK N.V SUMITOMO MITSUI TRUST BANK, LIMITED (LONDON BRANCH) as Hedge Providers and ING BANK N.V. as Agent and Security Agent in respect of the Vessel "FLEX ENTERPRISE" Dated 26 September 2022 10127241/1 2 TABLE OF CONTENTS 1 DEFINITIONS AND INTERPRETATION .................................................................................................. 4 2 THE FACILITY ................................................................................................................................ 23 3 PURPOSE ...................................................................................................................................... 24 4 CONDITIONS PRECEDENT ............................................................................................................... 24 5 DRAWDOWN .................................................................................................................................. 26 6 REPAYMENT ................................................................................................................................... 27 7 PREPAYMENT AND CANCELLATION ................................................................................................... 27 8 INTEREST ...................................................................................................................................... 31 9 INTEREST PERIODS ........................................................................................................................ 32 10 CHANGES TO THE CALCULATION OF INTEREST .................................................................................. 32 11 FEES ............................................................................................................................................. 34 12 TAX GROSS-UP AND INDEMNITIES ................................................................................................... 35 13 INCREASED COSTS ........................................................................................................................ 39 14 OTHER INDEMNITIES ...................................................................................................................... 41 15 MITIGATION BY THE LENDERS ......................................................................................................... 43 16 COSTS AND EXPENSES ................................................................................................................... 43 17 GUARANTEE AND INDEMNITY .......................................................................................................... 44 18 SECURITY ..................................................................................................................................... 48 19 REPRESENTATIONS AND WARRANTIES ............................................................................................. 50 20 INFORMATION UNDERTAKINGS ....................................................................................................... 54 21 FINANCIAL COVENANTS .................................................................................................................. 58 22 GENERAL UNDERTAKINGS ............................................................................................................... 59 23 VESSEL COVENANTS ...................................................................................................................... 64 24 EVENTS OF DEFAULT ...................................................................................................................... 68 25 CHANGES TO THE PARTIES ............................................................................................................. 72 26 ROLE OF THE AGENT, THE SECURITY AGENT AND THE ARRANGER ....................................................... 75 27 CONDUCT OF BUSINESS OF THE FINANCE PARTIES ........................................................................... 83 28 SHARING AMONG THE FINANCE PARTIES .......................................................................................... 84 29 PAYMENT MECHANICS .................................................................................................................... 86 30 SET-OFF ........................................................................................................................................ 88 31 NOTICES ....................................................................................................................................... 89 32 CALCULATIONS AND CERTIFICATES ................................................................................................. 90 33 PARTIAL INVALIDITY ...................................................................................................................... 90 34 REMEDIES AND WAIVERS ............................................................................................................... 91 35 AMENDMENTS AND XXXXXXX .......................................................................................................... 91 10127241/1 3 36 CONFIDENTIAL INFORMATION ......................................................................................................... 92 37 CONFIDENTIALITY OF FUNDING RATES............................................................................................. 96 38 COUNTERPARTS ............................................................................................................................. 97 39 CONTRACTUAL RECOGNITION OF BAIL-IN ......................................................................................... 97 40 GOVERNING LAW AND ENFORCEMENT .............................................................................................. 99 SCHEDULES: SCHEDULE 1: THE ORIGINAL LENDERS AND COMMITMENTS SCHEDULE 2: CONDITIONS PRECEDENT SCHEDULE 3: FORM OF DRAWDOWN NOTICE SCHEDULE 4: FORM OF SELECTION NOTICE SCHEDULE 5: FORM OF COMPLIANCE CERTIFICATE SCHEDULE 6: FORM OF TRANSFER CERTIFICATE SCHEDULE 7: VESSEL SCHEDULE 8: REPAYMENT SCHEDULE SCHEDULE 9: REFERENCE RATE TERMS SCHEDULE 10: DAILY NON-CUMULATIVE COMPOUNDED RFR RATE SCHEDULE 11: CUMULATIVE COMPOUNDED RFR RATE 10127241/1 4 THIS FACILITY AGREEMENT is dated 26 September 2022 and made between: (1) FLEX LNG ENTERPRISE LIMITED, a corporation incorporated in the Republic of Xxxxxxxx Islands, having registration no. 89318, whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000 as borrower (the "Borrower"); (2) FLEX LNG FLEET LIMITED, a company incorporated and existing under the laws of Bermuda, having company registration no. 52351, whose registered office is at Xxx-xx-Xxxxx Xxxxx, 00 Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (xxx "Intermediate Parent"); (3) FLEX LNG LTD., a company incorporated and existing under the laws of Bermuda, having company registration no. 52644, whose registered office is at Par-la-Ville Place, 14 Par-la- Ville Road, Hamilton, Bermuda (the "Ultimate Parent", and together with the Intermediate Parent, the "Guarantors" and each a "Guarantor"); (4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders and Commitments) as lenders (the "Original Lenders"); (5) ING BANK N.V. and SUMITOMO MITSUI TRUST BANK, LIMITED (LONDON BRANCH) as mandated lead arrangers (the "Arrangers", and each an "Arranger"); (6) ING BANK N.V. and SUMITOMO MITSUI TRUST BANK, LIMITED (LONDON BRANCH) as hedge providers (each a "Hedge Provider", jointly the "Hedge Providers"); (7) ING BANK N.V. as facility agent of the Finance Parties (in such capacity, the "Agent"); and (8) ING BANK N.V. as security agent of the Finance Parties (in such capacity, the "Security Agent"). IT IS AGREED as follows: SECTION 1 INTERPRETATION 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Agreement, unless the context otherwise requires: "Account Bank" means DNB Bank ASA. "Account Pledge" means a first priority pledge granted or to be granted by the Borrower in favour of the Security Agent (on behalf of the Finance Parties) over the Earnings Accounts of the Borrower, to be in form and substance satisfactory to the Security Agent. "Additional Business Day" means any day specified as such in the Reference Rate Terms. "Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
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10127241/1 5 "Agreement" means this facility agreement, as it may be amended, supplemented and varied from time to time, including its Schedules and any Transfer Certificate. "Annex VI" means Xxxxx XX of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto. "Approved Broker" means each of Fearnleys, Xxxxxxxxx Platou, Nordic Shipping, Affinity, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxx or such other independent and internationally reputable shipbroker(s) as may be approved in writing by the Agent. "Approved Manager" means: a) Xxxxxxxx Xxxxxxx Shipmanagement; b) Flex LNG Fleet Management AS; c) any company within the Group or the Seatankers Group; or d) any other management company acceptable to the Majority Lenders from time to time as the technical and/or commercial manager of the Vessel, such consent not to be unreasonably withheld or delayed. "Approved Ship Registry" means each of the Xxxxxxxx Islands, the Norwegian International Ship Registry (NIS), Liberia or such other international ship registry as may be approved in writing by all the Lenders. "Approved Classification Society" means each of DNV, Lloyds Register, American Bureau of Shipping (ABS), Bureau Veritas or such other IACS classification society as may be pre-approved in writing by all the Lenders, such approval not to be unreasonably withheld or delayed. "Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms. "Assignment of Earnings and Charterparties" means a first priority assignment granted or to be granted by the Borrower in favour of the Security Agent (on behalf of the Finance Parties) of the Borrower's (i) rights, titles and interests to any Earnings, and (ii) in respect of the Charterparty for the Vessel, its rights, titles and interests to same, to be in form and substance acceptable to the Security Agent. "Assignment of Hedging Claims" means a first priority assignment granted or to be granted by the Borrower in favour of the Security Agent (on behalf of the Finance Parties) of the Borrower's rights, titles and interests under any Hedging Agreements related to the Facility, to be in form and substance acceptable to the Security Agent. "Assignment of Insurances" means a first priority assignment granted or to be granted by the Borrower in favour of the Security Agent (on behalf of the Finance Parties) of the Insurances relating to the Vessel, to be in form and substance acceptable to the Security Agent. "Assignment of Intercompany Loans" means a first priority assignment of any claims against the Borrower from any Guarantor, and any claims against the Guarantor from the Borrower, in favour of the Security Agent (on behalf of the Finance Parties) to be in form and substance acceptable to the Security Agent, and to include a statement of subordination, whereby the relevant creditor 10127241/1 6 subordinates its claims against the relevant debtor to the claims of the Finance Parties under the Finance Documents. "Authorisations" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration. "Availability Period" means the period from and including the date of this Agreement to and including 31 October 2022, or such later date as may be agreed in writing by the Lenders. "Available Commitment" means, in relation to the Facility or a Tranche, a Lender's Commitment under the Facility or that Tranche, minus: a) the amount of its participation in any outstanding Loans; and b) in relation to any proposed drawdown only, the amount of its participation in any Loans that are due to be made under the Facility or that Tranche on or before the proposed Drawdown Date. "Bail-In Action" means the exercise of any Write-down and Conversion Powers. "Bail-In Legislation" means: a) in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; 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 or 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. "Break Costs" means any amount specified as such in the Reference Rate Terms. "Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Oslo, Amsterdam, Stockholm, London and: a) New York (or any other relevant place of payment under Clause 29 (Payment mechanics)); and b) (in relation to: (i) any date for payment or purchase of an amount relating to a Loan or Unpaid Sum; or (ii) the determination of the first day or the last day of an Interest Period for a Loan or Unpaid Sum, or otherwise in relation to the determination of the length of such an Interest Period), which is an Additional Business Day relating to that Loan or Unpaid Sum. "Central Bank Rate" has the meaning given to that term in the Reference Rate Terms. 10127241/1 7 "Central Bank Rate Adjustment" has the meaning given to that term in the Reference Rate Terms. βChange in Ultimate Beneficial Ownerβ means in respect of an Obligor any event by which a private individual (i) acquires the legal and/or beneficial ownership (directly or indirectly) of 25 per cent. or more of the issued share capital of that Obligor or (ii) acquires the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to (directly or indirectly) cast, or control the casting of, 25 per cent. or more of the votes that might be cast at a general meeting of that Obligor or (iii) gains effective control over that Obligor (such private individual being referred to as the βUltimate Beneficial Ownerβ). "Change of Control" means the occurrence of any of the following events: a) without the prior written approval of the Majority Lenders, any individual person or more persons acting in concert (other than any company controlled directly or indirectly by the Xxxx Xxxxxxxxxx Family) have the right or the ability to control, either directly or indirectly, the affairs or composition of the majority of the board of directors (or equivalent) of the Ultimate Parent or becomes owners of 1/3 or more of the voting shares of the Ultimate Parent; or b) the Ultimate Parent ceases to own directly 100% of the shares and/or the voting rights in the Intermediate Parent; or c) the Intermediate Parent ceases to own directly 100% of the shares and/or the voting rights in the Borrower, excluding in the event of a disposal of such shares in accordance with Clause 7.2 (Disposal or Total Loss), in which case that clause shall apply. "Charterparty" means the time charterparty entered into between the Borrower and in respect of the Vessel with a duration of 7 years from 1 July 2022. "Code" means the US Internal Revenue Code of 1986 (as amended). "COFR" means the U.S. Certificate of Financial Responsibility program (as in effect from time to time), based on the U.S. Oil Pollution Act of 1980. "Commitment" means a) in relation to a Tranche, the amount set out under the heading of such Tranche in Schedule 1 (The Original Lenders and Commitments); b) in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Schedule 1 (The Original Lenders and Commitments) and the amount of any other Commitment transferred to it under this Agreement; and c) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement, to the extent not cancelled, reduced or transferred by it under this Agreement. "Compliance Certificate" means a certificate substantially in the form as set out in Schedule 5 (Form of Compliance Certificates). 10127241/1 8 "Compounded Reference Rate" means, in relation to any RFR Banking Day during the Interest Period of a Loan, the percentage rate per annum which is the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day. "Compounding Methodology Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which: a) is agreed in writing by the Borrower, the Agent (in its own capacity) and the Agent (acting on the instructions of all Lenders); b) specifies a calculation methodology for that rate; and c) has been made available to the Borrower and each Finance Party. "Confidential Information" means all information relating to the Obligors, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either: a) the Obligors or any of their respective advisers; or b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from the Obligors or any of their advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes: (i) information that: (A) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36.1 (Confidential Information); or (B) is identified in writing at the time of delivery as non-confidential by the Obligor or any of its advisers; or (C) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs a) or b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the 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; and (ii) any Funding Rate. "Cumulative Compounded RFR Rate" means, in relation to an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 11 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.
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10127241/1 9 "Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 10 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement. "Daily Rate" means the rate specified as such in the Reference Rate Terms. "Default" means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default. "DOC" means, in relation to any technical Manager of the Vessel, a valid document of compliance issued to the technical Manager pursuant to paragraph 13.2 of the ISM Code. "Drawdown Date" means the Business Day on which the Borrower has requested drawdown of a Loan pursuant to this Agreement or, as the context requires, the date on which the drawdown is actually made. "Drawdown Notice" means a notice substantially in the form set out in Schedule 3 (Form of Drawdown Notice). "Earnings" means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower and which arise out of the use of or operation of the Vessel, including (but not limited to): a) all freight, hire and passage moneys payable to the Borrower, including (without limitation) payments of any nature under a charterparty or any other agreement for the employment, use, possession, management and/or operation of the Vessel; b) any claim under any guarantees related to freight and hire payable to the Borrower as a consequence of the operation of the Vessel; c) 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; g) any damages for breach (or payments for variation or termination) of any contract of employment of the Vessel payable to the Borrower; h) if and whenever the Vessel is employed on terms whereby any moneys falling within paragraphs a) to f) above (both inclusive) 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 the Vessel; and 10127241/1 10 i) any other money whatsoever due or to become due to the Borrower from third parties in relation to the Vessel, or otherwise. "Earnings Accounts" means the Borrower's bank accounts, into which all Earnings are to be paid, to be held with the Account Bank, and to be subject to the Account Pledge. "EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway. "Environmental Approval" means any permit, licence, consent, approval and other Authorisations and the filing of any notification, report or assessment required under any Environmental Law for the operation of the Vessel. "Environmental Claim" means any claim, proceeding or investigation by any party in respect of any Environmental Law or Environmental Approval. "Environmental Law" means any law, regulation, convention or treaty applicable to an Obligor and which relates to the pollution or protection of the environment or to the carriage of material which is capable of polluting the environment. "EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time. "Event of Default" means any event or circumstance specified as such in Clause 24 (Events of Default). "FA Act" means the Norwegian Financial Agreements Xxx 0000 Xx. 00 (Xx. xxxxxxxxxxxxxxxxx). "Facility" means the senior secured term loan facility provided pursuant to the terms of this Agreement as described in Clause 2.1 (The Facility). "Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement. "FATCA" means: a) sections 1471 to 1474 of the Code or any associated regulations; b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph a) above; or c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs a) or b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. "FATCA Application Date" means: a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; 10127241/1 11 b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA. "FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA. "FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction. "Fee Letter" means any letter or letters dated on or about the date of this Agreement between: a) the Agent (on behalf of any other Finance Parties) and the Borrower; and b) the Agent (for itself) and the Borrower, in each case, setting out any of the fees referred to in Clause 11 (Fees). "Final Maturity Date" means a) in respect of Tranche A: 26 June 2029; and b) in respect of Tranche B: 29 June 2029 "Finance Documents" means a) this Agreement; b) any Fee Letter; c) the Security Documents; d) any Trust Agreement; e) any Reference Rate Supplement; f) any Compounding Methodology Supplement; g) each Hedging Agreement, other than in respect of Clauses 35 (Amendments and Waivers), 0 (Counterparts) and (in relation to any communications between the Borrower and the Hedge Providers) Clause 31 (Notices); and h) any other document designated as such by the Agent and the Borrower. "Finance Party" means any or all of the Lenders, the Agent, the Security Agent, the Arrangers and the Hedge Providers. "Financial Indebtedness" means any indebtedness for or in respect of: a) moneys borrowed and debit balances at banks or other financial institutions; b) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; 10127241/1 12 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 US 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 derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account); g) 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; h) any amount of any liability under a deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply; i) any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under US GAAP; and j) (without double-counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs a) to i) above. "Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph a)(ii) of Clause 10.3 (Cost of funds). "Green Passport" means a document listing all potential hazardous materials on board the Vessel as further described by the Vessel's classification society and/or the International Maritime Organization (IMO), hereunder an Inventory of Hazardous Materials as described thereby. "Group" means the Ultimate Parent and its Subsidiaries from time to time. "Guarantee" means the unconditional and irrevocable guarantee (In Norwegian: "Selvskyldnerkausjon") and indemnity provided by the each of the Guarantors pursuant to Clause 17 (Guarantee and indemnity). "Hedging Agreement" is based on the 2002 ISDA Master Agreement and means any master agreement, confirmation, schedule or other agreement entered or to be entered into by the Borrower and any Hedge Provider to hedge interest rate risk under or in connection with the Agreement. "Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary. "Insurance Report" means a report with respect to the Insurances, with a form, scope and conclusion acceptable to the Lenders, and from a firm of marine insurance brokers acceptable to the Lenders.
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10127241/1 13 "Insurances" means, in relation to the Vessel, all insurance policies and contracts of insurance (which expression includes all entries of the Vessel in a protection and indemnity or war risk association) which are from time to time during the Security Period in place or taken out or entered into by or for the benefit of the Borrower (whether in the sole name of the Borrower or in the joint names of the Borrower and any other person) in respect of the Vessel or otherwise in connection with the Vessel and all benefits thereunder (including claims of whatsoever nature and return of premiums). "Interest Payment" means the aggregate amount of interest that is, or is scheduled to become, payable under any Finance Document. "Interest Payment Date" means the last Business Day of each Interest Period. "Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods), and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest). "ISM Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention. "ISPS Code" means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organization's (IMO) Diplomatic Conference of December 2002. "Xxxx Xxxxxxxxxx Family" means Xx. Xxxx Xxxxxxxxxx, his direct lineal descendants, the personal estate of any of them and/or any trust created for the benefit of any of the aforementioned persons or their estates. "Lender" means: a) any Original Lender; and b) any New Lender, which in each case has not ceased to be a Party in accordance with the terms of this Agreement. "Loan" means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan. "Lookback Period" means the number of days specified as such in the Reference Rate Terms. "Majority Lenders" means: a) if there are no Loans outstanding, a Lender or Lenders whose Commitments aggregate equal to or more than 662/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated equal to or more than 662/3% of the Total Commitments immediately prior to the reduction); or b) at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate equal to or more than 662/3% of the Loans then outstanding. 10127241/1 14 "Management Agreement(s)" means any commercial and/or technical management agreement entered into between the Borrower and the Manager(s) regarding Vessel, on terms and conditions acceptable to the Majority Lenders. "Manager" means any technical or commercial manager of the Vessel. "Manager's Undertaking" means a subordination statement by each Manager of the Vessel, in form and substance acceptable to the Agent, whereupon the Manager fully subordinates its claims under any Management Agreement(s) and otherwise in respect of the Vessel to the claims of the Finance Parties under the Finance Document. "Margin" means a) in respect of Tranche A: one point twenty per cent (1.20%) per annum; and b) in respect of Tranche B: one point nine two five (1.925%) per annum. "Market Disruption Rate" means the rate (if any) specified as such in the Reference Rate Terms. "Market Value" means the fair market value of the Vessel in USD, being the arithmetic average of valuations of the Vessel obtained from two (2) Approved Brokers by the Borrower. Such valuations to be made with or without physical inspection of the Vessel (as the Majority Lenders may require) on the basis of a sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing buyer and seller, on an "as is, where is" basis, free of any existing charter or other contract of employment and/or pool arrangement and shall be addressed to the Agent. If the two valuations differ by more than ten per cent. (10.00%), then a third Approved Broker appointed by the Agent (as instructed by the Majority Lenders) shall provide a valuation and the value of the Vessel shall be the average of the three valuations. The valuations shall be for the cost of the Borrower and shall be addressed to the Agent. "Marpol" means the International Convention for the Prevention of Pollution from Ships. "Material Adverse Effect" means a material adverse effect on: a) the financial position, business or operation of any Obligor or the Group (taken as a whole); b) the ability of any of the Obligors' to perform any of its obligations under the Finance Documents; or c) the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purported to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents. "Maximum Loan Amount" means an amount equal to the lower of: a) an amount ensuring compliance with Clause 7.1 (Mandatory prepayment β Collateral Maintenance Test) as from the Drawdown Date, with such calculation based on valuations of the Market Value not being more than 30 (thirty) days old at the Drawdown Date; and b) USD 150,000,000, 10127241/1 15 "Month" means, in relation to an Interest Period (or any other period for the accrual of commission or fees), a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, subject to adjustment in accordance with the rules specified as Business Day Conventions in the Reference Rate Terms. "Mortgage" means the first priority or preferred, as applicable, ship mortgage and, if applicable, the declaration of pledge or deed of covenants collateral thereto, granted by the Borrower in favour of the Security Agent (on behalf of the Finance Parties) in form and substance acceptable to the Security Agent and registered against the Vessel with the applicable Approved Ship Registry. "New Lender" has the meaning set out in Clause 25 (Changes to the Parties). "Obligor" means the Borrower or the Guarantors, or any of them, as the case may be. "Original Financial Statements" means the financial statements for each Obligor (consolidated and audited in respect of the Ultimate Parent), for the financial year ended 31 December 2020. "Party" means a party to this Agreement. βPoseidon Principlesβ means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published on June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organization from time to time. "Reference Rate Supplement" means a document which: a) is agreed in writing by the Borrower, the Agent (in its own capacity) and the Agent (acting on the instructions of all the Lenders); b) specifies the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate Terms; and c) has been made available to the Borrower and each Finance Party. "Reference Rate Terms" means the terms set out in Schedule 9 (Reference Rate Terms) or in any Reference Rate Supplement. "Relevant Jurisdiction" means in relation to any Party: a) its jurisdiction of incorporation; b) any jurisdiction where any asset subject to or intended to be subject to Security Interest under a Security Document to be created by it is situated or registered, as applicable; c) any jurisdiction where it conducts its business; and d) the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it. "Relevant Market" means the market specified as such in the Reference Rate Terms. "Repeating Representations" means each of the representations set out in Clause 19 (Representations and warranties), except for Clauses 19.3a) (Binding obligations), 19.4a) (No conflict 10127241/1 16 with other obligations), 19.6 (Governing law and enforcement), 19.8 b (Taxes) and Clause 19.9 (No filing or stamp taxes). "Reporting Day" means the day (if any) specified as such in the Reference Rate Terms. "Reporting Time" means the relevant time (if any) specified as such in the Reference Rate Terms. "Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers. "Restricted Party" means a person or persons, legal or physical that: a) is listed on any Sanctions List; b) is domiciled, resident, located or having its main place of business in, or is incorporated under the laws of, a country or a territory that is or whose government is subject to Sanctions which attach legal effect to being domiciled, located, having its main place of business in, or incorporated under the laws such country; c) otherwise the target of Sanctions (whether designated by name or by reason of being included in a class of person); d) with which any Finance Party is prohibited from dealing with or otherwise engaging in a transaction with due to Sanctions; or e) is directly or indirectly owned by 50 percent or more or controlled, or acting on behalf, at the direction or for the benefit of a person(s) referred to in paragraph (a), (b) or (c) above. "RFR" means the rate specified as such in the Reference Rate Terms. "RFR Banking Day" means any day specified as such in the Reference Rate Terms. "Sanctions" means any economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive measures, decisions, executive orders, or notices from regulators implemented, adapted, imposed, administered, enacted, or enforced by any Sanctions Authority. "Sanctions Authority" means the United Nations Security Council, the European Union or the Netherlands, the United Kingdom, Japan, the Kingdom of Norway, any country to which any Obligor is bound, the United States of America (including but not limited to the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC) and the U.S. Department of State), and any authority acting on behalf of any of them in connection with Sanctions. "Sanctions List" means any list of persons or entities subject to Sanctions published in connection with Sanctions by or on behalf of any Sanctions Authority from time to time. "Security Documents" means all or any security documents as may be entered into from time to time pursuant to Clause 18 (Security). "Security Interest" means any mortgage, charge (whether fixed or floating), encumbrance, pledge, lien, assignment by way of security, finance lease, sale and repurchase or sale and leaseback arrangement, sale of receivables on a recourse basis or other security interest or any other agreement or arrangement having the effect of conferring security.
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10127241/1 61 22.9 No mergers etc. No Obligor shall enter into any merger, amalgamation, de-merger, split-up, divest, consolidation with or into any other person or be the subject of any reconstruction, name change or change of type of organization without the prior consent of the Agent (on behalf of the Lenders). 22.10 Financial Indebtedness restrictions a) The Borrower shall not incur, create or permit to subsist any Financial Indebtedness. b) Paragraph (a) above does not apply to Financial Indebtedness: (i) incurred under the Finance Documents; (ii) incurred under any loans from any Guarantor, provided that any Guarantorβs claims under such loans are subject to an Assignment of Intercompany Loan and fully subordinated to the claims of the Finance Parties under the Finance Documents; or (iii) consented to in writing by the Lenders. 22.11 Financial support The Borrower shall not make or grant any loans, guarantees or any other form of financial support to any person, except for: a) financial support by way of trade credit in the ordinary course of operation of the Vessel; and b) intra-group loans to a Guarantor, provided always that the obligations of any other Guarantor be fully subordinated to any obligations under the Finance Documents, and the Borrower's claims under such loans are subject to an Assignment of Intercompany Loan. 22.12 Distributions from the Borrower Following the occurrence of an Event of Default which is continuing, the Borrower may not: (i) declare, make or pay any dividend, charge, fee or other distribution (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital); (ii) pay any interest or repay any principal amount (or capitalised interest) on any debt to any of its shareholders; or (iii) redeem, repurchase or repay any of its share capital or resolve to do so, or enter into any transaction or arrangement having a similar effect as described in paragraphs (i) to (iii). 22.13 Distributions from the Ultimate Parent a) Subject to the limitations listed in paragraph (b) below, the Ultimate Parent may: (i) declare, make or pay any dividend, charge, fee or other distribution (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital); (ii) pay any interest or repay any principal amount (or capitalised interest) on any debt to any of its shareholders; (iii) redeem, repurchase or repay any of its share capital or resolve to do so; or 10127241/1 62 (iv) enter into any transaction or arrangement having a similar effect as described in paragraphs (i) to (iii). b) The distributions described in paragraph (a) above can only be carried out and effectuated if: (i) no Event of Default is existing and is continuing on the time when the distribution is to be made or would result from the making, payment or declaration of the distribution; or (ii) as otherwise consented to in writing by the Agent (on behalf of the Majority Lenders). 22.14 Investments The Borrower shall not make any investments or acquisitions, neither of vessels, companies (or shares in companies) or otherwise, other than: a) ordinary and scheduled maintenance of the Vessel; and b) any other maintenance of the Vessel required in order to be in compliance with the provisions under this Agreement, including, but not limited to, Clause 23.3 (Classification and repairs). 22.15 Environmental compliance The Obligors shall comply in all respects with all applicable Environmental Laws subject to the terms and conditions of any applicable Environmental Approval and obtain and maintain any applicable Environmental Approval. 22.16 Arm's length transactions No Obligor shall engage in, directly or indirectly, any transaction with any party (without limitation, the purchase, sale or exchange of assets or the rendering of any service), except pursuant to the reasonable requirement of the Obligor's business and upon fair and reasonable terms that are no less favorable to the Obligor, as the case may be, than those which might be obtained in an arm's length transaction at the time. 22.17 Listing The Ultimate Parent shall remain listed on the Oslo Stock Exchange, New York Stock Exchange or another recognised stock exchange acceptable to the Agent (on behalf of the Lenders). 22.18 Hedging a) Only Lenders or Affiliates of Lenders may be Hedge Providers. b) The Hedge Providers shall have a first right of refusal in relation to interest hedging relating to the Vessel or the Facility on competitive terms. c) No Obligor shall carry out derivative transactions for speculative purposes, and for avoidance of doubt, for any hedging under the Hedging Agreements, the nominal amount hedged shall not exceed the Loans outstanding. d) The Borrower undertakes to ensure that (i) the Hedging Agreement only documents transactions to hedge interest rate risk under or in connection with the Agreement and (ii) copies of any Hedging Agreement are provided to the Agent once they have been signed. 10127241/1 63 22.19 Earnings Accounts The Borrower shall open and maintain all its Earnings Accounts with the Account Bank, ensure that all Earnings are paid to the Earnings Accounts, and that the Earnings Accounts remain subject to the Account Pledge(s). The Borrower may freely operate and make withdrawals from the Earnings Accounts until the occurrence of an Event of Default which is continuing. 22.20 Vessel employment a) The Vessel shall be employed under the Charterparty for its duration of 7 years from 1 July 2022. In the event of redelivery under, or cancellation of, the Charterparty prior to its initial expiry, the Borrower shall within 90 days enter into a new charterparty on terms and conditions acceptable to the Lenders (such acceptance not to be unreasonably withheld or delayed). b) The Borrower shall not make or agree to any material change to or waiver under the Charterparty, without the prior written consent of the Majority Lenders which shall not be unreasonably withheld or delayed. In this respect, any changes or waivers relating to the counterparty, the charter period, termination and/or daily charter rate under the Charterparty shall always be considered material. 22.21 Taxation The Obligors shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that such payment is being contested in good faith or can be lawfully withheld. 22.22 Sanctions a) Each Obligor and their Subsidiaries, and the Obligors shall ensure that their respective directors, officers and employees, agents and representatives shall comply in all respects with Sanctions. b) No Obligor and their Subsidiaries shall, and the Obligors shall ensure that none of their respective directors, officers or employees 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. c) No Obligor shall 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; d) Each Obligor 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; e) Each Obligor 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 by any Sanctions Authority, and provide information on what steps are being taken with regards to answer or oppose such claim, action, suit, proceedings or investigation; f) No Obligor shall permit or authorise any other person to, directly or indirectly use the proceeds of a Loan, or lend, make payments of or contribute or otherwise make available all or any part of such proceeds, or permit services provided by any Finance Party to such Obligor under the Finance Documents to be used (i) to or for the benefit of any Restricted Party or (ii) in any other manner that would result in a violation of Sanctions by any person 10127241/1 64 (including any person participating in a Loan hereunder, whether as a Finance Party or otherwise) or any such person becoming a Restricted Party; and g) Each Obligor shall ensure that the Vessel is not or does not become the target of any Sanctions (by way of the Vessel being designated under any Sanctions or Sanctions List). 22.23 EU Bail-In In the event that any Finance Document (other than Hedging Agreements) will be governed by the laws of a non-EEA Member Country, then to the extent the Agent determines it is necessary such Finance Document shall either prior to its entry, or if already in force be amended to, contain the current form of EU bail-in provisions recommended by the Loan Market Association. 23 VESSEL COVENANTS The undertakings set out in this Clause 23 shall remain in force from the date of this Agreement and throughout the Security Period. 23.1 Insurance 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 maximum cover for pollution liability with a club within the International Group of P&I Clubs), Hull Interest and/or Freight Interest and War Risk (including acts of terrorism, hijacking, confiscation and piracy) insurances, in such amounts, on such terms and with such brokers, clubs and/or insurers as the Agent (acting on the instruction of the Majority Lenders) from time to time shall approve (such approval not to be unreasonably withheld). b) The insurance value (to be on agreed value basis) for Hull and Machinery combined with Hull Interest and/or Freight Interest, and for War Risk, shall cover the higher of (i) the Market Value of the Vessel, and (ii) to one hundred and twenty per cent (120.00%) of the Loans under the Facility. c) The insured value for the Hull and Machinery insurance shall cover at least eighty per cent (80.00%) of the Market Value of the Vessel. The remaining cover may be taken out as Hull Interest and/or Freight Interest. d) Each Obligor 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 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 are executed by the insurers and/or brokers (as applicable). e) Not later than fourteen (14) days 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 Security Agent (on behalf of the Finance Parties) have been noted by the relevant insurers. f) The Borrower shall, at the request of the Agent (if requested by a Lender), for the account of the Borrower, take out a Mortgagee's Interest Insurance ("MII") and/or a Mortgagee's Interest β Additional Perils Pollution Insurance ("MAPI") covering up to one hundred and twenty per cent (120.00%) of the Total Commitments.
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10127241/1 65 g) If any of the Insurances referred to in paragraph a) form part of a fleet cover, the Borrower shall procure that the insurers and/or brokers (as applicable) 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 vessels under such fleet cover or any premiums due for other insurances, nor cancel this Insurance for reason of non-payment of premiums for other vessels 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 any person named as assured or co-assured in any insurance policy assigns such insurances to the Security Agent or provides other satisfactory undertakings as the Security Agent may require. Further, the Borrower shall procure that the Security Agent shall have the right to appoint an insured party. i) 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. j) No Obligor will make any change to the Insurances described under paragraphs a) and b) above without the prior written consent of the Agent (on behalf of the Lenders). k) The Agent will obtain an Insurance Report from an independent insurance consultant for the account of the Borrower prior to any utilisation of the Facility, and, if the Agent (acting on the instructions of the Majority Lenders) so requires, on an annual basis thereafter. l) The Borrower will supply to the Agent from time to time on request such information as the Agent may in its discretion require with regard to the Insurances and the brokers, underwriters, associations or clubs through or with which the Insurances are placed. m) Each Obligor shall promptly take any steps required, or provide any and all assistance requested by the Agent, to ensure prompt collection of any claims under the Insurances. 23.2 Loss Payable Claims related to the Insurances in respect of an actual or constructive or agreed or arranged or compromised Total Loss or requisition for title or other compulsory acquisition of the Vessel and claims payable in respect of a major casualty, that is to say any claim (or the aggregate of which) in excess of USD 3,000,000 shall be payable to the Security Agent. Subject thereto all other claims, unless and until the insurers have received notice from the Security Agent of an event of default which is continuing and unremedied under the Agreement in which event all claims shall be payable directly to the Security Agent up to the Finance Parties' mortgage interest, shall be released directly for the repair, salvage or other charges involved or to the Borrower as reimbursement if it has fully repaired the damage and paid all of the salvage or other charges or otherwise in respect of Xxxxxxxx's actual costs in connection with repair, salvage and/or other charges. 23.3 Classification and repairs The Obligors shall keep the Vessel in a good, safe and efficient condition consistent with first class ownership and management practice and in particular: a) so as to maintain the highest classification required for the relevant trade with an Approved Classification Society, free of overdue recommendations and conditions; and 10127241/1 66 b) so as to comply with the laws and regulations (statutory or otherwise) applicable to vessels 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. 23.4 Restrictions on chartering, appointment of managers etc. a) The Borrower shall not without the prior written consent of the Agent (on behalf of the Majority Lenders): (i) let the Vessel on bareboat charter for any period other than to another member of the Group (subject to satisfactory Security Interest in favour of the Agent (on behalf of the Finance Parties) with respect to such member of the Group's earnings and charterparty in respect of the Vessel); (ii) charter in or hire any vessel or tonnage; (iii) appoint a Manager other than any Approved Manager; or (iv) change the class certification of the Vessel. b) The Borrower shall inform the Agent of any change of management of the Vessel to another Approved Manager, or change of classification society to another Approved Classification Society. 23.5 Notification of certain events The Borrower shall immediately notify the Agent of: a) any accident to the Vessel involving repairs where the costs will or is likely to exceed USD 3,000,000 (or the equivalent in any other currency); b) any requirement or recommendation made by any insurer or classification society or by any competent authority which is not, or cannot be, immediately complied with; c) any exercise or purported exercise of any lien on the Vessel, the 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 or the ISPS Code being made against the Borrower, a Manager or otherwise in connection with the Vessel. 23.6 Operation of the Vessel a) The Borrower shall comply, or procure the compliance by any manager, in all material respects with the ISM Code, the ISPS Code, Marpol, all Environmental Laws and all other laws or regulations applicable to the Vessel, their ownership, operation and management or to the business of the Borrower and shall not employ the Vessel nor allow its employment: (i) in any manner contrary to law or regulation in any relevant jurisdiction including but not limited to the ISM Code; (ii) in U.S. waters contrary to COFR regulations, always ensuring as required that a Certificate of Financial Responsibility is maintained for such purpose; and 10127241/1 67 (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 Vessel unless the Borrower has (at its expense) effected any special, additional or modified insurance cover which shall be necessary or customary for first class shipowners trading vessels within the territorial waters of such country at such time and has provided evidence of such cover to the Agent. b) Without limitation to the generality of this Clause 23.6, the Borrower shall comply or procure compliance, with, as applicable, all requirements of the International Convention for the Safety of Life at Sea (SOLAS) 1974 as adopted, amended or replaced from time to time including, but not limited to, the STCW 95, the ISM Code or the ISPS Code. 23.7 Inspections and class records a) The Borrower shall upon the request of the Agent permit, and shall procure that any managers and charterers permit, one person appointed by the Agent to inspect the Vessel, limited to one time per twelve (12) months, at the cost of the Borrower. If the request is made following an Event of Default which is continuing, there shall be no limitation on the number of inspections per year. Unless there is an Event of Default, any inspection shall not interfere with the normal operation and trading of the Vessel. b) The Borrower shall instruct the classification society to send to the Agent, following a written request from the Agent, copies of all class records held by the classification society in relation to the Vessel. 23.8 Surveys The Borrower shall submit to or cause the Vessel to be submitted to such periodic or other surveys as may be required for classification purposes and to ensure full compliance with regulations of the flag state of the Vessel and to supply or to cause to be supplied to the Agent copies of all survey reports and confirmations of class issued in respect thereof whenever such is required by the Agent, however limited to once a year. 23.9 Arrest The Borrower shall or shall procure that the charterers (if any) shall, promptly pay and discharge: 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. 23.10 Total Loss In the event that the Vessel shall suffer a Total Loss, the Borrower shall, within a period of ninety (90) days after the Total Loss Date, obtain and present to the Agent, a written confirmation from the relevant insurers that the claim relating to the Total Loss has been accepted in full, and the insurance proceeds shall be applied in prepayment of the relevant Loan in accordance with Clause 7.1 (Mandatory prepayment β Total Loss or sale). 10127241/1 68 23.11 Dismantling a) The Borrower shall procure that a Green Passport is in place for the Vessel, which shall be maintained and available throughout the lifespan of the Vessel. b) Each Obligor shall ensure that the Vessel or other vessels controlled by it or another member of the Group being scrapped, or sold to an intermediary with the intention of being scrapped, is recycled at a recycling yard which conducts its recycling business in a socially and environmentally responsible manner, in accordance with the provisions of The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 or EU Ship Recycling Regulation of 20 November, 2013. 23.12 Flag, name and registry a) The Vessel shall at all times be registered with an Approved Ship Registry. b) The Borrower shall not, without the prior written consent of the Agent (on behalf of all Lenders), change the flag, name or registry of the Vessel. Subject to substitution of the Mortgage, and closing arrangements satisfactory to the Agent, the Lenders may not refuse the Borrower's request to change the registry of the Vessel from one Approved Ship Registry to another Approved Ship Registry, unless a Default has occurred. 23.13 Poseidon Principles The Borrower shall, upon the request of any Lender and at the cost of the Borrower, on or before 31st July in each calendar year, supply or procure the supply to the Agent (on behalf of the Finance Parties) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI and any Statement of Compliance, in each case relating to the Vessel for the preceding calendar year, and hereby consent to each Lender obtaining such information from third parties, provided always that no Lender shall publicly disclose such information with the identity of the Vessel without the prior written consent of the Borrower but the Borrower acknowledges that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lenderβs portfolio climate alignment. 23.14 Quiet Enjoyment Letters Pursuant to the Charterparty a quiet enjoyment letter will be required from the Lenders for the duration of the charter, a draft of which has been presented to the Lenders and which remain subject to Lenders' acceptance (such acceptance not to be unreasonably withheld or delayed). For any other employment contract of the Vessel requiring a quiet enjoyment letter, the Agent (on behalf of the Finance Parties) will grant such letters, subject to form and substance being satisfactory to the Lenders (in their sole discretion, acting reasonably). 24 EVENTS OF DEFAULT Each of the events or circumstances set out in this Clause 24 is an Event of Default (save for Clause 24.17 (Acceleration)). 24.1 Non-payment Any Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:
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10127241/1 97 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. 37.2 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 paragraph c)(ii) of Clause 37.1 (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 37. 37.3 No Event of Default No Event of Default will occur under Clause 24.3 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 37. 38 COUNTERPARTS Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document. 39 CONTRACTUAL RECOGNITION OF BAIL-IN Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail- In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: a) any Bail-In Action in relation to any such liability, including (without limitation): 10127241/1 98 (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. This clause does not apply to Hedging Agreements, as the specific provisions set out therein will apply. 10127241/1 99 SECTION 12 GOVERNING LAW AND ENFORCEMENT 40 GOVERNING LAW AND ENFORCEMENT 40.1 Governing law This Agreement shall be governed by Norwegian law. 40.2 Jurisdiction a) For the benefit of each Finance Party, each Obligor agrees that the courts of Oslo, Norway, have jurisdiction to settle any disputes arising out of or in connection with the Finance Documents (other than the Hedging Agreements) including a dispute regarding the existence, validity or termination of this Agreement, and the Obligors accordingly submits to the non-exclusive jurisdiction of the Oslo District Court (Oslo tingrett). b) Nothing in this Clause 40.2 shall limit the right of the Finance Parties to commence proceedings against an Obligor in any other court of competent jurisdiction. To the extent permitted by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions. 40.3 Service of process Without prejudice to any other mode of service, each Obligor: a) appoints Flex LNG Management AS (company no. 920 626 289), XX Xxx 0000 Xxxx, 0000 Xxxx (mail address) and Xxxxxxxxxx 0, 0000 Xxxx, Xxxxxx (visiting adress) as its agent for the service of process and/or any other writ, notice, order or judgment in respect of this Agreement, any other Finance Document governed by Norwegian law and/or the matters arising here from; and b) agrees that failure by such process agent to notify an Obligor of the process will not invalidate the proceedings concerned. If any process agent appointed pursuant to this Clause 40.3 (Service of process) (or any successor thereto) shall cease to exist for any reason where process may be served, the Obligor will forthwith appoint another process agent with an office in Norway where process may be served and will forthwith notify the Agent thereof. * * * This Agreement has been entered into on the date stated at the beginning of this Agreement.
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10127241/1 105 SCHEDULE 3 FORM OF DRAWDOWN NOTICE To: ING BANK N.V., as Agent From: FLEX LNG ENTERPRISE LIMITED Date: [***] USD 150,000,000 TERM LOAN FACILITY AGREEMENT DATED 26 SEPTEMBER 2022 (THE "AGREEMENT") We refer to Clause 5.1 (Delivery of the Drawdown Notice) of the Agreement. Terms defined in the Agreement shall have the same meaning when used in this Drawdown Notice. a) You are hereby irrevocably notified that we wish to make the following drawdown on the following terms: Tranche: [Tranche A][Tranche B] Proposed Drawdown Date: [ ] Principal Amount: USD [ ] Interest Period: [ ] b) The purpose of the Loan is the part financing of the Vessel and/or for our general corporate purpose, and all proceeds shall applied accordingly. c) The proceeds of the Loan shall be credited to [**] [insert details of account]. d) We confirm that, as of the date hereof (i) each condition specified in Clause 4 (Conditions Precedent) of the Agreement is satisfied; (ii) each of the Repeating Representations set out in Clause 19 (Representations and warranties) of the Agreement is true and correct; and (iii) no event or circumstances has occurred and is continuing which constitute or may constitute an Event of Default. Yours sincerely for and on behalf of FLEX LNG ENTERPRISE LIMITED By: __________________________________ Name: Title: [authorised officer] 10127241/1 106 SCHEDULE 4 FORM OF SELECTION NOTICE To: ING BANK N.V., as Agent From: FLEX LNG ENTERPRISE LIMITED Date: [***] USD 150,000,000 TERM LOAN FACILITY AGREEMENT DATED 26 SEPTEMBER 2022 (THE "AGREEMENT") We refer to the Agreement. Terms defined in the Agreement shall have the same meaning when used in this Selection Notice. a) We refer to the amount outstanding under the Loan with an Interest Period ending on [**]. b) We request that the next Interest Period for the Loan is [**]. This Selection Notice is irrevocable. Yours sincerely for and on behalf of FLEX LNG ENTERPRISE LIMITED By: ______________________________ Name: Title:
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10127241/1 109 SCHEDULE 6 FORM OF TRANSFER CERTIFICATE To: ING BANK N.V., as Agent From: [**] (the "Existing Lender" and [**] (the "New Lender") Date: [**] USD 150,000,000 TERM LOAN FACILITY AGREEMENT DATED 26 SEPTEMBER 2022 (THE "AGREEMENT") We refer to the Agreement. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. With reference to Clause 25 (Changes to the Parties): a) The Existing Lender, in its capacity as Lender under the Agreement, confirms that it participates with [ ] per cent of the Total Commitments. b) The Existing Lender hereby transfers to the New Lender [ ] per cent of the Total Commitments as specified in the Schedule hereto, and of the equivalent rights and interest in all Finance Documents (other than Hedging Agreements), and the New Lender hereby accepts such transfer from the Existing Lender in accordance with the terms set out herein and Clause 25 (Changes to the Parties) of the Agreement and assumes the same obligations to the other Finance Parties as it would have been under if it was an original Lender. c) The proposed Transfer Date is [ ], as from which date the Transfer of such portion of the Total Commitments shall take full legal effect. d) The New Lender confirms that it has received a copy of the Agreement, together with such other information as it has required in connection with this transaction. The New Lender expressly acknowledges and agrees to the limitations on the Existing Xxxxxx's responsibility set out in Clause 25.3 (Limitations of responsibility of Existing Lenders) of the Agreement. e) The New Lender hereby undertakes to the Existing Lender and the Borrower that it will perform in accordance with the terms and conditions of the Agreement all those obligations which will be assumed by it upon execution of this Transfer Certificate. f) The address, telefax number and attention details for notices, as well as the account details of the New Lender, are set out in the Schedule. g) This Transfer Certificate is governed by Norwegian law, with Oslo City Court (Oslo tingrett) as legal venue. 10127241/1 110 The Schedule Commitments/rights and obligations to be transferred I Existing Lender: [ ] II New Lender: [ ] III Total Commitments of Existing Lender: USD [ ] IV Aggregate amount transferred: USD [ ] V Total Commitments of New Lender USD [ ] VI Transfer Date: [ ] Administrative Details / Payment Instructions of New Lender Notices to New Lender: [ ] [ ] Att: [ ] Fax no: + [ ] [Insert relevant office address, telefax number and attention details for notices and payments to the New Lender] Account details of New Lender: [Insert relevant account details of the New Lender] Existing Lender: New Lender: [**] [**] By: __________________________________ By: ________________________________ Name: Name: Title: Title: This Transfer Certificate is accepted and agreed by the Agent and the Transfer Date is confirmed as [ ]. Agent: ING BANK N.V. By: __________________________________ Name: Title: 10127241/1 112 SCHEDULE 8 REPAYMENT SCHEDULE (USD)
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10127241/1 117 SCHEDULE 10 DAILY NON-CUMULATIVE COMPOUNDED RFR RATE The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during an Interest Period for a Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below: (ππππππππππππ β ππππππππππππβ1)π΄π΄? ππππππ ππππ where: "UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i"; "UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period; "dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; "ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose): π΄π΄πππππππππ΄π΄? π‘π‘π‘π‘ππ ππππππ where: "ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day; "tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period; "Cumulation Period" means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day; "dcc" has the meaning given to that term above; and the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to five (5) decimal places) calculated as set out below: 10127241/1 118 where: "d0" means the number of RFR Banking Days in the Cumulation Period; "Cumulation Period" has the meaning given to that term above; "i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period; "DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the Lookback Period prior to that RFR Banking Day "i"; "ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; "dcc" has the meaning given to that term above; and "tni" has the meaning given to that term above. 10127241/1 119 SCHEDULE 11 CUMULATIVE COMPOUNDED RFR RATE The "Cumulative Compounded RFR Rate" for any Interest Period for a Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition of "Annualised Cumulative Compounded Daily Rate" in Schedule 10 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out below: where: "d0" means the number of RFR Banking Days during the Interest Period; "i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period; "DailyRatei-LP" means for any RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the Lookback Period prior to that RFR Banking Day "i"; "ni" means, for any RFR Banking Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; "dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and "d" means the number of calendar days during that Interest Period.
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