EX-10.1 2 ex_100498.htm CREDIT FACILITY AGREEMENT ex_100498.htm

Exhibit 10.1

 EXECUTION VERSION

 

 

 

 

DATED as of November 14, 2017

 

  

 

(1) GULFMARK REDERI AS

as Original Borrower

 

 

(2) GULFMARK OFFSHORE, INC.

as Parent and an Original Guarantor

 

 

(3) the subsidiarY GUARANTORs listed in PART 1 schedule 1

as Original Guarantors

 

 

(4) dnb markets inc.

as Mandated Lead Arranger and Bookrunner

 

 

(5) THE FINANCIAL INSTITUTIONS LISTED IN PART 2 OF SCHEDULE 1

as Original Lenders

 

 

(6) DNB BANK ASA, NEW YORK BRANCH

acting as Agent

 

 

(7) DNB BANK ASA, NEW YORK BRANCH

acting as Security Trustee

 

 

(8) DNB BANK ASA, NEW YORK BRANCH

as Issuing Bank

 

 

(9) dnb capital llc

as Swingline Lender

 

 

 

 

$125,000,000 MULTICURRENCY CREDIT FACILITY AGREEMENT

 

 

 

 

 

 

CONTENTS

Clause   Page
     

CLAUSE 1.

DEFINITIONS AND INTERPRETATION

1

CLAUSE 2.

THE FACILITIES

57

CLAUSE 3.

PURPOSE

59

CLAUSE 4.

CONDITIONS OF BORROWING

60

CLAUSE 5.

BORROWING – LOANS

62

CLAUSE 6.

REQUESTING - LETTERS OF CREDIT

64

CLAUSE 7.

LETTERS OF CREDIT

72

CLAUSE 8.

REQUESTING – SWINGLINE LOANS

73

CLAUSE 9.

SWINGLINE LOANS

74

CLAUSE 10.

CASH COLLATERAL; DEFAULTING LENDERS

78

CLAUSE 11.

OPTIONAL CURRENCIES

81

CLAUSE 12.

REPAYMENT AND COMMITMENT TERMINATION OF LOANS

82

CLAUSE 13.

ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

83

CLAUSE 14.

MANDATORY PREPAYMENT

84

CLAUSE 15.

RESTRICTIONS

86

CLAUSE 16.

INTEREST

89

CLAUSE 17.

INTEREST PERIODS – LOANS

90

CLAUSE 18.

CHANGES TO THE CALCULATION OF INTEREST

90

CLAUSE 19.

FEES

92

CLAUSE 20.

TAX GROSS UP AND INDEMNITIES

94

CLAUSE 21.

INCREASED COSTS

97

CLAUSE 22.

OTHER INDEMNITIES

99

CLAUSE 23.

MITIGATION BY THE LENDERS

101

CLAUSE 24.

COSTS AND EXPENSES

102

CLAUSE 25.

GUARANTEE AND INDEMNITY

103

CLAUSE 26.

REPRESENTATIONS

108

CLAUSE 27.

REPORTING REQUIREMENTS

115

CLAUSE 28.

FINANCIAL COVENANTS

122

CLAUSE 29.

COVENANTS

126

CLAUSE 30.

EVENTS OF DEFAULT

154

CLAUSE 31.

COLLATERAL VESSEL SALE, SUBSTITUTION AND ADDITION

160

CLAUSE 32.

CHANGES TO THE LENDERS

164

CLAUSE 33.

RESTRICTION ON SPONSOR AFFILIATE HOLDING DEBT

171

CLAUSE 34.

CHANGES TO THE OBLIGORS

172

 

i

 

 

CLAUSE 35.

ROLE OF THE AGENT, THE ARRANGER, THE ISSUING BANKS AND OTHERS

176

CLAUSE 36.

THE SECURITY TRUSTEE

186

CLAUSE 37.

CONDUCT OF BUSINESS BY THE FINANCE PARTIES

196

CLAUSE 38.

SHARING AMONG THE FINANCE PARTIES

196

CLAUSE 39.

PAYMENT MECHANICS

197

CLAUSE 40.

SET-OFF

201

CLAUSE 41.

NOTICES

202

CLAUSE 42.

CALCULATIONS AND CERTIFICATES

205

CLAUSE 43.

PARTIAL INVALIDITY

205

CLAUSE 44.

REMEDIES AND WAIVERS

205

CLAUSE 45.

AMENDMENTS AND WAIVERS

205

CLAUSE 46.

CONFIDENTIALITY

209

CLAUSE 47.

COUNTERPARTS

210

CLAUSE 48.

RELEASE

210

CLAUSE 49.

GOVERNING LAW

211

CLAUSE 50.

ENFORCEMENT

211

CLAUSE 51.

ACKNOWLEDGMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS

213

SCHEDULE 1

THE ORIGINAL PARTIES

214

 

PART 1 –  THE ORIGINAL OBLIGORS

214

 

PART 2 –  THE ORIGINAL LENDERS

216

SCHEDULE 2

CONDITIONS PRECEDENT

217

SCHEDULE 3

BORROWING REQUESTS

225

 

PART 1 –  BORROWING REQUEST – REVOLVING FACILITY LOANS

225

 

PART 2 –  BORROWING REQUEST – LETTERS OF CREDIT

226

SCHEDULE 4

FORM OF TRANSFER CERTIFICATE

227

SCHEDULE 5

FORM OF ASSIGNMENT AND ASSUMPTION

229

SCHEDULE 6

FORM OF JOINDER AGREEMENT

235

SCHEDULE 7

FORM OF RESIGNATION LETTER

241

SCHEDULE 8

FORM OF COMPLIANCE CERTIFICATE

242

SCHEDULE 9

TIMETABLES

244

 

PART 1 –   REVOLVING FACILITY LOANS

244

 

PART 2 –   LETTERS OF CREDIT

245

SCHEDULE 10

HEDGING AGREEMENTS

246

SCHEDULE 11

COLLATERAL VESSELS

248

SCHEDULE 12

APPROVED ADDITIONAL COLLATERAL VESSELS

249

SCHEDULE 13

FORM OF SOLVENCY CERTIFICATE

250

SCHEDULE 14

FORM OF REDERI INTERCREDITOR AGREEMENT

251

SCHEDULE 15

INSURANCE REQUIREMENTS

252

SCHEDULE 16

EXISTING LIENS

257

SCHEDULE 17

EFFECTIVE DATE EQUITYHOLDERS

258

SCHEDULE 18

LIST OF APPROVED NEW LENDERS AND PARTICIPANTS

259

 

ii

 

 

THIS AGREEMENT is dated as of November 14, 2017

 

BETWEEN:

 

(1)

GULFMARK REDERI AS, further details of which are set out in Part 1 of Schedule 1 (The Original Parties) as original borrower (the “Original Borrower”);

 

(2)

GULFMARK OFFSHORE, INC., further details of which are set out in Part 1 of Schedule 1 (The Original Parties) as an original guarantor (the “Parent”);

 

(3)

THE SUBSIDIARY GUARANTORS listed with further details in Part 1 of Schedule 1 (The Original Parties) as original guarantors (together with the Parent, the “Original Guarantors”);

 

(4)

DNB MARKETS INC., as mandated lead arranger and bookrunner (the “Arranger”);

 

(5)

THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (The Original Parties) under Section A thereof as revolving facility lenders (the “Revolving Facility Lenders”) and under Section B thereof as term lenders (the “Term Lenders”, and together with the Revolving Facility Lenders, collectively, the “Original Lenders”);

 

(6)

DNB BANK ASA, NEW YORK BRANCH, as administrative agent of the other Finance Parties (the “Agent”);

 

(7)

DNB BANK ASA, NEW YORK BRANCH, as security trustee for the Secured Parties (the “Security Trustee”);

 

(8)

DNB BANK ASA, NEW YORK BRANCH, as Issuing Bank; and

 

(9)

DNB CAPITAL LLC, as Swingline Lender.

 

IT IS AGREED as follows:

 

SECTION 1

INTERPRETATION

 

1.

Definitions And Interpretation

 

1.1

Definitions

 

In this Agreement:

 

ABR Loan

means a Loan that bears interest based on the Alternate Base Rate

   

Acceptable Bank

means:

 

     
  (a)

the Revolving Facility Lenders that are Original Lenders;

     
  (b)

a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of A- or higher by S&P or Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognized credit rating agency; or

     
  (c)

any other bank or financial institution reasonably approved by the Agent

 

 

 

 

Accounting Reference Date

means December 31

   

Accrued Amount

has the meaning given to that term in Clause 32.10.1

   

Acquisition

has the meaning given to that term in the definition of “Permitted Acquisition” contained in this Clause 1.1

   

Acquisition Cash Collateral Account

means the US Dollar denominated blocked account of the Original Borrower, opened with the Security Trustee in its New York office named “Acquisitions Cash Collateral Account” with account number 13708004, as the same may be redesignated, substituted or replaced from time to time by the Security Trustee, which account may be used by the Group Members solely to finance all or a portion of a Permitted Acquisition pursuant to paragraph (g) of the definition of “Permitted Acquisition” contained in this Clause 1.1; provided, that the Group Members may deposit therein (as a cash equity contribution to the Original Borrower and not as an intercompany loan) only (i) the proceeds of any cash dividends received from any Unrestricted Acquisition Subsidiary (and not, for the avoidance of doubt, any payments made by any Unrestricted Acquisition Subsidiary for management fees, other charges for services rendered or any reimbursement of overhead charges (or similar amounts) paid to any Group Member) and (ii) the Net Cash Proceeds of any Asset Sale that are not required to be applied as a prepayment of the Facilities pursuant to the terms of this Agreement

   

Act

has the meaning given to that term in Clause 46.3.1

   

Additional Borrower

means a company which becomes an Additional Borrower in accordance with Clause 34 (Changes to the Obligors)

   

Additional Guarantor

means a company which becomes an Additional Guarantor in accordance with Clause 34 (Changes to the Obligors)

   

Additional Obligor

means an Additional Borrower or an Additional Guarantor

   

Adjusted LIBO Rate

means, for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) LIBOR for such Interest Period multiplied by (b) the Statutory Reserve Rate

   

Administration

has the meaning given to it in paragraph 1.1.3 of the ISM Code

   

Affiliate

means, with respect to any Person, any other Person who, directly or indirectly, controls, is controlled by or is under common control with such Person.  For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any Person means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of that Person whether through ownership of voting securities or by contract or otherwise

   

Agent Parties

has the meaning given to that term in Clause 41.8.2

 

2

 

 

Agreement Date

means the date of this Agreement

   

Alternate Base Rate

means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one (1) month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that the Adjusted LIBO Rate for any day shall be based on LIBOR at approximately 11:00 a.m. London time on such day, subject to the interest rate floors set forth in the definition of LIBOR. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively

   

Anti-Money Laundering Laws

means (i) any US anti-money laundering laws, rules and regulations, including the US Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), and the Bank Secrecy Act, as amended, and all related implementing regulations, and (ii) with respect to a Group Member, all non-US anti-money laundering laws, rules and regulations to which such Group Member is subject

   

Applicable L/C Fee Rate

has the meaning given to that term in Clause 19.5.2

   

Applicable Revolving Credit Percentage

means, with respect to any Revolving Facility Lender at any time, such Revolving Facility Lender’s percentage of the Revolving Facility represented by such Revolving Facility Lender’s Revolving Facility Commitment at such time

   

Applicable Valuation Date

has the meaning given to that term in Clause 29.24.1

   

Appraised Value

means the fair market value arrived at on a basis acceptable to and agreed by the Agent (acting reasonably) in respect of any Collateral Vessel determined by averaging valuations addressed to the Agent by two of the Approved Brokers (as selected by the Borrowers, except as provided in Clause 29.24.1(b)) applying the same Applicable Valuation Date. Such valuations shall be prepared at each Borrower’s expense (unless otherwise stated in this Agreement), without a physical inspection, on the basis of a sale for prompt delivery for cash at arm’s length on a charter free basis (and free of any other employment contract) between a willing buyer and a willing seller and, in the case of any Collateral Vessel qualified to trade under the Jones Act, such Collateral Vessel continuing to trade in the U.S. coastwise trade

   

Approved Additional Collateral Vessels

means, subject to Clause 31 (Collateral Vessel Sale, Substitution and Addition), each of the vessels listed in Schedule 12 (Approved Additional Collateral Vessels)

   

Approved Brokers

means Clarkson Platou, Fearnley AS, Pareto or such other broker as may be reasonably acceptable to the Agent (acting on the instructions of the Majority Lenders) and the Borrowers

 

3

 

 

Approved Classification Society

means a Pre-Approved Classification Society (or such other classification society reasonably acceptable to the Majority Lenders)

   

Asset Sale

means any disposition of property or series of related dispositions of property but excluding:

   
 

(a)

any disposition of cash (other than cash deposited into the Vessel Cash Collateral Account); and

     
 

(b)

any disposition of Cash Equivalent Investments

   

Assignment Agreement

means an agreement substantially in the form set out in Schedule 5 (Form of Assignment and Assumption) or any other form agreed between the relevant assignor and assignee and reasonably acceptable to the Agent

   

Auditors

means KPMG (as current auditors), Ernst & Young LLP, PricewaterhouseCoopers LLP, Deloitte LLP or any other firm approved by the Agent acting on the instructions of the Majority Lenders (such approval not to be unreasonably withheld, conditioned or delayed)

   

Authorization

means an authorization, consent, approval, resolution, license, exemption, filing, notarization or registration

   

Availability Period

means the period from and including the Closing Date to and including the date that is one (1) month prior to the Termination Date

   

Available Cash

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Available Revolving Commitment

means, with respect to each Revolving Facility Lender on any date of determination, such Revolving Facility Lender’s Revolving Facility Commitment minus:

     
  (a)

the Base Currency Amount of its participation in any outstanding Borrowings under the Revolving Facility; and

     
  (b)

in relation to any proposed Borrowing, the Base Currency Amount of its participation in any other Borrowings that are due to be made under the Revolving Facility on or before the proposed Borrowing Date.

     
 

Solely for the purposes of calculating a Revolving Facility Lender’s Available Revolving Commitment in relation to any proposed Borrowing under the Revolving Facility pursuant to Clauses 2.1.2, 5.3 and 6.4(b), and for no other purpose, (i) that Revolving Facility Lender’s participation in any Borrowings that are due to be repaid or prepaid on or before the proposed Borrowing Date (and before the date of such calculation) shall not be deducted from such Revolving Facility Lender’s Revolving Facility Commitment, and (ii) the Base Currency Amount of such Revolving Facility Lender’s participation in all outstanding Borrowings under the Revolving Facility (including such Lender’s outstanding Revolving Facility Loans and participation interests in outstanding L/C Obligations) that are denominated in an Optional Currency, if any, shall be deemed to equal 105% of such Base Currency Amount

 

4

 

 

Available Revolving Facility

means, on any date of determination in relation to the Revolving Facility, the aggregate of the Revolving Facility Lenders’ Available Revolving Commitments on such date

   

Available Swingline Commitment

means, with respect to each Swingline Lender on any date of determination, such Swingline Lender’s Swingline Commitment minus:

     
  (a)

the Base Currency Amount of its participation in any outstanding Swingline Loans; and

     
  (b)

in relation to any proposed Borrowing under the Swingline Facility, the Base Currency Amount of its participation in any Swingline Loans that are due to be made under the Swingline Facility on or before the proposed Borrowing Date,

     

 

other than such Swingline Lender’s participation in any Swingline Loans that are due to be repaid or prepaid on or before the proposed Borrowing Date

   

Available Swingline Facility

means, on any date of determination in relation to the Swingline Facility, the aggregate of the Swingline Lenders’ Available Swingline Commitments on such date

   

Bail-in Action

means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution

   

Bail-In Legislation

means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule

   

Bankruptcy Code

means the provisions of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.

   

Bankruptcy Court

means the United States Bankruptcy Court for the District of Delaware

   

Bankruptcy Proceeding

means the Chapter 11 proceeding filed by the Parent in the Bankruptcy Court administered as Case No. 17-11125 (KG)

   

Base Currency

means US Dollars

   

Base Currency Amount

means, as of any date of determination, (a) in relation to a Loan, the outstanding principal amount of such Loan in the Base Currency (and, if such Loan is not denominated in the Base Currency, such principal amount converted into the Base Currency at the Agent’s Spot Rate of Exchange); and (b) in relation to a Letter of Credit, the aggregate undrawn amount of such Letter of Credit (and, if such Letter of Credit was not issued in the Base Currency, such undrawn amount converted into the Base Currency at the Agent’s Spot Rate of Exchange)

 

5

 

 

Board

means the Board of Governors of the Federal Reserve System of the United States

   

Borrower

means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 34 (Changes to the Obligors). In the event that, and at all times during which, there are two or more Borrowers hereunder, the obligations of the Borrowers under the Finance Documents shall be joint and several

   

Borrowing

means:

   
  (a)

in relation to the Revolving Facility, (i) a borrowing of a Revolving Facility Loan or a Swingline Loan and (ii) the issuance of a Letter of Credit or any amendment to a Letter of Credit that results in an increase in the stated amount thereof or an extension of the expiry date thereof; and

     
  (b)

in relation to the Term Facility, a borrowing of the Term Loan

   

Borrowing Date

means the date of a Borrowing, being the date on which the relevant Loan is to be made or the relevant Letter of Credit is to be issued or amended

   

Borrowing Request

means:

     
  (a)

in relation to a Revolving Facility Loan (other than a Swingline Loan) or a Term Loan, a notice substantially in the form set out in Part 1 of Schedule 3 (Borrowing Requests);

     
  (b)

in relation to a Letter of Credit, a Letter of Credit Application; and

     
  (c)

in relation to the Swingline Facility, a notice substantially in the form set out in Part 2 of Schedule 3 (Borrowing Requests)

     

Break Costs

means the amount (if any) by which:

   
  (a)

the interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period

     
  exceeds:
     
  (b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period

 

6

 

 

Business Day

means:

   
  (a)

a day (other than a Saturday or Sunday) on which banks are open for general business in London, England, New York, New York and, in relation to any date for payment or purchase of a currency other than euro, the principal financial center of the country of that currency; or

   
  (b)

in relation to any date for payment or purchase of euro, any TARGET Day

   

Capital Expenditure

means any expenditure or obligation in respect of any expenditure which, in accordance with GAAP, is treated as a capital expenditure

   

Capitalization Ratio

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Capitalized Leases

means all leases that have been or should be, in accordance with GAAP in effect on the date hereof, recorded as capitalized leases

   

Capitalized Lease Obligations

of any Person means the obligations of such Person to pay rent or other amounts under any Capitalized Lease, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP

   

Cash

means, at any time, cash in hand or at bank and (in the latter case) credited to an account in the name of an Obligor with an Acceptable Bank and to which an Obligor is alone (or together with other Obligors) beneficially entitled and for so long as:

     
  (a)

that cash is repayable on demand;

     
  (b)

repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other Person whatsoever or on the satisfaction of any other condition other than a request for repayment;

     
  (c)

there is no Security over that cash except for Transaction Security or any Permitted Vessel Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and

     
  (d)

the cash is freely and immediately available on demand to be applied in repayment or prepayment of the Facilities

   

Cash Collateral Accounts

means, collectively, the Acquisition Cash Collateral Account, the Maintenance Cash Collateral Account and the Vessel Cash Collateral Account

   

Cash Collateral Account Pledge

means a first priority Lien on a Cash Collateral Account (and all amounts on deposit therein) in favor of, and in form and content reasonably agreed by, the Security Trustee

   

Cash Collateralize

means, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) cash collateral (“Cash Collateral”), at a location and pursuant to documentation in form and substance reasonably satisfactory to the Agent and, in the case of any L/C Obligations to be Cash Collateralized, the relevant Issuing Bank. Derivatives of such term have corresponding meanings

 

7

 

 

Cash Equivalent Investments

means at any time:

     
  (a)

any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by, the United States federal government or (ii) issued by any agency of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government;

     
  (b)

any readily-marketable direct obligations issued by any other agency of the United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-2” from S&P or at least “P-2” from Moody’s;

     
  (c)

any commercial paper rated at least “A-2” by S&P or “P-2” by Moody’s, and issued by any Person organized under the laws of any state of the United States;

     
  (d)

any US Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by any commercial bank that is (A) organized under the laws of the United States, any State thereof or the District of Columbia, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $500,000,000;

     
  (e)

any foreign currency demand deposit or short-term time deposit of a Foreign Subsidiary held by a commercial bank in the jurisdiction in which such Foreign Subsidiary is conducting business, which commercial bank either (A) has a short-term debt rating of at least “A-2” from S&P or at least “P-2” from Moody’s or (B) if such commercial bank is not rated by S&P or Moody’s, is the largest commercial bank based on capital in such jurisdiction; and

     
  (f)

shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a), (b), (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market funds in the United States;

     
 

provided, however, that (i) the maturities of all obligations specified in any of clauses (a), (b), (c) or (d) above shall not exceed one (1) year and (ii) the maturity of all time deposits specified in clause (e) above shall not exceed 60 days

 

8

 

 

Change of Control

means (i) any person or group of persons acting in concert (in each case, other than one or more of the Effective Date Equityholders) gains direct or indirect control of the Parent (a “Parent Change of Control”), or (ii) a Borrower or Guarantor (other than the Parent) ceases to be a Wholly Owned Subsidiary (directly or indirectly) of the Parent, except as otherwise expressly permitted in this Agreement (a “Subsidiary Change of Control”). For the purposes of this definition:

     
  (a)

control” of any Obligor means:

     
    (i)

the power (whether by way of ownership of shares, proxy (excluding proxies solicited by the Parent in accordance with customary voting practices of companies organized under the laws of the United States, any State thereof or the District of Columbia whereby a stockholder has instructed a proxy to vote in accordance with the stockholder’s instructions), contract, agency or otherwise) to:

       
      (A)

cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a meeting of the stockholders of the Parent; or

         
      (B)

appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent but excluding changes (or the power to make changes) in the board of directors of the Parent (1) approved or recommended by the majority of directors serving on such board at the time of such recommendation or approval where those changes are not related to or do not occur as a consequence of any change in shareholding of the Parent or (2) resulting from an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than any such solicitation for the election of one or more directors (x) by or on behalf of the then-existing board of directors or (y) approved or recommended pursuant to clause (1) above; and/or

         
    (ii) the holding beneficially of more than 50% of the issued share capital of the Parent (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); and
       
  (b) acting in concert means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Parent by any of them, either directly or indirectly, to obtain or consolidate control of the Parent

 

9

 

 

Charter

means, in relation to a Collateral Vessel, any bareboat, time or consecutive voyage charter in respect of that Collateral Vessel for a term which exceeds, or which by virtue of any optional extensions may exceed, 13 months, in each case in form and substance reasonably acceptable to the Security Trustee

   

Charter Assignment

means, in relation to a Collateral Vessel, an assignment of the Charter for such Collateral Vessel, in form and substance reasonably acceptable to the Security Trustee

   

Closing Date

means the date on which the first Borrowing under this Agreement is made or to be made (as the context requires), which date is November 14, 2017

   

Code

means the United States Internal Revenue Code of 1986, as amended

   

Collateral

means the Cash Collateral Accounts, the Earnings Accounts, the Collateral Vessels, the Pledged Collateral and all of the other assets and interests in assets of each Borrower and its Subsidiaries and all other Obligors that own Collateral Vessels and the proceeds thereof, in each case, upon which, from time to time, a Lien is granted under any Transaction Security Document

   

Collateral to Commitment Ratio

means, on any date of determination, the ratio of (i) the aggregate Fleet Market Value (as most recently determined pursuant to the terms of this Agreement) to (ii) the sum of (A) the Total Outstanding Borrowings and (B) the Available Revolving Facility

   

Collateral Vessel Disposition Date

means, in respect of any Collateral Vessel, (i) the Total Loss Date with respect to such Collateral Vessel and (ii) the date of any Asset Sale with respect to such Collateral Vessel

   

Collateral Vessels

means each of the vessels listed in Schedule 11 (Collateral Vessels), any New Vessels added pursuant to Clause 31.2 (Collateral Vessel Substitution and Addition) and any other vessels approved in writing by all of the Lenders in their sole discretion; provided, that any vessel that is a Collateral Vessel will cease to be a Collateral Vessel upon a substitution for, or disposition of, such vessel in compliance with the terms of this Agreement (including, without limitation, Clause 31)

   

Commitment

means a Revolving Facility Commitment, a Swingline Commitment or a Term Facility Commitment, as applicable

   

Commodity Exchange Act

means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute

   

Communications

has the meaning given to that term in Clause 41.8.2

   

Compliance Certificate

means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate) or otherwise in form and substance reasonably satisfactory to the Agent

 

10

 

 

Confidential Information

means all information received from the Parent or any of its Subsidiaries relating to the Parent, the Borrower, any other Obligor or any of their respective Subsidiaries or any of their respective businesses, other than (i) any such information that is available to the Agent, any Lender or any Issuing Bank on a non-confidential basis and (ii) information received from the Parent or any of its Subsidiaries after the Closing Date that is clearly identified in writing at the time of delivery as non-confidential

   

Consolidated Adjusted EBITDA

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Consolidated Interest Expense

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Consolidated Net Income

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Controlled Account

means a Deposit Account of an Obligor which is located in the United States, Norway, the United Kingdom or any other jurisdiction reasonably approved by the Agent (acting on the instructions of the Majority Lenders) and which is subject to a Deposit Account Control Agreement in accordance with the terms of the Security Agreement

   

Credit Facilities

means, collectively, the Revolving Facility (including, without limitation, the Swingline Facility) and the Term Facility

   

Credit Facilities Indebtedness

means the Financial Indebtedness of the Obligors under the Credit Facilities

   

Curable Default

has the meaning given to that term in Clause 28.3.1

   

Cure Amount

has the meaning given to that term in Clause 28.3.4

   

Cure Period

has the meaning given to that term in Clause 28.3.1

   

Default

means any Event of Default or any event or condition which upon notice, lapse of time or both would constitute an Event of Default as specified in Clause 30 (Events of Default)

   

Defaulting Lender

means any Lender:

     
  (a)

which has failed to fund its participation in a Loan or has notified the Agent or any Borrower (in writing) that it will not make its participation in a Loan available by the Borrowing Date of that Loan in accordance with Clause 5.4 (Funding by Lenders) or which has failed to provide cash collateral (or has notified an Issuing Bank or the Parent (which has notified the Agent) that it will not provide cash collateral) in accordance with Clause 10 (Cash Collateral; Defaulting Lenders);

     
  (b)

which is an Issuing Bank which has failed to issue a Letter of Credit (or has notified the Agent or the Parent (which has notified the Agent) that it will not issue a Letter of Credit) in accordance with Clause 6.2 (Procedures for Issuance and Amendment of Letters of Credit) or which has failed to pay a claim (or has notified the Agent or the Parent (which has notified the Agent) that it will not pay a claim) in accordance with (and as defined in) Clause 7.2 (Claims under a Letter of Credit); 

 

11

 

 

  (c)

which has failed, within eight (8) Business Days following a written request by the Agent or any Borrower, to confirm to the Agent and Borrowers that it will comply with its prospective funding obligations hereunder;

     
  (d)

which has otherwise repudiated or rescinded a Finance Document;

     
  (e)

which has, or has a direct or indirect parent company that has, (i) become the subject of an Insolvency Event which is continuing or (ii) become the subject of a Bail-in Action; or

     
  (f)

which has failed to pay to the Agent, any Issuing Bank or any other Lender any amount required to be paid by it hereunder within two (2) Business Days of the date when due;

     
 
unless, in the case of paragraphs (a) and (c) above:
       
    (i)

its failure to pay is caused by:

       
      (A)

an administrative or technical error; or

         
      (B)

a Disruption Event; and

         
      payment is made within three (3) Business Days of its due date; or
       
    (ii)

within three (3) Business Days of failure to perform, such Lender has confirmed to the Agent and the Parent in writing that it is disputing in good faith whether it is contractually obliged to make the payment in question and specifically identifying the basis for such dispute (including, but not limited to, the Lender’s determination that one or more conditions precedent to funding has not been satisfied);

   

 

provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, repudiate, disavow or disaffirm any contracts or agreements made with such Lender

 

12

 

 

Deposit Account

has the meaning assigned thereto in Article 9 of the UCC and includes a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by an instrument or a negotiable certificate of deposit

   

Deposit Account Control Agreement

means an account control agreement or similar agreement, in form and substance reasonably satisfactory to the Agent, with a depositary institution maintaining any Deposit Account (other than any Excluded Account) of an Obligor pursuant to which the Agent shall have “control” (within the meaning of Section 9-104 of the UCC) over such Deposit Account, as such agreement may be amended or modified from time to time

   

Designated Website

has the meaning given to that term in Clause 41.7.1

   

Discharged Rights and Obligations

has the meaning given to that term in Clause 32.5.3

   

Disposition Prepayment Amount

has the meaning given to that term in Clause 14.2

   

Disqualified Stock

means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one (1) year after the Termination Date; provided, however, that only the portion of such Equity Interests which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such dates shall be deemed to be Disqualified Stock; provided, further, that any such Equity Interests (including any options, warrants or other rights in respect thereof) issued or sold as compensation and held by future, present or former directors, officers, members of management, employees or consultants of the Parent, any Borrower or any of their respective Subsidiaries or family members or relatives thereof, or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives shall not constitute Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interests that would constitute Disqualified Stock solely because the holders thereof have the right to require the Parent, any Borrower or any of their respective Subsidiaries to repurchase such Equity Interests upon the occurrence of a change of control or a sale of all or substantially all its assets will not constitute Disqualified Stock if the terms of such Equity Interest provide that the Parent, such Borrower or such Subsidiary may not repurchase or redeem any such Equity Interest pursuant to such provisions. Subject to all of the preceding provisos in this definition, the term “Disqualified Stock” will also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is one (1) year after the Termination Date

 

13

 

 

Disruption Event” 

means either or both of:

   
  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

     
  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payment operations of a Party preventing that, or any other, Party:

     
    (i)

from performing its payment obligations under the Finance Documents; or

       
    (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents;

     
   

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted

   

Distribution

means:

     
  (a)

any payment (including, without limitation, through loans or advances to any direct or indirect shareholders of any Obligor or any of their respective Affiliates), dividend or other distribution in relation to any of the share capital (or issued shares) of any Obligor; or

     
  (b)

any redemption, reduction, repayment or retirement of any of the share capital (or issued shares) of any Obligor;

     
 

in each case, whether in cash or in kind and whether by actual payment or set off and, for the avoidance of doubt, repurchases in the open market by the Parent pursuant to its stock repurchase program (but excluding any purchases through a SEC Rule 10b5-1 trading plan so long as the purchaser is not a Group Member) shall constitute a Distribution

   

DOC

means a valid document of compliance issued for a Collateral Vessel by or on behalf of the Administration under paragraph 13.1 of the ISM Code

 

14

 

 

Earnings

means, in relation to a Collateral Vessel, all moneys whatsoever which are now, or later become, payable (actually or contingently) to an Obligor or the Security Trustee and which arise out of or in connection with or relate to the use or operation of that Collateral Vessel, including (but not limited to):

   
  (a)

the following, save to the extent that any of them is, with the prior written consent of the Agent (acting on the instructions of the Majority Lenders), pooled or shared with any other person:

     
    (i)

all freight, hire and passage moneys;

       
    (ii)

compensation payable to an Obligor or the Security Trustee in the event of requisition of that Collateral Vessel for hire;

       
    (iii)

remuneration for salvage and towage services;

       
    (iv)

demurrage and detention moneys;

       
    (v)

damages for breach (or payments for variation or termination) of any charter party or other contract for the employment of that Collateral Vessel;

       
    (vi)

all moneys which are at any time payable under any Insurances in relation to loss of hire;

       
    (vii)

all monies which are at any time payable to an Obligor in relation to general average contribution; and

       
  (b)

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

   

Earnings Account

means any Deposit Account of any Obligor in which Earnings are deposited; provided, that in no event shall an Earnings Account be held by, or in the name of, the Parent. For the avoidance of doubt, the Original Borrower’s account number 5413.05.90910 (NOK) and account number 5413.04.44280 (USD) with the Agent shall be deemed Earnings Accounts

   

Earnings Account Pledge

means an earnings account pledge made by any Obligor to the Security Trustee for the first priority pledge of any Earnings Accounts held in Norway or in England and Wales, as security for the Original Borrower’s obligations under the Finance Documents

   

EEA Financial Institution

means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or clause (b) of this definition and is subject to consolidated supervision with its parent

 

15

 

 

EEA Member Country

means any of the member states of the European Union, Iceland, Liechtenstein and Norway

   

EEA Resolution Authority

means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution

   

Effective Date Equityholders

means the Persons listed on Schedule 17 (Effective Date Equityholders) and their respective Affiliates

   

Employee Plan

means an employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or section 412 of the Code or Section 302 of ERISA, and in respect of which any Obligor or any of its ERISA Affiliates is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA

   

Environment

means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

   
  (a)

air (including, without limitation, air within natural or man-made structures, whether above or below ground);

     
  (b)

water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

     
  (c)

land (including, without limitation, land under water)

   

Environmental Claim

means any claim, proceeding, or formal notice by any person, or any formal investigation by any Governmental Authority, in respect of any Environmental Law

   

Environmental Laws”

means any applicable law or regulation which relates to:

   
  (a)

the pollution or protection of the Environment;

     
  (b)

the conditions of the workplace to the extent related to exposure to hazardous materials; or

     
  (c)

the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any Environmentally Sensitive Material

   

Environmental Permits

means any permit or other Authorization and the filing of any notification, report or assessment, in each case, required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or operated by any member of the Group

 

16

 

 

Environmentally Sensitive Material

means any chemical, metal, substance, waste, material, pollutant, or contaminant, regardless of quantity, the exposure to, presence of, use, storage, disposal, treatment or transportation of which is regulated under, defined by, or deemed under or by any Environmental Law to be “hazardous,” “toxic”, a “contaminant,” “waste,” a “pollutant” or words with similar meaning, or is otherwise regulated under any applicable law due to the known or suspected ability to cause harm to human health, safety or the Environment and includes petroleum and petroleum products, crude oil, oil products or any fraction or by-product thereof, polychlorinated biphenyls (“PCBs”), asbestos, asbestos-containing products, urea formaldehyde, radon, and radioactive substances.

   

Equity Interests

means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person of whatever nature, whether voting or nonvoting, including common stock, preferred stock or any other equity security (as such term is defined in Rule 3(a) of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing, but excluding any debt security that is convertible into, or exchangeable for, any of the foregoing

   

Equity Proceeds True-Up Amount

has the meaning given to that term in Clause 31.1(b) (Sale of Collateral Vessel)

   

ERISA

means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date

   

ERISA Affiliate

of any Obligor means any person that for purposes of Title I and Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with such Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA

   

ERISA Event

means:

     
  (a)

any reportable event, as defined in Section 4043 of ERISA, with respect to an Employee Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified of such event;

     
  (b)

the filing of a notice of intent to terminate any Employee Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041(c) of ERISA;

     
  (c)

the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan;

 

17

 

 

  (d)

the failure to make a required contribution to any Employee Plan that would result in the imposition of an encumbrance under Section 412 of the Code or Section 302 of ERISA or the filing of any request for a minimum funding waiver under Section 412 of the Code with respect to any Employee Plan or Multiemployer Plan;

     
  (e)

an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA;

     
  (f)

the complete or partial withdrawal of any Obligor or any of its ERISA Affiliates from a Multiemployer Plan;

     
  (g)

any Obligor or any of its ERISA Affiliates incurring any liability under Title IV of ERISA with respect to any Employee Plan (other than premiums due and not delinquent under section 4007 of ERISA); and

     
  (h)

with respect to any Foreign Plan, (i) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan, (ii) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered, or (iii) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the terms of such Foreign Plan

 

Estate

has the meaning given to that term in Clause 36.1.2

   

EU Bail-In Legislation Schedule

means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time

   

EURIBOR

means, in relation to any Loan in euro:

     
  (a)

the applicable Screen Rate; or

     
  (b)

(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

     
  (c) if:
     
    (i)

no Screen Rate is available for the Interest Period of that Loan; and

       
    (ii)

it is not possible to calculate an Interpolated Screen Rate for that Loan,

       
   

the Reference Bank Rate,

   
 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for euro and for a period equal in length to the Interest Period of that Loan; provided, that if the rate determined pursuant to the foregoing is less than 0.50%, EURIBOR shall be deemed to be 0.50%

 

18

 

 

Event of Default

means any event or circumstance specified as such in Clause 30 (Events of Default) that has occurred and is continuing

   

Excluded Account

means, individually or collectively (as the context requires), any Deposit Account which is (a) established, maintained and used solely for the purpose of paying payroll, payroll taxes and other compensation and benefits to employees, (b) established, maintained and used solely for the purpose of paying taxes, including sales taxes, (c) established, maintained and used solely for the purpose of serving as an escrow account or as a fiduciary or trust account in favor of a third party, (d) a zero balance Deposit Account, (e) GMA’s account number 908813285 maintained at JPMorgan Chase Bank, N.A., but only for so long as (i) the cash on deposit in such account secures the Financial Indebtedness permitted under Clause 29.15(p) and (ii) the Lien on such cash in favor of JPMorgan Chase Bank, N.A. is permitted under Clause 29.12(r), or (f) any other Deposit Account with an average daily balance for any fiscal month of less than $250,000, provided, that the average daily balance for any fiscal month of all such Deposit Accounts that may constitute Excluded Accounts pursuant to this clause (f) shall not exceed $1,000,000 in the aggregate; provided, that in no event shall any Earnings Account be deemed an Excluded Account

   

Excluded Swap Obligation

means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Clause 25.11 (Keepwell) and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Obligors) at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal in accordance with this definition

   

Existing Lender

has the meaning given to that term in Clause 32.1 (Assignments and transfers by the Lenders)

   

Existing Senior Notes

means the Indenture, dated as of March 12, 2012, between the Parent and U.S. Bank National Association, as trustee for the Parent’s 6.375% senior notes due 2022, and the senior notes issued pursuant to such Indenture

 

19

 

 

Existing Facilities

means, collectively, the following:

   
  (a)

that certain Second Amended and Restated Multi-Currency Credit Facility Agreement, originally dated December 27, 2012, as amended and restated as of October 23, 2014 and as further amended and restated as of May 18, 2017, between the Original Borrower, as borrower, the banks and financial institutions party thereto from time to time as lenders, DNB Bank ASA, as arranger, and DNB Bank ASA, as agent;

     
  (b)

that certain $300,000,000 Multicurrency Facility Agreement, dated September 26, 2014, among, inter alios, GMA, as original borrower, the Parent, as original guarantor, the financial institutions party thereto, as original lenders, and The Royal Bank of Scotland plc, as agent; and

     
  (c)

that certain Senior Secured Super-Priority Debtor In Possession Credit Agreement, dated as of May 18, 2017, by and among the Parent, as a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, the Original Borrower, as lender, and DNB Bank ASA, as the issuing bank

   

Expiry Date

means, for a Letter of Credit, the last day of its Term

   

Facilities

means, collectively, the Revolving Facility (including, without limitation, the Swingline Facility) and the Term Facility

   

Facility Office

means:

   
  (a)

in respect of a Lender or an Issuing Bank, the office or offices notified by that Lender or Issuing Bank to the Agent in writing on or before the date it becomes a Lender or an Issuing Bank (or, following that date, by not less than five (5) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or

     
  (b)

in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes

   

Factoring Agreement

means a factoring agreement collateral to this Agreement made between the Original Borrower, GMN and the Security Trustee in accordance with Section 4-10 of the Norwegian Liens Act, as security for the Borrowers’ obligations under the Finance Documents, and a declaration of pledge collateral thereto

   

Fee Letter

means (i) the fee letter agreement, dated September 29, 2017, among the Arranger, DNB Capital LLC and the Original Borrower, (ii) the fee letter agreement, dated September 29, 2017, between Hayfin DLF II Luxco 2 S.à.r.l. (on behalf of itself and any related funds) and the Original Borrower, and (iii) any other letter or letters dated on or about the date of this Agreement between the Arranger and an Obligor (or the Agent and an Obligor or the Security Trustee and an Obligor) setting out any of the fees referred to in Clause 19 (Fees)

 

20

 

 

Federal Funds Effective Rate

means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to DNB Bank ASA, New York Branch on such day on such transactions as determined by the Agent; provided, further, that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement

   

Finance Documents

means this Agreement, any Joinder, any Compliance Certificate, any Promissory Note, any Fee Letter, any Hedging Agreement, any Resignation Letter, the Rederi Intercreditor Agreement, any Transaction Security Document, any Borrowing Request, any Letter of Credit Application, any Manager’s Undertaking and any other document designated as a “Finance Document” by the Agent and the Parent; provided, that where the term “Finance Document” is used in, and construed for the purposes of, this Agreement, a Hedging Agreement shall be a Finance Document only for the purposes of:

   
  (a)

the definition of “Material Adverse Effect”;

     
  (b)

the definition of “Transaction Security Document”;

     
  (c)

the definition of “Secured Parties”;

     
  (d)

the Transaction Security Documents;

     
  (e)

Clause 1.2.1(d);

     
  (f)

Clause 25 (Guarantee and Indemnity);

     
  (g)

Clause 30 (Events of Default) (other than Clause  30.23 (Acceleration)); and

     
  (h)

Clause 50 (Enforcement)

     

Finance Party

means each of the Agent, the Arranger, the Security Trustee, the Lenders, the Swingline Lenders, the Issuing Banks and any Hedge Counterparties; provided, that where the term “Finance Party” is used in, and construed for the purposes of, this Agreement, a Hedge Counterparty shall be a Finance Party only for the purposes of:

     
  (a)

the definition of “Secured Parties”;

     
  (b)

Clause 1.2.1(a);

     
  (c)

sub-clause (c) of the definition of Material Adverse Effect;

     
  (d)

Clause 25 (Guarantee and Indemnity); and

     
  (e)

Clause 37 (Conduct of business by the Finance Parties)

 

21

 

 

Financial Covenant

means a financial covenant set out in Clause 28 (Financial Covenants)

   

Financial Indebtedness” or “Indebtedness

of any Person means, on any date, without duplication:

   
  (a)

all obligations of such Person for borrowed money;

     
  (b)

all obligations of such Person evidenced by bonds, debentures, notes or similar instruments;

     
  (c)

all obligations of such Person under conditional sale agreements relating to property acquired by such Person reflected as a liability on a balance sheet of such Person in accordance with GAAP (or, if no such balance sheet of such Person has been prepared as of such date, as would be reflected as a liability on such balance sheet in accordance with GAAP) (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);

     
  (d)

all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) current accounts payable and normal (for the applicable geographic market) trade credits incurred in the ordinary course of business and (ii) any earn out obligation reflected as a liability on the balance sheet of such Person (or, if no such balance sheet of such Person has been prepared as of such date, as would be reflected as a liability on such balance sheet in accordance with GAAP));

     
  (e)

all Indebtedness of others secured by any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed;

     
  (f)

all guarantees by such Person of Indebtedness of other Persons;

     
  (g)

all Capitalized Lease Obligations of such Person;

     
  (h)

all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty;

     
  (i)

all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances; and

     
  (j)

all obligations of such Person under Hedging Agreements, Other Hedging Arrangements or agreements with any Person having substantially the same economic effect, after giving effect to applicable netting arrangements.

 

22

 

 

 

The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of any obligation under Hedging Agreements, Other Hedging Arrangements or agreements with any Person having substantially the same economic effect on any date shall be deemed to be the swap termination value thereof as of such date. If recourse for the Indebtedness of any Person described in clause (e) above is limited solely to the property encumbered thereby, then the amount of such Indebtedness shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby

   

Financial Quarter

means the period commencing on the day after one Quarter Date and ending on the next Quarter Date

   

Financial Year

means the annual accounting period of the Group ending on December 31 of each year

   

First Currency

has the meaning given to that term in Clause 22.1.1

   

Fitch

means Fitch Ratings, Inc. or any successor thereto

   

Fleet Market Value

means, as of any date of determination, the aggregate Appraised Value of all of the Collateral Vessels based on the most recent valuations delivered as of such date hereunder

   

Fleet Report Template

means the example vessel status report delivered to the Agent by the Parent pursuant to paragraph 6(g) of Schedule 2 (Conditions Precedent)

   

Foreign Plan

means each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not described in ERISA) that is not subject to United States law and is maintained or contributed to by any Obligor

   

Foreign Subsidiary

means a Subsidiary of Parent incorporated or formed under the laws of a jurisdiction other than any state of the United States of America or the District of Columbia

   

Funds Flow Statement

means a funds flow statement in a form approved by the Agent

   

GAAP

means those principles and practices which are recognized as such by the Financial Accounting Standards Board of the United States

   

GMA

means GulfMark Americas, Inc., a corporation incorporated under the laws of the State of Delaware, United States, with its principal place of business at 842 West Sam Houston Parkway North, Suite 400, Houston, Texas 77024, United States

   

GMA Sale

means the substantially contemporaneous sale to any Person or Persons (other than any Group Member or any other Sponsor Affiliate) of (i) 100% of the Equity Interests in GMA or all or substantially all of the assets of GMA and (ii) at the sole option of the Parent, the Collateral Vessels named the “Highland Valour” and/or the “Highland Endurance” (as described in Schedule 11 (Collateral Vessels))

 

23

 

 

GMM

means GulfMark Malta Limited, a company incorporated in Malta with company number C 52788 whose registered office is at 171, Old Bakery Street, Valletta, Malta

   

GMN

means GulfMark Norge AS, a company organized under the laws of Norway, with Norwegian registration number 979 278 799

   

GMNS

means GulfMark North Sea Limited, a company incorporated in England and Wales with company number 2625893 whose registered office is at c/o Peachey & Co LLP, 95 Aldwych, London WC2B 4JF, United Kingdom

   

GMUK

means GulfMark UK Ltd., a company incorporated in England and Wales with company number 02541716 whose registered office is at c/o Peachey & Co LLP, 95 Aldwych, London WC2B 4JF, United Kingdom

   

GMUK Preservation Guidelines

means the GMUK Guidelines for the Layup, Preservation and Re-Activation of Vessels, Document M122, dated June 2017, as in effect on the date hereof or as hereafter amended or modified from time to time in a manner that does not diminish the maintenance and preservation standards contained therein in any material respects

   

Governmental Authority

means the governments of the United States, Norway, the United Kingdom, Malta or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank)

   

Group” or “Group Member

means the Parent, the Original Borrower, the other Obligors and each of their respective Subsidiaries from time to time, subject to Clause 1.2.12

   

Group Structure Chart

means the Group structure chart in the agreed form

   

Guarantee

means each guarantee granted in accordance with Clause 25 (Guarantee and Indemnity)

   

Guaranteed Obligations

has the meaning given to that term in Clause 25.1.1

   

Guarantor

means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 34 (Changes to the Obligors)

   

Hedge Counterparty

means (i) any Lender or (ii) any Affiliate of any Lender which has become a Party as a Hedge Counterparty in accordance with Clause 32.8 (Accession of Hedge Counterparties) and a party to the Rederi Intercreditor Agreement as a Hedge Counterparty in accordance with clause 9.6 of the Rederi Intercreditor Agreement

   

Hedging Agreement

means, subject to paragraph 2 of Schedule 10 (Hedging Agreements), any master agreement, confirmation, schedule or other agreement in agreed form entered into or to be entered into by a Borrower and a Hedge Counterparty for the purpose of hedging interest rate risks or liabilities in relation to the facilities made available under this Agreement

 

24

 

 

High Cost Lender

has the meaning given to that term in Clause 18.3.1

   

Honor Date

means each date of payment by an Issuing Bank under a Letter of Credit

   

Impaired Agent

means the Agent at any time when:

     
  (a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

     
  (b)

the Agent otherwise rescinds or repudiates a Finance Document; or

     
  (c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) or (c) or (d) of the definition of “Defaulting Lender”; or

     
  (d)

an Insolvency Event has occurred and is continuing with respect to the Agent or its direct or indirect parent company,

     
 

unless, in the case of paragraph (a) above:

       
    (i)

its failure to pay is caused by:

       
      (A)

administrative or technical error; or

         
      (B)

a Disruption Event; and

       
     

payment is made within three (3) Business Days of its due date; or

       
    (ii)

within three (3) Business Days of failure to perform, the Agent has confirmed to the Parent in writing that it is disputing in good faith whether it is contractually obliged to make the payment in question and specifically identifying the basis for such dispute;

       
 

provided, that the Agent shall not be an Impaired Agent solely by virtue of the ownership or acquisition of any equity interest in the Agent or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide the Agent with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Agent (or such Governmental Authority) to reject, repudiate or repudiate any contracts or agreements made with the Agent

 

Insolvency Event

means, in relation to a Finance Party, that such Finance Party:
       
  (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

25

 

 

  (b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
       
  (c) makes a general assignment, arrangement or composition with or for the benefit of its creditors;
       
  (d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
       
  (e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above, and
       
    (i)

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

       
    (ii)

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

       
  (f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
       
  (g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;
       
  (h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 60 days thereafter;
       
  (i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

 

26

 

 

  (j) takes any action in furtherance of, or consents to, approves of or acquiesces in, any of the foregoing acts
     

Insolvency Officer

means any liquidator, trustee in bankruptcy, judicial custodian or manager, compulsory manager, receiver, receiver and manager, administrative receiver, administrator or other similar officer, in each case, appointed in any jurisdiction

   

Insurance Report

means an insurance report prepared by BankServe Insurance Services Ltd. and dated on or around the date of this Agreement and addressed to, and/or capable of being relied upon by, the Reliance Parties

   

Intercompany Facility

means that certain Subordinated Revolving Credit Agreement, dated as of the Agreement Date, by and among GMA and the other signatories party thereto as initial borrowers, the additional borrowers from time to time party thereto, and the Original Borrower, as lender

   

Intercompany Finance Documents

means the “Loan Documents” as such term is defined in the Intercompany Facility

   

Interest Period

means, (i) in relation to a Loan (other than a Swingline Loan), each period determined in accordance with Clause 17 (Interest Periods- Loans), (ii) in relation to a Swingline Loan, each period determined in accordance with Clause 9.6 (Swingline Interest Period), and (iii) in relation to an Unpaid Sum, each period determined in accordance with Clause 16.3 (Default interest)

   

Interpolated Screen Rate

means, in relation to LIBOR, EURIBOR or NIBOR for any Loan, the rate per annum (rounded to the same number of decimal places as the Screen Rate) 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 the Specified Time on the Quotation Day for the currency of that Loan

   

ISP

means the International Standby Practices (ISP98) International Chamber of Commerce Publication No. 590, as the same may be amended and as in effect from time to time

   

Intra-Group Loan

means any agreement constituting Financial Indebtedness between an Obligor and any other Person in the Group, including, without limitation, the Intercompany Facility and any loans made to the Parent by its shareholders

 

27

 

 

Investment

means the purchase, holding or acquisition (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) of any Equity Interests, evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing), any investment, loan or advance or any other interest in, any other Person, and the purchase or other acquisition (in one transaction or a series of transactions) of any assets of any other Person constituting a business unit

   

IRS

means the United States Internal Revenue Service, or any Governmental Authority succeeding to any of its principal functions

   

ISM Code

means the International Safety Management Code 2002 regarding the safe management and operation of ships and for pollution prevention

   

ISPS Code

means the International Ship and Port Security Code as adopted by the Conference of Contracting Governments to the Safety of Life at Sea Convention 1974 on December 13, 2002 and incorporated as Chapter XI-2 of the Safety of Life at Sea Convention 1974

   

ISSC

means an International Ship Security Certificate issued under the ISPS Code

   

Issuer Document

means, with respect to any Letter of Credit issued by any Issuing Bank, the Letter of Credit Application and any other documents, agreements or instruments entered into by such Issuing Bank and the Borrower or any Subsidiary or in favor of such Issuing Bank and relating to any such Letter of Credit

   

Issuing Bank

means each Party identified above as issuing banks and any Party which has become an Issuing Bank pursuant to Clause 6.13 (Appointment of additional Issuing Banks); provided, that, in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the “Issuing Bank” shall be the Issuing Bank which has issued or agreed to issue that Letter of Credit.

   

Joinder

means a document substantially in the form set out in Schedule 6 (Form of Joinder)

   

Joint Venture

means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership entity

   
  (a)

the Equity Interests in which are owned by two or more Persons that are not otherwise Affiliates, and

     
  (b) less than a majority of the Equity Interests of which are owned by the Parent or a Subsidiary thereof; provided, however, that vessel charter, vessel hire, vessel service and similar agreements shall not constitute joint ventures
   

Jones Act

means the U.S. Shipping Act, 1916, as amended (46 U.S.C. § 50501)

   

L/C Advance

means, with respect to each Revolving Facility Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage

   

L/C Borrowing” 

means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of a Revolving Facility Loan

 

28

 

 

L/C Credit Extension

means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof

   

L/C Obligations

means, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Clause 1.2.10 and Clause 1.2.11. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn

   

L/C Proportion

means, in relation to a Revolving Facility Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s Available Revolving Commitment to the Available Revolving Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.

   

L/C Sublimit

means the aggregate Base Currency Amount of all Letters of Credit permitted to be issued under this Agreement, being $5,000,000 at the date of this Agreement

   

Legal Opinion

means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 34 (Changes to the Obligors)

   

Lender

means:

   
  (a) any Original Lender; and
         
  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 32 (Changes to the Lenders),

     
  which in each case has not ceased to be a Lender in accordance with the terms of this Agreement

 

Letter of Credit

means:  
     
  (a)

a letter of credit in a form requested by a Borrower (or the Parent on its behalf) and agreed by the Issuing Bank which has agreed to issue such Letter of Credit (with a copy issued to the Agent); or

     
  (b)

any guarantee, indemnity or other instrument in a form requested by a Borrower (or the Parent on its behalf) and agreed by the Issuing Bank which has agreed to issue such Letter of Credit (with a copy issued to the Agent)

     

Letter of Credit Application

means, in relation to a Letter of Credit, an application and agreement for the issuance or amendment of a Letter of Credit in the form, from time to time, in use by the applicable Issuing Bank

 

29

 

 

Letter of Credit Expiration Date

means the day that is five (5) Business Days prior to the Termination Date

   

Leverage Ratio

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

LIBOR

means, in relation to any Loan:

   
  (a) the applicable Screen Rate; or
       
  (b) (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
       
  (c) if:  
       
    (i)

no Screen Rate is available for the currency of that Loan; and

       
    (ii) no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,
       
    the Reference Bank Rate,
   
 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; provided, that if the rate determined pursuant to the foregoing is less than 0.50%, LIBOR shall be deemed to be 0.50%

   

LIBOR Loan

means a Loan that bears interest based on LIBOR, EURIBOR or NIBOR

   

Lien

means, with respect to any asset:

   
 

(a)

any mortgage, deed of trust, charge, pledge, lien, hypothecation, encumbrance, or security interest in, on or of such asset;
   
 

(b)

the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; and

     
  (c)

in the case of securities, any purchase option, call or similar right of a third party with respect to such securities

   

Loan

means any Revolving Facility Loan, including a Swingline Loan, or Term Loan

   

Maintenance Cash Collateral Account

means the US Dollar denominated blocked account of the Original Borrower, opened with the Security Trustee in its New York office named “Maintenance Cash Collateral Account” with account number 13708003, as the same may be redesignated, substituted or replaced from time to time by the Security Trustee, which account may be used by the Group Members solely to deposit funds to comply with paragraph (h) of Clause 29.21.2;

 

30

 

 

Majority Lenders

means Lenders having more than 66-2/3% of the sum of (i) the Total Outstanding Borrowings (including, without limitation, participation interests in outstanding Swingline Loans and L/C Obligations), and (ii) the Available Revolving Facility; provided, however, that if at any time there are two or more Lenders hereunder that are not Affiliates or Related Funds, the above percentage shall remain 66-2/3% but “Majority Lenders” shall also include at least two Lenders that are not Affiliates or Related Funds; provided, further, that the Commitments, Loans and participation interests in outstanding Swingline Loans and L/C Obligations of any Defaulting Lender shall be excluded from such calculation

   

Majority Revolving Lenders

means Revolving Facility Lenders having more than 66-2/3% of the Total Revolving Facility Commitments (or, if the Total Revolving Facility Commitments have been reduced to zero, more than 66-2/3% of the sum of the outstanding principal amount of the Revolving Facility Loans, participation interests in Swingline Loans and participation interests in L/C Obligations); provided, however, that the Revolving Facility Commitments, Revolving Facility Loans and participation interests in outstanding Swingline Loans and L/C Obligations of any Defaulting Lender shall be excluded from such calculation

   

Make Whole Premium

means, in respect of any repayment or prepayment of the principal amount of any Term Loan prior to the Second Anniversary Closing Date, an amount equal to the greater of:

   
  (a) two percent (2.00%) of the principal amount repaid or prepaid; and
     
  (b)

the excess (if any) of (i) the present value at the date of such repayment or prepayment (the “Prepayment Date”) of (A) one-hundred and two percent (102.00%) of the principal amount repaid or prepaid and (B) all required interest payments (with the applicable interest rate being deemed to equal the sum of (x) the Adjusted LIBO Rate with an Interest Period of six (6) months, as determined on the date two (2) Business Days prior to the Prepayment Date, plus (y) the applicable Margin for LIBOR Loans) due on the principal amount repaid or prepaid through the Second Anniversary Closing Date (excluding accrued but unpaid interest to the Prepayment Date), computed using a discount rate equal to the applicable Treasury Rate as of such Prepayment Date plus 50 basis points, over (ii) the principal amount repaid or prepaid

   

Manager

Any entity controlled by any Obligor or any other entity specified as the commercial and technical manager of a Collateral Vessel, in each case, that is reasonably acceptable to the Majority Lenders

   

Manager’s Undertaking” 

means, in relation to a Collateral Vessel, the letter of undertaking from its Manager subordinating the rights of such Manager against that Collateral Vessel and the Obligor that owns such Collateral Vessel to the rights of the Finance Parties in form and substance reasonably acceptable to the Security Trustee

 

31

 

 

Mandatory Borrowing

has the meaning given to that term in Clause 9.3.2

   

Margin

means, in relation to any Loan or Unpaid Sum, 6.25% per annum for LIBOR Loans and 5.25% per annum for ABR Loans.

   

Margin Stock

has the meaning set forth in Regulation U issued by the Board of Governors of the United States Federal Reserve System

   

Material Acquisition

has the meaning given to that term in the definition of “Consolidated Adjusted EBITDA” contained in Clause 28.5 (Financial Covenant definitions)

   

Material Adverse Effect

means a material adverse effect on:

   
  (a)

the financial condition of the Group, taken as a whole, or the ability of the Group, taken as a whole, to perform its payment and other obligations under the Finance Documents; or

     
  (b)

the financial condition of the Obligors, taken as a whole, or the ability of the Obligors, taken as a whole, to perform their payment and other obligations under the Finance Documents; or

     
  (c)

the validity or enforceability of, or the effectiveness or ranking of any Security or guarantee granted or purporting 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

     

Material Company

means, at any time:

   
  (a)

an Obligor; or

     
  (b)

a member of the Group that holds shares in an Obligor; or

     
  (c)

any member of the Group which has Consolidated Adjusted EBITDA or has gross assets, net assets or total revenue (excluding intra-group items) representing five percent (5%), or more of the gross assets, net assets or total revenue of the Group, calculated on a consolidated basis.

     
 

Compliance with the conditions set out in paragraph (c) shall be determined by reference to the most recent Compliance Certificate supplied by the Parent and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group. However, if a Subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, the financial statements shall be deemed to be adjusted in order to take into account the acquisition of that Subsidiary (that adjustment being certified by a Responsible Officer of the Parent as representing an accurate reflection of the revised Consolidated Adjusted EBITDA, gross assets, net assets or total revenue of the Group) for purposes of determining which Subsidiaries constitute Material Companies pursuant to paragraph (c) above

 

32

 

 

Material Disposition

has the meaning given to that term in the definition of “Consolidated Adjusted EBITDA” contained in Clause 28.5 (Financial Covenant definitions)

   

Month

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

   
  (a)

(subject to sub-clause (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

     
  (b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

     
  (c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

     
 

The above rules will only apply to the last Month of any period

   

Moody’s

means Moody’s Investors Service, Inc. or any successor thereto

   

Mortgage

means each first priority or, as the case may be, preferred mortgage or fleet mortgage, as applicable, over one or more Collateral Vessels entered into by each applicable Obligor in favor of the Security Trustee, including a declaration of pledge or deed of covenants as relevant, in form and substance reasonably satisfactory to the Security Trustee

   

Multiemployer Plan

means a “multiemployer plan” (as defined in Section (3)(37) of ERISA) contributed to for any employees of each Obligor or any of its ERISA Affiliates

   

Net Cash Proceeds

means:

     
  (a)

in connection with any Asset Sale, Total Loss or any other Recovery Event, the proceeds thereof in the form of cash and Cash Equivalent Investments (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Asset Sale, Total Loss or Recovery Event, net of reasonable attorneys’ fees, accountants’ fees, investment banking and advisor’s fees, amounts required to be applied to the repayment of Financial Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale, Total Loss or Recovery Event (other than any Lien pursuant to a Transaction Security Document) and other customary fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable currently as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements); and

 

33

 

 

  (b)

in connection with any issuance or sale of equity securities or debt securities or instruments or the incurrence of loans, the cash proceeds received from such issuance or incurrence, net of reasonable attorneys’ fees, investment banking and advisor’s fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith

     

New Lender

has the meaning given to that term in Clause 32 (Changes to the Lenders)

   

New Vessels

has the meaning given to such terms in Clause 31 (Collateral Vessel Sale, Substitution and Addition)

   

New York Business Day

means a day (other than a Saturday or Sunday) on which banks are open for general business in New York City

   

NIBOR

means, in relation to any Loan in NOK,

   
  (a)

the applicable Screen Rate;

     
  (b)

(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

     
  (c)

if:

     
    (i)

no Screen Rate is available for the Interest Period of that Loan; and

       
    (ii)

it is not possible to calculate an Interpolated Screen Rate for that Loan,

       
   

the Reference Bank Rate,

     
 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for NOK for a period equal in length to the Interest Period of that Loan; provided, that if the rate determined pursuant to the foregoing is less than 0.50%, NIBOR shall be deemed to be 0.50%

   

NOK

means Norwegian krone.

   

Non-Defaulting Lenders

means, at any time, each Lender that is not a Defaulting Lender at such time

 

34

 

 

Non-Recourse Debt

means Indebtedness: (i) as to which neither the Parent nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable or has any obligations whatsoever as a guarantor, security provider or otherwise, or (c) constitutes the lender; and (ii) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Acquisition Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Indebtedness under this Agreement) of the Parent or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity

   

Norway

means the Kingdom of Norway

   

Obligor

means a Borrower or a Guarantor

   

Obligors’ Agent

means the Parent, as appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.5 (Obligors’ Agent)

   

Operating Leases

means all real or personal property leases under which any Obligor or any of its Subsidiaries is bound or obligated as a lessee or sublessee and which, under GAAP, are not required to be capitalized on a balance sheet of such Obligor or Subsidiary; provided, that Operating Leases shall not include any such lease under which any Obligor is bound as the lessor or sublessor

   

Optional Currency

means, in relation to a Borrowing, sterling, euro or NOK if it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Borrowing Date for that Borrowing

   

Original Budget

means the rolling four (4) Financial Quarter cash flow projections and profit and loss statement forecast of the Parent, on a consolidated basis for the Group (to include detail of expected drawn balances under both (i) the Revolving Facility and (ii) the Intercompany Facility) for the period ending December 31, 2018, prepared by the Parent in respect of the Parent and its Subsidiaries and delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent)

   

Original Financial Statements

means:

 

  (a)

in relation to the Parent and the Borrower, the audited consolidated income statement, balance sheet and statement of cash flows of the Parent for its Financial Year ended December 31, 2016;

     
  (b)

the unaudited consolidated balance sheet of each of the Parent and the Borrower and the related consolidated statements of income, stockholders’ equity (deficit) and cash flows of each of the Parent and the Borrower for each fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Parent and the Borrower subsequent to December 31, 2016 and ended at least 45 days prior to the Closing Date; and

     
  (c)

in relation to any other Obligor, such financial statements (if any) as may be agreed to be delivered to the Agent pursuant to Clause 34 (Changes to the Obligors)

 

35

 

 

Original Obligor

means the Original Borrower or an Original Guarantor

   

Original Swingline Lender

means an Original Lender listed in Part 2B of Schedule 1 (The Original Parties) as a swingline lender

   

Other Hedging Arrangement

means any interest rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit default swap or any other similar transaction (including any option with respect to any of these transactions), in each case, which is not a Hedging Agreement

   

Out Of Class Vessel

means any Vessel that (i) has failed to conduct a periodic dry-docking as required by an Approved Classification Society, and as to which no waiver, suspension or postponement by such Approved Classification Society has been granted; (ii) has an overdue survey required by an Approved Classification Society; or (iii) has outstanding overdue recommendations and/or conditions by an Approved Classification Society, which recommendations or conditions have not been waived or postponed by an Approved Classification Society; provided, that an Out of Class Vessel shall not include any Vessel (A) whose classification certificate is withdrawn or suspended by an Approved Classification Society or (B) that ceases to be classified with an Approved Classification Society for any reason

   

Parent Change of Control

has the meaning assigned to such term in the definition of “Change of Control” contained in this Clause 1.1

   

Participant

has the meaning given to that term in Clause 32.12 (Participations)

   

Participant Register

has the meaning given to that term in Clause 32.12 (Participations)

   

Participating Member State

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

   

Party

means a party to this Agreement

   

PBGC

means the United States Pension Benefit Guaranty Corporation, or any entity succeeding to all or any of its functions under ERISA

   

Permitted Acquisition

means any acquisition (by merger, consolidation, asset purchase or otherwise) by any Group Member of any Vessel or all or substantially all the assets of, or all the Equity Interests in, a Person or division or line of business of a Person whose only material assets are Vessels, and related contracts, working capital and inventory, and (if the Equity Interests of such Person are to be acquired) such Person does not have any material actual or contingent liabilities (an “Acquisition”), if (and only if):

 
    (a)

no Default is continuing or would result therefrom;

 

36

 

 

    (b)

the Parent and its consolidated Subsidiaries are in Pro Forma Compliance, after giving effect to such proposed Acquisition, with Clause 28 (Financial Covenants);

       
    (c)

the Parent and its consolidated Subsidiaries shall demonstrate that, prior to and after giving effect to such Acquisition, Total Liquidity shall be equal to at least $40,000,000;

       
    (d)

with respect to the Acquisition of a New Vessel, the New Vessel Conditions are satisfied as determined by the Majority Lenders in their reasonable discretion;

       
    (e)

with respect to the Acquisition of any Person or any division or line of business of any Person whose only material assets are Vessels (and related contracts, working capital and inventory), either (i) such Person, division or line of business generates (or is projected to generate) cash earnings sufficient to ensure the payment in full when due of all costs and expenses incidental to the Group’s ownership and operation of such Person, division or line of business for at least 12 months following the date of such Acquisition, or (ii) the Parent and its consolidated Subsidiaries shall demonstrate that, prior to and after giving effect to such Acquisition, Total Liquidity shall be equal to at least $50,000,000;

       
    (f)

with respect to the Acquisition of any Vessel, such Vessel has a charter with a Person who is not a Related Party of a Group Member, and containing arm’s length terms which generates (or is projected to generate) cash earnings sufficient to ensure the payment in full when due of all costs and expenses incidental to the Group’s ownership and operation of such Vessel for at least 12 months following the date of such Acquisition; provided, however, that this clause (f) shall not apply if, prior to and after giving effect to such Acquisition, Total Liquidity shall be equal to at least $50,000,000; and

       
    (g)

(i) no proceeds of any Loan or any Letter of Credit shall be used, directly or indirectly, to finance any portion of the consideration for such Acquisition, except with the prior written consent of the Majority Lenders, and (ii) the aggregate amount of the consideration paid (whether in cash, instruments, securities or other property) for all Acquisitions during the term of this Agreement shall not exceed the sum of (A) $20,000,000 plus (B) the amount then on deposit in the Acquisition Cash Collateral Account (such sum being the “Permitted Acquisitions Basket”), except with the prior written consent of the Majority Lenders (provided, that, for the avoidance of doubt, (x) the acquisition by any Obligor of a new Vessel using Equity Interests of the Parent and/or the cash proceeds of the issuance of such Equity Interests made after the Closing Date (together with, for the avoidance of doubt, all or any portion of the then-remaining Permitted Acquisitions Basket) as the consideration therefor, is not restricted by this clause (g), and (y) like-kind exchanges of vessels that are otherwise expressly permitted under the terms of this Agreement and the other Finance Documents are not restricted by this clause (g)).

 

37

 

 

Permitted Acquisitions Basket

has the meaning given to that term in the definition of “Permitted Acquisitions” contained in this Clause 1.1

   

Permitted Capital Expenditures

means customary or ordinary course Capital Expenditures made by:

   
  (a)

any Group Member that owns any Vessel for purposes of (i) scheduled or required maintenance in respect of such Vessel, or (ii) satisfying (A) customer requirements that do not change the basic function, classification or type of such Vessel, and/or (B) applicable law, or (iii) prudent operating standards or customary practices applicable to maritime vessels of the same type as the Vessels, or

     
  (b) 

any Group Member for purposes of (i) improving or maintaining information technology and other ordinary course business requirements (other than with respect to Vessels), in an amount not to exceed (A) $2,000,000 in the aggregate in any Financial Year and (B) $5,000,000 in the aggregate during the term of this Agreement (provided, that such dollar limitations shall not include any such Capital Expenditures that are made for the benefit of, and reimbursed in cash by, any Unrestricted Acquisition Subsidiaries), or (ii) relocation and transfer expenses for employees of any Group Member, in an amount not to exceed $500,000 in the aggregate in any Financial Year

 

38

 

 

Permitted Subordinated Indebtedness

means Financial Indebtedness of the Parent which:

 

  (a)

provides that all interest, fees and other amounts payable in connection therewith shall not be payable other than by way of the capitalization of such amounts while the Facilities (other than contingent indemnification or expense reimbursement obligations for which a claim has not yet been asserted) are outstanding;

     
  (b)

does not mature, and is not subject to mandatory repurchase, redemption or amortization, in each case, prior to the date that is six (6) months after the Termination Date;

     
  (c)

is not secured, directly or indirectly, by any assets of any Obligor or any of its Subsidiaries;

     
  (d)

is not exchangeable or convertible into Financial Indebtedness of any Obligor or any of its Subsidiaries (other than Financial Indebtedness which would qualify as “Permitted Subordinated Indebtedness” hereunder) or Disqualified Stock;

     
  (e)

is not guaranteed by any other Group Member; and

     
  (f)

is expressly subordinated to the obligations owed to the Finance Parties under the Finance Documents pursuant to a subordination agreement in form and substance reasonably satisfactory to the Agent and to the Majority Lenders

 

Permitted Vessel Security

means:  
     
  (a)

mechanics’, materialmen’s, landlords’, supplier’s and repairmen’s and similar Liens imposed by law or pursuant to customary retentions of title, arising in the ordinary course of business and not as a result of any default or omission by the relevant member of the Group, and securing obligations not more than 30 days overdue;

     
  (b)

Liens on Collateral Vessels created or to be created hereunder in favor of the Security Trustee;

     
  (c)
Liens imposed by law for crews’ wages (including the wages of the master of the Collateral Vessel) not more than 30 days overdue that are either discharged in the ordinary course of business or are being contested in good faith and by appropriate proceedings diligently conducted or other acts by an Obligor and such Obligor shall have set aside on its books adequate reserves with respect to such Lien (to the extent required by GAAP) and so long as such deferment in payment shall not subject the Collateral Vessel to sale, forfeiture or loss;

 

39

 

 

  (d)

Liens imposed by law for salvage (including contract salvage) or general average, and Liens for wages of stevedores employed by the owner of the Collateral Vessel, the master of the Collateral Vessel or a charterer or lessee of such Collateral Vessel, if any such Lien is being contested in good faith and by appropriate proceedings diligently conducted or other acts by an Obligor and such Obligor shall have set aside on its books adequate reserves with respect to such Lien (to the extent required by GAAP) and so long as such deferment in payment shall not subject the Collateral Vessel to sale, forfeiture or loss;

     
  (e)

Liens imposed by law for damages arising from maritime torts which are covered by insurance and any deductible applicable thereto, or in respect of which a bond or other security has been posted on behalf of an Obligor with the appropriate court or other tribunal to prevent the arrest or secure the release of the Collateral Vessel from arrest, provided, that any such Lien is being contested in good faith and by appropriate proceedings or other acts by an Obligor, and such Obligor shall have set aside on its books adequate reserves with respect to such Lien (to the extent required by GAAP) and so long as such deferment in payment shall not subject the Collateral Vessel to sale, forfeiture or loss;

     
  (f)
charters or subcharters expressly permitted under this Agreement in the ordinary course of business; and
     
  (g)

Liens existing on the date hereof and described in Schedule 16 (Existing Liens)

  

Platform

means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system

   

Pledged Collateral

has the meaning given to that term in each Share Security except in respect of GMUK and GMNS where such term means the Secured Assets (as defined in the Share Security relating to such Obligors)

   

Pre-Approved Classification Society

means the American Bureau of Shipping and DNV GL

   

Prepayment Date

has the meaning given to that term in the definition of “Make Whole Premium” contained in this Clause 1.1

   

Prepayment Event

has the meaning given to that term in Clause 15.7.1

   

Prepayment Premium

has the meaning given to that term in Clause 15.7.1

   

Prime Rate

means the rate of interest quoted in The Wall Street Journal, Money Rates Section as the U.S. prime rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.  The Lenders may make commercial loans or other loans at rates of interest at, above or below the Prime Rate

 

40

 

 

Pro Forma Compliance

means, with respect to any event, that the applicable Obligor is in pro forma compliance with each of the financial covenants set forth in Clause 28.1 (Financial covenants) hereof, recomputed as if the event with respect to which Pro Forma Compliance is being tested had occurred on the first day of each relevant period with respect to which current compliance with any such financial covenant would be determined (for example, in the case of any such financial covenant based on Consolidated Adjusted EBITDA, as if such event had occurred on the first day of the four fiscal quarter period ending on the last day of the most recent fiscal quarter in respect of which financial statements have been delivered pursuant to Clause 27.1 (Financial statements) hereof). Pro forma calculations made pursuant to this definition that require the calculation of Consolidated Adjusted EBITDA on a pro forma basis will be made in accordance with the last paragraph of the definition of such term, except that, when testing Pro Forma Compliance with respect to any acquisition or disposition, references to Material Acquisition and Material Disposition in such last paragraph will be deemed to include such acquisition and disposition

   

Projections

has the meaning given to that term in Clause 26.11.1

   

Promissory Note

means a promissory note delivered to each Lender by the Original Borrower as a condition precedent to the Closing Date or any other additional, substitute or replacement promissory note delivered by a Borrower under this Agreement

   

Qualified ECP Guarantor

means, in respect of any Swap Obligation, each Obligor that constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act

   

Quarter Date

means each March 31, June 30, September 30 and December 31, the first such Quarter Date being December 31, 2017

   

Quarterly Forecast

has the meaning given to that term in Clause 27.13.1

   

Quotation Day

means, in relation to any period for which an interest rate is to be determined:

   
  (a)

(if the currency is sterling) the first day of that period;

     
  (b)

(if the currency is euro) two (2) TARGET Days before the first day of that period; or

     
  (c)
(for any other currency) two (2) Business Days in London, England before the first day of that period,
   
 
unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days)

 

41

 

 

Recovery Event

means any settlement of or payment in respect of any Collateral Vessel damage, any casualty insurance claim relating to any Collateral Vessel, or any condemnation proceeding relating to any Collateral Vessel

   

Rederi Intercreditor Agreement

means the Intercreditor and Subordination Agreement substantially in the form of Schedule 14 hereto, dated as of the Agreement Date, by and among, inter alios, the Agent and each of the Group Members

   

Reference Bank

means, in relation to LIBOR, EURIBOR or NIBOR, the principal London office of DNB Bank ASA

   
Reference Bank Rate

means the rate (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Bank:

   

 

(a)

in relation to LIBOR, as the rate at which the Reference Bank could borrow funds in the London interbank market;

     
  (b)

in relation to EURIBOR, as the rate at which the Reference Bank could borrow funds in the European interbank market; or

     
  (c)

in relation to NIBOR, as the rate at which the Reference Bank could borrow funds in the Norwegian interbank market,

     
 

in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period

   

Reference Bank Quotation

means any quotation supplied to the Agent by the Reference Bank

   

Reference Period

has the meaning given to that term in the definition of “Consolidated Adjusted EBITDA” contained in Clause 28.5 (Financial Covenant definitions)

   

Register

has the meaning given to that term in Clause 32.11 (Register)

   

Related Fund

in relation to a fund (the “first fund”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund

   

Related Parties

means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, attorneys, accountants, advisors and representatives of such Person and of such Person’s Affiliates

   

Relevant Interbank Market

means:

   
  (a)

in relation to euro, the European interbank market;

     
  (b)

in relation to NOK, the Norwegian interbank market;

 

42

 

 

  (c)

in relation to sterling and US Dollars, the London interbank market;

     
  (d)

in relation to any other currency, the London interbank market

     

Relevant Jurisdiction

means, in relation to an Obligor:
     
  (a)

its jurisdiction of incorporation;

     
  (a)

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated; and

     
  (c)

the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it

 

Relevant Obligations

has the meaning given to that term in Clause 32.6.3

   

Relevant Period

means, subject to Clause 28.1.6(b), each period of twelve months ending on or about the last day of each Financial Quarter

   

Reliance Parties

means the Agent, the Arranger, the Security Trustee, each Issuing Bank, each Hedge Counterparty, each Original Lender and each person which becomes a Lender on the date of this Agreement

   

Reorganization Plan

means the Amended Chapter 11 Plan of Reorganization Of GulfMark Offshore, Inc., attached as Exhibit A (Docket No. 328-1) to the Reorganization Plan Confirmation Order

   

Reorganization Plan Confirmation Order

means the Bankruptcy Court’s order confirming the Reorganization Plan entered on October 4, 2017 as Docket No. 328, in the Bankruptcy Proceeding, which order, inter alia, authorized and approved the Parent’s entry into and performance under this Agreement

   

Replacement Lender

has the meaning given to that term in Clause 45.3.1

   

Required Lenders

means Lenders having more than 66-2/3% of the sum of (i) the Total Outstanding Borrowings (including, without limitation, participation interests in outstanding Swingline Loans and L/C Obligations), and (ii) the Available Revolving Facility; provided, however, that the Commitments, Loans and participation interests in outstanding Swingline Loans and L/C Obligations of any Defaulting Lender shall be excluded from such calculation

   

Restricted Person

means a Person that is (i) listed on, or directly or indirectly owned or controlled by, or acting on behalf of, at the direction or for the benefit of, a Person listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person); (ii) domiciled or ordinarily resident in, incorporated under the laws of, or directly or indirectly owned or controlled by, or acting on behalf of, at the direction or for the benefit of, a Person domiciled or ordinarily resident in or organized under the laws of, a country or territory that is the target of comprehensive, country-wide or territory-wide Sanctions; or (iii) otherwise a target of Sanctions (whether designated by name or by reason of being included in a class of persons). For the purposes of this definition, “owned” or “controlled” shall be interpreted in accordance with the guidance, from time to time, of the Sanctions Authorities

 

43

 

 

Restricted Subsidiary

means any Subsidiary of the Parent that is not an Unrestricted Acquisition Subsidiary. Each of the Obligors shall at all times be deemed to be a Restricted Subsidiary

   

Resignation Effective Date

has the meaning given to that term in Clause 35.12.2

   

Resignation Letter

means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter)

   

Responsible Officer

means the chief executive officer, president or chief financial officer of a Guarantor or a Borrower, as applicable

   

Retiring Guarantor

has the meaning given to that term in Clause 25.9 (Release of Guarantors’ right of contribution)

   

Retiring Obligor

has the meaning given to that term in Clause 25.11.4

   

Revolving Facility

means the revolving loan and letter of credit facility made available under this Agreement as described in Clauses 2.1.2, 2.1.3 and 6.1 (The Letter of Credit Commitment)

   

Revolving Facility Commitment

means:

   
  (a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Revolving Facility Commitment” in Part 2A of Schedule 1 (The Original Parties) and the amount of any other Revolving Facility Commitment transferred to it under this Agreement; and

     
  (b)
in relation to any other Lender, the amount in the Base Currency of any Revolving Facility Commitment transferred to it under this Agreement,
   
 

in each case, to the extent not cancelled or reduced (including, without limitation, automatic reductions under Clause 2.2 (Automatic Commitment Reductions), voluntary reductions under Clause 13.3 (Voluntary cancellation) and mandatory reductions under Clause 14 (Mandatory Prepayment)) or transferred by it under this Agreement

   

Revolving Facility Lender

means any Lender with (i) a Revolving Facility Commitment or (ii) if the Revolving Facility Commitments have terminated, a Revolving Facility Loan or a participation interest in any Letter of Credit, any Swingline Loan or any Unreimbursed Amount

   

Revolving Facility Loan

means a loan made or to be made under the Revolving Facility or the principal amount outstanding for the time being of that loan

   

S&P

means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., or any successor thereto

 

44

 

 

Sanctions

means any trade, financial or economic sanctions laws, regulations, embargoes, orders or restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Nations; (iii) the European Union and the member states of the European Union; (iv) the United Kingdom; (v) Norway; or (vi) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (together “Sanctions Authorities”)

   

Sanctions Authorities

has the meaning given to such term in the definition of “Sanctions” contained in this Clause 1.1

   

Sanctions List

means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s Treasury, or any similar or equivalent published list or Sanctions designation or target listed, issued, maintained, adopted or made public by any of the Sanctions Authorities, as the same may be amended, supplemented or substituted from time to time.

   

Screen Rate

means:

   
  (a)

in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate);

     
  (b)

in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

     
  (c)

in relation to NIBOR, the Norwegian offered quotation for deposits in NOK administered by Thomson Reuters (or any other person which takes over the administration of that rate) for the relevant period displayed on page NIBR of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),

     
 

or in each case, on any successor or substitute page on such screen which displays that rate or, if such rate does not appear on such page or screen, on the appropriate page of such other information service which publishes that rate from time to time as selected by the Agent in its reasonable discretion after consultation with the Parent, provided that, if any such rate is not available at such time for any reason (including if the Agent reasonably determines that LIBOR has been discontinued), then LIBOR, EURIBOR or NIBOR for the applicable Interest Period shall be a comparable or successor rate selected by the Agent, with the consent of the Majority Lenders, after consultation with the Parent.

 

45

 

 

SEC

means the United States Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions

   

Second Anniversary Closing Date

means November 14, 2019

   

Second Currency

has the meaning given to that term in Clause 22.1.1

   

Secured Parties

means each Finance Party from time to time party to this Agreement or any other Finance Document

   

Security

means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect

   

Security Agreement

means each security agreement executed and delivered to the Security Trustee or Agent by one or more Obligors, dated as of the Agreement Date, and any other security agreement executed on or after the Closing Date by any Obligor in favor of the Security Trustee or Agent, as the same may from time to time be amended, amended and restated, supplemented or otherwise modified

   

Semi-Annual Date

has the meaning given to that term in Clause 2.2.1

   

Senior Management

means, with respect to any Person, the chairman of the board of directors, the president, the chief executive officer, the chief financial officer, the chief accounting officer or the general counsel of such Person

   

Shareholders Equity

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Share Security

means, in respect of each Obligor (other than the Parent), a document creating Security in favor of the Security Trustee over the Equity Interests of such Obligor and related assets as security for the Obligors’ obligations under the Finance Documents

   

Shipping Documents

means each Mortgage and exhibit or schedule with respect thereto and the other documents listed in paragraph 6 of Schedule 2 (Conditions Precedent)

   

Significant Subsidiary

has the meaning given to that term in Regulation S-X of the Securities Act of 1933, as amended

   

SMC

means a valid safety management certificate issued for a Collateral Vessel by or on behalf of the Administration under paragraph 13.7 of the ISM Code

   

Specified Time

means a time determined in accordance with Schedule 9 (Timetables)

   

Sponsor Affiliate

means the Parent, each of its Affiliates, any trust of which the Parent or any of its Affiliates is a trustee, any partnership of which the Parent or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, the Parent or any of its Affiliates

 

46

 

 

Spot Rate of Exchange

means:

   
  (a)

in relation to the Agent, its spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day;

     
  (b)

in relation to an Issuing Bank, its spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day

   

Statutory Reserve Rate

means, at any time, for any LIBOR Loan, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D of the Board) under regulations issued from time to time by the Board or other applicable banking regulator. Without limiting the effect of the foregoing, the Statutory Reserve Rate shall reflect any other reserves required to be maintained by member banks of the Federal Reserve System with respect to (i) any category of liabilities which includes deposits by reference to which the applicable LIBOR Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include LIBOR Loans. A LIBOR Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBOR Loans shall be adjusted automatically on and as of the effective date of any change in the Statutory Reserve Rate

   

Subsidiary

means, with respect to any Person at any date, subject to Clause 1.2.12, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the Parent in the Parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other Person (a) of which securities or other ownership interest representing more than 50% of the equity and more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled by the Parent or one or more Subsidiaries of the Parent or by the Parent and one or more Subsidiaries of the Parent. “Subsidiaries” shall be construed accordingly

   

Subsidiary Change of Control

has the meaning assigned to such term in the definition of “Change of Control” contained in this Clause 1.1

 

47

 

 

Sum

has the meaning given to that term in Clause 22.1.1

   

Swap Obligation

means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act

   

Swingline Commitment

means:

   
  (a)

in relation to an Original Swingline Lender, the amount in the Base Currency set opposite its name under the heading “Swingline Commitment” in Part 2C of Schedule 1 (The Original Parties) and the amount of any other Swingline Commitment transferred to it under this Agreement; and

     
  (b)
in relation to any other Swingline Lender, the amount of any Swingline Commitment transferred to it under this Agreement,
     
 
in each case, to the extent not cancelled or reduced or transferred by it under this Agreement
   

Swingline Facility

means the swingline loan facility made available under this Agreement as described in Clause 9 (Swingline Loans). For the avoidance of doubt, the Swingline Facility is a sub-facility of the Revolving Facility

   

Swingline Lender

means:

     
  (a)

an Original Swingline Lender; or

     
  (b)
any other person that becomes a Swingline Lender after the date of this Agreement as described in Clause 32 (Changes to the Lenders),
   
 
which in each case has not ceased to be a Party in accordance with the terms of this Agreement
   

Swingline Loan

means a loan made or to be made under the Swingline Facility or the principal amount outstanding for the time being of that loan

   

Swingline Sublimit

means the aggregate of the Swingline Commitments being $12,500,000 at the date of this Agreement

   

TARGET2

means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007

   

TARGET Day

means any day on which TARGET2 is open for the settlement of payments in euro

   

Tax

means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto

 

Term

means each period determined under this Agreement for which an Issuing Bank is under a liability under a Letter of Credit

 

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Term Facility

means the term loan facility made available under this Agreement as described in Clause 2.1.1

   

Term Facility Commitment

means:

   
  (a)

in relation to a Term Lender, the amount in the Base Currency set opposite its name under the heading “Term Facility Commitment” in Part 2B of Schedule 1 (The Original Parties) and the amount of any other Term Facility Commitment transferred to it under this Agreement, and

     
  (b)
in relation to any other Lender, the amount in the Base Currency of any Term Facility Commitment transferred to it under this Agreement,
     
 
in each case, to the extent not cancelled or reduced or transferred by it under this Agreement
   

Termination Date

means the date falling five (5) years from the date of this Agreement

   

Term Lender

means any Lender with a Term Facility Commitment or a Term Loan

   

Term Loan

means a loan made or to be made under the Term Facility or the principal amount outstanding for the time being of that loan

   

Third Anniversary Closing Date

means November 14, 2020

   

Third Party Disposal

has the meaning given to that term in Clause 34.3.1

   

Total Indebtedness

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Total Liquidity

has the meaning given to that term in Clause 28.5 (Financial Covenant definitions)

   

Total Loss

means, in relation to any Collateral Vessel:

     
  (a)

the actual, constructive, compromised, agreed, arranged or other total loss of such Collateral Vessel;

     
  (b)

any expropriation, confiscation, requisition or acquisition of such Collateral Vessel, whether for full consideration, a consideration less than its Appraised Value, a nominal consideration or without any consideration, which is effected by any Governmental Authority or official authority or by any Person or Persons claiming to be or to represent a Governmental Authority (excluding a requisition for hire for a fixed period not exceeding one (1) year without any right to extension) unless it is within one (1) month from the Total Loss Date redelivered to the full control of any Obligor; or

     
  (c)

any arrest, capture, seizure or detention of such Collateral Vessel (including any hijacking or theft) unless it is within one (1) month from the Total Loss Date redelivered to the full control of any Obligor

 

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Total Loss Date

means:

     
  (a)

in the case of an actual loss of any Collateral Vessel, the date on which it occurred or, if that is unknown, the date when such Collateral Vessel was last heard of;

     
  (b)

in the case of a constructive, compromised, agreed or arranged total loss of any Collateral Vessel, the earlier of: (i) the date on which a notice of abandonment is given to the insurers (provided a claim for total loss is admitted by such insurers) or, if such insurers do not forthwith admit such a claim, the date at which either a total loss is subsequently admitted by the insurers or a total loss is subsequently adjudged by a competent court of law or arbitration panel to have occurred or, if earlier, the date falling six (6) months after notice of abandonment of such Collateral Vessel was given to the insurers; and (ii) the date of compromise, arrangement or agreement made by or on behalf of any Obligor with such Collateral Vessel’s insurers in which the insurers agree to treat such Collateral 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 its good faith judgment, that the event constituting the Total Loss occurred

   

Total Outstanding Borrowings

means, as of any date of determination, the aggregate amount of (A) the outstanding principal amount of Loans as of such date of determination; and (B) the L/C Obligations as of such date of determination

   

Total Revolving Facility Commitments

means the aggregate of the Revolving Facility Commitments, being $25,000,000 as of the Agreement Date

   

Total Term Facility Commitments

means the aggregate of the Term Facility Commitments, being $100,000,000 as of the Agreement Date

   

Transaction Security

means the Security created or expressed to be created in favor of the Security Trustee pursuant to the Transaction Security Documents

   

Transaction Security Documents

means each of the documents listed as being a Transaction Security Document in paragraph 3(c) of Schedule 2 (Conditions Precedent), and any additional security document required to be delivered to the Agent or the Security Trustee hereunder, including, without limitation, under Clauses 34.2 (Additional Borrowers) and 34.4 (Additional Guarantors), together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents

 

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Transfer Certificate

means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Parent

   

Transfer Date

means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Parent

   

Treasury Rate

means, as of any Prepayment Date, the yield to maturity as of such Prepayment Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two (2) Business Days prior to the Prepayment Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Prepayment Date to the Second Anniversary Closing Date; provided, however, that if the period from the Prepayment Date to the Second Anniversary Closing Date is less than one (1) year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one (1) year shall be used

   

Type

means, with respect to a Loan, its character as an ABR Loan or a LIBOR Loan

   

UCC

means the Uniform Commercial Code as from time to time in effect in the State of New York, or, if the Uniform Commercial Code in any other State of the United States is mandatorily applicable with respect to any particular matter, the Uniform Commercial Code as from time to time in effect in such other State of the United States

   

UCP

means the Uniform Customs and Practice for Documentary Credits, 2007 revision, International Chamber of Commerce Publication No. 600, as the same may be amended and in effect from time to time

   

United States” or “US

means the United States of America

   

Unpaid Sum

means any sum due and payable but unpaid by an Obligor under the Finance Documents

   

Unreimbursed Amount

has the meaning given to that term in Clause 6.3.1

   

Unrestricted Acquisition Subsidiary

means a bankruptcy-remote, newly incorporated, special purpose, Wholly Owned Subsidiary of the Parent (other than an Obligor or a direct or indirect parent company of an Obligor) that is formed or acquired after the Closing Date by the Parent or a Subsidiary of the Parent (other than (a) a Borrower or any of its Subsidiaries and (b) an Obligor that owns a Collateral Vessel) whose only material assets from time to time may be vessels (and related contracts, working capital and inventory) that are not (x) Collateral Vessels or (y) any other Vessels that were owned by any other Group Member at any time (unless in the case of this clause (y), (1) such Vessel is not a Collateral Vessel, (2) each such Vessel is purchased by such Unrestricted Acquisition Subsidiary (on an arm’s length basis and customary terms for such types of sales) solely with cash, which purchase price is payable in full on the date of completion of such purchase, (3) such purchase price is not less than the highest valuation provided by at least two Approved Brokers reasonably chosen by the Majority Lenders and (4) the Net Cash Proceeds of each such sale are applied on the date of completion of such sale as a mandatory prepayment of the Term Loans, including payment of any applicable Make Whole Premium or Prepayment Premium) and is designated by the Parent in writing to the Agent as an Unrestricted Acquisition Subsidiary at the time it becomes a Subsidiary of the Parent, but only to the extent that such Subsidiary:

   
  (i)

has no Financial Indebtedness other than Non-Recourse Debt;

 

51

 

 

  (ii)

is not a party to any agreement, contract, arrangement or understanding with the Parent or any Restricted Subsidiary unless (A) the terms of any such agreement, contract, arrangement or understanding are management, administrative, personnel and advisory services on arm’s length terms and no less favorable to the Parent or such Restricted Subsidiary that those that might be obtained at the time from Persons who are not Affiliates of the Parent and (B) any amounts payable by such Subsidiary pursuant to any such agreement, contract, arrangement or understanding (including, without limitation, fees for management and administrative services, allocation of overhead and similar intercompany services) are paid in cash by such Subsidiary no less frequently than quarterly;

     
  (iii)

is a Person with respect to which neither the Parent nor any of its Restricted Subsidiaries has any direct or indirect obligation owed to, or otherwise with respect to, such Subsidiary (except as set forth in clause (ii) above), including, without limitation, (A) to subscribe for additional Equity Interests or (B) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;

     
  (iv)

does not guarantee, secure or otherwise directly or indirectly provide credit support for any Financial Indebtedness of the Parent or any of its Restricted Subsidiaries; and

     
  (v)

does not at any time own (directly or indirectly, in whole or in part) any Equity Interests or other Investments in any Restricted Subsidiary

   

US Dollar” or “$

means the lawful currency of the United States

   

Valuation Delivery Date

has the meaning given to that term in Clause 29.24.1

   

Vessel

means any Collateral Vessel or other similar vessel owned by any Group Member

   

Vessel Cash Collateral Account

means the US Dollar denominated blocked account of the Original Borrower, opened with the Security Trustee in its New York office named “Vessel Cash Collateral Account” with account number 13708002, as the same may be redesignated, substituted or replaced from time to time by the Security Trustee

 

52

 

 

Vessel Insurances

in relation to a Collateral Vessel, means all policies and contracts of insurance (including but not limited to hull and machinery, all entries in protection and indemnity or war risks associations) which are from time to time taken out or entered into in respect of or in connection with that Collateral Vessel or her increased value and (where the context permits) all benefits thereof, including all claims of any nature and rights to returns of premium and any rights in relation to any claim whether or not the relevant policy, contract, insurance or entry has expired on or before the date of this Agreement 

   

Website Lenders

has the meaning given to that term in Clause 41.7.1

   

Weighted Average Life

means, when applied to any Financial Indebtedness at any date, the number of years obtained by dividing:

   
  (a)

the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

   
  (b)

the then outstanding principal amount of such Financial Indebtedness

   

Wholly Owned Subsidiary

means with respect to any Person, any other Person 100% of whose Equity Interests are at the time owned by such Person directly or indirectly through other Persons 100% of whose Equity Interests (excluding directors’ qualifying shares) are at the time owned, directly or indirectly, by such Person

   

Write-Down and Conversion Powers

means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule

 

1.2

Construction

 

 

1.2.1

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

 

 

(a)

the “Agent”, an “Arranger”, any “Finance Party”, any “Hedge Counterparty”, any “Lender”, any “Issuing Bank”, any “Obligor”, any “Party”, any “Secured Party”, the “Security Trustee” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Trustee, any person for the time being appointed as Security Trustee or Security Trustees in accordance with the Finance Documents;

 

 

(b)

a document in “agreed form” is a document which is agreed in writing by or on behalf of the Parent and the Agent;

 

 

(c)

assets” includes present and future properties, revenues and rights of every description;

 

53

 

 

 

(d)

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;

 

 

(e)

guarantee” means (other than in Clause 25 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

 

(f)

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

 

 

(g)

an “Interest Period” includes each period determined under this Agreement by reference to which interest on a Loan is calculated;

 

 

(h)

a “Lender” includes a Swingline Lender unless the context otherwise requires;

 

 

(i)

Person” or “person” means a firm, corporation, partnership (limited or general), limited liability company, business association, natural person, sole proprietorship, joint venture, unincorporated organization, association, institution, public benefit corporation, trust or other entity of any kind, whether similar or dissimilar to any of the foregoing, and any Governmental Authority;

 

 

(j)

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 organization;

 

 

(k)

a provision of law is a reference to that provision as amended or re-enacted;

 

 

(l)

a time of day is a reference to New York time; and

 

 

(m)

a “lease” includes a vessel charter.

 

 

1.2.2

Section, Clause and Schedule headings are for ease of reference only.

 

 

1.2.3

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.

 

 

1.2.4

A Borrower providing “cash cover” for a Letter of Credit means a Borrower paying an amount in the currency of the Letter of Credit to an account in the name of such Borrower and the following conditions being met:

 

 

(a)

the account is with the Issuing Bank for which that cash cover is to be provided;

 

 

(b)

until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit; and

 

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(c)

such Borrower has executed a security document over that account, in form and substance reasonably satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account.

 

 

1.2.5

In this Agreement, reference to any legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept, state of affairs or thing in or of the United States is deemed, in respect of any jurisdiction other than the United States, to include that which most approximates in that jurisdiction to the legal term in the United States.

 

 

1.2.6

A Borrower “repaying” or “prepaying” a Letter of Credit means:

 

 

(a)

that Borrower providing cash cover for that Letter of Credit;

 

 

(b)

the maximum amount payable under that Letter of Credit being reduced or cancelled in accordance with its terms; or

 

 

(c)

the applicable Issuing Bank being satisfied that it has no further liability under that Letter of Credit,

 

and the amount by which a Letter of Credit is repaid or prepaid under paragraphs (a) and (b) above is the amount of the relevant cash cover, reduction or cancellation.

 

 

1.2.7

An amount borrowed includes any amount utilized by way of Letter of Credit.

 

 

1.2.8

A Lender funding its portion of a Borrowing includes a Lender participating in a Letter of Credit or a Swingline Loan.

 

 

1.2.9

Amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit.

 

 

1.2.10

An outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be drawn by the relevant beneficiary in respect of that Letter of Credit at that time.

 

 

1.2.11

A Borrower’s obligation on Borrowings becoming “due and payable” includes such Borrower repaying any Letter of Credit in accordance with paragraph 1.2.6 above.

 

 

1.2.12

All references to the Group, a Group Member or Subsidiary of the Parent in Clause 26 (Representations) (other than Clauses 26.12.3, 26.12.5, 26.15 (Environmental laws), 26.21 (Group Structure Chart), 26.26 (Anti-corruption laws), and 26.27 (Sanctions and Anti-Money Laundering Laws)), Clause 28 (Financial Covenants) and Clause 29 (Covenants) (other than Clauses 29.2 (Compliance with laws), 29.3 (Environmental compliance and Environmental Claims), 29.5 (Taxation), 29.26 (Sanctions), 29.27 (Anti-corruption law), and 29.31 (Transactions with Affiliates)), and any defined terms used therein, shall be deemed to exclude all Unrestricted Acquisition Subsidiaries.

 

1.3

Third party rights

 

 

1.3.1

The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of the Obligors and the Finance Parties with respect to the transactions contemplated hereby and no Person shall be a third party beneficiary of any of the terms and provisions of this Agreement or any of the other Finance Documents.

 

55

 

 

 

1.3.2

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

1.4

Accounting Terms; GAAP

 

 

1.4.1

Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time. All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825-10 (or any other Accounting Standards Codification having a similar result or effect) to value any Indebtedness or other liabilities of each Borrower or any Subsidiary at “fair value”, as defined therein.

 

 

1.4.2

Notwithstanding the foregoing, if at any time any change in GAAP would affect the computation of any Financial Covenant, and either an Obligor or the Majority Lenders shall so request, the Agent, the Lenders and the Obligors shall negotiate in good faith to amend such Financial Covenant to seek to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Lenders); provided, that if no agreement on any such change is reached within 60 days of any such request, such Financial Covenant shall be computed in accordance with GAAP as so amended.

 

 

1.4.3

Notwithstanding any other provision contained herein, all items of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change in GAAP occurring after the Closing Date as a result of the adoption of any proposals set forth in the proposed Accounting Standards Update, Leases (Topic 842): a revision of the 2010 proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting Standards Board on May 16, 2013, or any other proposals issued by the Financial Accounting Standards Board in connection herewith, in each case, if and to the extent any such change would require treating any lease (or similar arrangement conveying the right to use) as a Capitalized Lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the Closing Date.

 

56

 

 

SECTION 2

THE FACILITIES

 

2.

The Facilities

 

2.1

The Facilities

 

 

2.1.1

Subject to the terms and conditions of this Agreement, each Term Lender severally agrees to make a Term Loan to the Original Borrower in the Base Currency on the Closing Date in the amount of such Term Lender’s Term Facility Commitment and in an aggregate amount for all Term Lenders not to exceed the Total Term Facility Commitments. The Term Loans shall be made simultaneously by the Term Lenders in accordance with their respective share of the Total Term Facility Commitments. Amounts borrowed under this Clause 2.1.1 and repaid or prepaid may not be reborrowed. Term Loans may be ABR Loans or LIBOR Loans, as further provided herein.

 

 

2.1.2

Subject to the terms and conditions of this Agreement, on any Business Day during the Availability Period, each Revolving Facility Lender severally agrees to make Revolving Facility Loans to the Borrowers from time to time in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Facility Commitment; provided, however, that after giving effect to any Revolving Facility Loans, (i) the Base Currency Amount of all outstanding Borrowings under the Revolving Facility shall not exceed the Total Revolving Facility Commitments in the Base Currency, and (ii) the aggregate outstanding amount of the Revolving Facility Loans of any Revolving Facility Lender, plus such Revolving Facility Lender’s Applicable Revolving Credit Percentage of the outstanding amount of all L/C Obligations and Swingline Loans, shall not exceed such Revolving Facility Lender’s Revolving Facility Commitment; provided, further, that for purposes of calculating the outstanding Borrowings under the Revolving Facility pursuant to this Clause 2.1.2, the Base Currency Amount of each Revolving Facility Lender’s participation in all outstanding Borrowings under the Revolving Facility that are denominated in an Optional Currency, if any, shall be deemed to equal 105% of such Base Currency Amount. Within the limits of each Revolving Facility Lender’s Revolving Facility Commitment and Available Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Clause 2.1.2, prepay under Clause 13.4 (Voluntary prepayment of Loans), and reborrow under this Clause 2.1.2. Revolving Facility Loans may be ABR Loans or LIBOR Loans, as further provided herein.

 

 

2.1.3

Subject to the terms and conditions of this Agreement, including Clause 9 (Swingline Loans), on any Business Day during the Availability Period, each Swingline Lender, in its individual capacity, severally agrees to make Swingline Loans to the Borrowers; provided, however, that after giving effect to any Swingline Loan, (i) the aggregate outstanding principal amount of all Swingline Loans shall not exceed the Swingline Sublimit, (ii) the Base Currency Amount of all outstanding Borrowings under the Revolving Facility shall not exceed the Total Revolving Facility Commitments in the Base Currency, and (iii) in respect of each Swingline Lender, the sum of (A) the aggregate outstanding principal amount of the Swingline Loans made by such Swingline Lender, (B) the aggregate outstanding principal amount of the other Revolving Facility Loans of such Swingline Lender (in its capacity as a Revolving Facility Lender), and (C) such Lender’s Applicable Revolving Credit Percentage of the outstanding amount of all L/C Obligations and all Swingline Loans made by any other Swingline Lender, shall not exceed such Lender’s Revolving Facility Commitment. Amounts borrowed under this Clause 2.1.3 and repaid or prepaid may be reborrowed in accordance with the provisions of this Agreement.

 

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2.2

Automatic Commitment Reductions

 

 

2.2.1

The Total Revolving Facility Commitments shall automatically and permanently be reduced in increments of $3,125,000, on a semi-annual basis, with the first such reduction occurring on the Third Anniversary Closing Date, and thereafter on each date that is six (6) months after the prior reduction date (each such date, a “Semi-Annual Date”). Each such reduction shall reduce the Revolving Facility Commitments of the Revolving Facility Lenders on a pro rata basis.

 

 

2.2.2

On each Semi-Annual Date, the Swingline Sublimit shall automatically and permanently be reduced by $1,562,500. Each such reduction shall reduce the Swingline Commitments of the Swingline Lenders on a pro rata basis.

 

2.3

Repayments for Automatic Reductions

 

 

2.3.1

If, after giving effect to any reduction of the Total Revolving Facility Commitments on any Semi-Annual Date pursuant to Clause 2.2.1, the Total Outstanding Borrowings will exceed the Total Revolving Facility Commitments, the Agent shall notify the Borrowers of such excess Total Outstanding Borrowings in writing and, within three (3) Business Days following receipt of such notice, the Borrowers will repay Revolving Facility Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount not less than such excess Total Outstanding Borrowings, together with accrued interest on the amount repaid and, subject to Clause 18.4 (Break Costs), without premium or penalty.

 

 

2.3.2

If, after giving effect to any reduction of the Swingline Commitments on any Semi-Annual Date pursuant to Clause 2.2.2, the outstanding principal amount of the Swingline Loans will exceed the Swingline Sublimit, the Agent shall notify the Borrowers of such excess in writing and, within three (3) Business Days following receipt of such notice, the Borrowers will repay Swingline Loans in an aggregate amount not less than such excess, together with accrued interest on the amount repaid and without premium or penalty.

 

2.4

Finance Parties’ rights and obligations

 

 

2.4.1

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

 

 

2.4.2

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

 

2.5

Obligors’ Agent

 

 

2.5.1

Each Obligor (other than the Parent) by its execution of this Agreement or a Joinder irrevocably appoints the Parent to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorizes:

 

 

(a)

the Parent on its behalf to supply all information concerning itself required by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Borrowing Requests and Letter of Credit Applications), to execute on its behalf any Joinder, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

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(b)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Parent,

 

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

 

 

2.5.2

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

 

3.

Purpose

 

3.1

Purpose

 

 

3.1.1

Subject to Clause 3.1.2, each Borrower shall apply all amounts borrowed by it under the Facilities towards (x) refinancing the Indebtedness under the Existing Facilities and (y) the general corporate and working capital purposes of the Group (including, without limitation, pursuant to unsecured intercompany loans made by the Original Borrower to (and the issuance of Letters of Credit for the benefit of) GMA and other Subsidiaries, as co-borrowers, under the Intercompany Facility in accordance with the terms and conditions thereof), but not towards:

 

 

(a)

repayment or prepayment of other Financial Indebtedness;

 

 

(b)

in support of any program or issuance of commercial paper; or

 

 

(c)

except with the prior written consent of the Majority Lenders, funding any Distributions, Acquisitions or other Investments by any Obligor (or the financing of any of the foregoing).

 

For the avoidance of doubt, the foregoing shall not restrict (1) the use of any Borrowings to finance Permitted Capital Expenditures, (2) the acquisition by any Obligor of a new vessel using Equity Interests of the Parent and/or the cash proceeds of the issuance of such Equity Interests as the sole consideration therefor, or (3) like-kind exchanges of vessels that are otherwise permitted under the terms of this Agreement and the other Finance Documents.

 

 

3.1.2

The Original Borrower shall apply the first Borrowing of the Facilities:

 

 

(a)

towards repayment and cancellation of all amounts available or outstanding under the Existing Facilities;

 

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(b)

towards payment of fees and expenses incurred in connection with the arrangement, negotiation and execution of the Finance Documents; and

 

 

(c)

otherwise, in accordance with Clause 3.1.1 above.

 

3.2

Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.

Conditions Of BORROWING

 

4.1

Initial conditions precedent

 

 

4.1.1

The Lenders will only be obliged to comply with Clause 5.4 (Funding by Lenders) in relation to the initial Borrowing if on or before the Borrowing Date for that Borrowing, unless otherwise waived by all of the Lenders, the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance reasonably satisfactory to the Agent and the Lenders. The Agent shall notify the Parent and the Lenders promptly upon being so satisfied or waived.

 

 

4.1.2

Other than to the extent that any Lender notifies the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1.1 above, the Lenders authorize (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

 

Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Funding by Lenders), if on the date of the Borrowing Request and on the proposed Borrowing Date:

 

 

4.2.1

no Default has occurred and is continuing or would result from the proposed Borrowing;

 

 

4.2.2

all of the representations and warranties contained in Clause 26 (Representations) and in each other Finance Document are true and correct in all material respects (except that any such representation and warranty that is already subject to any “Material Adverse Effect” or other materiality qualification shall be true and correct in all respects) on and as of such Borrowing Date to the same extent as though made on and as of that date, except to the extent any such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any such representation and warranty that is already subject to any “Material Adverse Effect” or other materiality qualification shall be true and correct in all respects) on and as of such earlier date; and

 

 

4.2.3

all requirements under Clause 5 (Borrowing – Loans), Clause 6.2 (Procedures for Issuance and Amendment of Letters of Credit) or Clause 8 (Requesting – Swingline Loans) for such Borrowing, as applicable, have been satisfied or waived, including the delivery of the applicable Borrowing Request.

 

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The Borrowers shall be deemed to have made a representation and warranty hereunder as of the time of each such Borrowing Request that the conditions specified in Clauses 4.2.1, 4.2.2 and 4.2.3 have been fulfilled as of such time.

 

4.3

Maximum number of Borrowings

 

 

4.3.1

No more than five (5) Revolving Facility Loans may be outstanding at any time.

 

 

4.3.2

Any Revolving Facility Loan made by a single Lender under Clause 11.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.3.

 

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SECTION 3

REQUEST FOR BORROWINGS AND LETTERS OF CREDIT

 

5.

Borrowing – Loans

 

5.1

Delivery of a Borrowing Request

 

A Borrower (or the Parent on its behalf) may request the Borrowing of the Term Loan, a Revolving Facility Loan, conversion of Term Loans or Revolving Facility Loans from one Type to the other Type, and continuation of LIBOR Loans by delivery to the Agent of a duly completed Borrowing Request, which request shall be irrevocable.

 

5.2

Completion of a Borrowing Request

 

Each Borrowing Request must be received by the Agent not later than the applicable Specified Time (a) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Loans or of any conversion of LIBOR Loans to ABR Loans, and (b) one (1) Business Day prior to the requested date of any Borrowing of ABR Loans. Each Borrowing Request shall specify (i) whether the applicable Borrower is requesting a Term Loan, a Revolving Facility Loan or, if available, a conversion of Term Loans or Revolving Facility Loans from one Type to the other Type, or a continuation of LIBOR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day within the Availability Period), (iii) the principal amount and currency of the Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving Facility Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the applicable Borrower fails to specify a Type of Loan in a Borrowing Request or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Facility Loans shall be made as, or converted to, ABR Loans. Any such automatic conversion to ABR Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Loans in any such Borrowing Request, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of three (3) months.

 

5.3

Currency and amount

 

 

5.3.1

All Term Loans shall be made on the Closing Date in the full amount of the Total Term Facility Commitments in the Base Currency and shall remain in the Base Currency.

 

 

5.3.2

The currency specified in a Borrowing Request for a Revolving Facility Loan must be the Base Currency or an Optional Currency.

 

 

5.3.3

The amount of the proposed borrowing or continuation of a Revolving Facility Loan, or of a conversion to a LIBOR Loan or an ABR Loan, must be a minimum of $2,000,000 and in integral multiples of $1,000,000 in excess thereof (or, in each case, the equivalent in the applicable Optional Currency), or, if less, the Available Revolving Facility.

 

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5.4

Funding by Lenders

 

 

5.4.1

Following receipt of a Borrowing Request or a request or a deemed request by the Swingline Lender for repayment of any outstanding Swingline Loans under Clause 9.3 (Repayment), the Agent shall promptly notify each Lender of the amount of its share under the applicable Facility of the applicable Term Loans or Revolving Facility Loans, if any, and if no timely notice of a conversion or continuation is provided by the Borrowers, the Agent shall notify each Lender of the details of any automatic conversion to ABR Loans described in Clause 5.2 (Completion of a Borrowing Request). In the case of a request for the Term Loan or a Revolving Facility Loan, each Term Lender or Revolving Facility Lender, as applicable, shall make the amount of its Loan available to the Agent in immediately available funds through its Facility Office not later than 11:00 a.m. on the requested Borrowing Date. Upon satisfaction (or waiver by all of the Lenders) of the applicable conditions set forth in Clause 4.2 (Further conditions precedent) (and, if such Borrowing is the initial Borrowing, Clause 4.1 (Initial conditions precedent)), the Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Agent, in the case of the Loans made on the Closing Date, in accordance with the Funds Flow Statement, and in the case of all other Loans made hereunder, either by (i) crediting the account of such Borrower with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with the Funds Flow Statement (in the case of the initial Borrowing) and instructions provided to (and acceptable to) the Agent by such Borrower; provided, however, that if on the date a Borrowing Request is delivered for a Revolving Facility Loan, there are L/C Borrowings outstanding, then the proceeds of such Revolving Facility Loan, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the applicable Borrower as provided above.

 

 

5.4.2

Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Loan. During the existence of an Event of Default, the Agent may notify the Borrowers that Loans may only be converted into or continued as ABR Loans and, thereafter, until no Event of Default shall continue to exist, Loans may not be converted into or continued as LIBOR Loans.

 

 

5.4.3

After giving effect to the Borrowing of any Loans, all conversions of Loans from one Type to the other Type, and all continuations of Loans as the same Type, there shall not be more than five (5) Interest Periods in effect in respect of the Facilities.

 

 

5.4.4

The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and notify each applicable Lender of the amount, currency and the Base Currency Amount of such Loan and the amount of its participation in that Loan and, if different, the amount of that participation to be made available in cash by the Specified Time.

 

5.5

Limitations on Borrowings

 

 

5.5.1

The aggregate Base Currency Amount of all Letters of Credit shall not, at any time, exceed the L/C Sublimit.

 

 

5.5.2

The aggregate Base Currency Amount of all Swingline Loans shall not, at any time, exceed the Swingline Sublimit.

 

 

5.5.3

The aggregate Base Currency Amount of all Revolving Facility Loans shall not, at any time, exceed the Total Revolving Facility Commitments.

 

 

5.5.4

The aggregate Base Currency Amount of all Terms Loans shall not, at any time, exceed (a) the Total Term Facility Commitments as of the Closing Date minus (b) the aggregate amount of all repayments and prepayments of the Term Loans made (or required to be made) after the Closing Date (including, without limitation, all repayments and prepayments of the Term Loans required to be made pursuant to Clause 12.3 (Repayment of Term Loans) and Clause 14 (Mandatory Prepayment).   

 

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5.6

Required Cancellation of Commitments

 

The Revolving Facility Commitments which, at that time, are unutilized shall be immediately cancelled at the end of the Availability Period. The Term Facility Commitments which are unutilized on the Closing Date (if any) shall be immediately cancelled after the initial Borrowing of the Term Loans on the Closing Date.

 

6.

Requesting - LETTERS OF CREDIT

 

6.1

The Letter of Credit Commitment

 

 

6.1.1

Subject to the terms and conditions set forth herein:

 

 

(a)

each Issuing Bank agrees, in reliance upon the agreements of the Revolving Facility Lenders set forth in this Clause 6.1, (i) from time to time on any Business Day during the Availability Period, to issue Letters of Credit for the account of a Borrower or any of its Affiliates party to the Intercompany Facility, and to amend Letters of Credit previously issued by it, in accordance with Clause 6.2 (Procedures for Issuance and Amendment of Letters of Credit), and (ii) to honor drawings under the Letters of Credit; and

 

 

(b)

each Revolving Facility Lender severally agrees to participate in Letters of Credit issued for the account of a Borrower or any of its Affiliates party to the Intercompany Facility and any drawings thereunder; provided, that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Base Currency Amount of all outstanding Borrowings under the Revolving Facility shall not exceed the Total Revolving Facility Commitments in the Base Currency, (y) the aggregate outstanding principal amount of the Revolving Facility Loans of any Revolving Facility Lender, plus such Lender’s Applicable Revolving Credit Percentage of the outstanding amount of all Swingline Loans and L/C Obligations, shall not exceed such Lender’s Revolving Facility Commitment, and (z) the outstanding amount of the L/C Obligations shall not exceed the L/C Sublimit.

 

In determining the amount of the Available Revolving Facility and a Lender’s L/C Proportion of a proposed Letter of Credit for the purposes of this Agreement, the Available Revolving Commitment of a Lender will be calculated ignoring any cash cover provided for outstanding Letters of Credit.

 

 

6.1.2

Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso in Clause 6.1.1(b). Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

 

6.1.3

No Issuing Bank shall issue any Letter of Credit if:

 

 

(a)

the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Majority Revolving Lenders have approved such expiry date; or

 

 

(b)

the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Facility Lenders have approved such expiry date; or

 

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(c)

such Letter of Credit is to be denominated in a currency other than the Base Currency or an Optional Currency.

 

 

6.1.4

No Issuing Bank shall be under any obligation to issue any Letter of Credit if:

 

 

(a)

any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it;

 

 

(b)

the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank generally applicable to the issuance of letters of credit;

 

 

(c)

except as otherwise agreed by the Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $50,000;

 

 

(d)

such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;

 

 

(e)

a default of any Revolving Facility Lender’s obligations to fund under Clause 6.2 (Procedures for Issuance and Amendment of Letters of Credit) exists or any Revolving Facility Lender is at such time a Defaulting Lender hereunder, unless such Issuing Bank has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate such Issuing Bank’s risk with respect to such Lender;

 

 

(f)

a Default is continuing on the date of the Letter of Credit Application or the date of issuance of such Letter of Credit, or would result from the proposed issuance of such Letter of Credit;

 

 

(g)

the beneficiary of such Letter of Credit has not been approved by the Issuing Bank based on the results of its internal “know your customer” or other similar checks or the issuance of such Letter of Credit would result in a breach of the provisions of Clause 29.26 (Sanctions);

 

 

(h)

where a new Letter of Credit is to be issued to replace by way of renewal an existing Letter of Credit, the Letter of Credit being replaced has not been returned to the Issuing Bank or the Issuing Bank is not otherwise satisfied that (i) it will be returned to it or (ii) no liability can arise under it; or

 

 

(i)

after giving effect to such issuance, the aggregate face amount of Letters of Credit issued by such Issuing Bank would exceed such Issuing Bank’s share of the L/C Sublimit.

 

 

6.1.5

No Issuing Bank shall amend any Letter of Credit if such Issuing Bank would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

 

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6.1.6

No Issuing Bank shall be under any obligation to amend any Letter of Credit if (a) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (b) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

 

6.1.7

Each Issuing Bank shall have all of the benefits and immunities (a) provided to the Agent in Clause 35 (Role of the Agent, the Arranger, the Issuing Banks and Others) with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Clause 35 (Role of the Agent, the Arranger, the Issuing Banks and Others) included such Issuing Bank with respect to such acts or omissions, and (b) as additionally provided herein with respect to such Issuing Bank.

 

6.2

Procedures for Issuance and Amendment of Letters of Credit

 

 

6.2.1

Each Letter of Credit shall be issued or amended, as the case may be, upon the request of any Borrower (or the Parent on its behalf) delivered to the relevant Issuing Bank (with a copy to the Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower or the Parent, as applicable. Such Letter of Credit Application must be received by the relevant Issuing Bank and the Agent not later than the Specified Time at least three (3) Business Days (or such later date and time as the Agent and the relevant Issuing Bank may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall (i) specify in form and detail reasonably satisfactory to the relevant Issuing Bank: (A) the Borrower requesting such Letter of Credit, and the name of the Person (which shall be such Borrower or any of its Affiliates party to the Intercompany Facility as a co-borrower) for whose benefit such Letter of Credit is being issued; (B) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day within the Availability Period prior to the Letter of Credit Expiration Date); (C) the currency and amount thereof (which shall comply with Clause 6.4 (Currency and amount)); (D) the expiry date thereof; (E) the name and address of the beneficiary thereof; (F) the delivery instructions for the Letter of Credit; (G) the documents to be presented by such beneficiary in case of any drawing thereunder; (H) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (I) such other matters as the relevant Issuing Bank may reasonably require, and (ii) contain a representation and warranty that the conditions set forth in Clause 4.2 (Further conditions precedent) have been fulfilled as of the date of the Letter of Credit Application.

 

 

6.2.2

In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant Issuing Bank (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day during the Availability Period prior to the Letter of Credit Expiration Date); (3) the nature of the proposed amendment; and (4) such other matters as the relevant Issuing Bank may reasonably require.

 

 

6.2.3

Additionally, the applicable Borrower shall furnish to the relevant Issuing Bank and the Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the relevant Issuing Bank or the Agent may reasonably require.

 

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6.2.4

Promptly after receipt of any Letter of Credit Application, the relevant Issuing Bank will (i) confirm with the Agent (by telephone or in writing) that the Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such Issuing Bank will provide the Agent with a copy thereof, and (ii) determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the Agent who, in turn, will notify each Revolving Facility Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.

 

 

6.2.5

Unless the relevant Issuing Bank has received written notice from any Revolving Facility Lender, the Agent or any Obligor, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Clause 6.1 (The Letter of Credit Commitment) or Clause 4.2 (Additional conditions precedent) shall not then be satisfied, then, subject to the terms and conditions hereof, the relevant Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the relevant Issuing Bank’s usual and customary business practices.

 

 

6.2.6

Immediately upon the issuance of each Letter of Credit, each Revolving Facility Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the relevant Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Facility Lender’s Applicable Revolving Credit Percentage at such time times the amount of such Letter of Credit.

 

 

6.2.7

Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the relevant Issuing Bank will also deliver to the applicable Borrower and the Agent a true and complete copy of such Letter of Credit or amendment.

 

 

6.2.8

The Issuing Bank may issue or renew a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market.

 

6.3

Drawings and Reimbursements; Funding of Participations.

 

 

6.3.1

Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the relevant Issuing Bank shall notify the Borrowers and the Agent thereof. Not later than 11:00 a.m. on the Honor Date, the Borrowers shall reimburse the relevant Issuing Bank through the Agent in an amount equal to the amount of such drawing. If the Borrowers fail to so reimburse such Issuing Bank by such time, the Agent shall promptly notify each Revolving Facility Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Facility Lender’s Applicable Revolving Credit Percentage thereof. In such event, the Borrowers shall be deemed to have requested a Revolving Facility Loan that is an ABR Loan to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Clause 5.3 (Currency and amount) and Clause 5.5 (Limitations on Borrowings) for the principal amount of ABR Loans, but subject to the amount of the unutilized portion of the Revolving Facility Commitments. Any notice given by an Issuing Bank or the Agent pursuant to this Clause 6.3.1 may be given by telephone if immediately confirmed in writing; provided, that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

 

6.3.2

Each Revolving Facility Lender shall upon any notice pursuant to Clause 6.3.1 make funds available to the Agent for the account of the relevant Issuing Bank through its Facility Office in an amount equal to its Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Agent, whereupon, subject to the provisions of Clause 6.3.3, each Revolving Facility Lender that so makes funds available shall be deemed to have made an ABR Loan to the Borrowers in such amount. The Agent shall remit the funds so received to the relevant Issuing Bank.

 

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6.3.3

With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Facility Loan of ABR Loans for any reason, the Borrowers shall be deemed to have incurred from the relevant Issuing Bank an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear Default interest pursuant to Clause 16.3 (Default Interest). In such event, each Revolving Facility Lender’s payment to the Agent for the account of the relevant Issuing Bank pursuant to Clause 6.3.2 shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Clause 6.3.

 

 

6.3.4

Until each Revolving Facility Lender funds its Revolving Facility Loan or L/C Advance pursuant to this Clause 6.3 to reimburse the relevant Issuing Bank for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Revolving Credit Percentage of such amount shall be solely for the account of the relevant Issuing Bank.

 

 

6.3.5

Each Revolving Facility Lender’s obligation to make Revolving Facility Loans to the Borrowers or L/C Advances to reimburse the relevant Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Clause 6.3, shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any Issuing Bank, the Borrowers or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the relevant Issuing Bank for the amount of any payment made by such Issuing Bank under any Letter of Credit, together with interest as provided herein.

 

 

6.3.6

If any Revolving Facility Lender fails to make available to the Agent for the account of the relevant Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing provisions of this Clause 6.3 by the time specified in Clause 6.3.2, such Issuing Bank shall be entitled to recover from such Lender (acting through the Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by such Issuing Bank in accordance with banking industry rules on interbank compensation. A certificate of the relevant Issuing Bank submitted to any Revolving Facility Lender (through the Agent) with respect to any amounts owing under this Clause 6.3.6 shall be conclusive absent manifest error.

 

6.4

Currency and amount

 

 

(a)

The currency specified in a Letter of Credit Application must be the Base Currency or an Optional Currency.

 

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(b)

Subject to Clause 5.5.1 (Limitations on Borrowings), the amount of the proposed Letter of Credit must be an amount whose Base Currency Amount is not more than the Available Revolving Facility and which is:

 

 

(i)

if the currency selected is the Base Currency, a minimum of $50,000 or, if less, the Available Revolving Facility; or

 

 

(ii)

if the currency selected is an Optional Currency, in a minimum Base Currency Amount of $50,000 or, if less, the Available Revolving Facility.

 

6.5

Repayment of Participations

 

 

6.5.1

At any time after an Issuing Bank has made a payment under any Letter of Credit and has received from any Revolving Facility Lender such Lender’s L/C Advance in respect of such payment in accordance with Clause 6.2 (Procedures for Issuance and Amendment of Letters of Credit), if the Agent receives for the account of such Issuing Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from any Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Agent), the Agent will distribute to such Lender its Applicable Revolving Credit Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Agent.

 

 

6.5.2

If any payment received by the Agent for the account of an Issuing Bank pursuant to Clause 6.3.1 is required to be returned under any of the circumstances described in Clause 39.12 (Payments Set Aside) (including pursuant to any settlement entered into by such Issuing Bank in its discretion), each Revolving Facility Lender shall pay to the Agent for the account of such Issuing Bank its Applicable Revolving Credit Percentage thereof on demand of the Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligors’ obligations under the Finance Documents and the termination of this Agreement.

 

6.6

Obligations Absolute

 

 

6.6.1

The obligation of the Borrowers to reimburse the relevant Issuing Bank for each drawing under each Letter of Credit issued by it and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

 

(a)

any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Finance Document;

 

 

(b)

the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

 

(c)

any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

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(d)

any payment by the relevant Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the relevant Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any bankruptcy or insolvency law or other similar law affecting creditors’ rights; or

 

 

(e)

any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any of its Affiliates.

 

 

6.6.2

Each Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower’s instructions or other irregularity, such Borrower will immediately notify the applicable Issuing Bank. The Borrowers shall be conclusively deemed to have waived any such claim against such Issuing Bank and its correspondents unless such notice is given as aforesaid.

 

6.7

Role of Issuing Banks

 

Each Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the relevant Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Issuing Banks, the Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Facility Lenders or the Majority Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence, fraud or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude any Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Banks, the Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any Issuing Bank shall be liable or responsible for any of the matters described in clauses (a) through (e) of Clause 6.6 (Obligations Absolute); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against an Issuing Bank, and such Issuing Bank may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers which the Borrowers prove were caused by such Issuing Bank’s willful misconduct, fraud or gross negligence as determined in a final and non-appealable judgment by a court of competent jurisdiction or such Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no Issuing Bank shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

 

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6.8

Cash Collateral

 

Each Borrower hereby grants to the Agent, for the benefit of the Issuing Banks and the Lenders, a security interest in all Cash Collateral, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest bearing deposit accounts at DNB Bank ASA, New York Branch. If at any time the Agent determines that (i) the Agent does not have a first priority, perfected Lien on any funds held as Cash Collateral, prior to all rights and claims of any other Persons, or (ii) the total amount of such funds held as Cash Collateral is less than the aggregate amount of Cash Collateral then required pursuant to the terms of this Agreement to secure the L/C Obligations, the Borrowers will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the amount of funds subject to such right or claim or the amount of funds necessary to remedy such shortfall, as applicable. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral to secure the L/C Obligations, such funds shall be applied, to the extent permitted under applicable law, to reimburse the relevant Issuing Bank.

 

6.9

Applicability of ISP and UCP

 

Unless otherwise expressly agreed by the relevant Issuing Bank and the relevant Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

 

6.10

Conflict with Issuer Documents

 

In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

6.11

Letters of Credit Issued for Affiliates

 

Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, an Affiliate of any Borrower that is party to the Intercompany Facility, each Borrower shall be obligated to reimburse the relevant Issuing Bank hereunder for any and all drawings under such Letter of Credit. Each Borrower, the Parent and all other Obligors hereby acknowledge that the issuance of Letters of Credit for the account of any such Affiliates inures to the benefit of the Obligors, and that the Obligors’ business derives substantial benefits from the businesses of such Affiliates.

 

6.12

Revaluation of Letters of Credit

 

 

6.12.1

If any Letters of Credit are denominated in an Optional Currency, the relevant Issuing Bank may, at any time and from time to time, after issue or renewal of a Letter of Credit, recalculate (and advise the Agent and the Parent of) the Base Currency Amount of each Letter of Credit by notionally converting into the Base Currency the outstanding amount of that Letter of Credit on the basis of its Spot Rate of Exchange on the date of calculation.

 

 

6.12.2

If the Base Currency Amount of all outstanding Letters of Credit exceeds the L/C Sublimit, the Parent shall, if requested by the Agent, ensure that within three (3) Business Days of such request the L/C Obligations are Cash Collateralized in an amount not less than such excess.

 

 

6.12.3

If the Base Currency Amount of all outstanding Borrowings under the Revolving Facility exceeds the Total Revolving Facility Commitments in the Base Currency, the Parent shall, upon written request by the Agent, ensure that within five (5) Business Days of such request, (a) the Revolving Facility Loans are prepaid in an aggregate principal amount not less than such excess, together with accrued interest thereon, or (b) the L/C Obligations are Cash Collateralized in an amount not less than such excess; provided that, to the extent such Cash Collateral exceeds such excess, upon written request by the Parent, any such Cash Collateral shall be promptly returned to the Parent.

 

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6.13

Appointment of additional Issuing Banks

 

A Lender may become an additional Issuing Bank hereunder pursuant to a written agreement among the Borrowers, the Agent and such Lender and such agreement shall specify such additional Issuing Bank’s share of the L/C Sublimit. The Agent shall notify the Revolving Facility Lenders of the addition of each additional Issuing Bank.

 

7.

LETTERS OF CREDIT

 

7.1

Immediately payable

 

If a Letter of Credit or any amount outstanding under a Letter of Credit is expressed to be immediately payable, the Borrower that requested (or on behalf of which the Parent requested) the issue of that Letter of Credit shall repay or prepay that amount in accordance with Clause 6.3 (Drawings and Reimbursements; Funding of Participations).

 

7.2

Claims under a Letter of Credit

 

 

(a)

Each Borrower irrevocably and unconditionally authorizes the Issuing Bank to pay any claim or drawing made (or purported to be made) under a Letter of Credit requested by it (or requested by the Parent on its behalf) and which appears on its face to be in order (in this Clause 7, a “claim”).

 

 

(b)

Each Borrower shall immediately on demand pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.

 

 

(c)

Each Borrower acknowledges that the Issuing Bank:

 

 

(i)

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

 

(ii)

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defense of any person.

 

 

(d)

The obligations of a Borrower under this Clause 7 will not be affected by:

 

 

(i)

the sufficiency, accuracy or genuineness of any claim or any other document; or

 

 

(ii)

any incapacity of, or limitation on the powers of, any person signing a claim.

 

7.3

Rights of contribution

 

No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.

 

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7.4

Reimbursement

 

Where in this Clause 7, any Party is expressed to be under an obligation to indemnify, pay, repay or other payment obligation “immediately” or “on demand”, such Party shall be required to make such payment:

 

 

(a)

on the date that such payment is to be made, if the paying Party shall have received notice of such payment prior to 10:00 a.m., New York City time, on such date; or

 

 

(b)

if such notice has not been received by such paying Party prior to such time on such date, then no later than the Business Day immediately following the day that the paying Party receives such notice.

 

8.

Requesting – SWINGLINE LOANS

 

8.1

General

 

 

8.1.1

Clause 5 (Borrowing - Loans) (other than Clause 5.5 (Limitations on Borrowings));

 

 

8.1.2

Clause 11 (Optional Currencies) and definition of “Optional Currency”;

 

 

8.1.3

Clause 12 (Repayment and Commitment Termination of Loans);

 

 

8.1.4

Clause 16 (Interest) as it applies to the calculation of interest on a Loan but not default interest on an overdue amount;

 

 

8.1.5

Clause 17 (Interest Periods – Loans); and

 

 

8.1.6

Clause 18 (Changes to the Calculation of Interest),

 

do not apply to Swingline Loans.

 

8.2

Delivery of a Borrowing Request for Swingline Loans

 

 

8.2.1

Whenever a Borrower desires a Swingline Loan hereunder, it shall give irrevocable notice to a Swingline Lender (with a copy to the Agent) not later than 9:00 a.m. (New York City time) on the date of the requested Swingline Borrowing in the form of a Borrowing Request. Subject to Clause 2.1.3 and the satisfaction of the conditions set forth herein, such Swingline Lender shall initiate the transfer of funds representing such requested Swingline Loan to such Borrower not later than 12:00 noon (New York City time) on the Business Day specified by such Borrower in the applicable Borrowing Request.

 

 

8.2.2

Each Swingline Borrowing shall not be more than the Available Swingline Facility and in a minimum principal amount of $500,000 or, if less, the full amount of the Available Swingline Facility.

 

8.3

Completion of a Borrowing Request for Swingline Loans

 

 

8.3.1

Each Borrowing Request for a Swingline Loan is irrevocable and will not be regarded as having been duly completed unless:

 

 

(a)

it identifies the requesting Borrower;

 

 

(b)

it specifies that it is for a Swingline Loan;

 

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(c)

the proposed Borrowing Date is a New York Business Day within the Availability Period;

 

 

(d)

the Swingline Loan is in the Base Currency;

 

 

(e)

the amount of the proposed Swingline Loan complies with Clause 8.2.2 above;

 

 

(f)

the proposed Interest Period:

 

 

(i)

does not exceed the Termination Date;

 

 

(ii)

is a period of not more than 15 days; and

 

 

(iii)

ends on a New York Business Day; and

 

 

(g)

only one Swingline Loan has been requested in such Borrowing Request.

 

8.4

Swingline Lenders’ participation

 

 

8.4.1

If the conditions set out in this Agreement have been met, each applicable Swingline Lender shall make its participation in each Swingline Loan available through its Facility Office in the United States.

 

 

8.4.2

A Swingline Lender will only be obliged to comply with Clause 8.4.1 above if on the date of the Borrowing Request and on the proposed Borrowing Date:

 

 

(a)

the conditions set forth in Clauses 4.2.1 and 4.2.2 have been satisfied; and

 

 

(b)

a Borrowing Request has been duly delivered in accordance with this Clause 8.

 

The Borrowers shall be deemed to have made a representation and warranty hereunder as of the time of each such Borrowing Request that the conditions specified in clause (b) above have been fulfilled as of such time.

 

 

8.4.3

The Agent shall determine the Base Currency Amount of each Swingline Loan and notify each applicable Swingline Lender of the amount of its Swingline Loan by 11:00 a.m. (New York time) on the requested Borrowing Date if the Borrowing Request for such Swingline Loan was received by the Agent by 9:00 am (New York time).

 

8.5

Cancellation of Swingline Commitment

 

The Swingline Commitments which, at that time, are unutilized shall be immediately cancelled at the end of the Availability Period.

 

9.

SWINGLINE LOANS

 

9.1

Swingline

 

Subject to the terms of this Agreement, the Swingline Lenders make available to the Borrowers a Base Currency swingline loan facility in an aggregate amount equal to the Swingline Sublimit.

 

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9.2

Purpose

 

Each Borrower shall apply all amounts borrowed by it under the Swingline Facility towards general corporate purposes in accordance with Clause 3.1 (Purpose). A Swingline Loan may not be applied in repayment or prepayment of another Swingline Loan.

 

9.3

Repayment

 

 

9.3.1

Each Swingline Loan shall be due and payable on the earliest of (i) the date indicated on the Borrowing Request, which date shall not be earlier than two (2) Business Days or later than 15 days from the date of such Borrowing, (ii) the date of the next succeeding Revolving Facility Loan, or (iii) the Termination Date for the Revolving Credit Facility; provided, however, that a Borrower may prepay any Swingline Borrowing prior to the date it is due upon notice to the applicable Swingline Lenders and the Agent not later than 12:00 p.m. (New York City time) on the date of prepayment of such Swingline Loan. If such notice is given by any Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid. If, and to the extent, any Swingline Loans shall be outstanding on the date of any Borrowing of a Revolving Facility Loan, such Swingline Loans shall be repaid from the proceeds of such Revolving Facility Loan prior to any distribution of such proceeds to any Borrower. If, and to the extent, a Revolving Facility Loan is not requested prior to earlier of (A) the Termination Date for the Revolving Credit Facility or (B) the last day of any such 15 day period from the date any Swingline Loan is made, the Borrowers shall be deemed to have requested a Revolving Facility Loan that is an ABR Loan on the Business Day immediately preceding the Termination Date for the Revolving Credit Facility or the last day of such 15 day period, as applicable, in the amount of the Swingline Loans then outstanding, the proceeds of which shall be used to repay the applicable Swingline Lenders for such Swingline Loans.

 

 

9.3.2

In addition, each Swingline Lender may, at any time, in its sole discretion by written notice to the Borrowers and the Agent, require repayment of its Swingline Loans by way of a Revolving Facility Loan, in which case the Borrowers shall be deemed to have requested a Revolving Facility Loan that is an ABR Loan in the amount of such Swingline Loans; provided, however, that any such demand shall automatically be deemed to have been made one (1) Business Day prior to the Termination Date for the Revolving Credit Facility and upon the occurrence of any Event of Default described in Clause 30.8 (Insolvency) or Clause 30.9 (Insolvency Proceeding) and also upon acceleration of the Obligations, whether on account of an Event of Default described in Clause 30.8 (Insolvency) or Clause 30.9 (Insolvency Proceeding) or any other Event of Default, in accordance with the provisions of Clause 30.23 (Acceleration) following an Event of Default (each such Revolving Facility Loan made on account of any such deemed request therefor as provided herein being hereinafter referred to as a “Mandatory Borrowing”). Each Revolving Facility Lender hereby irrevocably agrees to make its Applicable Revolving Credit Percentage of such Revolving Facility Loans promptly upon any such request or deemed request on account of each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date, notwithstanding (i) the amount of such Mandatory Borrowing may not comply with the minimum amount for advances of Revolving Facility Loans otherwise required hereunder, (ii) whether any conditions specified in Clause 4 (Conditions of Borrowing) are then satisfied, (iii) whether a Default then exists, (iv) failure for any such request or deemed request for Revolving Facility Loans to be made by the time otherwise required in Clause 5.2 (Completion of a Borrowing Request), (v) the date of such Mandatory Borrowing, or (vi) any reduction in the Revolving Facility Commitments or termination of the Revolving Facility Commitments relating thereto immediately prior to such Mandatory Borrowing or contemporaneously therewith. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of any proceeding under the Bankruptcy Code or other insolvency laws of the United States with respect to any Borrower or any other Obligor), then each Revolving Facility Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) from the Swingline Lenders such participations in the outstanding Swingline Loans as shall be necessary to cause each such Revolving Facility Lender to share in such Swingline Loans ratably based upon its respective Applicable Revolving Credit Percentage (determined before giving effect to any termination of the Revolving Facility Commitments pursuant to Clause 30.23 (Acceleration)); provided, that (A) all interest payable on the Swingline Loans shall be for the account of the Swingline Lenders until the date as of which the respective participation is purchased, and (B) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lenders shall be required to pay (to the extent not paid by the Borrowers) to the Swingline Lenders interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred but excluding the date of payment for such participation, at the rate equal to, if paid within two (2) Business Days of the date of the Mandatory Borrowing, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.

 

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9.4

Voluntary Prepayment of Swingline Loans

 

 

9.4.1

The Borrower to which a Swingline Loan has been made may prepay at any time the whole of that Swingline Loan.

 

 

9.4.2

Unless a contrary indication appears in this Agreement, any part of the Swingline Facility which is prepaid or repaid may be re-borrowed in accordance with the terms of this Agreement.

 

9.5

Interest

 

 

9.5.1

Swingline Loans shall bear interest at the per annum interest rate equal to the sum of (x) the Alternate Base Rate and (y) the applicable Margin for ABR Loans; provided, however, that (i) from and after any failure to make any payment of principal or interest in respect of any of the Loans hereunder when due (after giving effect to any applicable grace period), whether at scheduled or accelerated maturity or on account of any mandatory prepayment, or (ii) while any Swingline Loans in which the Revolving Facility Lenders have acquired participations pursuant to Clause 9.3 (Repayment) remain outstanding, the principal of and, to the extent permitted by law, interest on, Swingline Loans shall bear Default interest pursuant to Clause 16.3 (Default Interest), payable on demand.

 

 

9.5.2

Each Swingline Lender shall promptly notify the relevant Borrower and the Agent of the determination of the rate of interest under Clause 9.5.1 above.

 

 

9.5.3

If any day during an Interest Period is not a New York Business Day, the rate of interest on a Swingline Loan on that day will be the rate applicable to the immediately preceding New York Business Day.

 

 

9.5.4

Interest on each Swingline Loan shall be payable in arrears on the date payment of such Swingline Loan is due pursuant to Clause 9.3 (Repayment).

 

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9.6

Swingline Interest Period

 

 

9.6.1

Each Swingline Loan has one Interest Period which will commence on the Borrowing Date of such Swingline Loan and end, subject to Clause 9.3 (Repayment), on the repayment date specified in the applicable Borrowing Request; provided, that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day; provided, further, that no Interest Period for a Swingline Loan may be less than two (2) Business Days or more than 15 days.

 

 

9.6.2

The Interest Period for a Swingline Loan must be selected in the relevant Borrowing Request.

 

9.7

Swingline Agent

 

 

9.7.1

The Agent may perform its duties in respect of the Swingline Facility through any of its Affiliates acting as its agent.

 

 

9.7.2

Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Revolving Facility Lender shall (in proportion to its share of the Total Revolving Facility Commitments or, if the Total Revolving Facility Commitments are then zero, to its share of the Total Revolving Facility Commitments immediately prior to their reduction to zero) pay to or indemnify the Agent, within five (5) Business Days of demand, for or against any cost, loss or liability (including, without limitation, for negligence or any other category of loss whatsoever) incurred by the Agent or its applicable Affiliate (other than by reason of the Agent’s or such Affiliate’s gross negligence, fraud or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction) or, in the case of any cost, loss or liability pursuant to Clause 39.11 (Disruption to Payment Systems, etc.) notwithstanding the Agent’s or such Affiliate’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent or such Affiliate in acting as Agent for the Swingline Facility under the Finance Documents (unless the Agent or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document).

 

 

9.7.3

Except with respect to any Swingline Lender that is the Agent (or an Affiliate thereof), each Swingline Lender shall provide to the Agent, on Friday of each week and on each date the Agent notifies such Swingline Lender that a Borrower has delivered a Borrowing Request for a Swingline Loan or the Agent otherwise requests the same, an accounting for the outstanding Swingline Loans in form reasonably satisfactory to the Agent.

 

9.8

Partial Payments

 

 

9.8.1

If the Agent receives a payment in respect of the Swingline Facility that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents in respect of the Swingline Facility, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in respect of the Swingline Facility in the following order:

 

 

(a)

first, in or towards payment pro rata of any unpaid amount owing to the Agent or its applicable Affiliate under the Finance Documents incurred in respect of the Swingline Facility;

 

 

(b)

secondly, in or towards payment pro rata of any accrued interest on Swingline Loans due but unpaid under this Agreement;

 

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(c)

thirdly, in or towards payment pro rata of the principal of any Swingline Loans due but unpaid under this Agreement; and

 

 

(d)

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents in respect of the Swingline Facility.

 

 

9.8.2

The Agent shall, if so directed by all the Swingline Lenders, vary the order set out in Clause 9.8.1(b) to (d) above.

 

 

9.8.3

Clauses 9.8.1 and 9.8.2 above will override any appropriation made by an Obligor and Clause 39.6 (Partial payments) does not apply to the Swingline Facility.

 

10.

CASH COLLATERAL; DEFAULTING LENDERS

 

 

10.1.1

If any Revolving Facility Lender becomes, and during the period it remains, a Defaulting Lender, if any Letter of Credit or Swingline Loan is at the time outstanding, each Issuing Bank and Swingline Lender, as the case may be, may (except, in the case of a Defaulting Lender, to the extent its Revolving Facility Commitments have been reallocated pursuant to Clause 10.1.2), by notice to the Borrowers and such Defaulting Lender through the Agent, require the Borrowers to Cash Collateralize the obligations of the Borrowers to such Issuing Bank and Swingline Lender in respect of such Letter of Credit or Swingline Loan, as the case may be, in an amount at least equal to the aggregate amount of the unallocated obligations (contingent or otherwise) of such Defaulting Lender in respect thereof, or to make other arrangements satisfactory to the Agent, and to the Issuing Banks and the Swingline Lenders, as the case may be, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender.

 

 

10.1.2

In addition to the other conditions precedent herein set forth, if any Revolving Facility Lender becomes, and during the period it remains, a Defaulting Lender, no Issuing Bank will be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and no Swingline Lender will be required to make any Swingline Loan, unless:

 

 

(a)

in the case of a Defaulting Lender, such Defaulting Lender’s participation interest in the L/C Obligations and the outstanding amount of Swingline Loans is reallocated, as to outstanding and future Letters of Credit and Swingline Loans, to the Non-Defaulting Lenders as provided in Clause 10.1.3(a), and

 

 

(b)

to the extent full reallocation does not occur as provided in clause (a) above, the Borrowers Cash Collateralize the obligations of the Borrowers in respect of such L/C Obligations and Swingline Loans in an amount at least equal to the aggregate amount of the unallocated obligations (contingent or otherwise) of such Defaulting Lender in respect of such L/C Obligations and Swingline Loans, or make other arrangements satisfactory to the Agent, the Issuing Banks and the Swingline Lenders in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender, or

 

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(c)

to the extent that neither reallocation nor Cash Collateralization occurs pursuant to clause (a) or (b) above, then in the case of a proposed issuance of a Letter of Credit or making of a Swingline Loan, by an instrument or instruments in form and substance reasonably satisfactory to the Agent and to the relevant Issuing Bank and Swingline Lender, as the case may be, (i) the Borrowers agree that the face amount of such requested Letter of Credit or the principal amount of such requested Swingline Loan will be reduced by an amount equal to the unallocated, non-Cash Collateralized portion thereof as to which such Defaulting Lender would otherwise be liable, and (ii) the Non-Defaulting Lenders confirm, in their sole discretion, that their obligations in respect of such Letter of Credit or Swingline Loan shall be reduced on a pro rata basis in accordance with the Revolving Facility Commitments of the Non-Defaulting Lenders, and that the pro rata payment provisions of Clause 6.3 (Drawings and Reimbursements; Funding of Participations) and Clause 6.5 (Repayment of Participation) will be deemed adjusted to reflect this provision (provided, that nothing in this clause (c) will be deemed to increase the Revolving Facility Commitment of any Revolving Facility Lender, nor to constitute a waiver or release of any claim the Borrowers, the Agent, any Issuing Bank, any Swingline Lender or any other Lender may have against such Defaulting Lender, nor to cause such Defaulting Lender to be a Non-Defaulting Lender).

 

 

10.1.3

If a Revolving Facility Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to such Defaulting Lender’s obligations in respect of any outstanding L/C Obligations and any outstanding amount of Swingline Loans:

 

 

(a)

such Defaulting Lender’s obligations in respect of the L/C Obligations and the outstanding amount of Swingline Loans will, upon notice by the Agent, and subject in any event to the limitation in the proviso below, automatically be reallocated (effective on the day such Revolving Facility Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Facility Commitments; provided, that (i) the conditions set forth in Clause 4.2 (Further conditions precedent) are satisfied at the time of such reallocation (with such reallocation being deemed a Borrowing for purposes of such conditions), (ii) the sum of the total outstanding Revolving Facility Loans owed to each Non-Defaulting Lender and its participation interests in outstanding Swingline Loans and L/C Obligations may not in any event exceed the Revolving Facility Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (iii) subject to Clause 51 (Acknowledgment and Consent to Bail-In of EEA Financial Institutions), such reallocation will not constitute a waiver or release of any claim the Borrowers, the Agent, any Issuing Bank, any Swingline Lender or any other Lender may have against such Defaulting Lender, and (iv) neither such reallocation nor any payment by a Non-Defaulting Lender as a result thereof will cause such Defaulting Lender to be a Non-Defaulting Lender;

 

 

(b)

to the extent that any portion (the “unreallocated portion”) of the Defaulting Lender’s obligations in respect of L/C Obligations and outstanding amounts of Swingline Loans cannot be so reallocated, whether by reason of the proviso in clause (a) above or otherwise, the Borrowers will, not later than three (3) Business Days after demand by the Agent, (i) Cash Collateralize the obligations of the Borrowers to the Issuing Banks and the Swingline Lenders in respect of such L/C Obligations or outstanding amounts of Swingline Loans, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Lender’s obligations in respect of L/C Obligations or outstanding amounts of Swingline Loans, respectively, (ii) in the case of such outstanding amount of Swingline Loans prepay in full the unreallocated portion thereof, or (iii) make other arrangements satisfactory to the Agent, and to the Issuing Banks and the Swingline Lenders, as the case may be, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender; and

 

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(c)

any amount paid by the Borrowers for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but shall instead be retained by the Agent in a segregated escrow account until (subject to Clause 10.1.5) the termination of the Revolving Facility Commitments and payment in full of all obligations (other than contingent indemnification or expense reimbursement obligations for which a claim has not yet been asserted) of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority:

 

first to the payment of any amounts owing by such Defaulting Lender to the Agent under this Agreement,

 

second to the payment of any amounts owing by such Defaulting Lender to the Issuing Banks or the Swingline Lenders (pro rata as to the respective amounts owing to each of them) under this Agreement,

 

third to the payment of post default interest and then current interest due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such interest then due and payable to them,

 

fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them,

 

fifth to pay principal and unreimbursed L/C Borrowings then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them,

 

sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders, and

 

seventh after the termination of the Revolving Facility Commitments and payment in full of all obligations (other than contingent indemnification or expense reimbursement obligations for which a claim has not yet been asserted) of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.

 

 

10.1.4

In furtherance of the foregoing, if any Revolving Facility Lender becomes, and during the period it remains, a Defaulting Lender, each of the Issuing Banks and the Swingline Lenders is hereby authorized by the Borrowers (which authorization is irrevocable and coupled with an interest) to give, through the Agent, a Borrowing Request pursuant to Clause 6.3 (Drawings and Reimbursements; Funding of Participants) in such amounts and in such times as may be required to (i) reimburse an outstanding L/C Borrowing, (ii) repay an outstanding Swingline Loan, or (iii) Cash Collateralize the obligations of the Borrowers in respect of outstanding Letters of Credit or Swingline Loans in an amount at least equal to the aggregate amount of the unallocated obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letters of Credit or Swingline Loans.

 

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10.1.5

If the Agent, the Issuing Banks and the Swingline Lenders agree in writing that a Revolving Facility Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the Parties, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated escrow account referred to in Clause 10.1.3), such Revolving Facility Lender shall purchase at par such portions of the outstanding Revolving Facility Loans of the other Revolving Facility Lenders, and/or make such other adjustments, as the Agent may determine to be necessary to cause the Revolving Facility Lenders to hold Revolving Facility Loans on a pro rata basis in accordance with their respective Revolving Facility Commitments, whereupon such Revolving Facility Lender shall cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and the L/C Obligations and outstanding amount of Swingline Loans of each Revolving Facility Lender shall automatically be adjusted on a prospective basis to reflect the foregoing); provided, that no adjustments shall be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers and applied as set forth in Clause 10.1.3(c) while such Revolving Facility Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected Parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender shall constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

 

 

10.1.6

If any Lender is a Defaulting Lender, the Parent may, upon at least five (5) Business Days’ written notice to the Agent (which shall then give prompt notice thereof to the relevant Lender), replace such Lender with a Lender or other bank, financial institution, trust, fund or other entity selected by the Parent in accordance with Clause 45.3 (Replacement of Lender); provided, however, that no Event of Default shall have occurred and be continuing at the time of such request and at the time of such assignment; provided, further, that the assigning Lender’s rights under Clause 15.7 (Make Whole Premium and Prepayment Premium in respect of Term Loans), Clause 20 (Tax Gross Up and Indemnities), Clause 21 (Increased Costs), Clause 22 (Other Indemnities) and Clause 24 (Costs and Expenses), and its obligations under Clause 24 (Costs and Expenses), shall survive such assignment as to matters occurring prior to the date of assignment.

 

11.

Optional Currencies

 

11.1

Selection of currency

 

A Borrower (or the Parent on its behalf) shall select the currency of (a) a Loan (other than a Swingline Loan which must be made in the Base Currency) in a Borrowing Request, and (b) a Letter of Credit in a Letter of Credit Application.

 

11.2

Unavailability of a currency

 

If before the Specified Time on any Quotation Day:

 

 

11.2.1

a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or

 

 

11.2.2

a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would violate a law or regulation applicable to it,

 

the Agent will give notice to the relevant Borrower (or Parent) to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 11.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

 

11.3

Optional Currency Loan Revaluation

 

If any Loans are denominated in an Optional Currency, the Agent may from time to time, and shall on the first Business Day of each month following the disbursement of such Loan, recalculate (and advise the Parent of) the Base Currency Amount of each Loan denominated in an Optional Currency by notionally converting into the Base Currency the outstanding amount of such Loan on the basis of its Spot Rate of Exchange on the date of calculation. If following such calculation the Agent determines that the sum of the outstanding principal amount of Revolving Facility Loans (including, without limitation, Swingline Loans) and the outstanding L/C Obligations exceeds the Total Revolving Facility Commitments, the Agent will notify the Parent and the Lenders, and the Parent will ensure that within five (5) Business Days of such notice the applicable Loans are prepaid (together with interest accrued thereon and Break Costs, if any, but without any prepayment premium) in a principal amount sufficient so that any such excess no longer exists.

 

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REPAYMENT, PREPAYMENT AND CANCELLATION

 

12.

Repayment AND COMMITMENT TERMINATION OF LOANS

 

12.1

Repayment of Revolving Facility Loans

 

 

12.1.1

Subject to Clause 2.3 (Repayments for Automatic Reductions) and Clause 5 (Borrowing – Loans), each Borrower which has drawn a Revolving Facility Loan shall repay such Revolving Facility Loan (a) if such Revolving Facility Loan is a LIBOR Loan, on the last day of its Interest Period, and (b) if such Revolving Facility Loan is an ABR Loan, on or before the Termination Date.

 

 

12.1.2

Without prejudice to each Borrower’s obligation under Clause 12.1.1 above, if one or more Revolving Facility Loans are to be made available to a Borrower:

 

 

(a)

on the same day that a maturing Revolving Facility Loan is due to be repaid by that Borrower;

 

 

(b)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 11.2 (Unavailability of a currency)); and

 

 

(c)

in whole or in part for the purpose of refinancing the maturing Revolving Facility Loan;

 

the aggregate principal amount of the new Revolving Facility Loans shall be treated as if applied in or towards repayment of the maturing Revolving Facility Loan so that:

 

 

(i)

if the principal amount of the maturing Revolving Facility Loan exceeds the aggregate principal amount of the new Revolving Facility Loans:

 

 

(A)

the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

 

(B)

each Revolving Facility Lender’s participation (if any) in the new Revolving Facility Loans shall be treated as having been made available and applied by each Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Revolving Facility Loan and that Lender will not be required to make its participation in the new Revolving Facility Loans available in cash; and

 

 

(ii)

if the principal amount of the maturing Revolving Facility Loan is equal to or less than the aggregate principal amount of the new Revolving Facility Loans:

 

 

(A)

the relevant Borrower will not be required to make any payment in cash; and

 

 

(B)

each Revolving Facility Lender will be required to make its participation in the new Revolving Facility Loans available in cash only to the extent that its participation (if any) in the new Revolving Facility Loans exceeds that Lender’s participation (if any) in the maturing Revolving Facility Loan and the remainder of that Lender’s participation in the new Revolving Facility Loans shall be treated as having been made available and applied by each Borrower in or towards repayment of that Lender’s participation in the maturing Revolving Facility Loan.

 

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12.2

Termination of Revolving Facility Commitment

 

The Revolving Facility Commitments under this Agreement shall reduce to zero on the Termination Date and, without prejudice to Clause 12.1.1, any Borrowings under the Revolving Facility which are outstanding on the Termination Date must be repaid on the Termination Date.

 

12.3

Repayment of Term Loans

 

The Borrowers shall repay the aggregate principal amount of all Term Loans outstanding on the following dates in the respective amounts set forth opposite such dates; provided, however, that the final principal repayment installment of the Term Loans shall be repaid on the Termination Date and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date.

 

Date

Principal Amortization Payment

November 1, 2020

$10,000,000.00

May 1, 2021

$10,000,000.00

November 1, 2021

$10,000,000.00

May 1, 2022

$10,000,000.00

Termination Date

$60,000,000.00

 

13.

Illegality, Voluntary Prepayment And Cancellation

 

13.1

Illegality

 

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

 

 

13.1.1

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

 

13.1.2

upon the Agent notifying the Parent, the Commitments of that Lender will be immediately cancelled; and

 

 

13.1.3

to the extent that Lender’s participation has not been replaced pursuant to Clause 45.3 (Replacement of Lender), each Borrower shall repay that Lender’s participation in the Borrowings made to that Borrower on the last day of the Interest Period for each Borrowing occurring after the Agent has notified the Parent or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).

 

13.2

Illegality in relation to Issuing Bank

 

If it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit then:

 

 

13.2.1

that Issuing Bank shall promptly notify the Agent upon becoming aware of that event;

 

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13.2.2

upon the Agent notifying the Parent, the Issuing Bank shall not be obliged to issue any Letter of Credit;

 

 

13.2.3

the Parent shall procure that the relevant Borrower shall use all commercially reasonable efforts to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time on or before the date specified by the Issuing Bank in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

 

13.2.4

unless any other Lender is or has become an Issuing Bank pursuant to the terms of this Agreement, the Revolving Facility shall cease to be available for the issue of Letters of Credit.

 

13.3

Voluntary cancellation

 

The Borrowers may, if they give the Agent at least five (5) Business Days’ irrevocable prior written notice, cancel the whole or any part (being a minimum amount of $1,000,000) of the Revolving Facility or the Swingline Facility. Any cancellation under this Clause 13.3 shall permanently reduce the applicable Commitments of the Lenders ratably under that Facility.

 

13.4

Voluntary prepayment of Loans

 

Subject to Clause 15 (Restrictions), a Borrower to which a Loan has been made may, if it or the Parent gives the Agent irrevocable (other than, with regard to a prepayment of all amounts under this Agreement with the proceeds of Indebtedness, if the consummation of such Indebtedness is delayed or does not occur) written notice no later than 11:00 a.m. (New York City time) five (5) Business Days (or such shorter period as the Agent may agree in its sole discretion) prior to the designated prepayment date, prepay the whole or any part of such Loan (but if in part, being an amount that reduces the Base Currency Amount of such Loan by a minimum amount of $1,000,000). Multiple partial prepayments are permitted, subject to the terms hereof.

 

14.

Mandatory Prepayment

 

14.1

Upon the occurrence of:

 

 

(a)

any Subsidiary Change of Control or any sale of all or substantially all of the assets of the Obligors, taken as a whole, whether in a single transaction or a series of related transactions, the Required Lenders may elect to cancel the Facilities, and if so cancelled, then all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Finance Documents (including, without limitation, any applicable Make Whole Premium or Prepayment Premium), shall upon request by the Agent acting upon instructions from the Required Lenders thereupon become immediately due and payable;

 

 

(b)

any Parent Change of Control, the Required Lenders may elect to cancel the Facilities and if so cancelled all outstanding Borrowings, together with (A) accrued interest and all other amounts accrued under the Finance Documents (other than any Make Whole Premium or Prepayment Premium) and (B) a premium equal to 1.0% of the outstanding amount of the Facilities, shall thereupon become immediately due and payable;

 

 

(c)

any Change of Control or any sale of all or substantially all of the assets of the Obligors, taken as a whole, whether in a single transaction or a series of related transactions, the Borrowers may, at their option, elect to cancel the Facilities and if so cancelled all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Finance Documents (including, without limitation, any applicable Make Whole Premium or Prepayment Premium), shall thereupon become immediately due and payable; and

 

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(d)

any Change of Control, the Agent acting upon instructions from the Required Lenders may notify the Borrowers that no action will be taken by the Lenders in connection with such Change of Control.

 

14.2

On each Collateral Vessel Disposition Date, (a) the aggregate outstanding principal amount of the Term Loans and the aggregate Revolving Facility Commitments shall be permanently reduced on a pro rata basis (based on the respective outstanding principal amount of the Term Loans and the aggregate amount of the Revolving Facility Commitments) in an aggregate amount equal to the higher of (i) the sum of (A) the Net Cash Proceeds of the Collateral Vessel sold or subject to a Total Loss (including, without limitation, the proceeds of any Recovery Event in respect thereof), to the extent received by any Obligor, and (B) in the case of any sale of a Collateral Vessel, any applicable Equity Proceeds True-Up Amount, and (ii) an amount equal to the product of (A) the Appraised Value of the Collateral Vessel sold or subject to a Total Loss or other Recovery Event, divided by (B) the Fleet Market Value (prior to such sale, Total Loss or other Recovery Event), multiplied by (C) the sum of the Total Outstanding Borrowings and the Available Revolving Facility (such higher amount, the “Disposition Prepayment Amount”), provided, that such reduction of the aggregate outstanding principal of the Term Loans shall be net of any applicable Make Whole Premium or Prepayment Premium payable pursuant to clause (b)(1) below; and (b) such Disposition Prepayment Amount shall be applied by the Obligors on such date (or, in the case of a Total Loss, on the earlier of (x) the first date thereafter when received by any Obligor and (y) the date that is one hundred and fifty (150) days after the Collateral Vessel Disposition Date), (1) first, to prepay the outstanding principal amount of the Term Loans, and pay any applicable Make Whole Premium or Prepayment Premium in connection therewith, in an aggregate amount equal to the amount of the reduction of the Term Loans pursuant to clause (a) above (the amount of such reduction, for purposes of this clause (b)(1), to be calculated without giving effect to the proviso contained in clause (a) above), (2) second, to prepay the Total Outstanding Borrowings under the Revolving Facility (by first prepaying all Revolving Facility Loans and then, after all Revolving Facility Loans have been prepaid in full, Cash Collateralizing all the L/C Obligations) in an amount equal to the excess (if any) of (i) such Total Outstanding Borrowings under the Revolving Facility over (ii) the aggregate amount of the Revolving Facility Commitments after giving effect to the reduction thereof pursuant to clause (a) above, and (3) third, to the extent of any remaining Disposition Prepayment Amount, to prepay the outstanding principal amount of the Term Loans and pay any applicable Make Whole Premium or Prepayment Premium in connection therewith; provided, however, that if the aggregate Fleet Market Value (after giving effect to a sale referred to above or Total Loss) is not less than the aggregate Fleet Market Value as of the Closing Date and no Event of Default has occurred and is continuing, then no such prepayment of the Loans or reduction of the Revolving Facility Commitments shall be required, and the Obligors shall be permitted to retain and use all such Net Cash Proceeds (and any applicable Equity Proceeds True-Up Amount) in accordance with the terms of this Agreement and the other Finance Documents; provided, further, however, that the immediately preceding proviso (1) shall not apply if the Collateral Vessel sold or subject to Total Loss is any of the following: Highland Prestige, North Promise, Highland Prince, North Purpose, Highland Guardian, Highland Chieftain, Highland Knight, Highland Princess, Highland Defender, North Pomor, North Cruys, North Barents, Regulus, Hercules, or Polaris, and (2) shall apply with respect to any other Collateral Vessel sold or subject to Total Loss only if one or more Approved Additional Collateral Vessels of equal or greater Appraised Value (in the aggregate) at the time of such sale or Total Loss become Collateral Vessels at such time in accordance with Clause 31.2 (Collateral Vessel Substitution and Addition). The Appraised Value of any Collateral Vessel sold or subject to a Total Loss and the Fleet Market Value determined pursuant to this Clause 14.2 shall be based on valuations (as contemplated in the definition of “Appraised Value” contained in Clause 1.1 (Definitions)) of the Collateral Vessels most recently delivered pursuant to the terms of this Agreement; provided, that if (x) such valuations are more than three (3) months old or (y) the Majority Lenders reasonably determine that such valuations are no longer an accurate reflection of the value of the Collateral Vessels, new valuations shall be required to be delivered to the Agent (A) in the case of clause (x) above, within 30 days after the applicable Collateral Vessel Disposition Date and (B) in the case of clause (y) above, within 30 days after the date on which the Agent notifies the Parent of such determination. For the avoidance of doubt, but without limitation of Clause 29.13(c)(viii), the sale by any Obligor of any Vessel other than a Collateral Vessel to any other Person (other than an Unrestricted Acquisition Subsidiary) shall not result in a reduction of the Facilities or a mandatory prepayment of any Loans.

 

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14.3

No later than the third (3rd) Business Day following the date of receipt by any Obligor or any of its Subsidiaries of any Cash proceeds from the incurrence of any Financial Indebtedness (excluding the Loans and Letters of Credit and any Indebtedness expressly permitted to be incurred pursuant to the terms of this Agreement), the Borrowers shall prepay, first, the outstanding principal amount of the Term Loans and, second, the outstanding principal amount of the Revolving Facility Loans (and, after all Revolving Facility Loans have been prepaid in full, to Cash Collateralize the L/C Obligations), in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other costs and expenses associated therewith, in each case, paid to non-Affiliates, including legal fees and expenses incurred in connection with the incurrence of such Indebtedness. The Revolving Facility Commitments shall be permanently reduced in accordance with this Agreement to the extent of any remaining such proceeds after the Term Loans have been prepaid in full.

 

14.4

Without limitation of the obligation of the Borrowers to make prepayments in accordance with the other terms of this Agreement, the Borrowers shall prepay all or a portion of the Loans, as applicable, as and to the extent required pursuant to Clause 6.12 (Revaluation of Letters of Credit), Clause 11 (Optional Currencies), Clause 28.3 (Cure), Clause 29.8.3, Clause 29.19 (Insurance), Clause 29.24.2 (Valuations) and Clause 31.1 (Sale of Collateral Vessel) in the amounts and on the dates specified therein.

 

15.

Restrictions

 

15.1

Notices of Cancellation or Prepayment

 

Any notice of cancellation, prepayment, authorization or other election given by any Party under Clause 13 (Illegality, Voluntary Prepayment and Cancellation) shall (subject to the terms of Clause 13) be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

15.2

Interest and other amounts

 

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and any applicable Break Costs. Any prepayments of Revolving Facility Loans shall be without premium or penalty (other than any applicable Break Costs).

 

15.3

Reborrowing of Revolving Facility

 

Unless a contrary indication appears in this Agreement, any part of the Revolving Facility that is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

15.4

Prepayment in accordance with Agreement

 

No Borrower shall 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.

 

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15.5

No reinstatement of Commitments

 

No amount of any Commitments cancelled in accordance with this Agreement may be subsequently reinstated.

 

15.6

Agent’s receipt of Notices

 

If the Agent receives a notice under Clause 13 (Illegality, Voluntary Prepayment and Cancellation) it shall promptly forward a copy of that notice or election to either the Parent or the affected Lender, as appropriate.

 

15.7

Make Whole Premium and Prepayment Premium in respect of Term Loans

 

 

15.7.1

In the event that (a) any Borrower or any other Person makes any voluntary prepayment of the Term Loans prior to the Third Anniversary Closing Date pursuant to Clause 13.4 (Voluntary prepayment of Loans) or, subject to Clause 15.7.2(c)(iii), Clause 28.3 (Cure), (b) any Borrower or any other Person makes any mandatory prepayment of the Term Loans prior to the Third Anniversary Closing Date pursuant to Clause 14 (Mandatory Prepayment) (other than any such prepayment (x) arising from any Total Loss or other Recovery Event in respect of any Collateral Vessel or (y) in connection with any Parent Change of Control pursuant to Clause 14.1(b) following the election of the Required Lenders to cancel the Facilities), (c) any Credit Facilities Indebtedness is accelerated, in whole or in part, pursuant to Clause 30.23 (Acceleration) prior to the Third Anniversary Closing Date following the occurrence of an Event of Default, (d) there is an actual or deemed entry of an order for relief with respect to an Obligor under the Bankruptcy Code or other insolvency laws of the United States or (e) there is a restructuring, reorganization or compromise of the Credit Facilities Indebtedness in any case under the Bankruptcy Code or any other applicable bankruptcy, insolvency or similar law (any such event described in clauses (d) or (e), an “Insolvency Event” and any such event described in each of clauses (a) through (e) above being a “Prepayment Event”), then (i) in the case of a Prepayment Event of the type described in any of clauses (a) through (c) above, each Borrower shall pay in Cash to the Agent, for the ratable benefit of each Term Lender, and (ii) in the case of any Insolvency Event, each Term Lender shall, as of the date of the occurrence of such Insolvency Event, have a secured claim pari passu with the Credit Facilities Indebtedness owed to such Term Lender (and each Borrower agrees not to object to or oppose any such claim) for, (A) in respect of any Prepayment Event under clauses (a) through (e) above that occurs on or after the Second Anniversary Closing Date and prior to the Third Anniversary Closing Date, a prepayment premium (the “Prepayment Premium”) of 2.00% on the aggregate principal amount of such Lender’s Term Loans so prepaid or accelerated (or, in the case of an Insolvency Event, the aggregate principal amount of such Lender’s Term Loans then outstanding or accelerated) and (B) in respect of any Prepayment Event under clauses (a) through (e) above that occurs prior to the Second Anniversary Closing Date, the Make Whole Premium, in each case, as calculated by the Agent as of (and due and payable on) the date of such prepayment; provided, that any Make Whole Premium or Prepayment Premium payable pursuant to Clause 14.2 shall be payable in accordance with the terms of such Clause.

 

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15.7.2

For the avoidance of doubt, notwithstanding anything herein or in any other Finance Document to the contrary, (a) no Prepayment Premium shall be payable with respect to any Prepayment Event that occurs on or after the Third Anniversary Closing Date, (b) no Make Whole Premium shall be payable with respect to any Prepayment Event that occurs on or after the Second Anniversary Closing Date and (c) no Prepayment Premium or Make Whole Premium shall be payable with respect to (i) any regularly scheduled amortization payments made pursuant to Clause 12.3 (Repayment of Term Loans), (ii) any payments of Revolving Facility Loans or Swingline Loans or (iii) any voluntary prepayments of the Term Loans pursuant to Clause 28.3 in an aggregate principal amount during the term of this Agreement for all Cure Amounts equal to or less than $5,000,000.

 

 

15.7.3

The Parties acknowledge and agree that: (a) the Prepayment Premium and Make Whole Premium shall survive the acceleration of the Credit Facilities Indebtedness and/or any Insolvency Event, and in either case, shall automatically accrue and be added to the principal amount of the Loans (provided that, to the extent any such acceleration is rescinded in accordance with the terms of this Agreement, any such Prepayment Premium or Make Whole Premium shall likewise be rescinded); (b) payment of any Prepayment Premium or Make Whole Premium constitutes liquidated damages and not a penalty, and the actual amount of damages to the Term Lenders or profits lost by the Term Lenders as a result of any Prepayment Event would be impracticable and difficult to ascertain; and (c) the amount of the Prepayment Premium and Make Whole Premium hereunder is provided by mutual agreement of the Obligors and the Finance Parties as a reasonable estimation and calculation of such lost profits or damages that the Term Lenders would incur upon the occurrence of a Prepayment Event, and the Prepayment Premium and Make Whole Premium are reasonable in light of the circumstances.

 

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SECTION 4

COSTS OF BORROWINGS

 

16.

Interest

 

16.1

Calculation of interest

 

The rate of interest on each Loan is the percentage rate per annum which is the aggregate of:

 

 

16.1.1

the applicable Margin; and

 

 

16.1.2

in relation to:

 

 

(a)

any ABR Loan in the Base Currency, the Alternate Base Rate for each applicable date of calculation;

 

 

(b)

any LIBOR Loan in the Base Currency, the Adjusted LIBO Rate for each applicable Interest Period;

 

 

(c)

any Loan in sterling, LIBOR for each applicable Interest Period;

 

 

(d)

any Loan in euro, EURIBOR for each applicable Interest Period; and

 

 

(e)

any Loan in NOK, NIBOR for each applicable Interest Period.

 

16.2

Payment of interest

 

The Borrower to which a Loan has been made shall pay accrued interest on that Loan (a) if it is an ABR Loan, on the last day of each Financial Quarter, upon any prepayment of that ABR Loan, whether voluntary or mandatory, to the extent accrued on the principal amount being prepaid, upon conversion to a LIBOR Loan, and on the Termination Date, or (b) if it is a LIBOR Loan, on the last day of the applicable Interest Period (and, if the Interest Period is longer than three (3) Months, on the dates falling at intervals of three (3) months after the first day of the Interest Period), upon any prepayment of that LIBOR Loan, whether voluntary or mandatory, to the extent accrued on the principal amount being prepaid, and on the Termination Date.

 

16.3

Default interest

 

 

16.3.1

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date or if any Event of Default has occurred and is continuing and notice thereof has been sent by the Agent to the Borrowers, interest (including, for the avoidance of doubt, post-petition interest) shall accrue (a) on the overdue amount from the due date up to the date of actual payment, or (b) if an Event of Default has occurred and is continuing and such notice has been sent, on all outstanding amounts hereunder and under the other Finance Documents from the date of occurrence of such Event of Default up to the date such Event of Default is no longer continuing, as applicable (both before and after judgment), at a rate which is two percent (2.00%) higher than the rate which would have been payable if the overdue amount or outstanding amount (as the case may be) had, during the period of non-payment or non-default, constituted a Loan in the currency of such amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 16.3 shall be immediately payable by the Obligor on demand by the Agent.

 

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16.3.2

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

 

16.4

Application of ABR to Outstanding Loans During an Event of Default.

 

Upon the occurrence and during the continuance of an Event of Default, the Agent may (and shall at the direction of the Majority Lenders) declare that no Loan may be made or continued as a LIBOR Loan.

 

17.

Interest Periods – LOANS

 

17.1

Selection of Interest Periods

 

 

17.1.1

Subject to this Clause 17, a Borrower (or the Parent on behalf of a Borrower) may select an Interest Period for a LIBOR Loan in the Borrowing Request for such LIBOR Loan. If no Interest Period is selected, the Borrower shall be deemed to have requested a three (3) month Interest Period.

 

 

17.1.2

A Borrower (or the Parent on behalf of a Borrower) may select an Interest Period of (a) one (1) month or three (3) months or (b) with the consent of all of the Lenders in relation to the relevant Loan, any other period agreed between such Borrower and the Agent; provided, that the Borrowers may request a Loan with a one (1) month Interest Period no more than three (3) times in the aggregate per calendar year. There shall be no more than five (5) different Interest Periods outstanding at any time.

 

 

17.1.3

An Interest Period for a Loan shall not extend beyond the Termination Date.

 

 

17.1.4

Each Revolving Facility Loan shall have one Interest Period only.

 

17.2

Non-Business Days

 

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

 

17.3

Selection of ABR or LIBOR

 

A Borrower (or the Parent on behalf of a Borrower) may select the Adjusted LIBO Rate or the Alternate Base Rate as the basis for the interest rate of a Loan to be made in the Base Currency by making such selection in the Borrowing Request for that Loan. If neither option is selected, the Loan made in the Base Currency will accrue interest at a rate that is based on the Alternate Base Rate.

 

18.

Changes To The Calculation Of Interest

 

18.1

[Intentionally omitted].

 

18.2

Market disruption

 

 

18.2.1

If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:

 

 

(a)

the applicable Margin; and

 

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(b)

the rate notified to the Agent by that Lender as soon as practicable and in any event prior to the date on which interest is due to be paid in respect of that Interest Period, which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

 

18.2.2

If the percentage rate per annum notified by a Lender pursuant to Clause 18.2.1(b) above is less than LIBOR or, in relation to any Loan in euro, EURIBOR, or in relation to any Loan in NOK, NIBOR, the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of Clause 18.2.1 above, to be LIBOR or, in relation to any Loan in euro, EURIBOR or in relation to NOK, NIBOR

 

 

18.2.3

In this Agreement, “Market Disruption Event” means:

 

 

(a)

at or about noon on the Quotation Day for the relevant Interest Period neither the Screen Rate nor the Interpolated Screen Rate is available and, following a request therefor, the Reference Bank does not supply a rate to the Agent to determine LIBOR or, if applicable, EURIBOR or NIBOR, for the relevant currency and Interest Period; or

 

 

(b)

the Agent receives notifications from a Lender or Lenders whose participations in a Loan exceeds 50% of the principal amount of that Loan, that the cost such Lender or Lenders of funding their participation (as a result of a market-wide disruption occurring after the date hereof and not as a result of any event peculiar to such Lender or Lenders (including, without limitation, a change of credit rating) which is not generally applicable to other banks and financial institutions participating in the London interbank market) in that Loan from whatever source such Lender or Lenders may reasonably select would be in excess of LIBOR.

 

18.3

Changes in market circumstances

 

 

18.3.1

If at any time a Lender determines that the cost to that Lender of funding its participation in any Loan exceeds LIBOR or, in relation to any Loan in euro, EURIBOR or any Loan in NOK, NIBOR (a “High Cost Lender”) then:

 

 

(a)

such Lender shall give notice to the Agent and the Agent shall give notice to the Parent of the occurrence of such event; and

 

 

(b)

if the participation of a High Cost Lender or High Cost Lenders (in the aggregate) in such Loan exceeds 50% of the principal amount of such Loan, the rate of interest on each High Cost Lender’s share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:

 

 

(i)

the applicable Margin for an ABR Loan; and

 

 

(ii)

the Alternate Base Rate.

 

18.4

Break Costs

 

 

18.4.1

Each Borrower shall, within five (5) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

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18.4.2

Each Lender shall, as soon as reasonably practicable after a demand by the Agent or any Borrower, provide a reasonably detailed certificate confirming the amount and calculation of its Break Costs for any Interest Period in which they accrue.

 

19.

Fees

 

19.1

Commitment fee

 

 

19.1.1

The Original Borrower shall pay to the Agent (for the account of each Revolving Facility Lender) a commitment fee in the Base Currency computed at the per annum rate of two and one-half of one percent (2.50%) on that Revolving Facility Lender’s daily Available Revolving Commitment under the Revolving Facility from the Closing Date until the earlier to occur of (a) the date the Revolving Facility Commitments are cancelled or expire in full and (b) the last day of the Availability Period; provided, that solely for purposes of calculating such commitment fee, each Revolving Facility Lender’s participation interest in the principal amount of outstanding Swingline Loans, if any, shall be deemed to constitute part of such Lender’s daily Available Revolving Commitment.

 

 

19.1.2

The accrued commitment fee is payable on the last day of each Financial Quarter, on the last day of the Availability Period and on the cancelled or expired amount of the relevant Lender’s Revolving Facility Commitment at the time the cancellation or expiration is effective.

 

 

19.1.3

No commitment fee accrues or is payable to the Agent (for the account of a Revolving Facility Lender) on any Available Revolving Commitment of that Revolving Facility Lender for any day on which that Revolving Facility Lender is a Defaulting Lender.

 

19.2

Arrangement fee

 

The Original Borrower shall pay to the Arranger (for its own account) an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

19.3

Agency fee

 

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

 

19.4

Upfront fees

 

The Original Borrower shall pay to each Original Lender (for its own account) upfront fees in the amount and at the times agreed in a Fee Letter.

 

19.5

Fees payable in respect of Letters of Credit

 

 

19.5.1

The Original Borrower shall pay to each Issuing Bank a fronting fee at the rate set forth in a Fee Letter on the stated amount of each Letter of Credit issued by such Issuing Bank for the period from the issue of that Letter of Credit until its Expiry Date.

 

 

19.5.2

The Original Borrower shall pay to the Agent (for the account of the Revolving Facility Lenders) a Letter of Credit fee in the Base Currency (computed at the rate equal to the Margin applicable to a LIBOR Loan (the “Applicable L/C Fee Rate”)) on the daily outstanding amount of each Letter of Credit for the period from the issue of that Letter of Credit until its Expiry Date. This fee shall be distributed according to each Revolving Facility Lender’s L/C Proportion of that Letter of Credit. Notwithstanding anything to the contrary contained herein, upon the occurrence and during the continuance of any Event of Default, the Applicable L/C Fee Rate shall be increased by 200 basis points per annum.

 

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19.5.3

The accrued fronting fee and Letter of Credit fee on a Letter of Credit shall be payable on the last day of each Financial Quarter. For the avoidance of doubt, no fronting fee or Letter of Credit fee will accrue or be payable unless and until any Letter of Credit has been issued under this Agreement.

 

 

19.5.4

If a Borrower provides cash cover in respect of any Letter of Credit:

 

 

(a)

the fronting fee payable to the Issuing Bank and the Letter of Credit fee payable for the account of each Revolving Facility Lender shall continue to be payable until the expiry of such Letter of Credit; and

 

 

(b)

each Borrower shall be entitled to withdraw interest accrued on the cash cover to pay the fees described in Clause 19.5.4(a) above.

 

 

19.5.5

The Original Borrower shall pay to the Issuing Bank (for its own account) an issuance/administration fee in the amount and at the times specified in any Fee Letter together with the customary issuance, presentation, drawing, amendment, transfer and other processing fees, and other standard costs and charges, of such Issuing Bank relating to letters of credit as from time to time in effect.

 

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SECTION 5

ADDITIONAL PAYMENT OBLIGATIONS

 

20.

Tax Gross Up And Indemnities

 

20.1

Definitions

 

In this Agreement:

 

Excluded Taxes 

means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, Norwegian withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Parent under Clause 45.3 (Replacement of Lender)) or pursuant to Clause 23.1.1 or (ii) such Lender changes its lending office, other than pursuant to Clause 23.1.1, except in each case to the extent that, pursuant to this Clause 20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Clause 20.2.4 and (d) any United States federal Taxes imposed under FATCA

   

FATCA

means Sections 1471 through 1474 of the Code effective as of the date hereof (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and any legislation, regulation or guidance giving effect to such intergovernmental agreements

   

Foreign Lender

means (a) if a Borrower is a US Person, a Lender that is not a US Person, and (b) if a Borrower is not a US Person, a Lender that is resident or organized under the laws of a jurisdiction other than t