10127241/1 FACILITIES AGREEMENT UP TO USD 125,000,000 TERM LOAN AND REVOLVING FACILITIES for FLEX VOLUNTEER LIMITED as Borrower with FLEX LNG LTD. and FLEX LNG FLEET LIMITED as Guarantors arranged by SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) NORDEA BANK...
10127241/1 FACILITIES AGREEMENT UP TO USD 125,000,000 TERM LOAN AND REVOLVING FACILITIES for FLEX VOLUNTEER LIMITED as Borrower with FLEX LNG LTD. and FLEX LNG FLEET LIMITED as Guarantors arranged by SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) NORDEA BANK ABP, FILIAL I NORGE CITIGROUP GLOBAL MARKETS LIMITED as Bookrunners and Mandated Lead Arrangers with SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) NORDEA BANK ABP as Hedge Providers and SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) as Agent and Security Agent in respect of the Vessel "FLEX VOLUNTEER" Dated 29 June 2020
10127241/1 4 THIS FACILITIES AGREEMENT is dated 29 June 2020 and made between: (1) FLEX VOLUNTEER LIMITED, a corporation incorporated in the Republic of Xxxxxxxx Islands, having registration no. 98381, 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, Xxxxxxxx, 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) SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) as bookrunner, co-ordinator and mandated lead arranger; (6) NORDEA BANK ABP, FILIAL I NORGE and CITIGROUP GLOBAL MARKETS LIMITED as bookrunners and mandated lead arrangers (together with the entity referred to in (5) above, the "Arrangers", and each an "Arranger"); (7) SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) and NORDEA BANK ABP as hedge providers (each a "Hedge Provider", jointly the "Hedge Providers"); (8) SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) as facility agent of the other Finance Parties (in such capacity, the "Agent"); and (9) SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) as security agent of the other 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.
10127241/1 5 "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. "Agreement" means this facilities agreement, as it may be amended, supplemented and varied from time to time, including its Schedules and any Transfer Certificate. βAnnex VIβ means Annex VI 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, Clarksons Platou, Nordic Shipping, Affinity, Braemer, 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 GL, 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 any of the Borrower's (i) rights, titles and interests to any Earnings, and (ii) in respect of any charterparty for the Vessel with a firm term (excluding options) exceeding twelve (12) months, 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 Facilities, 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.
10127241/1 6 "Assignment of Intercompany Loans" means a first priority assignment of any claims against the Borrower from any Guarantor, and any claims against any 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 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 a) in respect of the Term Loan Facility: the period from and including the date of this Agreement to and including 30 June 2021, or such later date as may be agreed in writing by the Lenders; and b) in respect of the Revolving Facility: the period from and including the Drawdown Date under the Term Loan Facility up to three (3) months prior to the Final Maturity Date. "Available Commitment" means, in relation to a Facility, a Lender's Commitment under the Facility minus: a) the amount of its participation in any outstanding Loans under that Facility; and b) in relation to any proposed drawdown only, the amount of its participation in any Loans that are due to be made under that Facility 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; and b) in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) 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 the amount (if any) by which: a) the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or 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 been paid on the last day of that Interest Period; exceeds: b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the
00000000/1 7 London interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period. "Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Oslo, Stockholm, London and New York (or any other relevant place of payment under Clause 29 (Payment mechanics)). 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) any company controlled directly or indirectly by the Xxxx Xxxxxxxxxx Family ceases to own directly minimum 25% of the shares and/or the voting rights of the Ultimate Parent; or b) 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 c) the Ultimate Parent ceases to own directly 100% of the shares and/or the voting rights in the Intermediate Parent; or d) 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. "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 Facility, the amount set out under the heading of such Facility 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.
10127241/1 8 "Compliance Certificate" means a certificate substantially in the form as set out in Schedule 5 (Form of Compliance Certificates). "Confidential Information" means all information relating to the Obligors, the Group, the Finance Documents or the Facilities 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 Facilities 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 information that: (i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36.1 (Confidential Information); or (ii) is identified in writing at the time of delivery as non-confidential by the 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 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. "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. "Delivery Date" means the date on which the Vessel is actually delivered, by passing of risk and title, to the Borrower under the Intermediate MOA, expected to occur on or about 28 February 2021. "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):
10127241/1 9 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 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 No. 46 (No. finansavtaleloven).
10127241/1 10 "Facilities" means the Term Loan Facility and the Revolving Facility and "Facility" means each of them. "FATCA" means: a) sections 1471 to 1474 of the Code or any associated regulations; b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph a) above; or c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs a) or b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. "FATCA Application Date" means: a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; b) in relation to a "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 the day falling five (5) years after the Drawdown Date under the Term Loan Facility. "Finance Documents" means a) this Agreement; b) any Fee Letter; c) the Security Documents; d) any Trust Agreement;
10127241/1 11 e) each Hedging Agreement, other than in respect of Clauses 35 (Amendments and Waivers), 37 (Counterparts) and (in relation to any communications between the Borrower and the Hedge Providers) Clause 31 (Notices); and f) 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; 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. "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.
10127241/1 12 "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" means any master agreement, confirmation, schedule or other agreement entered or to be entered into by the Borrower and any Hedge Provider to hedge liabilities 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. "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 Obligors 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 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). "Intermediate Buyer" means Volunteer Shipowning Inc. in respect of the Vessel, which entity is party as buyer to the Shipbuilding Contract, and have entered into the Intermediate MOA. "Intermediate MOA" means the memorandum of agreement for the sale of the Vessel from the Intermediate Buyer as seller to the Borrower as buyer, securing a concurrent delivery under the Shipbuilding Contract and the Intermediate MOA, and including arrangements for the assignment of Yard's warranties in respect of the Vessel to the Borrower, to be in form and substance satisfactory to the Agent. "Interpolated Screen Rate" means, in relation to LIBOR for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between: a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan, each as of 12:00 hours on the Quotation Day for USD. "ISM Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention.
10127241/1 13 "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. "LIBOR" means, in relation to any Loan: a) the applicable Screen Rate as of 12:00 hours on the Quotation Day for USD and for a period equal in length to the Interest Period of that Loan; or b) as otherwise determined pursuant to Clause 10.1 (Unavailability of Screen Rate); and if, in either case, that rate is below zero, LIBOR will be deemed to be zero. "Loan" means a loan made or to be made under a Facility or the principal amount outstanding for the time being of that loan. "Majority Lenders" means: a) if there are no Loan 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. "Management Agreement(s)" means any commercial and/or technical management agreement entered into between the Borrower and the Manager(s) regarding the 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 two point eighty five per cent (2.85%) per annum. "Marpol" means the International Convention for the Prevention of Pollution from Ships.
10127241/1 14 "Market Value" means the fair market value of the Vessel in USD, being the 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. 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. "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) 65% of the Market Value of the Vessel; and b) USD 125,000,000, "Mortgage" means the first priority or preferred, as applicable, cross collateralized 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 2019. "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. "Quotation Day" means, in relation to any period for which an interest rate is to be determined two (2) Business Days before the first day of that period.
10127241/1 15 "Reference Banks" means the Lenders and any other bank to be agreed between the Borrower and the Agent at the appropriate time. "Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks, as the rate at which the relevant Reference Bank could borrow funds in the applicable interbank market in the relevant currency and for the relevant period, were it to obtain interbank offers for deposits in that currency and for that period, and if a Reference Bank does not supply a quotation by 12:00 hours on the Quotation Day, the applicable rate shall be determined on the basis of the quotations of the remaining Reference Banks. "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. "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 with other obligations), 19.6 (Governing law and enforcement), 19.8 b (Taxes) and Clause 19.9 (No filing or stamp taxes). "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 more than 50 percent 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. "Revolving Facility" means the senior secured revolving credit facility provided pursuant to the terms of this Agreement, as described in Clause 2.1 (The Facilities) "Rollover Loan" means one or more Loans under the Revolving Facility:
10127241/1 16 (i) made or to be made: (A) on the same day that a maturing Loan is due to be repaid by the Borrower; and (B) in whole or in part for the purpose of refinancing the maturing Loan; and (ii) the aggregate amount of which is equal to or less than the amount of the maturing Loan. "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 Kingdom of Sweden, the United Kingdom, 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. "Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for USD for the relevant period displayed on the appropriate or relevant page of the Reuters screen which displays that rate, or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Ultimate Parent. "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. "Security Period" means the period commencing on the date of this Agreement and ending the date on which the Agent notifies the Borrower and the other Finance Parties that: a) all amounts which have become due for payment by the Borrower or any other party under the Finance Documents have been paid in full; b) no amount is owing or has accrued (without yet having become due for payment) under any of the Finance Documents; c) the Obligors' have no future or contingent liability under any provision of this Agreement, the other Finance Documents; and d) the Agent and the Majority Lenders 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
10127241/1 17 Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document. "Selection Notice" means a notice substantially in the form set forth in Schedule 4 (Form of Selection Notice) given in accordance with Clause 9.1 (Selection of Interest Periods). "Share Pledges" means first priority pledges in favour of the Security Agent (on behalf of the Finance Parties) to be created over all shares in the Borrower pursuant to one or several share pledge agreements in form and substance acceptable to the Security Agent, to be entered into between the Security Agent and the Intermediate Parent. "Shipbuilding Contract" means the shipbuilding contract dated 30 June 2018 entered into between the Intermediate Buyer and the Yard regarding the construction of the Vessel. βStatement of Complianceβ means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI. "SMC" means a valid safety management certificate issued for the Vessel pursuant to paragraph 13.7 of the ISM Code. "SMS" means a safety management system for the Vessel developed and implemented in accordance with the ISM Code and including the functional requirements duties and obligations that follow from the ISM Code. "Subsidiary" means an entity from time to time of which a person: a) has direct or indirect control; b) or owns directly or indirectly more than fifty per cent. (50.00%) (votes and/or capital), and for the purpose of paragraph a) above, an entity shall be treated as being "controlled" by a person if that person is able to direct its affairs and/or control either directly or indirectly, the composition of its board of directors or equivalent body. "Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same). "Term Loan Facility" means the senior secured term loan facility provided pursuant to the terms of this Agreement as described in Clause 2.1 (The Facilities) "Total Commitments" means the aggregate of the Commitments in respect of both Facilities, being USD 125,000,000 at the date of this Agreement. "Total Loss" means, in relation to the Vessel: a) the actual, constructive, compromised, agreed, arranged or other total loss of the Vessel; b) any expropriation, confiscation, 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 purporting to be or to represent a governmental or official authority
10127241/1 18 unless it is within 180 calendar days from the Total Loss Date redelivered to the full control of the Borrower; and c) any capture or seizure of the Vessel (including any hijacking or theft) unless it is within 180 calendar days from the Total Loss Date redelivered to the full control of the Borrower. "Total Loss Date" means: 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 the 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; 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 the 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 (in consultation with the Borrower and the Lenders) that the event constituting the total loss occurred. "Transaction Documents" means any Management Agreement, the Shipbuilding Contract and the Intermediate MOA. "Transfer Certificate" means a certificate substantially in the form as set out in Schedule 6 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower. "Transfer Date" means, in relation to a transfer, the later of: a) the proposed Transfer Date specified in the relevant Transfer Certificate; and b) the date on which the Agent executes the relevant Transfer Certificate. "Trust Agreement" means: a) any vessel trust agreement entered into from time to time between the Agent and the Security Agent (as mortgagee) in respect of the Vessel and Mortgage, whereby the Security Agent agrees to hold the Vessel and/or the Mortgage on trust for the Finance Parties; and b) any trust deed entered into from time to time between the Finance Parties and the Security Agent in respect of any English law governed Security Documents. "UK Bail-In Legislation" means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
10127241/1 19 "Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents. "US" means the United States of America. "US GAAP" means the generally accepted account principles in the US. "US Tax Obligor" means: 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. "USD" means United States Dollars, being the lawful currency of the United States of America. "VAT" means value added tax and any other tax of similar nature. "Vessel" means the vessel set out in Schedule 7 (Vessel). "Write-down and Conversion Powers" means: a) in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and b) in relation to any other applicable Bail-In Legislation: (i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that Bail-In Legislation; and c) in relation to any UK Bail-In Legislation: (i) 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
10127241/1 20 (ii) any similar or analogous powers under that UK Bail-In Legislation. "Yard" means Hyundai Samho Heavy Industries Co. Ltd. 1.2 Construction a) Unless a contrary indication appears, any reference in this Agreement to: (i) the "Agent", the "Security Agent", the "Arranger", any "Finance Party", any "Lender", any "Obligor", any "Hedge Provider" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents; (ii) 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; (iii) "control" means the power to appoint a majority of the board of directors or to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise; (iv) "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of borrowed money, whether present or future, actual or contingent; (v) a "person" shall include any individual, firm, partnership, joint venture, company, corporation, trust, fund, body, corporate, unincorporated body of persons, or any state or any agency of a state or association (whether or not having separate legal personality); (vi) 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; (vii) a provision of law is a reference to that provision as it may be amended or re- enacted; and (viii) a time of the day is a reference to Stockholm time unless specified otherwise. b) Section, Clause and Schedule headings are for ease of reference only. c) Words denoting the singular number shall include the plural and vice versa. d) Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. e) Unless the contrary intention appears, a reference to a "month" or "months" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that;
10127241/1 23 b) Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Ultimate Parent or given to the Ultimate Parent under any Finance Document on behalf of the other Obligors or in connection with any Finance Document (whether or not known to any of the other Obligors) shall be binding for all purposes on the other Obligors as if it had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Ultimate Parent and the other Obligors, those of the Ultimate Parent shall prevail. 3 PURPOSE 3.1 Purpose The Borrower shall apply all amounts borrowed by it under the Facilities towards (i) part financing the acquisition of the Vessel and (ii) for the Borrower's general corporate purposes. 3.2 Monitoring Without prejudice to the obligations of the Borrower under this Clause 3, no Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. 4 CONDITIONS PRECEDENT 4.1 Initial conditions precedent a) The signing and effectiveness of this Agreement is conditional upon the Agent having received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent - Signing) in form and substance satisfactory to the Agent no later than 30 June 2020, unless otherwise agreed by the Parties hereto. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied. b) The Borrower may not deliver a Drawdown Notice unless the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent β Drawdown Notice) in form and substance satisfactory to the Agent. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied. c) the Borrower shall procure that the Agent has received all of the documents and other evidence listed in Part III of Schedule 2 (Conditions precedent β Delivery Date) in form and substance satisfactory to the Agent latest on the Delivery Date. 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 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. 4.2 Further conditions precedent The Lenders will only be obliged to comply with Clause 5.5 (Lenders' participation) if on the date of a Drawdown Notice and on the proposed Drawdown Date: a) in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed drawing and in the case of any other Loan, no Default is continuing or would result from the proposed drawing; and
10127241/1 24 b) the Repeating Representations contained in Clause 19 (Representations and warranties) deemed to be repeated on those dates are true and correct in all material respects. 4.3 Maximum number of drawings a) The Term Loan Facility may be drawn in one (1) Loan only during the Availability Period. b) The Borrower may not deliver a Drawdown Notice under the Revolving Facility if as a result of the proposed drawing more than five (5) Loans would be outstanding under the Revolving Facility. 4.4 Waiver of conditions precedent The conditions precedent specified in this Clause 4 are solely for the benefit of the Lenders and may be waived on their behalf in whole or in part and with or without conditions by the Agent (acting on the instructions of all the Lenders).
10127241/1 28 6.3 Final repayment Notwithstanding Clause 6.2 (Repayment β Term Loan Facility), on the Final Maturity Date the Borrower shall repay any Loans then outstanding under this Agreement in full, together with all other sums due and outstanding under the Finance Documents at such date (if any). 6.4 Repayment schedule An illustrative repayment schedule is set out in Schedule 8 (Repayment Schedule), based on the assumption of full utilisation of the Total Commitments. The Agent shall provide an updated repayment schedule prior to the first Drawdown Date, reflecting the final amount of each Loan and its Drawdown Date, upon instruction of the Lenders. 7 PREPAYMENT AND CANCELLATION 7.1 Mandatory prepayment β Collateral Maintenance Test The aggregate Market Value of the Vessel shall at all times be minimum one hundred and thirty per cent. (130%) of the amount equal to the Loans outstanding under the Facilities (the "Collateral Maintenance Test"). If there is a breach of the Collateral Maintenance Test, the Borrower shall within fourteen (14) days of the occurrence of such breach either; (i) post additional collateral reasonably satisfactory to the Majority Lenders in favour of the Security Agent (it being understood that cash in USD placed in a pledged and blocked account shall be satisfactory to the Majority Lenders), pursuant to security documentation in form and substance reasonably satisfactory to the Agent, in an aggregate amount sufficient to cure such breach, or (ii) prepay the Loans under the Facilities by an amount necessary to cure such breach. Any such prepayment under this paragraph shall be applied firstly towards the Revolving Facility, and then towards repayment of the Term Loan Facility. As long as any breach of the Collateral Maintenance Test is continuing and not cured, the Available Commitments under the Revolving Facility shall be deemed reduced to zero for the purpose of any drawdown or proposed drawdown. 7.2 Mandatory prepayment β Total Loss or sale a) For the purpose of this Clause 7.2, the following definitions shall apply: "Disposal Date" means: (i) in case of a sale or other disposal of the Vessel, the date on which the sale or other disposal is completed by delivery of the Vessel to the buyer; (ii) in case of a sale or other disposal of all shares in the Borrower, the date of transfer of such shares from the Intermediate Parent to the buyer; or (iii) in the case of a Total Loss, on the earlier of (i) the date falling one hundred and twenty (120) days after the Total Loss Date and (ii) the receipt by the Agent (on behalf of the Lenders) of the proceeds of Insurance relating to such Total Loss (or in the event of a requisition for title of the Vessel, immediately after the occurrence of such requisition of title).
10127241/1 30 (ii) any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs), the Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans. 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 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 Loans together with all interest and other amounts accrued under the Finance Documents. 7.8 Terms and conditions for prepayments and cancellation a) Any notice of prepayment or cancellation by the Borrower under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date upon which the prepayment or cancellation is to be made. 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 Borrower may not re-borrow any part of the Term Loan Facility which is prepaid, and may not re-borrow any part of the Revolving Facility which is mandatorily prepaid. d) The Borrower shall not repay or prepay all or any part of the Loans 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 Commitments cancelled under this Agreement may subsequently be reinstated, unless otherwise agreed in writing with the Lenders. f) If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to the Borrower or the Lenders, as appropriate. 7.9 Application of prepayments Unless otherwise provided for in this Clause 7, prepaid amounts shall be applied as follows: a) any mandatory prepayment under this Agreement shall, to the extent not prepaying the Loans in full, be applied in inverse order of maturity against the remaining instalments, including balloon payments, first pro rata between the Facilities, and secondly, after mandatory prepayments have been applied pro rata between the Facilities, the amount applied pro rata to each Facility shall be applied pro rata between the Loans under the respective Facilities, and shall, save as otherwise stated, reduce rateably each Lender's participation in the Loan(s) prepaid; and b) any voluntary prepayment under this Agreement shall be applied pro rata across the repayment schedule, including the balloon, for the relevant Loan(s) being prepaid, including any balloon, and shall, save as otherwise stated, reduce rateably each Lender's participation in the Loan(s) prepaid.
10127241/1 35 11.3 Agency fee The Borrower shall pay to Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter. SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS 12 TAX GROSS-UP AND INDEMNITIES 12.1 Definitions a) In this Agreement: "Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document. "Qualifying Lender" means a Lender which is beneficially entitled to interest payable to it in respect of a Loan under this Agreement and, in relation to the Borrower is: (i) a Lender which is resident for tax purposes in the Borrower's Tax Jurisdiction and to whom interest may be paid by that Borrower without a Tax Deduction under the domestic laws of that Borrower's Tax Jurisdiction; or (ii) a Treaty Lender. "Tax Confirmation" means a confirmation by a Lender that it is beneficially entitled to interest payable to it in respect of an advance under a Finance Document specifying: (i) its Tax Jurisdiction; (ii) whether the Lender believes it is a Treaty Lender in relation to the Borrower; and (iii) such other relevant details as may be reasonably requested by the Borrower or the Agent "Tax Credit" means a credit against, relief or remission for, or repayment of any Tax. "Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction. "Tax Jurisdiction" means, in relation to the Borrower, the jurisdiction in which it is resident for tax purposes from time to time. "Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity). "Treaty Lender" means, in relation to the Borrower, a Lender which is treated as resident in a jurisdiction that has a double taxation agreement (a "Treaty") with the Borrower's Tax Jurisdiction which gives such resident full exemption from tax imposed by the Borrower's Tax Jurisdiction on interest.
10127241/1 45 17.6 No discharge The obligations of each Guarantor under this Clause 17 shall not be discharged, impaired or otherwise affected by reason of any of the following events or circumstances regardless of whether any such events or circumstances occur with or without such Guarantor's knowledge and consent: a) any total or partial invalidity, irregularity, illegality, unenforceability, imperfection or avoidance of or any defect in any security granted by, or the obligation of the Borrower, the Finance Parties or any other person under the Finance Documents or any other document or security; b) any time, waiver, consent or other indulgence granted to the Borrower or any other person or any composition or arrangement made by any Finance Party or any other person with the Borrower or any other person; c) any increase or reduction of the amount of a Loan, or variation of the terms and conditions for its repayment (including without limitation, the rate and/or method of calculation of interest payable on any Loan); d) any amendment, modification, replacement, supplement, variation, compromise, extension or renewal of any Finance Document or any right against any security over any assets of the Borrower or any other person; e) any refusal or neglect to take up or perfect or enforce or any release, indulgence or other relief granted under any Finance Document or any rights against or any security over any assets of the Borrower or any other person or any failure to realize the full value of any security; f) any transfer, assignment, assumption or novation of rights and obligations under the Finance Documents by the Borrower, a Lender or any other person; g) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Borrower, a Lender or any other person; h) any corporate reorganisation, reconstruction, amalgamation, dissolution, merger, acquisition or any other alteration in the corporate existence or structure of any of the Finance Parties, the Borrower or any other person; or i) any insolvency or similar proceedings concerning the Borrower, a Lender or any other person. 17.7 Waiver Each Guarantor specifically waives all rights under the provisions of the FA Act not being mandatory provisions, including the following provisions (the main contents of the relevant provisions being as indicated in the brackets): a) Β§ 62 (1) (a) (to be notified of any security the giving of which was a precondition for the advance of a Loan, but which has not been validly granted or has lapsed); b) Β§ 63 (1) - (2) (to be notified of any Event of Default under the Agreement and to be kept informed thereof);
10127241/1 50 SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT 19 REPRESENTATIONS AND WARRANTIES Each Obligor makes the representations and warranties set out in this Clause 19 to each Finance Party on the date of this Agreement: 19.1 Status and ownership a) It is a company with limited liability or corporation, as applicable, duly incorporated and validly existing under the law of its jurisdiction of incorporation; b) It has the power to own its assets and carry on its business as it is being conducted; c) The Intermediate Parent owns directly one hundred per cent. (100.00%) of the shares and voting rights in the Borrower; and d) The Ultimate Parent owns directly one hundred per cent. (100.00%) of the shares and voting rights in the Intermediate Parent. 19.2 Insolvency No corporate action, legal proceeding or other procedure or step described in Clause 24.7 (Insolvency proceedings) or creditors' process described in Clause 24.8 (Creditors' process), has been taken or threatened in relation to an Obligor, and none of the circumstances described in Clause 24.6 (Insolvency) applies to an Obligor. 19.3 Binding obligations a) The Finance Documents and Transaction Documents to which it is a party constitute 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 Drawdown Date, no registration, filing, payment of tax or fees or other formalities are necessary or desired to render the Finance Documents enforceable against it, and in respect of the Vessel, for the Mortgage to constitute a valid and enforceable first priority mortgage over the Vessel. 19.4 No conflict with other obligations The entry into and performance by it of, and the transactions contemplated by, the Finance Documents and/or the Transaction Documents do not and will not conflict with: a) any law or regulation applicable to it any present law or regulation applicable to it (including Directive 1905/60/EC of the European Parliament and of the Council of the European Communities Union of 26 October 2005, implemented to combat money laundering); b) any of its constitutional documents; or c) any agreement or document to which it is a party or by which it or any of its assets are bound.
10127241/1 54 b) is a Restricted Party nor acts directly or indirectly on behalf of a Restricted Party; or c) has received notice of or is aware of any claim, action, suit, proceeding, formal notice or investigation against it with respect to Sanctions. 19.25 Repetition The Repeating Representations set out in this Clause 19 shall be deemed to be repeated: a) on the date of each Drawdown Notice; b) on each Drawdown Date; c) on the first day of each Interest Period; and d) in each Compliance Certificate forwarded to the Agent pursuant to Clause 20.2 (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). 20 INFORMATION UNDERTAKINGS The undertakings set out in this Clause 20 shall remain in force from the date of this Agreement and throughout the Security Period. 20.1 Financial statements The Ultimate Parent shall supply to the Agent in sufficient copies for all of the Lenders: a) as soon as the same become available, but in any event within one hundred and twenty (120) days after the end of each of its fiscal years, its consolidated audited financial statements for that fiscal year together with the unaudited accounts of the Borrower; b) as soon as the same become available, but in any event within 2 months after the end of each financial quarter, its unaudited consolidated financial statements for that financial quarter; and c) as soon as same become available, but in any event no later than 28 February for each year, its budget and cash flow projections. 20.2 Compliance Certificates The Ultimate Parent shall supply to the Agent, with each set of financial statements delivered pursuant to paragraphs a) and b) of Clause 20.1 (Financial statements), a Compliance Certificate in the form set out in Schedule 5 (Form of Compliance Certificate) signed by the CFO of the Ultimate Parent setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial covenants) and the Collateral Maintenance Test pursuant to Clause 7.1 (Mandatory prepayment β Collateral Maintenance Test), as at the date at which those financial statements were drawn up. 20.3 Vessel's Market Value Valuations to determine the Market Value of the Vessel shall be obtained by the Borrower for the Borrower's cost prior to the end of each financial half-year and to be sent to the Agent together with each relevant Compliance Certificate, or, if an Event of Default has occurred, for the Borrower's cost at such further frequency as may be requested by the Agent (acting on behalf of the Majority Lenders).
10127241/1 57 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. For the purpose of this Clause 20.9: "Applicable KYC Procedures" means any applicable "know your customer" checks or similar identification procedures, or equivalent internal policies of a Lender or the Agent, or any equivalent procedures required by applicable law or regulations. 20.10 Use of websites a) The Ultimate Parent may satisfy its obligation under this Agreement to deliver any information in relation to those Finance Parties (the βWebsite Lendersβ) who accept this method of communication by posting this information onto an electronic website designated by the Ultimate Parent and the Agent (the βDesignated Websiteβ) if: the Agent expressly agrees (after consultation with each of the Finance Parties) that it will accept communication of the information by this method; both the Ultimate Parent and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and the information is in a format previously agreed between the Ultimate Parent and the Agent. If any Finance Party (a βPaper Form Lenderβ) does not agree to the delivery of information electronically then the Agent shall notify the Ultimate Parent accordingly and the Ultimate Parent shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Ultimate Parent shall supply the Agent with at least one copy in paper form of any information required to be provided by it. b) The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Ultimate Parent and the Agent. c) The Ultimate Parent shall promptly upon becoming aware of its occurrence notify the Agent if: the Designated Website cannot be accessed due to technical failure; the password specifications for the Designated Website change; any new information which is required to be provided under this Agreement is posted onto the Designated Website; any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
10127241/1 58 the Ultimate Parent becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software. If the Ultimate Parent notifies the Agent under paragraph c) i) or paragraph c) v) above, all information to be provided by the Ultimate Parent under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing. 21 FINANCIAL COVENANTS 21.1 Financial definitions Except otherwise explicitly provided for in this Agreement, an accounting term used in this Clause is to be construed in accordance with US GAAP. For the purposes of this Clause 21, the following definitions shall apply: "Cash and Cash Equivalents" means, at any date, the aggregate amount of freely available cash and cash equivalents of the Group, in each case reported in accordance with US GAAP, including without limitation: a) cash in hand or on freely available deposit with any bank or financial institution; b) certificates of deposits or marketable debt securities (included money market funds) with a maturity of twelve (12) months or less after the relevant date of calculation, issued by an Arranger or a financial institution which has a rating for its long term unsecured and non- credit enhanced debt obligations with A or higher by Standard & Poorβs Rating Services or Fitch Ratings Ltd or A2 or higher by Xxxxxβx Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or c) any other instrument, security or investment approved in writing by the Agent, and in each case, to which any of the Obligors is beneficially entitled at that time and which can be promptly realised and applied against the Loans. "Equity Ratio" means the ratio of Total Equity to Total Assets. "Liquidity" means, at any given time, the aggregate of (i) Cash and Cash Equivalents and (i) any undrawn amount freely and unconditionally available for drawings under any credit facilities with remaining tenor of at least six (6) months. "Total Assets" means the aggregate book value of total assets in accordance with US GAAP. "Total Equity" means the aggregate book value of the equity treated as equity in accordance with US GAAP. "Working Capital" means current assets less current liabilities (which shall exclude instalments of long term debt due in the twelve (12) months, capital lease payments and, in respect of the Borrower only, any intra group debt incurred in accordance with Clause 22.10 (b) (ii) (Financial Indebtedness restrictions).
10127241/1 59 21.2 Financial testing The financial covenants set out in this Clause 21 (Financial Covenants) shall be calculated in accordance with US GAAP consistently applied, provided always, that lease obligations shall be classified in accordance with applicable account principles prior to 1 January 2019 (for the avoidance of doubt, disregarding any amendments to accounting principles as a result of IFRS 16 or equivalent). The financial covenants shall be tested quarterly, by reference to each of the financial statements delivered pursuant to paragraphs (a) and (b) of Clause 20.1 (Financial Statements) and/or each Compliance Certificate delivered pursuant to Clause 20.2 (Compliance Certificate). 21.3 Financial covenants The Ultimate Parent shall ensure that it maintains (on a consolidated basis) at all times: a) an Equity Ratio of minimum 0.25 to 1.00; b) a positive Working Capital; and c) Liquidity of minimum the higher of: (i) USD 25,000,000; or (ii) an amount equal to five per cent. (5%) of the Groupβs total interest bearing Financial Indebtedness on a consolidated basis net of any Cash and Cash Equivalents. 21.4 Change of accounting principles If the Agent believes that the definitions and/or the financial covenants set out in this Clause 21 (Financial covenants) need to be amended as a result of any change of accounting principles, determination or requirement, the Ultimate Parent and the Agent shall negotiate (Agent acting on the instructions of the Lenders) in good faith to amend the existing definitions and/or financial covenants so as to provide the Lenders with substantially the same protections as the definitions and/or financial covenants set out in this Clause 21 (but which are not materially more onerous for the Borrower or the Ultimate Parent). 22 GENERAL UNDERTAKINGS The undertakings set out in this Clause 22 shall remain in force from the date of this Agreement and throughout the Security Period. 22.1 Authorisations etc. The Obligors shall promptly: a) obtain, comply and do all that is necessary to maintain in full force and effect; and b) supply certified copies to the Agent (if so requested) of, any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
10127241/1 64 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 for the Vessel cover the higher of (i) the Market Value of the Vessel, and (ii) to one hundred and twenty per cent (120.00%) of the amount equal to (A) the Loan under the Term Loan Facility, plus (B) the Commitments under the Revolving 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. 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
10127241/1 65 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 Facilities, and, if the Agent (acting on the instructions of the Majority Lenders) so requires, on an annual basis thereafter from the same insurance consultant used prior to the utilisation of the Facilities. 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 Borrower'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 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;
10127241/1 66 (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 (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.
10127241/1 67 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). 23.11 Dismantling a) The Borrower shall procure that the within eight (8) weeks of the Delivery Date the Vessel, it has obtained a Green Passport in respect of 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.
10127241/1 69 24.5 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 24.5 if the aggregate amount of the Financial Indebtedness or commitment for Financial Indebtedness falling within paragraph a) to d) above is less than USD 8,000,000 (or its equivalent in any other currency or currencies). 24.6 Insolvency a) An 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 an Obligor is less than its liabilities (taking into account contingent and prospective liabilities). 24.7 Insolvency proceedings Any corporate action, legal proceedings or other procedure or step is taken in relation to: a) the suspension of payments, a moratorium of any indebtedness, winding-up, cessation of business, dissolution, administration, judicial management or reorganisation (by way of voluntary arrangement, scheme or arrangement or otherwise) of an Obligor; b) a composition, compromise, assignment or arrangement with any creditor of an Obligor; c) the appointment of a liquidator, receiver, administrative receiver, administrator, judicial manager or other similar officer in respect of an Obligor; or d) enforcement of any Security Interest over any assets of an Obligor (excluding enforcement of any share pledge over shares owned by a Guarantor in special purpose vessel owning entities (excluding any Obligor) within the Group). 24.8 Creditor's process Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an Obligor (excluding shares owned by a Guarantor in special purpose vessel owning entities (excluding any Obligor) within the Group) and is not discharged within thirty (30) days after the Obligor has become aware of it.
10127241/1 70 24.9 Arrest If an arrest or detention is taken or levied against the Vessel and is not discharged within twenty (20) days (or such longer period as approved in writing by the Lenders) after an Obligor becomes aware of the same. 24.10 Cessation of business Any of the Obligors suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a substantial part of its business, or otherwise substantially changes the general nature of its business. 24.11 Unlawfulness It is or becomes impossible or unlawful for an Obligor to perform any of its obligations under the Finance Documents. 24.12 Repudiation Any Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document. 24.13 Security Documents Any of the Security Documents for any reason whatsoever becomes invalid, ineffective, illegal or for any other reason ceases to continue in full force and effect. 24.14 Material adverse change Any event or series of events occur which, in the opinion of the Agent (on behalf of the Lenders), might have a Material Adverse Effect. 24.15 Permits Any licence, authorization, consent, permission or approval required in order to enforce, complete or perform any of the Finance Documents is revoked, terminated or modified having a Material Adverse Effect on an Obligor. 24.16 Litigation There is current, pending or threatened any claims, litigation, arbitration or administrative proceedings against an Obligor which might, if adversely determined, have a Material Adverse Effect on that Obligor. 24.17 Acceleration Upon the occurrence of an Event of Default, the Agent may, and shall if so directed by the Majority Lenders, by written notice to the Borrower: a) cancel the Total Commitments whereupon they shall immediately be cancelled; b) declare that all or part of the Loans together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents (other than the Hedging Agreements), be either immediately due and payable and/or payable upon demand, whereupon they shall become either immediately due and payable or payable on demand; and/or c) instruct the Security Agent to start enforcement in respect of the Security Interests established by the Security Documents; and/or
10127241/1 71 d) take any other action, with or without notice to the Borrower, exercise any other right or pursue any other remedy conferred upon the Agent, the Security Agent or the Finance Parties by any of the Finance Documents (other than the Hedging Agreements) or by any applicable law or regulation or otherwise as a consequence of such Event of Default; and/or e) exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents (other than the Hedging Agreements).
10127241/1 77 received by it under the Security Documents in accordance with the provisions of this Agreement. 26.6 No fiduciary duties a) Nothing in any Finance Document constitutes the Agent, the Security Agent (except as expressly provided in any Finance Document) or the Arranger as a trustee or fiduciary of any other person. b) None of the Agent, the Security Agent nor the 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. 26.7 Rights and discretions a) The Agent and the Security Agent may: (i) rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; (ii) assume that: (A) any instructions received by it from the Majority Lenders, any 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, as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate. b) The Agent and the Security 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 24.1 (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 Borrower (other than a Drawdown Notice 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.
10127241/1 78 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) 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 and the Security Agent may act in relation to the Finance Documents through its officers, employees and agents. 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 the Arranger is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. i) Notwithstanding any provision of any Finance Document to the contrary, the Agent and the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it 26.8 Responsibility for documentation Neither the Agent, the Security Agent nor the Arranger is responsible or liable for: a) the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, the Obligors 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. 26.9 No duty to monitor The Agent shall not be bound to enquire: a) whether or not any Default has occurred;
10127241/1 79 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 26.10 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 and the Security Agent), the Agent and the Security 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 paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent or the Security 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, including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action. b) No Party (other than the 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) Neither the Agent nor the Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by it for that purpose.
10127241/1 81 c) If the Majority Lenders have not appointed a successor Agent or as the case may be, a successor Security Agent in accordance with paragraph b) above within twenty (20) days after notice of resignation was given, the retiring Agent or Security Agent (after consultation with the Borrower) may appoint a successor Agent or as the case may be, a successor Security Agent. d) The retiring Agent shall, or, as the case may be, the Security Agent make available to the successor Agent, or, as the case may be, the successor Security Agent such documents and records and provide such assistance as the successor Agent or, as the case may be, the successor Security Agent may reasonably request for the purposes of performing its functions under the Finance Documents. The Borrower shall, within three Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance. e) The Agent's, or, as the case may be, the Security Agent's, resignation notice shall only take effect upon the appointment of a successor. f) Upon the appointment of a successor, the retiring Agent or Security Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Agent), Clause 14.5 (Indemnity to the Security Agent) and this Clause 26 (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 Borrower, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph b) above. In this event, the Agent shall resign 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 12.7 (FATCA Information) and the Borrower or 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 12.7 (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 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; and (in each case) the Borrower or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Borrower or that Lender, by notice to the Agent, requires it to resign.
10127241/1 82 26.13 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. 26.14 Relationship with the Lenders a) 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: (i) entitled to or liable for any payment due under any Finance Document on that day; and (ii) entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, unless it has received not less than five (5) Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement. 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 and e-mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, e- mail address (or such other information), department and officer by that Lender for the purposes of Clause 31.2 (Addresses) 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. 26.15 Credit appraisal by the Lenders Without affecting the responsibility of each Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to: a) the financial condition, status and nature of the Obligors; 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 has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement,
10127241/1 87 (ii) the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. 29.5 Partial payments a) If the Agent (or the Security Agent, as applicable) receives a payment or an amount is recovered by the Security Agent pursuant to the terms of any Security Document in connection with the realisation or enforcement of all or any part of the Security Interest) 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 and the Security Agent under the Finance Documents; (ii) secondly, in or towards payment pro rata of any accrued interest (including default interest), fee or commissions 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 (excluding the Hedging Agreements); and (v) fifthly, in or towards payment pro rata of any other sum due but unpaid under the Hedging Agreements. b) The Agent shall, if so directed by the Lenders, vary the order set out in paragraphs (i) to (v) above. c) This Clause 29.5 will override any appropriation made by an Obligor. 29.6 No set-off by the Obligors All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. 29.7 Business Days a) Any payment under the Finance Documents (other than the Hedging Agreements) 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. 29.8 Currency of account The Obligors shall pay:
10127241/1 89 31.2 Addresses Any communication or document to be made under or in connection with the Finance Documents shall be made or delivered to the address and email address of each Party and marked for the attention of the department or persons set out below and, in case of any New Lender, to the address notified to the Agent: If to the Agent or SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) the Security Agent: Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx Email: xxxxxx@xxx.xx.xx Attention: Loans Agency With copy to (Agent only) Email: xxx@xxx.xx Attention: SEB Structured Credit Operations If to any of the Obligors: FLEX LNG MANAGEMENT AS Xxxxxxxxxx 0 0000 Xxxx, Xxxxxx Att: Chief Financial Officer E-mail: xxxxxxx@xxxxxxx.xxx or any substitute address and/or email address and/or marked for such other attention as the Party may notify to the other Agent (or the Agent may notify the other Parties if a change is made by the Agent) by not less than five (5) Business Days' prior notice. 31.3 Communication with the Obligors All communication from or to an Obligor shall be sent through the Agent. 31.4 Language Communication to be given by one Party to another under the Finance Documents shall be given in the English language or, if not in English and if so required by the Agent, be accompanied by a certified English translation and, in this case, the English translation shall prevail unless the document is a statutory or other official document. 32 CALCULATIONS AND CERTIFICATES 32.1 Certificates and Determinations Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates. 32.2 Day count convention All interest, commission or fee accruing under the Finance Documents will accrue from day-to-day and is calculated on the basis of the actual number of days elapsed and a year of 360 days.
10127241/1 93 b) Any Finance Party and any of that Finance Partyβs Affiliates may disclose to any person: (i) to (or through) whom it transfers (or may potentially transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person's Affiliates 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 the Borrower and to any of that person's Affiliates and professional advisers; (iii) appointed by any Finance Party or any of that Finance Partyβs Affiliates or by a person to whom paragraph b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph c) of Clause 26.14 (Relationship with the Lenders)); (iv) appointed by any Finance Party or any of that Finance Partyβs Affiliates or by a person to whom paragraph (b)(ii) above applies to act as a verification agent in respect of any transaction referred to in paragraph b(ii) above; (v) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph b)(i) or b)(ii) above; (vi) 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; (vii) 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; (viii) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 25.8 (Security over Lenders' rights); (ix) who is a Party; or (x) with the consent of the Borrower; in each case, such Confidential Information as that Finance Party shall consider appropriate if: (A) in relation to paragraphs (b)(i), (b)(ii),b(iii) and b(iv) above, the person to whom the Confidential Information is to be given has entered into a confidentiality undertaking substantially in a recommended form of the Loan Market Association from time to time or in any other form agreed between the Borrower and the relevant Finance Party (a βConfidentiality Undertakingβ) except that there shall be no requirement for a
10127241/1 94 Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; (B) in relation to paragraph (b)(v) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; (C) in relation to paragraphs (b)(vi), (b)(vii) and (b)(viii) 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; and c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered 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 Company and the relevant Finance Party; and 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. 36.3 Disclosure to numbering service providers a) Notwithstanding any other term of any Finance Document or any other agreement between the Parties to the contrary (whether express or implied), 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 one or more Obligors the following information: (i) names of Obligors; (ii) country of domicile of Obligors; (iii) place of incorporation of Obligors; (iv) date of the Agreement; (v) governing law of the Agreement; (vi) names of the Agent and the Arrangers; (vii) date of each amendment and restatement of the Agreement;
10127241/1 95 (viii) amounts of, and names of, the Facilities (and any tranches); (ix) amount of Total Commitments; (x) currencies of the Facilities; (xi) type of Facilities; (xii) ranking of Facilities; (xiii) Termination Date for Facilities; (xiv) changes to any of the information previously supplied pursuant to sub-clauses (i) to (xii) above; and (xv) such other information agreed between such Finance Party and the Ultimate Parent, to enable such numbering service provider to provide its usual syndicated loan numbering identification services. b) The Parties acknowledge and agree that each identification number assigned to the Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider. c) Each Obligor represents that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph a) above is, nor will at any time be, unpublished price-sensitive information. d) The Agent shall notify the Ultimate Parent and the other Finance Parties of: (i) the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and (ii) the number or, as the case may be, numbers assigned to the Agreement, the Facilities and/or one or more Obligors by such numbering service provider. 36.4 Disclosure to administration/settlement services providers Notwithstanding any other term of any Finance Document or any other agreement between the Parties to the contrary (whether express or implied), any Finance Party may disclose to any person appointed by: a) that Finance Party; b) a person to (or through) whom that Finance Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent or Security Agent under the Agreement; and/or c) a person with (or through) whom that Finance Party enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made, or may be made, by reference to, one or more Finance Documents and/or one or more Obligors,
10127241/1 96 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 clause 36.4 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 Services Providers or such other form of confidentiality undertaking agreed between the Ultimate Parent and the relevant Finance Party. 36.5 Entire agreement This Clause 36 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information. 36.6 Inside information Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose. 36.7 Notification of disclosure Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrower: a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph b)(v) of Clause 36.2 (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 36. 36.8 Continuing obligations The obligations in this Clause 36 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve (12) months from the earlier of: a) the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and b) the date on which such Finance Party otherwise ceases to be a Finance Party. 37 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. 38 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
10127241/1 97 Party to any other Party under or in connection with the Finance Documents may be subject to Bail- In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: a) any Bail-In Action in relation to any such liability, including (without limitation): (i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; (ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and (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.
10127241/1 98 SECTION 11 GOVERNING LAW AND ENFORCEMENT 39 GOVERNING LAW AND ENFORCEMENT 39.1 Governing law This Agreement shall be governed by Norwegian law. 39.2 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 39.2 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. 39.3 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 39.3 (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.
10127241/1 99 SCHEDULE 1 THE ORIGINAL LENDERS AND COMMITMENTS Name of Original Lender Commitment Term Loan Facility SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) Registration no. 502032-9081 USD 33,333,333.33 NORDEA BANK ABP, FILIAL I NORGE Registration no. 920 058 817 USD 33,333,333.33 CITIBANK N.A., LONDON BRANCH Registration no. BR001018 USD 33,333,333.33 Revolving Facility SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) Registration no. 502032-9081 USD 8,333,333.33 NORDEA BANK ABP, FILIAL I NORGE Registration no. 920 058 817 USD 8,333,333.33 CITIBANK N.A., LONDON BRANCH Registration no. BR001018 USD 8,333,333.33 Total Commitments USD 125,000,000
10127241/1 100 SCHEDULE 2 CONDITIONS PRECEDENT PART I CONDITIONS PRECEDENT TO SIGNING 1 Corporate authorisations a) A copy of each Obligor's constitutional documents; b) A copy of resolutions passed by each Obligor's board of directors evidencing: (i) the approval of the terms of, and the transactions contemplated by, the Finance Documents; and (ii) the authorisation of its appropriate officer or officers or other representatives to execute the Finance Documents and any other documents necessary for the transactions contemplated by the Finance Documents, on its behalf. c) To the extent required in the relevant jurisdictions, a copy of resolutions passed by the shareholders of each Obligor ratifying the resolutions of its board of directors; d) To the extent not covered by resolutions, any powers of attorney (notarised and legalised, if required) granted by an Obligor to execute any Finance Documents; e) A certificate of goodstanding (or equivalent) in respect of each Obligor; f) A specimen of the signature (which can be by way of copy of passport) of each person signing the Finance Documents on behalf of each Obligor g) A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement and confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar binding limit to be exceeded. h) Such other documentation and evidence required to complete the "know your customer" checks as described in Clause 20.9 ("Know your customer" checks). 2 Authorisations All approvals, authorisations and consents required by any government or other authorities for the Obligors to enter into and perform their obligations under this Agreement and/or any of the Finance Documents to which they are respective parties. 3 Finance Documents a) The Agreement; b) The Fee Letters; and
10127241/1 102 j) Any Hedging Agreements; and k) Any subordination statements required pursuant to the Agreement. 2 Vessel Documents In respect of the Vessel: a) evidence (by way of email confirmation from the Approved Ship Registry) that the Vessel is ready to be registered in the name of the Borrower in an Approved Ship Registry, upon receipt of the copy of the title documents on the Delivery Date, and that the agreed form Mortgage is pre-cleared for registration with its intended first priority against the Vessel; b) copies of insurance policies/cover notes documenting that insurance cover has been taken out in respect of the Vessel in accordance with Clause 23.1 (Insurance), and evidencing that the Security Agent's (on behalf of the Finance Parties) Security Interest in the insurance policies have been noted in accordance with the relevant notices as required under the Security Agreement; c) the Insurance Report, with no outstanding pre-delivery action points; d) A copy of the Management Agreements; e) the technical manager's current DOC; f) each Manager's Undertaking; g) a copy of each charterparty or other employment contract entered into in respect of the Vessel with a term exceeding twelve (12) months; and h) evidence of the Market Value of the Vessel dating not more thirty (30) days prior to the proposed Drawdown Date. 3 Miscellaneous a) Evidence that all fees referred to in Clause 11 (Fees), and costs and expenses referred to in 16 (Costs and expenses) that are due have or will be paid on its due date; b) A Compliance Certificate confirming that the Obligors are in compliance with the financial covenants as set out in Clause 21 (Financial covenants), together with the latest consolidated financial statements of the Guarantor. c) Evidence that all process agent appointments required by the Finance Documents have been duly accepted; d) Documentation evidencing all shareholder loans to any Obligor, as well as any intra-group loans or receivables to which any Obligor is a party; e) If relevant, a closing memorandum agreed between the Yard, the Intermediate Buyer, the relevant Borrower and the Agent; f) If relevant, an agreed wording of the conditional SWIFT;
00000000/1 103 g) If relevant, an irrevocable undertaking from the Intermediate Buyer (if relevant) and Borrower, and their representative at closing, not to sign any document triggering release under the MT199 SWIFT, unless they have first received the written consent of the Agent (acting on the instruction of the Lenders). h) If relevant, evidence that any part of the delivery instalment for the Vessel not covered by the relevant Loan has been, or will at the latest together with the Loan be, paid by equity to the Yard or the Intermediate Buyer (as the case may be). i) Any other documentation authorization, opinion or assurance reasonably required by the Agent. 4 Legal opinions a) A legal opinion regarding Norwegian law issued by Advokatfirmaet Thommessen AS; b) A legal opinion regarding Bermuda law issued by Xxxxxxx (Bermuda) Limited; c) A legal opinion regarding Xxxxxxxx Islands law and New York law issued by Xxxxxx Xxxxxx & Xxxxxxxx LLP; d) A legal opinion regarding English law issued by Xxxxxx Xxxxxxx Willan LLP; e) 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, including the jurisdiction of the Approved Ship Registry in which the Vessel is registered. PART III CONDITIONS PRECEDENT - DELIVERY DATE a) A copy of the Builder's Certificate and/or Xxxx of Sale of the Vessel issued by the Yard and the Intermediate Buyer (as applicable); b) A copy of the Protocol of Delivery and Acceptance both between the Yard and the Intermediate Buyer, and the Intermediate Buyer and the Borrower; c) evidence that the Yard's warranties in respect of the Vessel have been assigned to the Borrower; d) evidence (by way of transcript of registry) that the Vessel is, or will be, registered in the name of the Borrower in an Approved Ship Registry, that the Mortgage has been executed and recorded with its intended first priority against the Vessel and that no other encumbrances, maritime liens, mortgages or debts whatsoever are registered against the Vessel; e) a copy of the interim or permanent class certificate related to the Vessel from the relevant classification society, confirming that the Vessel is classed with the highest class in accordance with Clause 23.3 (Classification and repairs), free of overdue recommendations and conditions;
10127241/1 104 f) a copy of the Vessel's SMC and ISPS Certificates; and g) such legal opinions as may not be issued prior to the Delivery Date.
10127241/1 105 SCHEDULE 3 FORM OF DRAWDOWN NOTICE To: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL), as Agent From: [Borrower] Date: [***] USD 125,000,000 TERM LOAN AND REVOLVING FACILITIES AGREEMENT DATED 29 JUNE 2020 (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: Facility: [Term Loan Facility][Revolving Facility] 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 VOLUNTEER LIMITED By: __________________________________ Name: Title: [authorised officer]
10127241/1 106 SCHEDULE 4 FORM OF SELECTION NOTICE To: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL), as Agent From: FLEX LNG Ltd. Date: [***] USD 125,000,000 TERM LOAN AND REVOLVING FACILITIES AGREEMENT DATED 29 JUNE 2020 (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 Ltd. By: ______________________________ Name: Title:
10127241/1 107 SCHEDULE 5 FORM OF COMPLIANCE CERTIFICATE To: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL), as Agent From: FLEX LNG Ltd. Date: [***] [To be delivered no later than 120/60 days after each Reporting Date] USD 125,000,000 TERM LOAN AND REVOLVING FACILITIES AGREEMENT DATED 29 JUNE 2020 (THE "AGREEMENT") We refer to the Agreement. Terms defined in the Agreement have their defined meanings when used in this Compliance Certificate. 1 We hereby represent and warrant that at the date of this Compliance Certificate, we are in compliance with Clause 21 (Financial covenants), that no Event of Default has occurred and that the Repeating Representations contained in Clause 19 (Representations and warranties) of the Agreement are true and correct at the date hereof as if made with respect to the facts and circumstances existing at this date. 2 Without limiting the generality of paragraph 1 above, we hereby further represent and warrant as follows: Equity Ratio For the purpose of Clause 21.3 a) (Equity Ratio) we confirm as follows: Total Assets Total Liabilities Equity (Total Assets less Total Liabilities) Equity Ratio Requirement: Compliance: USD [β’] USD [β’] USD [β’] [ ]:1.00 Not lower than 0.25:1.00 [Yes/No] Working Capital For the purpose of Clause 21.3 b) (Working Capital) we confirm as follows: Working Capital: Requirement: Compliance: USD [β’] Working Capital > 0 [Yes/No] Liquidity For the purpose of Clause 21.3 c) (Liquidity) we confirm as follows: Liquidity: of which Cash and Cash Equivalents is: Groupβs total interest bearing Financial Indebtedness on a consolidated basis net of Cash and Cash Equivalents. USD [β’] USD [β’] USD [β’] ("NIBD") 5% of which is USD [β’]
10127241/1 108 Requirement: Compliance: Liquidity > Higher of (i) USD 25,000,000 and (ii) 5% of NIBD [Yes/No] Collateral Maintenance Test For the purpose of Clause 7.1 (Collateral Maintenance Test) we confirm as follows: Market Values* Flex Volunteer (A) Aggregate Market Value: (B) Aggregate Loans: Ratio (A/B): Requirement: Compliance: * Evidence of Market Values attached hereto USD [β’]/[Not delivered] USD [β’] USD [β’] [ ]% (A/B) > 130% [Yes/No] 3 This Compliance Certificate shall be governed by and construed in accordance with Norwegian law. Yours sincerely for and on behalf of FLEX LNG Ltd. By: __________________________________ Name: Title: CFO
10127241/1 109 SCHEDULE 6 FORM OF TRANSFER CERTIFICATE To: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL), as Agent From: [**] (the "Existing Lender" and [**] (the "New Lender") Date: [**] USD 125,000,000 TERM LOAN AND REVOLVING FACILITIES AGREEMENT DATED 29 JUNE 2020 (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, 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 Lender'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: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By: __________________________________ Name: Title:
10127241/1 111 SCHEDULE 7 VESSEL Vessel name Owner IMO No. FLEX VOLUNTEER FLEX VOLUNTEER LIMITED 9862463
10127241/1 112 SCHEDULE 8 REPAYMENT SCHEDULE (USD) TL RCF Total Date repayment outstanding repayment outstanding repayment outstanding Drawdown date 100 000 000 25 000 000 125 000 000 1st Repayment date 1 562500 98 437 500 - 25 000 000 1 562 500 123 437 500 2nd Repayment date 1 562 500 96 875 000 - 25 000 000 1 562 500 121 875 000 3rd Repayment date 1 562 500 95 312 500 - 25 000 000 1 562 500 120 312 500 4th Repayment date 1 562 500 93 750 000 - 25 000 000 1 000 000 000 750 000 5th Repayment date 1 562 500 92 187 500 - 25 000 000 1 562 500 117 187 500 6th Repayment date 1 562 500 90 625 000 - 25 000 000 1 562 500 115 625 000 7th Repayment date 1 562 500 89 062 500 - 25 000 000 1 562 500 114 062 500 8th Repayment date 1 562 500 87 500 000 - 25 000 000 1 562 500 112 500 000 9th Repayment date 1 562 500 85 937 500 - 25 000 000 1 562 500 110 937 500 10th Repayment date 1 562 500 84 375 000 - 25 000 000 1 562 500 109 375 000 11th Repayment date 1 562 500 82 812 500 - 25 000 000 1 562 500 107 812 500 12th Repayment date 1 562 500 81 250 000 - 25 000 000 1 562 500 106 250 000 13th Repayment date 1 562 500 79 687 500 - 25 000 000 1 562 500 104 687 500 14th Repayment date 1 562 500 78 125 000 - 25 000 000 1 562 500 103 125 000 15th Repayment date 1 562 500 76 562 500 - 25 000 000 1 562 500 101 562 500 16th Repayment date 1 562 500 75 000 000 - 25 000 000 1 562 500 100 000 000 17th Repayment date 1 562 500 73 437 500 - 25 000 000 1 562 500 98 437 500 18th Repayment date 1 562 500 71 875 000 - 25 000 000 1 562 500 96 875 000 19th Repayment date 1 562 500 70 312 500 - 25 000 000 1 562 500 95 312 500 20th Repayment date 1 562 500 68 750 000 - 25 000 000 1 562 500 93 750 000
SIGNATORIES Borrower: FLEX VOLUNTEER LIMITED Name: Kristian Wangsfjord Title: Attorney-in-Fact Guarantor and Intermediate Parent: FLEX LNG FLEET LIMITED Name: Kristian Wangsfjord Title: Attorney-in-Fact Agent: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By:-------------Β Name: Title: By:-------------Β Name: Title: Arranger: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By:-------------Β Name: Title: 10127241/1 Guarantor and Ultimate Parent: FLEX LNG LTD. By:;; c:t;z.z;;;;:2 Name: Kristian Wangsfjord Title: Attorney-in-Fact Security Agent: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL By:-------------Β Name: Title: By:------------Β Name: Title: Lender: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By:-------------Β Name: Title: 113
SIGNATORIES Borrower: FLEX VOLUNTEER LIMITED By:-- ------- --- Name: Title: Guarantor and Intermediate Parent: Guarantor and Ultimate Parent: FLEX LNG FLEET LIMITED FLEX LNG LTD. By:-------------- By:--- ---------- Name: Name: Title: Title: Agent: Security Agent: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL By:_....,.c...._..,_.,&+--+-+-οΏ½'-----Β By: ---"---1-.,,L+.,.q_-,Β£------"<---,L.-----Β Name: Name: Title: Title: By: ___ --+-,,'-----,'-,'--1----,Β£.----- Name: Title: Arranger: Lender: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By: οΏ½.L--οΏ½.L---'-.JL-..P:::..------=.:=-,οΏ½---Β By: __ ---+"--/-,li<---,,οΏ½---+----Β Name: Name: Title: Title: 10127241/1 113
Arranger: NORDEA BANK ABP, FILIAL I NORGE By: -.,<-------p--.....,.,.---,1'-----Β Name: Title: Arranger: Ni o isje Attorney-in-fact CITIGROUP GLOBAL MARKETS LIMITED By:------------Β Name: Title: Hedge Provider: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By: -"---r,.-"---c-;;,"'---;,ff?"'-----,,......._- -Β Name: Title: 10127241/1 Lender: NORDEA BANK ABP, FILIAL I N Name: Title: Lender: CITIBANK N.A., LONDON BRANCH By:------------- Name: Title: Hedge Provider: NORDEA BANK ABP Name: Title: 114
Arranger: Lender: NORDEA BANK ABP, FILIAL I NORGE NORDEA BANK ABP, FILIAL I NORGE By: By: Name: Name: Title: Title: Arranger: Lender: CITIGROUP GLOBAL MARKETS LIMITED CITIBANK N.A., LONDON BRANCH By: By: Name: Name: Title: Title: Hedge Provider: Hedge Provider: SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) NORDEA BANK ABP By: By: Name: Name: Title: Title: