EX-10.4 2 tv519874_ex10-4.htm EXHIBIT 10.4

 

Exhibit 10.4

 

Execution Version

 

SECOND AMENDMENT TO CREDIT AGREEMENT

 

This SECOND AMENDMENT to the Credit Agreement referred to below, dated as of June 14, 2018 (this “Second Amendment”), by and among International Seaways, Inc., a Marshall Islands corporation (“Holdings”), International Seaways Operating Corporation, a Marshall Islands corporation (the “Administrative Borrower”), OIN Delaware LLC, a Delaware limited liability company (the “Co-Borrower” and, together with the Administrative Borrower, the “Borrowers”), the other Guarantors (as defined in the Credit Agreement referred to below) party hereto, the Lenders (as defined in the Credit Agreement referred to below) party hereto, and Jefferies Finance LLC, as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders. Capitalized terms used herein but not otherwise defined in this Second Amendment have the same meanings as specified in the Credit Agreement referenced below, as amended by this Second Amendment.

 

RECITALS

 

WHEREAS, the Borrowers, Holdings, the other Guarantors from time to time party thereto, the several Lenders from time to time party thereto, the Administrative Agent and the other parties thereto have entered into that certain Credit Agreement, dated as of June 22, 2017 (as amended, restated, supplemented or otherwise modified prior to the date hereof, including pursuant to that certain First Amendment to Credit Agreement, dated as of July 24, 2017, the “Credit Agreement”); and

 

WHEREAS, the Borrowers, Holdings, the other Guarantors, each Lender party hereto and the Administrative Agent have agreed to amend the Credit Agreement as hereinafter set forth;

 

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1.          Amendments to Credit Agreement. The Credit Agreement is, effective as of the Second Amendment Effective Date, and subject to the satisfaction of the conditions precedent set forth in Section 3 below, hereby amended by (i) deleting the stricken text (indicated textually in the same manner as the following example: stricken text), and (ii) adding the double underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the amended Credit Agreement attached hereto as Exhibit A.

 

SECTION 2.           Representations and Warranties. In order to induce the Lenders party hereto to enter into this Second Amendment and to amend the Credit Agreement in the manner provided herein, each Loan Party hereby represents and warrants that:

 

(a)       the representations and warranties set forth in Article III of the Credit Agreement and in each other Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date).

 

(b)       both before and after giving effect to this Second Amendment, no Default or Event of Default shall have occurred and be continuing; and

 

 

 

 

(c)       this Second Amendment has been duly authorized, executed and delivered by each Loan Party party hereto and each of this Second Amendment and the Credit Agreement, as amended hereby, constitutes a legal, valid and binding obligation, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

SECTION 3.          Conditions of Effectiveness. The effectiveness of this Second Amendment (including the amendments contained in Section 1 hereof) are subject to the satisfaction of the following conditions (the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):

 

(a)       this Second Amendment shall have been duly executed by the Borrowers, Holdings, each other Guarantor, the Lenders constituting the Required Lenders (calculated immediately prior to the making of the Second Amendment Prepayment described below) and the Administrative Agent (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Administrative Agent;

 

(b)       (i) prior to the Second Amendment Effective Date the Borrowers shall have made a Discounted Prepayment Offer to prepay (the “Second Amendment Prepayment Offer” and the principal amount of such Second Amendment Prepayment Offer being the “Second Amendment Prepayment Offer Amount”) Term Loans in an aggregate principal amount of not less than $60,000,000 in connection with the effectiveness of this Second Amendment in accordance with Section 2.22 of the Credit Agreement (as amended hereby), together with a premium equal to 1.00% of the aggregate principal amount of Terms Loan so prepaid (the “Second Amendment Prepayment Premium”), and shall have specified a settlement date for such Second Amendment Prepayment Offer of not later than the Second Amendment Effective Date and (ii) on or prior to the Second Amendment Effective Date, the Borrowers shall have settled the Second Amendment Prepayment Offer in accordance with Section 2.22 of the Credit Agreement (as amended hereby) and prepaid (or shall prepay substantially concurrently with the effectiveness of this Second Amendment) at an amount not less than the principal amount of Term Loans of all Lenders accepting such Second Amendment Prepayment Offer in an aggregate principal amount not exceeding the Second Amendment Prepayment Offer Amount (such settlement and prepayment, the “Second Amendment Prepayment”), the Second Amendment Prepayment Premium on such prepaid Term Loans and all accrued and unpaid interest, if any, on such prepaid Term Loans up to the settlement date of such prepayment, which Second Amendment Prepayment and the payment of such Second Amendment Prepayment Premium and of accrued and unpaid interest relating thereto may be funded with the cash proceeds of the Permitted Holdings Unsecured Second Amendment Debt;

 

(c)       the Borrowers shall have paid (or shall pay substantially concurrently with the effectiveness of this Second Amendment), by wire transfer of immediately available funds, to the Administrative Agent, for the benefit of each Lender that executes a counterpart hereof and delivers a copy of same to the Administrative Agent by no later than 12:00 noon, New York City time, on May 9, 2018, a consent fee in an amount equal to 1.00% of the aggregate principal amount of all Term Loans held by each such Lender on the Second Amendment Effective Date (but, for this purpose, calculated immediately after giving effect to the Second Amendment Prepayment (to the extent accepted by the respective Lenders) that is to occur substantially concurrently with the occurrence of the Second Amendment Effective Date), it being understood and agreed that the consent fee described in this clause (c) shall only be payable if the Second Amendment Effective Date occurs;

 

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(d)       the Borrowers shall have paid all other costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and any other fee due and payable to the Administrative Agent or any affiliate thereof as may have been separately agreed to by the Borrowers and the Administrative Agent or such affiliate in connection with this Second Amendment, including the reasonable fees and expenses of White & Case LLP;

 

(e)       the Administrative Agent and the Mortgage Trustee shall have received, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Mortgage Trustee, an amendment to each Collateral Vessel Mortgage duly executed by the owner of the relevant Collateral Vessel giving effect to this Second Amendment, and evidence that such amendment has been duly recorded in accordance with the laws of the Applicable Flag Jurisdiction;

 

(f)       (i) all representations and warranties set forth in Section 2 of this Second Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date), (ii) no Default shall have occurred and be continuing or would occur after giving effect to this Second Amendment, and (iii) the Administrative Agent shall have received an Officer’s Certificate of the Administrative Borrower, dated the Second Amendment Effective Date, certifying compliance with the preceding clauses (i) and (ii);

 

(g)       Holdings shall have incurred or issued at least $50,000,000 in Permitted Holdings Unsecured Second Amendment Debt and shall have contributed the Net Cash Proceeds from the first $50,000,000 of such incurrence or issuance to the Administrative Borrower as a cash common equity contribution; and

 

(h)       simultaneously with the effectiveness of this Second Amendment, the supplemental agreement to the Sinosure Agreement and the related amending and restating deed, in each case necessary to permit the SPV VLCC Transactions, shall be effective.

 

SECTION 4.            Effects on Loan Documents.

 

(a)       Except as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

 

(b)       The execution, delivery and effectiveness of this Second Amendment shall not operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders or any Agent under the Loan Documents.

 

(c)       (i) Each Loan Party acknowledges and agrees that, on and after the Second Amendment Effective Date, this Second Amendment shall constitute a Loan Document for all purposes of the Credit Agreement (as amended by this Second Amendment) and (ii) each Loan Party hereby (A) agrees that all Obligations shall be guaranteed pursuant to the Guarantees in accordance with the terms and provisions thereof and shall be secured pursuant to the Security Documents in accordance with the terms and provisions thereof, and that, notwithstanding the effectiveness of this Second Amendment, on and after the Second Amendment Effective Date, the Guarantees and the Liens created pursuant to the Security Documents for the benefit of the Secured Parties continue to be in full force and effect on a continuous basis and (B) affirms, acknowledges and confirms all of its obligations and liabilities under the Credit Agreement and each other Loan Document to which it is a party, in each case after giving effect to this Second Amendment, all as provided in such Loan Documents, and acknowledges and agrees that such obligations and liabilities continue in full force and effect on a continuous basis in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents, in each case after giving effect to this Second Amendment.

 

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(d)       On and after the Second Amendment Effective Date, each reference in the Credit Agreement (as amended by this Second Amendment) to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Second Amendment, and this Second Amendment and the Credit Agreement as amended by this Second Amendment shall be read together and construed as a single instrument.

 

(e)       Nothing herein shall be deemed to entitle the Borrowers, Holdings nor the other Guarantors to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement as amended by this Second Amendment or any other Loan Document in similar or different circumstances.

 

SECTION 5.           Expense Reimbursement and Indemnification. Each Borrower hereby confirms that the expense reimbursement and indemnification provisions set forth in Section 11.03 of the Credit Agreement as amended by this Second Amendment shall apply to this Second Amendment and the transactions contemplated hereby.

 

SECTION 6.            Amendments; Severability.

 

(a)       This Second Amendment, (i) prior to the Second Amendment Effective Date, may not be amended except by an instrument in writing signed by the Loan Parties, the Administrative Agent and the Lenders and (ii) after the Second Amendment Effective Date, may not be amended nor may any provision hereof be waived except in accordance with the provisions of Section 11.02 of the Credit Agreement.

 

(b)       To the extent any provision of this Second Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Second Amendment in any jurisdiction.

 

SECTION 7.           Governing Law; Waiver of Jury Trial; Jurisdiction. THIS SECOND AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS SECOND AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 11.09(b), 11.09(c), 11.09(d) and 11.10 of the Credit Agreement as amended by this Second Amendment are incorporated herein by reference, mutatis mutandis.

 

SECTION 8.           Headings. Section headings in Second Amendment are included herein for convenience of reference only, are not part of this Second Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Second Amendment.

 

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SECTION 9.            Counterparts. This Second Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF or other electronic means shall have the same force and effect as manual signatures delivered in person.

 

[Remainder of page intentionally left blank.]

 

 5 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

 

  HOLDINGS:
     
  INTERNATIONAL SEAWAYS, INC.
     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   President and Chief Executive Officer
     
  BORROWERS:
     
  INTERNATIONAL SEAWAYS OPERATING CORPORATION
     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   President
     
  OIN DELAWARE LLC
     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   Manager

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

  

 

GUARANTORS:

 

1372 TANKER CORPORATION

AFRICA TANKER CORPORATION

ALCESMAR LIMITED

ALCMAR LIMITED

AMALIA PRODUCT CORPORATION

AMBERMAR PRODUCT CARRIER CORPORATION

ANDROMAR LIMITED

ANTIGMAR LIMITED

ARIADMAR LIMITED

ATALMAR LIMITED

ATHENS PRODUCT TANKER CORPORATION

AURORA SHIPPING CORPORATION

BATANGAS TANKER CORPORATION

CABO HELLAS LIMITED

CABO SOUNION LIMITED

CARIBBEAN TANKER CORPORATION

CARL PRODUCT CORPORATION

CONCEPT TANKER CORPORATION

DELTA AFRAMAX CORPORATION

EIGHTH AFRAMAX TANKER

CORPORATION

EPSILON AFRAMAX CORPORATION,

FIRST UNION TANKER CORPORATION

FRONT PRESIDENT INC.

GOLDMAR LIMITED
HATTERAS TANKER CORPORATION

JADEMAR LIMITED

KATSURA TANKER CORPORATION

KIMOLOS TANKER CORPORATION

KYTHNOS CHARTERING CORPORATION

LEYTE PRODUCT TANKER CORPORATION

LUXMAR PRODUCT TANKER CORPORATION

MAJESTIC TANKERS CORPORATION

MAPLE TANKER CORPORATION

MAREMAR PRODUCT TANKER CORPORATION

MILOS PRODUCT TANKER CORPORATION

MINDANAO TANKER CORPORATION

     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   President

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

  

 

MONTAUK TANKER CORPORATION

OAK TANKER CORPORATION

OCEANIA TANKER CORPORATION

OIN CHARTERING, INC.

OSG CLEAN PRODUCTS INTERNATIONAL, INC.

OVERSEAS SHIPPING (GR) LTD.

PEARLMAR LIMITED

PETROMAR LIMITED

REYMAR LIMITED

RICH TANKER CORPORATION

ROSALYN TANKER CORPORATION

ROSEMAR LIMITED

RUBYMAR LIMITED

SAKURA TRANSPORT CORP.

SAMAR PRODUCT TANKER CORPORATION

SERIFOS TANKER CORPORATION

SEVENTH AFRAMAX TANKER CORPORATION

SHIRLEY AFRAMAX CORPORATION

SIFNOS TANKER CORPORATION

SILVERMAR LIMITED

SIXTH AFRAMAX TANKER CORPORATION

SKOPELOS PRODUCT TANKER CORPORATION

STAR CHARTERING CORPORATION

THIRD UNITED SHIPPING CORPORATION

TOKYO TRANSPORT CORP.

URBAN TANKER CORPORATION

VIEW TANKER CORPORATION

     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   President
     
  INTERNATIONAL SEAWAYS SHIP MANAGEMENT LLC
     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   President, Chief Executive Officer and Manager
     
  LIGHTERING LLC
     
  By: /s/ Lois K. Zabrocky
    Name: Lois K. Zabrocky
    Title:   Senior Vice President and Manager

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OSG SHIP MANAGEMENT (UK) LTD.
     
  By: /s/ Lois K. Zabrocky
    Name:   Lois K. Zabrocky
    Title:     Director
     
  JEFFERIES FINANCE LLC, as Administrative Agent and as a Lender
     
  By: /s/ J.R. Young
    Name:   J.R. Young
    Title:     Senior Vice President

 

  APEX CREDIT CLO 2018 LTD.,
as Lender
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director
   
  APEX CREDIT CLO 2015-II LTD.,
as Lender
   
  By: Apex Credit Partners, its Asset Manager
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director
   
  APEX CREDIT CLO 2016 LTD., as Lender
     
  By: Apex Credit Partners, its Asset Manager
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  APEX CREDIT CLO 2017 LTD., as Lender
   
  By: Apex Credit Partners, its Asset Manager
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director
   
  APEX CREDIT CLO 2017-II LTD., as Lender
     
  By: Credit Partners LLC
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director
   
  ATRIUM IX, as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  ATRIUM VIII, as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  ATRIUM XI, as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  ATRIUM XII, as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  ATRIUM XIII, as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  BENEFIT STRET PARTNERS CLO II, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer

  

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  BENEFIT STRET PARTNERS CLO V, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer
   
  BENEFIT STRET PARTNERS CLO VI, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer
   
  BENEFIT STRET PARTNERS CLO VII, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer
   
  BENEFIT STRET PARTNERS CLO VIII, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer
   
  BENEFIT STRET PARTNERS CLO X, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer
   
  BENEFIT STRET PARTNERS CLO XI, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  BENEFIT STRET PARTNERS CLO XIV, LTD.,
as Lender
     
  By: /s/ Todd Marsh
    Name: Todd Marsh
    Title: Authorized Signer
   
  BLACK DIAMOND CLO 2013-1 LTD.,
as Lender
     
  By: Black Diamond CLO 2013-1 Adviser, L.L.C. as its Collateral Manager
     
  By: /s/ Stephen H. Deckoff
    Name: Stephen H. Deckoff
    Title: Managing Principal
   
  BLACK DIAMOND CLO 2014-1 LTD.,
as Lender
     
  By: Black Diamond CLO 2014-1 Adviser, L.L.C. as its Collateral Manager
     
  By: /s/ Stephen H. Deckoff
    Name: Stephen H. Deckoff
    Title: Managing Principal
   
  BLACK DIAMOND CLO 2015-1 DESIGNATED ACTIVITY COMPANY, as Lender
     
  By: Black Diamond CLO 2015-1 Adviser, L.L.C. as its Collateral Manager
     
  By: /s/ Stephen H. Deckoff
    Name: Stephen H. Deckoff
    Title: Managing Principal
   

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  BLACK DIAMOND CLO 2016-1 LTD.,
as Lender
     
  By: Black Diamond CLO 2016-1 Adviser, L.L.C. as its Collateral Manager
     
  By: /s/ Stephen H. Deckoff
    Name: Stephen H. Deckoff
    Title: Managing Principal
   
  BLACK DIAMOND CLO 2017-1 LTD., as Lender
     
  By: Black Diamond CLO 2017-1 Adviser, L.L.C. as its Collateral Manager
     
  By: /s/ Stephen H. Deckoff
    Name: Stephen H. Deckoff
    Title: Managing Principal
   
  BLACK DIAMOND CLO 2017-2 DESIGNATED ACTIVITY COMPANY, as Lender
     
  By: Black Diamond CLO 2017-2 Adviser, L.L.C. as its Collateral Manager
     
  By: /s/ Stephen H. Deckoff
    Name: Stephen H. Deckoff
    Title: Managing Principal
   
  BLUE CROSS OF IDAHO HEALTH SERVICE, INC., as Lender
     
  By: Seix Investment Advisors LLC, as Investment Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Principal
   

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  CALIFORNIA STATE TEACHERS’ RETIREMENT SYSTEM, as Lender
     
  By: Credit Suisse Asset Management, LLC, as investment manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Principal
   
  CANYON CAPITAL CLO 2012-1, LTD.,
as Lender
     
  BY: Canyon Capital Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory
   
  CANYON CAPITAL CLO 2014-1, LTD.,
as Lender
     
  BY: Canyon Capital Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory
   
  CANYON CAPITAL CLO 2014-2, LTD.,
as Lender
     
  By: Canyon Capital Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  CANYON CAPITAL CLO 2015-1, LTD.,
as Lender
     
  By: Canyon Capital Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory
   
  CANYON CAPITAL CLO 2016-1, LTD.,
as Lender
     
  By: Canyon CLO Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory
   
  CANYON CAPITAL CLO 2016-2, LTD.,
as Lender
     
  By: Canyon CLO Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory
   
  CANYON CAPITAL CLO 2017-1, LTD.,
as Lender
     
  By: Canyon CLO Advisors LLC, its Collateral Manager
     
  By: /s/ Jonathan M. Kaplan
    Name: Jonathan M. Kaplan
    Title: Authorized Signatory

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  CITI LOAN FUNDING BR 534 LLC,
as Lender
     
  By: Citibank, N.A.
     
  By: /s/ Cynthia Gonzalvo
    Name: Cynthia Gonzalvo
    Title: Associate Director
   
  CITI LOAN FUNDING BR MUST LLC,
as Lender
     
  By: Citibank, N.A.
     
  By: /s/ Cynthia Gonzalvo
    Name: Cynthia Gonzalvo
    Title: Associate Director
   
  BCA LOAN FUNDING LLC,
as Lender
     
  By: Citibank, N.A.
     
  By: /s/ Cynthia Gonzalvo
    Name: Cynthia Gonzalvo
    Title: Associate Director
   
  CITY NATIONAL ROCHDALE FIXED INCOME OPPORTUNITIES FUND,
as Lender
     
  By: Seix Investment Advisors LLC, as Subadviser
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  CORBIN OPPORTUNITY FUNDS, L.P.,
as Lender
     
  By: Corbin Capital Partner, L.P., its investment manager
     
  By: /s/ Daniel Friedman
    Name: Daniel Friedman
    Title: General Counsel
   
  GLENDON OPPORTUNITIES FUND, LP,
as Lender
     
  By: /s/ Brian Lanktree
    Name: Brian Lanktree
    Title: Principal & Head Trader, Glendon Capital Management, LP
   
  ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC,
as Lender
     
  By: /s/ Brian Lanktree
    Name: Brian Lanktree
    Title: Principal & Head Trader, Glendon Capital Management, LP
   
  CORNELL UNIVERSITY,
as Lender
     
  By: /s/ Brian Lanktree
    Name: Brian Lanktree
    Title: Principal & Head Trader, Glendon Capital Management, LP

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  CREDIT SUISSE FLOATING RATE TRUST,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as its Investment Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  CREDIT SUISSE STRATEGIC INCOME FUND,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as its Investment Advisor
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  CVP CASCADE CLO-1 LTD.,
as Lender
     
  By: CVP CLO Manager, LLC as Investment Manager
     
  By: /s/ Joseph Matteo
    Name: Joseph Matteo
    Title: Portfolio Manager
   
  CVP CASCADE CLO-2 LTD.,
as Lender
     
  By: CVP CLO Manager, LLC as Investment Manager
     
  By: /s/ Joseph Matteo
    Name: Joseph Matteo
    Title: Portfolio Manager

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  CVP CLO 2017-1 LTD.,
as Lender
     
  By: CVP CLO Advisors, LLC as Investment Manager
     
  By: /s/ Joseph Matteo
    Name: Joseph Matteo
    Title: Partner
   
  CVP CLO 2017-2 LTD.,
as Lender
     
  By: CVP CLO Advisors, LLC as Investment Manager
     
  By: /s/ Joseph Matteo
    Name: Joseph Matteo
    Title: Partner
   
  DOLLAR SENIOR LOAN FUND, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Investment Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  ELLINGTON CLO management LLC
ON BEHALF OF:
ELLINGTON CLO I, LTD.
ELLINGTON CLO II, LTD.
ELLINGTON CLO III, LTD.,
as Lender
     
  By: /s/ Mark Heron
    Name: Mark Heron
    Title: Portfolio Manager
   

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  ERIE INDEMNITY COMPANY,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Investment Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  ERIE INSURANCE EXCHANGE,
as Lender
     
  By: Credit Suisse Asset Management, LLC., as its Investment Manager For Erie Indemnity Company, as Attorney-In-Fact For Erie Insurance Exchange
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
       
  ADVANCED SERIES TRUST-AST FI PYRAMIS QUANTITATIVE PORTFOLIO, FIAM LLC,
     
  By: FIAM LLC as Investment Manager,
as Lender
     
  By: /s/ Daniel Campbell
    Name: Daniel Campbell
    Title: VP

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  FIDELITY FLOATING RATE HIGH INCOME INVESTMENT TRUST,
     
  By: For Fidelity Investments Canada ULC as Trustee Of Fidelity Floating Rate High Income Investment Trust, as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
   
  FIDELITY FLOATING RATE HIGH INCOME FUND
     
  By:

For Fidelity Investments Canada ULC as Trustee Of Fidelity Floating Rate High Income Fund, as Lender

     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
   
  FIDELITY CENTRAL INVESTMENT PORTFOLIOS LLC: FIDELITY FLOATING RATE CENTRAL FUND,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
   
  FIDELITY CENTRAL INVESTMENT PORTFOLIOS LLC: FIDELITY HIGH INCOME CENTRAL FUND 2,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  FIAM FLOATING RATE HIGH INCOME COMMINGLED POOL
     
  By: Fidelity Institutional Asset Management Trust Company, as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
   
  FIAM LEVERAGED LOAN, LP
     
  By: FIAM LLC as Investment Manager, as Lender
     
  By: /s/ Daniel Campbell
    Name: Daniel Campbell
    Title: VP
     
  FIDELITY SUMMER STREET TRUST: FIDELITY SERIES FLOATING RATE HIGH INCOME FUND,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
     
  FIDELITY SUMMER STREET TRUST: FIDELITY SERIES HIGH INCOME FUND,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
     
  FIDELITY SUMMER STREET TRUST: FIDELITY HIGH INCOME FUND,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  FIDELITY INCOME FUND: FIDELITY TOTAL BOND FUND,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
   
  FIDELITY QUALIFYING INVESTOR FUNDS PLC
     
  By: FIAM LLC as Sub Advisor, as Lender
     
  By: /s/ Daniel Campbell
    Name: Daniel Campbell
    Title: VP
   
  VARIABLE INSURANCE PRODUCTS FUND: FLOATING RATE HIGH INCOME PORTFOLIO,
as Lender
     
  By: /s/ Colm Hogan
    Name: Colm Hogan
    Title: Authorized Signatory
   
  FIGUEROA CLO 2013-2, LTD,
as Lender
     
  By: TCW Asset Management Company as Investment Manager
     
  By: /s/ Nora Olan
    Name: Nora Olan
    Title: Senior Vice President
   
  If Second Signature is Required:
   
  By: /s/ Ryan Gable
    Name: Ryan Gable
    Title: Senior Vice President

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  FIGUEROA CLO 2014-1, LTD,
as Lender
     
  By: TCW Asset Management Company as Investment Manager
     
  By: /s/ Nora Olan
    Name: Nora Olan
    Title: Senior Vice President
   
  If Second Signature is Required:
   
  By: /s/ Ryan Gable
    Name: Ryan Gable
    Title: Senior Vice President
   
  FLATIRON FUNDING II, LLC,
as Lender
     
  By: /s/ Gregg Bresner
    Name: Gregg Bresner
    Title: President and CIO
   
  NEBRASKA INVESTMENT COUNCIL,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer
   
  KANSAS PUBLIC EMPLOYEES RETIRMENT SYSTEM,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  FRANKLIN TEMPLETPN SERIES II FUNDS - FRANKLIN FLOATING RATE II FUND,
as Lender
     
  By: /s/ Madeline Lam
    Name: Madeline Lam
    Title: Vice President
     
  FRANKLIN FLOATING RATE MASTER TRUST - FRANKLIN FLOATING RATE MASTER SERIES,
as Lender
     
  By: /s/ Madeline Lam
    Name: Madeline Lam
    Title: Vice President
     
  FRANKLIN INVESTORS SECURITIES TRUST - FRANKLIN FLOATING RATE DAILY ACCESS FUND,
as Lender
     
  By: /s/ Madeline Lam
    Name: Madeline Lam
    Title: Vice President
     
  COMMONWEALTH FIXED  INTEREST FUND 17,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer
     
  FRANKLIN FLOATING RATE MASTER TRUST - FRANKLIN LOWER TIER FLOATING RATE FUND,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  FRANKLIN STRATEGIC SERIES-FRANKLIN STRATEGIC INCOME FUND,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer
   
  FRANKLIN STRATEGIC INCOME FUND (CANADA),
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer
   
  FRANKLIN TEMPLETON VARIABLE INSURANCE TRUST-FRANKLIN STRATEGIC INCOME VIP FUND,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer
   
  FRANKLIN INVESTORS SECURITIES TRUST-FRANKLIN LOW DURATION TOTAL RETURN FUND,
as Lender
     
  By: /s/ Hague Van Dillen
    Name: Hague Van Dillen
    Title: Authorized Signer
   
  government of guam retirement fund,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  GRAHAM MACRO STRATEGIC LTD,
as Lender
     
  By: /s/ Paul Sedlack
    Name: Paul Sedlack
    Title: COO, Graham Capital Management, L.P. as Sole Director
   
  HOTCHKIS AND WILEY CAPITAL INCOME FUND,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director
   
  HOTCHKIS AND WILEY HIGH YIELD FUND FUND,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director
   
  JFIN CLO 2014-II LTD.,
as Lender
     
  By: Apex Credit Partners LLC, as Portfolio Manager
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director
   
  JFIN CLO 2015 LTD.,
as Lender
     
  By: Apex Credit Partners LLC, as Portfolio Manager
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  JFIN CLO 2014-LTD,
as Lender
     
  By: Apex Credit Partners LLC, as Portfolio Manager
     
  By: /s/ Andrew Stern
    Name: Andrew Stern
    Title: Managing Director
   
  OZLM XVII, Ltd.,
as Lender
     
  By: OZ CLO Management LLC, its Collateral Manager
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  KP FIXED INCOME FUND,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Sub-Adviser For Callan Associates Inc., The Adviser For The KP Funds, The Trust For KP Fixed Income Fund
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  LIBERTY MUTUAL INSURANCE COMPANY,
as Lender
     
  By: /s/ Scott Russian
    Name: Scott Russian
    Title: Authorized Signatory

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  LIBERTY MUTUAL RETIREMENT PLAN MASTER TRUST, as Assignee,
as Lender
     
  By: Liberty Mutual Group Asset Management Inc. Acting For And On Behalf Of Liberty Mutual Retirement Plan Master Trust
     
  By: /s/ Scott Russian
    Name: Scott Russian
    Title: Authorized Signatory
   
  LINCOLN SQUARE FUNDING ULC,
as Lender
     
  By: /s/ Madonna Sequeira
    Name: Madonna Sequeira
    Title: Authorized Signatory
   
  LORD ABBETT BANK LOAN TRUST,
as Lender
     
  By: Lord Abbett & Co LLC, as Investment Manager
     
  By: /s/ Kearney Posner
    Name: Kearney Posner
    Title: Associate Portfolio Manager
   
  LORD ABBETT FLOATING RATE FUND LTD.,
as Lender
     
  By: Lord, Abbett & Co LLC, as Investment Manager
     
  By: /s/ Kearney Posner
    Name: Kearney Posner
    Title: Associate Portfolio Manager

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  LORD ABBETT INVESTMENT TRUST - LORD ABBETT FLOATING RATE FUND,
as Lender
     
  By: Lord Abbett & Co LLC, as Investment Manager
     
  By: /s/ Kearney Posner
    Name: Kearney Posner
    Title: Associate Portfolio Manager
   
  MADISON PARK FUNDING X, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XII, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XIV, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  MADISON PARK FUNDING XIX, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Collateral Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XV, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XVI, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XVII, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  MADISON PARK FUNDING XVIII, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Collateral Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XX, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XXI, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XXII, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  MADISON PARK FUNDING XXIII, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Collateral Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XXIV, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Collateral Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  MADISON PARK FUNDING XXV, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Collateral Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  METROPOLITAN WEST FLOATING RATE INCOME FUND,
as Lender
     
  By: Metropolitan West Asset Management as Investment Manager
     
  By: /s/ Nora Olan
    Name: Nora Olan
    Title: Senior Vice President

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  If Second Signature is Required:
   
  By: /s/ Ryan Gable
    Name: Ryan Gable
    Title: Senior Vice President
   
  MOUNTAIN VIEW CLO 2013-1 LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
  MOUNTAIN VIEW CLO 2014-1 LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
  MOUNTAIN VIEW CLO 2016-1 LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  MOUNTAIN VIEW CLO 2017-2 LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
  MOUNTAIN VIEW CLO 2017-1 LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
  MOUNTAIN VIEW CLO IX LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
  MOUNTAIN VIEW CLO X LTD.,
as Lender
     
  By: Seix Investment Advisors LLC, as Collateral Manager
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  MSD CREDIT OPPORTUNITY FUND,
as Lender
     
  By: /s/ Marcello Liguori
    Name: Marcello Liguori
    Title: Managing Director
   
  NASSAU 2017-I LTD,
as Lender
     
  By: /s/ Chris LaJaunie
    Name: Chris LaJaunie
    Title: Senior Analyst
   
  NASSAU 2017-II LTD.,
as Lender
     
  By: /s/ Chris LaJaunie
    Name: Chris LaJaunie
    Title: Senior Analyst
   
  NATIONAL ELECTRICAL BENEFIT FUND,
as Lender
     
  By: Lord Abbett & Co LLC, as Investment Manager
     
  By: /s/ Kearney Posner
    Name: Kearney Posner
    Title: Associate Portfolio Manager
   
  NATIONAL ELEVATOR INDUSTRY PENSION PLAN,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director
   

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OHIO CASUALTY INSURANCE COMPANY,
as Lender
     
  By: /s/ Scott Russian
    Name: Scott Russian
    Title: Authorized Signatory
   
  ONE ELEVEN FUNDING I, LTD.,
as Lender
     
  By: Credit Suisse Asset Management, LLC, as Portfolio Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  OZLM FUNDING II, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Portfolio Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM FUNDING III, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Portfolio Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OZLM FUNDING IV, LTD.
as Lender
     
  By: Och-Ziff Loan Management LP, its Portfolio Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM FUNDING, LTD.,
as Lender
     
  By: OZ CLO Management LLC, its Portfolio Manager
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM IX, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
    Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OZLM VI, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Asset Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM VII, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM VIII, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OZLM XI, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM XII, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM XIII, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OZLM XIV, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM XV, LTD.,
as Lender
     
  By: Och-Ziff Loan Management LP, its Collateral Manager
     
  By: Och-Ziff Loan Management LLC, its General Partner
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  OZLM XVI, LTD.,
as Lender
     
  By: OZ CLO Management LLC, its Successor Portfolio Manager
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  OZLM XXII, LTD.,
as Lender
     
  By: OZ CLO Management LLC, its Collateral Manager
     
  By: /s/ Alesia J. Haas
    Name: Alesia J. Haas
    Title: CFO
   
  PEERLESS INSURANCE COMPANY,
as Lender
     
  By:  
     
  By: /s/ Scott Russian
    Name: Scott Russian
    Title: Authorized Signatory
   
  PONTUS HOLDINGS LTD.,
as Lender
     
  By: /s/ Russell Bryant
       
    Name: Russell Bryant
    Title:

Chief Financial Officer

Quadrant Capital Advisors, Inc.

Investment Advisor to Pontus Holdings Ltd.

   
  REDWOOD MASTER FUND, LTD.,
as Lender
     
  By: Redwood Capital Management, LLC, its Investment Manager
     
  By: /s/ Ruben Kliksberg
    Name: Ruben Kliksberg
    Title: Co-Chief Executive Officer

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  REDWOOD OPPORTUNITY MASTER FUND, LTD.,
as Lender
     
  By: Redwood Capital Management, LLC, its Investment Manager
     
  By: /s/ Ruben Kliksberg
    Name: Ruben Kliksberg
    Title: Co-Chief Executive Officer
   
  SAFECO INSURANCE COMPANY OF AMERICA,
as Lender
     
  By: /s/ Scott Russian
    Name: Scott Russian
    Title: Authorized Signatory
   
  SAN DIEGO COUNTY EMPLOYEES RETIREMENT ASSOCIATION,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director
   
  SANTA BARBARA COUNTY EMPLOYEES RETIREMENT SYSTEM,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  SEIX MULTI-SECTOR ABSOLUTE RETURN FUND L.P.,
as Lender
     
  By: Seix Multi-Sector Absolute Return Fund GP LLC, In its Capacity as Sole General Partner
     
  By: Seix Investment Advisors LLC, its Sole Member
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
 

SENIOR SECURED FLOATING RATE LOAN

FUND,
as Lender

     
  By: Credit Suisse Asset Management, LLC, The Portfolio Manager For Propel Capital Corporation, The Manager For Senior Secured Floating Rate Loan Fund
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director
   
  SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
as Lender
  By:  
     
  By: /s/ Per Bjernekull
    Name: Per Bjernekull
    Title: General Manager
   
  If Second Signature is Required:
   
  By: /s/ Anthony Racanelli
    Name: Anthony Racanelli
    Title: SVP

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  STEELE CREEK CLO 2014-1R, LTD,
as Lender
     
  By: /s/ Alan DeKeukelaere
    Name: Alan DeKeukelaere
    Title: Senior Research Analyst
   
  STEELE CREEK CLO 2015-1, LTD,
as Lender
     
  By: /s/ Alan DeKeukelaere
    Name: Alan DeKeukelaere
    Title: Senior Research Analyst
   
  STEELE CREEK CLO 2016-1, LTD,
as Lender
     
  By: /s/ Alan DeKeukelaere
    Name: Alan DeKeukelaere
    Title: Senior Research Analyst
   
  STEELE CREEK CLO 2017-1, LTD,
as Lender
     
  By: /s/ Alan DeKeukelaere
    Name: Alan DeKeukelaere
    Title: Senior Research Analyst
   
  TCW CLO 2017-1, LTD.,
as Lender
     
  By: /s/ Nora Olan
    Name: Nora Olan
    Title: Senior Vice President

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  If Second Signature is Required:
   
  By: /s/ Ryan Gable
    Name: Ryan Gable
    Title: Senior Vice President
   
  TCW CLO 2018-1, LTD.,
as Lender
     
  By: TCW Asset Management Company LLC as Asset Manager
     
  By: /s/ Nora Olan
    Name: Nora Olan
    Title: Senior Vice President
   
  If Second Signature is Required:
   
  By: /s/ Ryan Gable
    Name:  
    Title: Senior Vice President
   
  TEXAS COUNTY AND DISTRICT RETIREMENT SYSTEM,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director
   
  THE CITY OF NEW YORK GROUP TRUST,
as Lender
     
  By: Credit Suisse Asset Management, LLC. as its Manager
     
  By: /s/ Louis Farano
    Name: Louis Farano
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  UNIVERSITY OF DAYTON,
as Lender
     
  By: /s/ Sue Park
    Name: Sue Park
    Title: Managing Director
   
  THE WESTERN AND SOUTHERN LIFE INSURANCE COMPANY,
as Lender
     
  By: /s/ Bernie M. Casey
    Name: Bernie M. Casey
    Title: AVP & Senior Credit Analyst
   
  VENTURE 28A CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading
   
  VENTURE X CLO, LIMITED,
as Lender
     
  By: its Collateral Manager, MJX Venture Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  VENTURE XII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XIV CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XIX CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Asset Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XV CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Asset Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  VENTURE XVI CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XVII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Asset Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XVIII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XX CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  VENTURE XXI CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXIII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Asset Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXIV CLO, LIMITED, LP,
as Lender
     
  By: its Investment Advisor MJX Asset Management LLC
     
  By: /s/ Lewis I. Brown
    Name: Lewis I. Brown
    Title: Managing Director / Head of Trading

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  VENTURE XXIX CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXV CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Asset Management LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXVI CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXVII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  VENTURE XXVIII CLO, LIMITED,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading
   
  VENTURE XXX CLO, LIMITED, LP,
as Lender
     
  By: its Investment Advisor MJX Venture Management II LLC
     
  By: /s/ Lewis Brown
    Name: Lewis Brown
    Title: Managing Director / Head of Trading
   
  VIRTUS SEIX FLOATING RATE HIGH INCOME FUND,
as Lender
     
  By: Seix Investment Advisors LLC, as Subadviser
     
  By: /s/ George Goudelias
    Name: George Goudelias
    Title: Managing Director
   
  ZAIS CLO 1, LIMITED,
as Lender
     
  By: ZAIS CLO 1, Limited
     
  By: /s/ Vincent Ingato
    Name: Vincent Ignato
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  ZAIS CLO 2, LIMITED,
as Lender
     
  By: ZAIS CLO 2, Limited
     
  By: /s/ Vincent Ingato
    Name: Vincent Ingato
    Title: Managing Director
   
  ZAIS CLO 3, LIMITED,
as Lender
     
  By: ZAIS CLO 3, Limited
     
  By: /s/ Vincent Ingato
    Name: Vincent Ingato
    Title: Managing Director
   
  ZAIS CLO 5, LIMITED,
as Lender
     
  By: Zais Leveraged Loan Master Manager, LLC its Collateral Manager
     
  By: Zais Group, LLC, its Sole Member
     
  By: /s/ Vincent Ingato
    Name: Vincent Ingato
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

  ZAIS CLO 6, LIMITED,
as Lender
     
  By: Zais Leveraged Loan Master Manager, LLC its Collateral Manager
     
  By: Zais Group, LLC, its Sole Member
     
  By: /s/ Vincent Ingato
    Name: Vincent Ingato
    Title: Managing Director
   
  ZAIS CLO 7, LIMITED,
as Lender
     
  By: /s/ Vincent Ingato
    Name: Vincent Ingato
    Title: Managing Director
   
  ZAIS CLO 8, LIMITED,
as Lender
     
  By: Zais Leveraged Loan Master Manager, LLC its Collateral Manager
     
  By: Zais Group, LLC, its Sole Member
     
  By: /s/ Vincent Ingato
    Name: Vincent Ingato
    Title: Managing Director

 

[Signature Page to Second Amendment to INSW Credit Agreement]

 

 

 

 

EXHIBIT A Amended

 

Credit Agreement

 

[See attached]

 

 

 

  

Composite Credit Agreement Including

the First Amendment Described Herein

 

 

 

CREDIT AGREEMENT,

 

dated as of June 22, 2017,

 

among

 

INTERNATIONAL SEAWAYS OPERATING CORPORATION,

as the Administrative Borrower,

 

OIN DELAWARE LLC,

as the Co-Borrower,

 

INTERNATIONAL SEAWAYS, INC.,

as Holdings,

 

THE OTHER GUARANTORS PARTY HERETO,

as Guarantors,

 

THE LENDERS PARTY HERETO,

 

JEFFERIES FINANCE LLC,

as Administrative Agent,

 

JEFFERIES FINANCE LLC,

as Collateral Agent and Mortgage Trustee,

SKANDINAVISKA ENSKILDA BANKEN AB (PUBL),

as Swingline Lender,

 

and

 

SKANDINAVISKA ENSKILDA BANKEN AB (PUBL),

as Issuing Bank

 

 

 

JEFFERIES FINANCE LLC

and

JPMORGAN CHASE BANK, N.A.,

as Joint Lead Arrangers,

 

JEFFERIES FINANCE LLC, JPMORGAN CHASE BANK, N.A.

and

UBS SECURITIES LLC,

as Joint Bookrunners,

 

and

 

DNB MARKETS, INC., FEARNLEY SECURITIES INC.,

PARETO SECURITIES INC.

and

SKANDINAVISKA ENSKILDA BANKEN AB (PUBL),

as Co-Managers

 

 

 

 

TABLE OF CONTENTS

 

    Page
     
ARTICLE I DEFINITIONS 2
Section 1.01 Defined Terms 2
Section 1.02 Classification of Loans and Borrowings 6165
Section 1.03 Terms Generally 6165
Section 1.04 Accounting Terms; GAAP 6166
Section 1.05 Resolution of Drafting Ambiguities 6266
Section 1.06 Rounding 6266
Section 1.07 Currency Equivalents Generally. 6266
Section 1.08 Change in Currency 6267
Section 1.09 Available Amount Transactions 6367
ARTICLE II THE CREDITS 6367
Section 2.01 Commitments 6367
Section 2.02 Loans 6368
Section 2.03 Borrowing Procedure 6469
Section 2.04 Repayment of Loans 6570
Section 2.05 Fees. 6671
Section 2.06 Interest on Loans 6872
Section 2.07 Termination and Reduction of Commitments 6873
Section 2.08 Interest Elections 6973
Section 2.09 Amortization of Term Borrowings 7075
Section 2.10 Optional and Mandatory Prepayments of Loans 7075
Section 2.11 Alternate Rate of Interest 7579
Section 2.12 Increased Costs; Change in Legality 7580
Section 2.13 Breakage Payments 7782
Section 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs 7782
Section 2.15 Taxes 7984
Section 2.16 Mitigation Obligations; Replacement of Lenders. 8186
Section 2.17 Swingline Loans 8590
Section 2.18 Letters of Credit. 8792
Section 2.19 Nature of Obligations 9398
Section 2.20 Extensions of Term Loans and Revolving Commitments. 94100
Section 2.21 Increases of the Commitments. 97102
Section 2.22 Discounted Voluntary Prepayments 101106
Section 2.23 Specified Refinancing Term Loans and Specified Refinancing Revolving Commitments 103108
ARTICLE III REPRESENTATIONS AND WARRANTIES 105109
Section 3.01 Organization; Powers 106110
Section 3.02 Authorization; Enforceability 106110
Section 3.03 No Conflicts; No Default 106110
Section 3.04 Financial Statements; Projections 106110
Section 3.05 Properties. 107111
Section 3.06 Intellectual Property 108112
Section 3.07 Equity Interests and Subsidiaries 108112
Section 3.08 Litigation; Compliance with Legal Requirements 109113
Section 3.09 Agreements 110114

 

 i 

 

 

    Page
     
Section 3.10 Federal Reserve Regulations 110114
Section 3.11 Investment Company Act; etc. 110114
Section 3.12 Use of Proceeds 110114
Section 3.13 [Reserved]. 111115
Section 3.14 Taxes 111115
Section 3.15 No Material Misstatements 111115
Section 3.16 Labor Matters 111115
Section 3.17 Solvency 111115
Section 3.18 Employee Benefit Plans 111116
Section 3.19 Environmental Matters 112116
Section 3.20 Insurance 113117
Section 3.21 Security Documents 113117
Section 3.22 Anti-Terrorism Law; Foreign Corrupt Practices Act. 115119
Section 3.23 Concerning Vessels. 116120
Section 3.24 Form of Documentation; Citizenship. 116120
Section 3.25 Compliance with ISM Code and ISPS Code 116121
Section 3.26 Threatened Withdrawal of DOC, SMC or ISSC 117121
Section 3.27 Deposit Accounts and Securities Accounts 117121
ARTICLE IV CONDITIONS TO CREDIT EXTENSIONS 117121
Section 4.01 Conditions to Initial Credit Extension 117121
Section 4.02 Conditions to All Credit Extensions 121125
ARTICLE V AFFIRMATIVE COVENANTS 121126
Section 5.01 Financial Statements, Reports, etc. 122126
Section 5.02 Litigation and Other Notices 125129
Section 5.03 Existence; Businesses and Properties 125130
Section 5.04 Insurance 126130
Section 5.05 Obligations and Taxes 127131
Section 5.06 Employee Benefits 127132
Section 5.07 Maintaining Records; Access to Properties and Inspections; Quarterly  
Lender Calls 127132
Section 5.08 Use of Proceeds 128132
Section 5.09 Compliance with Environmental Laws and other Legal Requirements. 128132
Section 5.10 Additional Collateral; Additional Guarantors 128133
Section 5.11 Security Interests; Further Assurances 131135
Section 5.12 Certain Information Regarding the Loan Parties 131136
Section 5.13 Appraisals 132137
Section 5.14 Deposit Accounts; Securities Accounts 132137
Section 5.15 Post-Closing Matters 133138
Section 5.16 Flag of Vessel; Vessel Classifications; Operation of Vessels. 133138
Section 5.17 Designation of Subsidiaries. 135140
Section 5.18 Material Agreements 136141
Section 5.19 Ship Management 136141
Section 5.20 Maintenance of Ratings 136141
Section 5.21 Agent for Service of Process. 136141
ARTICLE VI NEGATIVE COVENANTS 136141
Section 6.01 Indebtedness 137142

 

 ii 

 

  

    Page
     
Section 6.02 Liens 139144
Section 6.03 Sale and Leaseback Transactions 143148
Section 6.04 Investments, Loans and Advances 143148
Section 6.05 Mergers and Consolidations 145150
Section 6.06 Asset Sales 146151
Section 6.07 Acquisitions 147153
Section 6.08 Dividends 148153
Section 6.09 Transactions with Affiliates 149155
Section 6.10 Loan to Value Test; Vessel Value Test. 149155
Section 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents and Certain Other Documents, etc. 150156
Section 6.12 Limitation on Certain Restrictions on Subsidiaries 151156
Section 6.13 Limitation on Issuance of Capital Stock. 151157
Section 6.14 Business 152158
Section 6.15 [Reserved] 153SPV VLCC Vessel Owners; SPV VLCC Vessels; etc. Notwithstanding anything to the contrary contained herein: 159
Section 6.16 Fiscal Periods 153159
Section 6.17 No Further Negative Pledge 153160
Section 6.18 Anti-Terrorism Law; Anti-Money Laundering 153160
Section 6.19 Embargoed Person 153160
Section 6.20 Restrictions on Chartering, etc. 154160
Section 6.21 Additional Covenants 154161
ARTICLE VII GUARANTEE 154161
Section 7.01 The Guarantee 154161
Section 7.02 Obligations Unconditional 154161
Section 7.03 Reinstatement 156162
Section 7.04 Subrogation; Subordination 156163
Section 7.05 Remedies 156163
Section 7.06 Instrument for the Payment of Money 156163
Section 7.07 Continuing Guarantee 156163
Section 7.08 General Limitation on Guarantee Obligations 156163
Section 7.09 Release of Guarantors 156163
Section 7.10 Right of Contribution 157164
Section 7.11 Keepwell 157164
ARTICLE VIII EVENTS OF DEFAULT 157164
Section 8.01 Events of Default 157164
Section 8.02 Rescission 160167
ARTICLE IX APPLICATION OF COLLATERAL PROCEEDS 160167
Section 9.01 Application of Proceeds 160167
ARTICLE X THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT 162169
Section 10.01 Appointment 162169
Section 10.02 Agent in Its Individual Capacity 162169
Section 10.03 Exculpatory Provisions 163170
Section 10.04 Reliance by Agent 163170
Section 10.05 Delegation of Duties 164171
Section 10.06 Successor Agent 164171

 

 iii 

 

  

    Page
     
Section 10.07 Non-Reliance on Agent and Other Lenders 164171
Section 10.08 Name Agents 165172
Section 10.09 Indemnification 165172
Section 10.10 Withholding Taxes 165172
Section 10.11 Lender’s Representations, Warranties and Acknowledgements   166173
Section 10.12 Security Documents and Guarantees. 166173
Section 10.13 Administrative Agent May File Bankruptcy Disclosure and Proofs of  
Claim 167174
Section 10.14 Ship Mortgage Trust 168175
ARTICLE XI MISCELLANEOUS 169176
Section 11.01 Notices. 169176
Section 11.02 Waivers; Amendment 171179
Section 11.03 Expenses; Indemnity 174181
Section 11.04 Successors and Assigns 177184
Section 11.05 Survival of Agreement 182189
Section 11.06 Counterparts; Integration; Effectiveness 182190
Section 11.07 Severability 183190
Section 11.08 Right of Setoff; Marshalling; Payments Set Aside 183190
Section 11.09 Governing Law; Jurisdiction; Consent to Service of Process 183190
Section 11.10 Waiver of Jury Trial 184192
Section 11.11 Headings 185192
Section 11.12 Confidentiality 185192
Section 11.13 Interest Rate Limitation 186193
Section 11.14 Assignment and Acceptance 186193
Section 11.15 Obligations Absolute 186193
Section 11.16 Waiver of Defenses; Absence of Fiduciary Duties 186194
Section 11.17 Patriot Act 187194
Section 11.18 Bank Product Providers 187195
Section 11.19 EXCLUDED SWAP OBLIGATIONS 188195
Section 11.20 [Reserved]. 188195
Section 11.21 Judgment Currency 188196
Section 11.22 Waiver of Sovereign Immunity 189196
Section 11.23 Revolving Credit Facility Priority 189196
Section 11.24 Acknowledgment and Consent to Bail-In of EEA Financial Institutions 190198

 

 iv 

 

 

  ANNEXES  
       
  Annex I Initial Lenders and Commitments
       
  SCHEDULES    
       
  Schedule 1.01(a) Collateral Vessels
  Schedule 1.01(b) Approved Classification Societies
  Schedule 1.01(c) Acceptable Flag Jurisdictions
  Schedule 1.01(d) Acceptable Third Party Technical Managers
  Schedule 1.01(e) Unrestricted Subsidiaries
  Schedule 1.01(f) Mortgaged Property
  Schedule 1.01 (g) Demise Charters
  Schedule 1.01 (h) Subsidiary Guarantors
  Schedule 1.01(i) Restricted  Parent  Subsidiaries  and  Restricted Parent
      Joint Ventures
  Schedule 3.05(b) Real Property
  Schedule 3.07(a) Equity Interests
  Schedule 3.07(c) Corporate Organizational Chart
  Schedule 3.07(d) Immaterial Subsidiaries
  Schedule 3.07(e) Direct Subsidiaries of Holdings
  Schedule 3.20 Required Insurance
  Schedule 3.27 Specified Accounts and Excluded Accounts
  Schedule 4.01(f) Local Counsel
  Schedule 5.15 Post-Closing Matters
  Schedule 6.01(c) Existing Indebtedness
  Schedule 6.02(c) Existing Liens
  Schedule 6.04(b) Existing Investments
  Schedule 6.09(e) Certain Affiliate Transactions
  Schedule 6.09(f) Certain Affiliate Transactions - Intercompany Claims

 

  EXHIBITS  
  Exhibit A Form of Assignment and Acceptance
  Exhibit B Form of Borrowing Request
  Exhibit C Form of Compliance Certificate
  Exhibit D Form of Intercompany Subordination Agreement
  Exhibit E Form of Interest Election Request
  Exhibit F Form of LC Request
  Exhibit G Form of Auction Procedures
  Exhibit H-1 Form of Term Note
  Exhibit H-2 Form of Revolving Note
  Exhibit H-3 Form of Swingline Note
  Exhibit I Form of Perfection Certificate
  Exhibit J-1 Form of Security Agreement
  Exhibit J-2 Form of Holdings Pledge Agreement
  Exhibit K Form of Portfolio Interest Certificate
  Exhibit L Form of Solvency Certificate
  Exhibit M Form of Bank Product Provider Letter Agreement
  Exhibit N Form of Joinder Agreement
  Exhibit O Form of Quiet Enjoyment Agreement
  Exhibit P Form of Collateral Vessel Mortgage

 

 v 

 

 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Agreement”), dated as of June 22, 2017, is among International Seaways, Inc., a Marshall Islands corporation (“Holdings”), International Seaways Operating Corporation, a Marshall Islands corporation (the “Administrative Borrower”), OIN Delaware LLC, a Delaware limited liability company (the “Co-Borrower”), the other Guarantors from time to time party hereto, the Lenders from time to time party hereto, Jefferies Finance LLC, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), Jefferies Finance LLC, as collateral agent and mortgage trustee for the Secured Parties (in such capacity, the “Collateral Agent” or the “Mortgage Trustee” as the context requires), Skandinaviska Enskilda Banken AB (publ), as swingline lender (in such capacity, the “Swingline Lender”), and Skandinaviska Enskilda Banken AB (publ), as an issuing bank for the Lenders.

 

WITNESSETH:

 

WHEREAS, the Borrowers have requested, and the Lenders have agreed, to make available a senior secured term loan facility to be available for borrowings on the date hereof, in an aggregate principal amount of $500,000,000 and a senior secured revolving credit facility to be available for borrowings from time to time on and after the date hereof until the Revolving Maturity Date, in an aggregate principal amount not in excess of $50,000,000, in each case all as more particularly set forth herein;

 

WHEREAS, the Borrowers have requested the Swingline Lender to extend credit, at any time and from time to time prior to the Revolving Maturity Date, in the form of Swingline Loans, in an aggregate principal amount at any time outstanding not in excess of $10,000,000. The Borrowers also have requested the Issuing Banks to issue Letters of Credit, in an aggregate face amount at any time outstanding not in excess of $20,000,000, to be used by the Administrative Borrower and its Wholly Owned Restricted Subsidiaries as provided herein;

 

WHEREAS, the Borrowers have agreed to secure all of their respective Obligations by granting to the Collateral Agent and the Mortgage Trustee (as applicable), for the benefit of the Secured Parties, a perfected lien on substantially all of their respective assets, subject to certain agreed exceptions contained herein and in the other Loan Documents;

 

WHEREAS, the Guarantors have agreed to guarantee the Obligations of the Borrowers hereunder and to secure their respective Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a perfected lien on substantially all of their respective assets, subject to certain agreed exceptions contained herein and in the other Loan Documents; and

 

WHEREAS, the Lenders are willing to extend such credit to the Borrowers, the Swingline Lender is willing to extend such Swingline Loans to the Borrowers, and the Issuing Banks are willing to issue Letters of Credit for the account of the Borrowers, in each case on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the other Loan Documents, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

 

 

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01      Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:

 

ABR” when used in reference to any Loan or Borrowing, is used when such Loan comprising such Borrowing is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

 

ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.

 

ABR Loan” shall mean any ABR Term Loan, ABR Revolving Loan or Swingline Loan.

 

ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

 

ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

 

Acceptable Flag Jurisdiction” shall mean such flag jurisdictions as are listed on Schedule 1.01(c) or otherwise approved by the Administrative Agent (such approval not to be unreasonably withheld).

 

Acceptable Third Party Technical Managers” shall mean those third party technical managers as are listed on Schedule 1.01(d).

 

Acquisition Consideration” shall mean the purchase consideration for a Permitted Acquisition and all other payments (including related acquisition fees, costs and expenses), directly or indirectly, by any Restricted Party in exchange for, or as part of, or in connection with, a Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of a Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions or repayments of Indebtedness and/or Contingent Obligations, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any person or business; provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of the consummation of such Permitted Acquisition) to be established in respect thereof by a Restricted Party.

 

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Additional Permitted Unsecured Debt” shall mean unsecured Indebtedness of the Administrative Borrower, which may be (x) incurred on a joint and several unsecured basis by the Co- Borrower and (y) guaranteed on an unsecured basis by the Co-Borrower (if not a co-issuer thereof) and the Guarantors (other than as provided in the last paragraph of Section 6.01), so long as (i) any such Indebtedness does not mature earlier than 91 days after the Latest Maturity Date in effect at the time of the incurrence or issuance of such Indebtedness, (ii) such Indebtedness does not have any scheduled prepayment, amortization, redemption, sinking fund or similar obligations prior to 91 days after such Latest Maturity Date (other than customary offers to purchase upon a change of control or asset sale), (iii) such Indebtedness otherwise contains terms and conditions (excluding economic terms such as interest rate and redemption premiums) which, taken as a whole, are not more restrictive on the Administrative Borrower and its Restricted Subsidiaries in any material respect than the terms and conditions of the Loan Documents as in effect at the time of the incurrence or issuance thereof; provided, however, to the extent that such Indebtedness includes any financial maintenance covenant (whether stated as a covenant, default or otherwise) or a loan to value test in addition to, or more restrictive than, those set forth in this Agreement, such financial covenant or additional or more restrictive loan to value test shall be reasonably acceptable to the Administrative Agent and also shall apply for the benefit of the Lenders hereunder until such time as such Additional Permitted Unsecured Debt containing such financial maintenance covenant or additional or more restrictive loan to value test is paid in full and the Administrative Agent is authorized by the Lenders to amend this Agreement to incorporate such terms (and any related definitions) hereunder (provided that a certificate of a Responsible Officer of the Administrative Borrower that is delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence or issuance of such Additional Permitted Unsecured Debt, together with a reasonably detailed description of the material terms and conditions of such Additional Permitted Unsecured Debt or drafts of the documentation relating thereto, stating that the Administrative Borrower has determined in good faith that such terms and conditions satisfy the requirements set forth in this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Administrative Borrower of an objection (including a reasonable description of the basis upon which it objects) within five Business Days after being notified of such determination by the Administrative Borrower), and (iv) such Indebtedness is not guaranteed by any person other than the Co-Borrower, a Subsidiary Guarantor (but otherwise subject to the last paragraph of Section 6.01) or Holdings.

 

Additional Permitted Unsecured Debt Documents” shall mean any indenture, purchase agreement, note agreement, loan agreement or other agreement, document or instrument (including any note or guarantee) issued or executed and delivered with respect to any Additional Permitted Unsecured Debt.

 

Adjusted LIBOR Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the greater of (x) an interest rate per annum (rounded upward, if necessary, to the next 1/100th of 1.00%) determined by the Administrative Agent to be equal to the LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Period divided by 1 minus the Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest Period and (y) 1.00% per annum.

 

Administrative Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor administrative agent pursuant to Article X.

 

Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).

 

Administrative Borrower” shall have the meaning assigned to such term in the preamble hereto.

 

Administrative Borrower Concentration Account” shall mean the Deposit Account of the Administrative Borrower at JPMorgan Chase Bank, N.A. with account number 880312025 (and any replacement Deposit Account or Deposit Accounts in respect thereof).

 

Administrative Questionnaire” shall mean an administrative questionnaire in the form supplied from time to time by the Administrative Agent.

 

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Advisors” shall mean legal counsel (including local and foreign counsel), auditors, accountants, consultants, appraisers, engineers or other advisors.

 

Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that (x) for purposes of Section 6.09, the term “Affiliate” shall also include (i) any person that directly or indirectly owns 15% or more of any class of Equity Interests of the person specified and (ii) any person that is an officer or director of the person specified and (y) for purposes of this Agreement, Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC.

 

Agent Fee Letter” shall mean the confidential Agent Fee Letter, dated May 30, 2017, between the Administrative Borrower and Jefferies Finance LLC.

 

Agents” shall mean the Arrangers, the Bookrunners, the Administrative Agent, the Collateral Agent and the Mortgage Trustee; and “Agent” shall mean any of them, as the context may require.

 

Agreement” shall have the meaning assigned to such term in the preamble hereto.

 

Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upward, if necessary, to the next 1/100th of 1.00%) equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50%, (c) the Adjusted LIBOR Rate for an Interest Period of one month, plus 1.00% and (d) 2.00% per annum. If the Administrative Agent shall have reasonably determined that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted LIBOR Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) or (c), as applicable, of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Effective Rate or the then applicable Adjusted LIBOR Rate shall be effective on the effective date of such change in the Base Rate, the Federal Funds Effective Rate or the then applicable Adjusted LIBOR Rate, respectively.

 

Alternative Currency” shall mean, for Letters of Credit, Euros, Pounds Sterling and any other currency agreed to by the Administrative Agent, each Issuing Bank and the Administrative Borrower; provided that each such currency is a lawful currency that is readily available, freely transferable and not restricted, able to be converted into Dollars and readily available in the London interbank deposit market.

 

Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.22(a).

 

Applicable Amortization Percentage” shall mean, for each fiscal quarter during any period set forth below, with respect to the Initial Term Loans (as increased on the First Amendment Effective Date by the July 2017 Incremental Term Loans), the percentage set forth opposite such period below:

 

Period  Applicable Amortization Percentage 
September 30, 2017 – June 30, 2018 (or, if June 30, 2018 is not a Business Day, the first Business Day thereafter)   0.625%
September 30, 2018 and thereafter   1.25%

 

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Applicable Margin” shall mean, (i) for any day prior to the Second Amendment Effective Date, with respect to (ia) any Term Loan that is an ABR Loan, 4.50% per annum, and (iib) any Term Loan that is a Eurodollar Loan, 5.50% per annum, (iiiii) for any day on or after the Second Amendment Effective Date, with respect to (a) any Term Loan that is an ABR Loan, 5.00% per annum, and (b) any Term Loan that is a Eurodollar Loan, 6.00% per annum and (iii) for any day, with respect to (a) any Revolving Loan that is an ABR Loan, 2.50% per annum, (ivb) any Revolving Loan that is a Eurodollar Loan, 3.50% per annum, and (vc) any Swingline Loan, 2.50% per annum.

 

Approved Broker” shall mean any of Compass Maritime Services, H. Clarkson & Co., Ltd., Charles B. Weber Company, Inc. or any other independent shipbroker to be mutually agreed upon between the Administrative Agent and the Administrative Borrower.

 

Approved Classification Society” shall mean any classification society set forth on Schedule1.01(b) or otherwise approved by the Administrative Agent (such approval not to be unreasonably withheld).

 

Approved Electronic Communications” shall mean any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agents or the Lenders by means of electronic communications pursuant to Section 11.01(b).

 

Approved Fund” shall mean, with respect to any Lender (including an Eligible Assignee that becomes a Lender), any person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank and other commercial loans and similar extensions of credit in the ordinary course of its business and that is administered, advised (in an investment advisory capacity) or managed by (a) such Lender (or such Eligible Assignee), (b) an Affiliate of such Lender (or such Eligible Assignee) or (c) an entity or an Affiliate of an entity that administers, advises (in an investment advisory capacity) or manages such Lender (or such Eligible Assignee).

 

Arrangers” shall mean Jefferies Finance LLC and JPMorgan Chase Bank, N.A., as joint lead arrangers for the credit facilities hereunder.

 

Asset Sale” shall mean (a) any disposition of any property by any Restricted Party and (b) any issuance or sale of any Equity Interests of any Restricted Subsidiary of the Administrative Borrower, in each case, to any person other than the Administrative Borrower or a Wholly Owned Restricted Subsidiary thereof. Notwithstanding the foregoing, (a) an “Asset Sale” shall not include any disposition of property by a Restricted Party permitted by, or expressly referred to in, Section 6.06(a), 6.06(c), 6.06(e), 6.06(f), 6.06(g), 6.06(h), 6.06(i), 6.06(j), 6.06(k) or 6.06(l) and (b) an “Asset Sale” shall include any sale by Holdings of Equity Interests of another person (subject to the provisions of Section

6.21).

 

Assignee Group” shall mean two or more Approved Funds administered, advised (in an investment advisory capacity) or managed by the same investment advisor or manager or by an Affiliate of such investment advisor or manager.

 

Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender, as assignor, and an assignee (with the consent of any party whose consent is required pursuant to Section 11.04(b)), and accepted by the Administrative Agent, substantially in the form of Exhibit A, or such other form approved by the Administrative Agent.

 

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Attributable Indebtedness” shall mean, when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at a rate equivalent to the Administrative Borrower’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments (and substantially similar payments) during the remaining term of the lease included in any such Sale and Leaseback Transaction.

 

Auction Manager” shall mean (i) Jefferies Finance LLC or an Affiliate of Jefferies Finance LLC designated by it to the extent that Jefferies Finance LLC or such Affiliate agrees to act as an Auction Manager in connection with a Discounted Prepayment Offer or (ii) another investment bank of recognized standing selected by the Administrative Borrower which shall have been engaged by the Administrative Borrower to act as an Auction Manager in connection with a Discounted Prepayment Offer.

 

Auction Notice” shall mean an auction notice given by the Administrative Borrower in accordance with the Auction Procedures with respect to a Discounted Prepayment Offer.

 

Auction Procedures” shall mean the auction procedures with respect to Discounted Prepayment Offers set forth in Exhibit G (and, solely with respect to the Second Amendment Prepayment, with appropriate modifications to reflect the par plus premium nature of such prepayment).

 

Available Amount” shall mean, as of any date, an amount (which shall not be less than zero), determined on a cumulative basis, equal to, without duplication:

 

(a)          $10,000,0007,500,000; plus

 

(b)          the Retained Excess Cash Flow Amount; plus

 

(c)          the cumulative amount of Net Cash Proceeds received after the Closing Date that have been contributed as a capital contribution to Holdings or otherwise received by Holdings in respect of the issuance of Qualified Capital Stock by Holdings (in each case, solely to the extent that such Net Cash Proceeds have been substantially contemporaneously contributed to the capital of the Administrative Borrower), but excluding (x) any such sale or issuance by Holdings of its Equity Interests upon exercise of any warrant or option to directors, officers or employees of any Company or any Subsidiary thereof and (y) any such amounts received from any Subsidiary or Joint Venture of Holdings; provided that (in either case) such proceeds were not used to pay Dividends pursuant to Section

6.08(f)(x); plus

 

(d)          to the extent not already reflected as a return of capital with respect to such Investment, the aggregate amount of Dividends, profits, returns or similar amounts actually received by the Administrative Borrower or any Restricted Subsidiary in cash or Cash Equivalents on Investments previously made pursuant to Section 6.04(o) using the Available Amount, but excluding (i) the aggregate amount of Dividends, profits, returns or similar amounts paid by any Unrestricted Subsidiary to the Administrative Borrower or any Restricted Subsidiary in respect of the payment of any tax liability of such Unrestricted Subsidiary and (ii) the amount of the Second Amendment FSO JV Debt Dividend; plus

 

(e)          the aggregate amount received by the Administrative Borrower or any Restricted Subsidiary thereof in cash or Cash Equivalents from any Dividend by an Unrestricted Subsidiary, to the extent that the Investment corresponding to the designation of such Subsidiary as an Unrestricted Subsidiary or any subsequent Investment in such Unrestricted Subsidiary was made pursuant to Section 6.04(o), but excluding the amount of the Second Amendment FSO JV Debt Dividend; minus

 

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(f)          the cumulative amount used to make Permitted Acquisitions in reliance on clause (xi)(II) of the definition of “Permitted Acquisition” contained herein; minus

 

(g)          the cumulative amount of Investments made in reliance on Section 6.04(o); minus

 

(h)          the cumulative amount of Dividends made in reliance on Section 6.08(g); minus

 

(i)          the cumulative amount of Restricted Debt Payments made in reliance on Section 6.11(a).

 

Bail-In Action” shall mean 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” shall mean, 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.

 

Bank Product” shall mean transactions under Hedging Agreements extended to any Borrower or a Subsidiary Guarantor by a Bank Product Provider.

 

Bank Product Agreements” shall mean those agreements entered into from time to time by any Borrower or Subsidiary Guarantor with a Bank Product Provider in connection with the obtaining of any of the Bank Products.

 

Bank Product Obligations” shall mean (a) all Hedging Obligations pursuant to Hedging Agreements entered into with one or more of the Bank Product Providers, and (b) all amounts that the Administrative Agent or any Lender is obligated to pay to a Bank Product Provider as a result of the Administrative Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to any Borrower or any Subsidiary Guarantor; provided that, in order for any item described in clause (a) or (b) above, as applicable, to constitute “Bank Product Obligations,” the applicable Bank Product must have been provided on or after the Closing Date and the Administrative Agent shall have received a Bank Product Provider Letter Agreement from the applicable Bank Product Provider (and acknowledged by the Administrative Borrower) within 30 days after the date of the provision of the applicable Bank Product to any Borrower or any Subsidiary Guarantor.

 

Bank Product Provider” shall mean any Agent, any Lender or any of their respective Affiliates (or any person who at the time the respective Bank Product Agreement was entered into by such person was an Agent, a Lender or an Affiliate thereof); provided, however, that no such person shall constitute a Bank Product Provider with respect to a Bank Product unless and until the Administrative Agent shall have received a Bank Product Provider Letter Agreement from such person with respect to the applicable Bank Product (and acknowledged by the Administrative Borrower) within 30 days after the provision of such Bank Product to any Borrower or Subsidiary Guarantor.

 

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Bank Product Provider Letter Agreement” shall mean a letter agreement substantially in the form of Exhibit M, or in such other form reasonably satisfactory to the Administrative Agent, duly executed by the applicable Bank Product Provider, the applicable Borrower or Subsidiary Guarantor, the Administrative Agent and, in any event, acknowledged by the Administrative Borrower.

 

Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto.

 

Base Rate” shall mean, for any day, the prime rate published in The Wall Street Journal for such day; provided that if The Wall Street Journal ceases to publish for any reason such rate of interest, “Base Rate” shall mean the prime lending rate as set forth on the Bloomberg page PRIMBB Index (or successor page) for such day (or such other service as reasonably determined by the Administrative Agent from time to time for purposes of providing quotations of prime lending interest rates); each change in the Base Rate shall be effective on the date such change is effective. The Base Rate is not necessarily the lowest rate charged by any financial institution to its customers.

 

Board” shall mean the Board of Governors of the Federal Reserve System of the United States.

 

Board of Directors” shall mean, with respect to any person, (a) in the case of any corporation, the board of directors of such person, (b) in the case of any limited liability company, the board of managers or board of directors, as applicable, of such person, or if such limited liability company does not have a board of managers or board of directors, the functional equivalent of the foregoing, (c) in the case of any partnership, the board of directors or board of managers, as applicable, of the general partner of such person, or if such general partner does not have a board of managers or board of directors, the functional equivalent of the foregoing, and (d) in any other case, the functional equivalent of the foregoing.

 

Bookrunners” shall mean the Arrangers and UBS Securities LLC, as joint bookrunners for the credit facilities hereunder.

 

Borrowers” shall mean, collectively, the Administrative Borrower and the Co- Borrower; and “Borrower” shall mean any one of them.

 

Borrowing” shall mean (a) Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.

 

Borrowing Request” shall mean a request by the Administrative Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit B, or such other form as mutually agreed to by the Administrative Agent and the Administrative Borrower from time to time.

 

Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in New York City are authorized or required by law or other governmental action to close; provided, however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

 

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Capital Expenditures” shall mean, without duplication, (a) any expenditure for any purchase or other acquisition of any asset, including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of the Administrative Borrower and its Restricted Subsidiaries prepared in accordance with GAAP, and (b) Capital Lease Obligations and Synthetic Lease Obligations, but excluding (i) expenditures made in connection with the replacement, substitution or restoration of property to the extent made with the Net Cash Proceeds from Asset Sales or Casualty Events, (ii) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent of the gross amount of such purchase price that is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time and (iii) Permitted Acquisitions.

 

Capital Lease” shall mean, with respect to any person, any lease of, or other arrangement conveying the right to use, any property by such person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such person prepared in accordance with GAAP.

 

Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any Capital Lease, any lease entered into as part of any Sale and Leaseback Transaction or any Synthetic Lease, or a combination thereof, which obligations are (or would be, if such Synthetic Lease or other lease were accounted for as a Capital Lease) required to be classified and accounted for as Capital Leases on a balance sheet of such person in accordance with GAAP as in effect on the Closing Date, and the amount of such obligations shall be the capitalized amount thereof (or the amount that would be capitalized if such Synthetic Lease or other lease were accounted for as a Capital Lease) determined in accordance with GAAP as in effect on the Closing Date.

 

Capital Requirements” shall mean, as to any person, any matter, directly or indirectly, (i) regarding capital adequacy, capital ratios, capital requirements, liquidity requirements, the calculation of such person’s capital or similar matters, or (ii) affecting the amount of capital required to be obtained or maintained by such person or any person controlling such person (including any direct or indirect holding company), or the manner in which such person or any person controlling such person (including any direct or indirect holding company), allocates capital to any of its contingent liabilities (including letters of credit), advances, acceptances, commitments, assets or liabilities.

 

Cash Collateralized” shall mean, with respect to any Letter of Credit, as of any date, that the Borrowers shall have deposited with the Collateral Agent for the benefit of the Secured Parties, an amount in cash equal to 103% of the LC Exposure as at such date plus any accrued and unpaid interest thereon. “Cash Collateralize” shall have the correlative meaning.

 

Cash Equivalents” shall mean, as of any date of determination and as to any person, any of the following: (a) marketable securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such person, (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one year from the date of acquisition by such person and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (c) time deposits and certificates of deposit of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one year from the date of acquisition by such person, (d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with any person meeting the qualifications specified in clause (c) above, which repurchase obligations are secured by a valid perfected security interest in the underlying securities, (e) commercial paper issued by any person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, and in each case maturing not more than one year after the date of acquisition by such person, (f) investments in money market funds at least 90% of whose assets are comprised of securities of the types described in clauses (a) through (e) above, and (g) in the case of any Foreign Restricted Subsidiary only, instruments equivalent to those referred to in clauses (a) through (f) above denominated in a foreign currency, which are substantially equivalent in credit quality and tenor to those referred to above and customarily used by businesses for short term cash management purposes in any jurisdiction outside of the United States to the extent reasonably required in connection with any business conducted by any Foreign Subsidiary organized in such jurisdiction.

 

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Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such period, less the sum of (a) interest on any debt paid by the increase in the principal amount of such debt including by issuance of additional debt of such kind or the accretion or capitalization of interest as principal and (b) items described in clause (c) or, other than to the extent paid in cash or Cash Equivalents, clause (g) of the definition of “Consolidated Interest Expense”.

 

Casualty Event” shall mean any loss of title (other than through a consensual disposition of such property in accordance with this Agreement) or any loss of or damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of any Restricted Party. “Casualty Event” shall include any taking of all or any part of any Real Property, Vessel or Chartered Vessel of any Restricted Party or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Legal Requirement, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property, Vessel or Chartered Vessel of any Restricted Party or any part thereof by any Governmental Authority, or any settlement in lieu thereof.

 

CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.

 

Change in Control” shall mean the occurrence of any of the following:

 

(a)     Holdings at any time ceases to own directly 100% of the Equity Interests of the Administrative Borrower or ceases to have the power to vote, or direct the voting of, any such Equity Interests; or

 

(b)     any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group or its respective subsidiaries, and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that, for purposes of this clause, such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of either (x) Voting Equity Interests of Holdings representing 50% or more of the voting power of the total outstanding Voting Equity Interests of Holdings or (y) 50% or more of the total economic interests of the Equity Interests of Holdings (in either case, taking into account in the numerator all such securities that such person or group has the right to acquire (whether pursuant to an option right or otherwise) and taking into account in the denominator all securities that any person has the right to acquire (whether pursuant to an option right or otherwise)).

 

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Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, order, rule, regulation, policy, or treaty, (b) any change in any law, order, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) requests, rules, guidelines or directives under the Dodd-Frank Wall Street Reform and Consumer Protection Act or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Charges” shall have the meaning assigned to such term in Section 11.13.

 

Charter Contract Lien Restrictions” shall mean, subject to Section 5.16(h), any provisions in a charter contract for a Vessel that prohibits or limits the placing of a preferred ship mortgage or other Lien for the benefit of the Collateral Agent on such Vessel.

 

Chartered Vessels” shall mean the vessels demise chartered by the Administrative Borrower or any of its Restricted Subsidiaries from a third party. The Chartered Vessels as of the Closing Date are identified as such on Schedule 1.01(a).

 

Claims” shall have the meaning assigned to such term in Section 11.03(b).

 

Class” shall mean the respective facility and commitments utilized in making Loans hereunder, including (i) as of the Closing Date, (x) the Revolving Loans and the Initial Term Loans made pursuant to Section 2.01 on such date and (y) the Swingline Loans and (ii) additional Classes of Revolving Loans or Term Loans that may be added after the Closing Date pursuant to Sections 2.20, 2.21 and 2.23.

 

Closing Date” shall mean June 22, 2017.

 

Co-Borrower” shall have the meaning assigned to such term in the preamble hereto.

 

Code” shall mean the Internal Revenue Code of 1986, as amended.

 

Collateral” shall mean, collectively, all of the Collateral Vessels, the Security Agreement Collateral, the Mortgaged Property and all other property of whatever kind and nature, whether now existing or hereafter acquired, pledged or purported to be pledged as collateral or otherwise subject to a security interest or purported to be subject to a security interest under any Security Document other than, in each case, the Excluded Collateral.

 

Collateral Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor collateral agent pursuant to Article X (it being understood that, unless the context expressly requires otherwise, the term “Collateral Agent” shall include the Collateral Agent acting in its capacity as the Mortgage Trustee).

 

Collateral Vessel” shall mean (i) initially, the Vessels identified on Schedule 1.01(a) and (ii) thereafter, (x) any additional Vessel acquired by a Borrower or a Subsidiary Guarantor after the Closing Date (other than an Excluded Vessel) and (y) any Vessel that ceases to be an Excluded Vessel after the Closing Date.

 

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Collateral Vessel Mortgage” shall mean a first preferred ship mortgage substantially in the form of Exhibit P or such other form as may be reasonably satisfactory to the Administrative Agent and the Administrative Borrower.

 

Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment (including an Extended Revolving Commitment and a Specified Refinancing Revolving Commitment), Swingline Commitment or Term Commitment.

 

Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).

 

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

 

Communications” shall have the meaning assigned to such term in Section 11.01(b).

 

Companies” shall mean Holdings, the Co-Borrower, the Administrative Borrower and its Restricted Subsidiaries; and “Company” shall mean any one of them.

 

Compliance Certificate” shall mean a certificate of a Financial Officer of the Administrative Borrower substantially in the form of Exhibit C or such other form as the Administrative Agent and the Administrative Borrower may agree to from time to time.

 

Confidential Information Memorandum” shall mean that certain confidential information memorandum dated May 2017 and relating to the Transactions.

 

Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consolidated Amortization Expense” shall mean, for any period, the amortization expense of the Administrative Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

 

Consolidated Current Assets” shall mean, as at any date of determination, the total assets of the Administrative Borrower and its Restricted Subsidiaries (other than cash, Cash Equivalents and marketable securities) which may properly be classified as current assets on a consolidated balance sheet of the Administrative Borrower and its Restricted Subsidiaries in accordance with GAAP.

 

Consolidated Current Liabilities” shall mean, as at any date of determination, the total liabilities of the Administrative Borrower and its Restricted Subsidiaries which may properly be classified as current liabilities (other than the current portion of any Loans or other long-term Indebtedness) on a consolidated balance sheet of the Administrative Borrower and its Restricted Subsidiaries in accordance with GAAP.

 

Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of the Administrative Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

 

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Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, adjusted by (i) adding thereto, without duplication, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (and, with respect to the portion of Consolidated Net Income attributable to any Restricted Subsidiary of the Administrative Borrower, only if a corresponding amount of cash would be permitted to be distributed to the Administrative Borrower by such Restricted Subsidiary by operation of the terms of its Organizational Documents and all agreements, instruments, Orders and other Legal Requirements applicable to such Restricted Subsidiary or its equityholders during such period):

 

(a)       Consolidated Interest Expense for such period;

 

(b)      Consolidated Amortization Expense for such period;

 

(c)      Consolidated Depreciation Expense for such period;

 

(d)      Consolidated Tax Expense for such period;

 

(e)     non-recurring transaction costs and expenses (including legal, accounting, tax and appraisal and collateral field exam costs and expenses) incurred, prior to, or within 135 days following, the Closing Date, in connection with the Transactions during such period;

 

(f)      extraordinary losses or charges for such period;

 

(g)      the aggregate amount of all other non-cash charges reducing Consolidated Net Income during such period (including (x) any write-down, write-off or impairment of assets (other than current assets) and (y) non-cash stock based compensation expense, but excluding the amortization of a prepaid cash item that was paid in a prior period);

 

(h)      non-recurring fees and expenses incurred during such period in connection with any Permitted Acquisition or incurrence or issuance of Indebtedness (other than intercompany Indebtedness);

 

(i)      non-recurring cash charges incurred during such period in respect of restructurings, business process optimizations, headcount reductions or other similar actions, including severance charges in respect of employee terminations and related employee replacement costs;

 

(j)      to the extent actually reimbursed in cash to the Administrative Borrower or any Restricted Subsidiary thereof, expenses incurred during such period to the extent covered by indemnification provisions in any agreement in connection with a Permitted Acquisition;

 

(k)      to the extent covered by insurance and actually reimbursed in cash to the Administrative Borrower or any Restricted Subsidiary thereof, expenses incurred during such period with respect to liability or Casualty Events or business interruption;

 

(l)      other non-recurring charges incurred during such period in an aggregate amount not to exceed $10,000,000; and

 

(m)     to the extent that any Holdings Specified Expenses would have been added back to Consolidated EBITDA pursuant to clauses (i)(a) through (l) above had such charge, tax or expense been incurred directly by the Administrative Borrower, such Holdings Specified Expenses.

 

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(ii) subtracting therefrom, without duplication,

 

(a)      the aggregate amount of all non-cash income increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period;

 

(b)      any extraordinary income or gains for such period;

 

(c)      any gains on extinguishment of debt (including as a result of the acquisition of any Term Loans by the Administrative Borrower or any of its Subsidiaries); and

 

(d)      the aggregate amount of any cash payments or cash charges during such period on account of any non-cash charges that were added back to Consolidated EBITDA in a prior period pursuant to clause (i)(g) above.

 

Notwithstanding anything to the contrary contained herein, for the purpose of calculating the Total Secured Leverage Ratio and the Total Leverage Ratio for any period that includes the fiscal quarters of the Administrative Borrower ended on June 30, 2016, September 30, 2016, December 31, 2016 and March 31, 2017, (i) Consolidated EBITDA for the fiscal quarter ended on June 30, 2016 shall be deemed to be $62,338,000, (iii) Consolidated EBITDA for the fiscal quarter ended on September 30, 2016 shall be deemed to be $37,114,000, (iv) Consolidated EBITDA for the fiscal quarter ended on December 31, 2016 shall be deemed to be $37,514,000, and (v) Consolidated EBITDA for the fiscal quarter ended on March 31, 2017 shall be deemed to be $46,387,000.

 

Consolidated Indebtedness” shall mean, as at any date, an amount equal to the sum of, without duplication, (i) the aggregate principal amount of all Indebtedness of the Administrative Borrower and its Restricted Subsidiaries on such date (to the extent such Indebtedness would be included on a balance sheet prepared in accordance with GAAP) consisting only of Indebtedness for borrowed money and obligations in respect of Capital Lease Obligations, (ii) the aggregate principal amount of all debt obligations of the Administrative Borrower and its Restricted Subsidiaries evidenced by bonds, debentures, notes, loan agreements or similar instruments (other than performance, surety or similar bonds to the extent not otherwise included in clause (i) above), (iii) the aggregate amount of unreimbursed drawings in respect of letters of credit (or similar facilities) issued for the account of the Administrative Borrower or any of its Restricted Subsidiaries, (iv) the aggregate principal amount of all Pool Financing Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries (whether such Pool Financing Indebtedness is a several or joint and several obligation of the Administrative Borrower or any such Restricted Subsidiary and whether the obligations of the Administrative Borrower or any such Restricted Subsidiary are directly to the lender thereof, the respective Pool Operator or otherwise) and (v) the aggregate amount of all Contingent Obligations of the Administrative Borrower and its Restricted Subsidiaries in respect of Indebtedness of third persons of the type described in preceding clauses (i) through (iv), in each case calculated on a consolidated basis for the Administrative Borrower and its Restricted Subsidiaries.

 

Consolidated Interest Expense” shall mean, for any period, the total consolidated interest expense of the Administrative Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP plus, without duplication:

 

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(a)      imputed interest on Capital Lease Obligations and Attributable Indebtedness of the Administrative Borrower and its Restricted Subsidiaries for such period;

 

(b)      commissions, discounts and other fees and charges owed by the Administrative Borrower or any of its Restricted Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing, receivables financings and similar credit transactions for such period;

 

(c)      amortization of debt issuance costs, debt discount or premium and other financing fees and expenses incurred by the Administrative Borrower or any of its Restricted Subsidiaries for such period;

 

(d)      cash contributions to any employee stock ownership plan or similar trust made by the Administrative Borrower or any of its Restricted Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any person (other than the Administrative Borrower or any of its Wholly Owned Restricted Subsidiaries) in connection with Indebtedness incurred by such plan or trust for such period;

 

(e)       all interest paid or payable with respect to discontinued operations of the Administrative Borrower or any of its Restricted Subsidiaries for such period;

 

(f)      the interest portion of any payment obligations of the Administrative Borrower or any of its Restricted Subsidiaries for such period deferred for payment at any future time, whether or not such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness and/or Contingent Obligations, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any person or business; and

 

(g)      all interest on any Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries of the type described in clause (e) or (j) of the definition of “Indebtedness” contained herein for such period;

 

provided that Consolidated Interest Expense shall be calculated after giving effect to Hedging Agreements (including associated costs) intended to protect against fluctuations in interest rates, but excluding unrealized gains and losses with respect to any such Hedging Agreements.

 

Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of the Administrative Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (after deduction for minority interests and adjusted to reflect any Holdings Specified Expenses during such period as though such Holdings Specified Expenses had been incurred directly by the Administrative Borrower and such Holdings Specified Expenses would have been included in the calculation of the net income (or loss) of the Administrative Borrower for such period); provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:

 

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(a)     the net income (or loss) for such period of any person (other than the Administrative Borrower) that is not a Restricted Subsidiary of the Administrative Borrower (including any Unrestricted Subsidiary) or that is accounted for by the equity method of accounting, except to the extent that cash in an amount equal to any such income has actually been received by the Administrative Borrower or (subject to clause (b) below) any of its Restricted Subsidiaries from such person during such period; (provided, however, the amount of the Second Amendment FSO JV Debt Dividend and the amount of the SPV VLCC Pre-Designation Sale Proceeds Dividend shall not be included in Consolidated Net Income to the extent that same otherwise would have been included therein pursuant to this clause (a));

  

(b)     the net income of any Restricted Subsidiary of the Administrative Borrower during such period to the extent that the declaration and/or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not permitted by operation of the terms of its Organizational Documents or any agreement (other than any Loan Document), instrument, Order or other Legal Requirement applicable to that Restricted Subsidiary or its equityholders during such period, except that the Administrative Borrower’s equity in the net loss of any such Restricted Subsidiary for such period shall be included in determining Consolidated Net Income; and

 

(c)     except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any person accrued prior to the date it becomes a Restricted Subsidiary of the Administrative Borrower or all or substantially all of the property of such person is acquired by the Administrative Borrower or any of its Restricted Subsidiaries.

 

Consolidated Secured Indebtedness” shall mean, as at any date of determination, the aggregate amount of Consolidated Indebtedness that, as of such date, is secured by a Lien on any asset or property of the Administrative Borrower or any of its Restricted Subsidiaries.

 

Consolidated Tax Expense” shall mean, for any period, the sum of, without duplication, (i) the tax expense (including federal, state, local and foreign income taxes) of the Administrative Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP and (ii) the aggregate amount of all Permitted Tax Distributions made during such period.

 

Consolidated Total Assets” shall mean, at any date of determination, the net book value of all assets of the Administrative Borrower and its Restricted Subsidiaries (or, for purposes of Sections 3.07(d)(ii) and 5.17, all of its Subsidiaries) determined on a consolidated basis in accordance with GAAP on such date; provided that, except for purposes of Sections 3.07(d)(ii) and 5.17, the net book value attributable to any Unrestricted Subsidiaries shall be excluded.

 

Contingent Obligation” shall mean, as to any person, any obligation, agreement, understanding or arrangement of such person guaranteeing any Indebtedness, leases or other obligations (including dividends on Disqualified Capital Stock) (“primary obligations”) of any other person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation agreement, understanding or arrangement of such person, whether or not contingent: (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth, net equity, liquidity, level of income, cash flow or solvency of the primary obligor; (c) to purchase or lease property, securities or services primarily for the purpose of assuring the primary obligor of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement or equivalent obligation arises (which reimbursement obligation shall constitute a primary obligation); or (e) otherwise to assure or hold harmless the primary obligor of any such primary obligation against the payment of such primary obligation; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties given in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation, or portion thereof, in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such person may be liable, whether singly or jointly, pursuant to the terms of the instrument, agreements or other documents or, if applicable, unwritten enforceable agreement, evidencing such Contingent Obligation) or, if not stated or determinable, the amount that can reasonably be expected to become an actual or matured liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.

 

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Contribution Notice” shall mean a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.

 

Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

 

Controlled Account” shall mean each Specified Account that is not a Non-Controlled Account (it being understood and agreed that the Administrative Borrower Concentration Account shall at all times be deemed to be a Controlled Account).

 

Corrective Extension Amendment” shall have the meaning assigned to such term in Section 2.20(e).

 

Credit Extension” shall mean, as the context may require, (i) the making of a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the extension of the expiry date or renewal, or an amendment or other modification to increase the amount, of any then existing Letter of Credit, by an Issuing Bank.

 

Debt Issuance” shall mean the incurrence by any Restricted Party of any Indebtedness after the Closing Date (other than as permitted by Section 6.01).

 

Debt Service” shall mean, for any period, the sum of (i) Cash Interest Expense for such period plus (ii) scheduled principal amortization of all Indebtedness (including the principal component of Capital Lease Obligations) of the Administrative Borrower and its Restricted Subsidiaries for such period.

 

Default” shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

 

Default Excess” shall have the meaning assigned to such term in Section 2.16(c).

 

Default Period” shall have the meaning assigned to such term in Section 2.16(c).

 

Default Rate” shall have the meaning assigned to such term in Section 2.06(c).

 

Defaulted Loans” shall have the meaning assigned to such term in Section 2.16(c).

 

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Defaulting Lender” shall mean any Lender that has (a) failed to fund its portion of any Borrowing, or any portion of its participation in any Letter of Credit or Swingline Loan, within one Business Day of the date on which it shall have been required to fund the same (unless the subject of a good faith dispute between the Administrative Borrower and such Lender related hereto), (b) notified the Administrative Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) failed, within three Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans (unless the subject of a good faith dispute between the Administrative Borrower and such Lender); provided, that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent or the Administrative Borrower, (d) otherwise failed to pay over to the Administrative Borrower, the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due (unless the subject of a good faith dispute), or (e) at any time after the Closing Date (i) been (or has a parent company that has been) adjudicated as, or determined by any Governmental Authority having regulatory authority over such person or its properties or assets to be, insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment unless, in the case of any Lender referred to in this clause (e), the Administrative Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder, or (iii) become the subject of a Bail-In Action. For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority; provided, that, as of any date of determination, the determination of whether any Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any amounts funded by such Lender which have been assigned by such Lender to an SPC pursuant to Section 11.04(h). Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Administrative Agent to the Administrative Borrower and each other. In no event shall the reallocation of funding obligations provided for in Section 2.16(c) as a result of a Lender being a Defaulting Lender nor the performance by non-Defaulting Lenders of such reallocated funding obligations by themselves cause the relevant Defaulting Lender to become a non-Defaulting Lender.

 

Deposit Account” shall mean 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 a negotiable certificate of deposit.

 

Deposit Account Bank” shall mean a financial institution with whom a Deposit Account is maintained.

 

Deposit Account Control Agreement” shall mean a letter agreement, in form and substance reasonably satisfactory to the Collateral Agent, executed by the relevant Loan Party, the Collateral Agent and the relevant Deposit Account Bank (or, with respect to any Deposit Accounts located outside of the United States, customary security arrangements in the applicable jurisdictions for perfecting a security interest in such Deposit Accounts and the assets deposited therein or credited thereto).

 

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Discounted Prepayment Offer” shall have the meaning assigned to such term in Section 2.22(a).

 

Disposition” or “disposition” shall mean, with respect to any property, any conveyance, sale, lease, sublease, assignment, transfer or other disposition of such property (including (i) by way of merger or consolidation, (ii) any Sale and Leaseback Transaction and (iii) any Synthetic Lease).

 

Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the terms of any security or instrument into which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) 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 91st day after the Latest Maturity Date in effect at the time of the issuance of such Disqualified Capital Stock, (b) is convertible into or exchangeable or exercisable (unless at the sole option of the issuer thereof) for (i) debt securities or other indebtedness or (ii) any Equity Interests referred to in clause (a) above, in each case at any time on or prior to the date that is 91 days after the Latest Maturity Date in effect at the time of the issuance of such Disqualified Capital Stock, or (c) contains any repurchase or payment obligation which may come into effect prior to the date that is 91 days after such Latest Maturity Date. For the avoidance of doubt, any Equity Interest that may or shall be repurchased or redeemed (but only to the extent permitted hereunder at such time) from officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service shall not be deemed to be “Disqualified Capital Stock” for such reason alone.

 

Disqualified Institutions” shall mean those persons (including any such person’s Affiliates that are clearly identifiable solely on the basis of such Affiliates’ names) identified by the Administrative Borrower to the Administrative Agent in writing from time to time to the extent such person is identified by name and is directly engaged in substantially similar business operations as the Administrative Borrower or any of its Restricted Subsidiaries (in each case, other than a bona fide debt fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course), which designations (x) shall not apply retroactively to disqualify any persons that have previously acquired an assignment or participation interest in the Loans or the Commitments and (y) shall be effective on the third Business Days after delivery to the Administrative Agent of any such written notice by the Administrative Borrower.

 

Dividend” shall mean, with respect to any person, that such person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of property (other than Qualified Capital Stock of such person) or cash to the holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such person with respect to its Equity Interests), or set aside or otherwise reserved, directly or indirectly, any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for consideration any of the outstanding Equity Interests of such person (or any options or warrants issued by such person with respect to its Equity Interests). Without limiting the foregoing, “Dividends” with respect to any person shall also include all payments made or required to be made by such person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of or otherwise reserving any funds for the foregoing purposes.

 

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Dollar Amount” shall mean, at any time, with respect to any Letter of Credit (and any related LC Exposure), (A) if denominated in Dollars, the amount thereof and (B) if denominated in any Alternative Currency, the amount thereof converted to Dollars in accordance with Sections1.07, 2.18(e) and 2.18(m).

 

Dollars” or “$” shall mean lawful money of the United States.

 

EEA Financial Institution” shall mean (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 clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” shall mean 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 Yield” shall mean, as to any tranche of term loans (including the Term Loans), the effective yield on such tranche of term loans, as reasonably determined by the Administrative Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and all fees, including recurring, up-front or similar fees or original issue discount (amortized over four years following the date of incurrence thereof; provided, that if the stated maturity date of a new tranche of term loans is less than four years from the date of determination, then the “Effective Yield” for such tranche of term loans shall be determined using an assumed amortization period equal to the actual remaining life to maturity of such tranche) payable generally to the lenders making such tranche of term loans, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the lenders thereunder.

 

Eligible Assignee” shall mean any person that meets the requirements to be an assignee under Section 11.04(b) (subject to such consents, if any, as may be required under Section 11.04(b)) but, in any event, excluding Disqualified Institutions.

 

Embargoed Person” shall have the meaning assigned to such term in Section 6.19.

 

Employee Benefit Plan” shall mean any “employee benefit plan” as defined in Section 3(3) of ERISA which is, or at any time during which the applicable statute of limitations remains open was, maintained or contributed to by any Company or any of its ERISA Affiliates, other than a Multiemployer Plan. For the avoidance of doubt, the definition of “Employee Benefit Plan” does not include Non-U.S. Plans.

 

EMU Legislation” shall mean the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

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Engagement Letter” shall mean the Engagement Letter, dated May 30, 2017 (as amended, modified or supplemented prior to the Closing Date (including pursuant to any joinder of “Additional Agents” thereunder)), among the Administrative Borrower, the Arrangers and the Bookrunners.

 

Environment” shall mean air, land, soil, surface waters, ground waters, stream and river sediments.

 

Environmental Claim” shall mean any claim, notice, demand, Order, action, suit or proceeding alleging or asserting liability or obligations under Environmental Law, including liability or obligation for investigation, assessment, remediation, removal, cleanup, response, corrective action, monitoring, post-remedial or post-closure studies, investigations, operations and maintenance, injury, damage, destruction or loss to natural resources, personal injury, wrongful death, property damage, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release of Hazardous Material in, on, into or from the Environment at any location or from any Vessel or Chartered Vessel or (ii) any violation of or non-compliance with Environmental Law.

 

Environmental Law” shall mean any and all applicable current and future Legal Requirements relating to the Environment, the Release or threatened Release of Hazardous Material, exposure to Hazardous Materials, natural resource damages, or occupational safety or health.

 

Environmental Permit” shall mean any permit, license, approval, consent, registration, notification, exemption or other authorization required by or from a Governmental Authority under any Environmental Law.

 

Equity Interest” shall mean, with respect to any person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited), or if such person is a limited liability company, membership interests, and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.

 

Equity Issuance” shall mean, without duplication, (i) any issuance or sale by Holdings after the Closing Date of any Equity Interests in Holdings (including any Equity Interests issued upon exercise of any warrant or option or equity-based derivative) or any warrants or options or equity-based derivatives to purchase Equity Interests in Holdings or (ii) any contribution to the capital of Holdings; provided, however, that an Equity Issuance shall not include any issuance of Disqualified Capital Stock or Debt Issuance.

 

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Affiliate” shall mean, with respect to any person, any trade or business (whether or not incorporated) that, together with such person, is treated as a single employer under Section 414(b) or (c) of the Code (and, for purposes of Section 302 of ERISA and each “applicable section” under Section 414(t)(2) of the Code, under Section 414(b), (c), (m) or (o) of the Code), or under Section 4001 of ERISA.

 

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ERISA Event” shall mean: (a) the occurrence of a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan for which the requirement to provide notice to the PBGC has not been waived; (b) the failure to meet the minimum funding standard of Section 412 or 430 of the Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by any Company or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan, in any case, resulting in liability to any Company or any of its ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan under Section 4042 of ERISA, or the occurrence of any event or condition which would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on any Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of any Company or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan which withdrawal would reasonably be expected to result in liability to any Company or any of its ERISA Affiliates, or the receipt by any Company or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan or a violation of Section 436 of the Code; or (i) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which would reasonably be expected to result in liability to any Company or any of its ERISA Affiliates.

 

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

 

Euro” shall mean the single currency of the participating member states as described in any EMU Legislation.

 

Eurodollar Borrowing” shall mean a Eurodollar Revolving Borrowing or a Eurodollar

Term Borrowing.

 

Eurodollar Loan” shall mean any Eurodollar Revolving Loan or Eurodollar Term Loan.

 

Eurodollar Revolving Borrowing” shall mean a Borrowing comprised of Eurodollar

Revolving Loans.

 

Eurodollar Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate in accordance with the provisions of Article II.

 

Eurodollar Term Borrowing” shall mean a Borrowing comprised of Eurodollar Term Loans.

 

Eurodollar Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate in accordance with the provisions of Article II.

 

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Event of Default” shall have the meaning assigned to such term in Section 8.01.

 

Excess Cash Flow” shall mean, for any Excess Cash Flow Period, the difference (if positive) of:

 

(a)           the sum, without duplication, of:

 

(i)          Consolidated EBITDA for such Excess Cash Flow Period;

 

(ii)        cash items of income (including cash gains) during such Excess Cash Flow Period not included in calculating Consolidated EBITDA (other than cash items of income (including cash gains) to the extent arising from any Asset Sale permitted hereunder or any Casualty Event, in each case, so long as the Net Cash Proceeds received therefrom are applied and/or reinvested pursuant to Section 2.10(b)(vi) or are applied to consummate the SPV VLCC Transactions);

 

(iii)      the decrease, if any, in the Net Working Capital from the beginning to the end of such Excess Cash Flow Period;

 

(iv)      the amount of any refund received in cash during such Excess Cash Flow Period on account of cash taxes (including penalties and interest) paid in any prior Excess Cash Flow Period to the extent deducted from Excess Cash Flow in any prior Excess Cash Flow Period pursuant to clause (b)(i) below and, without duplication, the reversal, during such Excess Cash Flow Period, of any reserve established pursuant to clause (b)(i) below; and

 

(v)        the amount of any FSO JV Debt Dividend received during such Excess Cash Flow Period; minus, but excluding the amount of the Second Amendment FSO JV Debt Dividend; and

 

(vi)        the amount of any SPV VLCC Pre-Designation Sale Proceeds Dividend; minus

 

(b)          the sum, without duplication, of:

 

(i)         the amount of any cash Consolidated Tax Expense paid or payable by the Administrative Borrower and its Restricted Subsidiaries with respect to such Excess Cash Flow Period and for which, to the extent required under GAAP, reserves have been established;

 

(ii)         the amount of any Permitted Tax Distributions paid in cash during such Excess Cash Flow Period;

 

(iii)        the amount of Debt Service for such Excess Cash Flow Period;

 

(iv)       amounts actually paid and applied to the permanent repayments and prepayments of principal of Indebtedness (other than Loans or in connection with the Refinancing) made by the Administrative Borrower and its Restricted Subsidiaries during such Excess Cash Flow Period but only to the extent that (A) (i) such repayments and prepayments by their terms cannot be reborrowed or redrawn, and (ii) such repayments and prepayments do not occur in connection with a refinancing of all or a portion of such Indebtedness, and (B) the amounts used to make such payments are funded from Internally Generated Funds (other than on reliance on the use of the Available Amount (other than clause (a) of the definition thereof));

 

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(v)        the sum of (i) Capital Expenditures made in cash during such Excess Cash Flow Period, to the extent funded from Internally Generated Funds, and (ii) cash consideration paid during such Excess Cash Flow Period to make Permitted Acquisitions to the extent funded from Internally Generated Funds (other than on reliance on the use of the Available Amount (other than clause (a) of the definition thereof));

 

(vi)       the increase, if any, in the Net Working Capital from the beginning to the end of such Excess Cash Flow Period;

 

(vii)      cash items of expense (including cash losses) during such Excess Cash Flow Period not deducted in calculating Consolidated EBITDA; and

 

(viii)     the aggregate amount of Investments made pursuant to Sections 6.04(m) and (n) (other than to the extent made in a Restricted Subsidiary of the Administrative Borrower) and the aggregate amount of Dividends paid pursuant to SectionSections 6.08(h) and (i), in each case, to the extent made or paid during the respective Excess Cash Flow Period with Internally Generated Funds.

 

Excess Cash Flow Period” shall mean (i) the period commencing on (and including) April 1, 2017 through and including December 31, 2017 and (ii) each fiscal year of the Administrative Borrower thereafter.

 

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

Exchange Rate” shall mean and refer to the rate determined by the applicable Issuing Bank to be the rate quoted by the person acting in such capacity as the spot rate for the purchase by such person of such currency with Dollars through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that such Issuing Bank may obtain such spot rate from another financial institution designated by such Issuing Bank if the person acting in such capacity so elects; and provided further that such Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

 

Exchange Rate Reset Date” shall have the meaning assigned to such term in Section 2.18(m).

 

Excluded Account” shall mean any Deposit Account or Securities Account (a) (i) to secure corporate credit card obligations of the Administrative Borrower or any of its Restricted Subsidiaries or (ii) to secure operating lease obligations of the Administrative Borrower or any of its Restricted Subsidiaries, in each case, in the ordinary course of business and solely to the extent that (x) the granting of a security interest in any such Deposit Account or Securities Account is prohibited by, or constitutes a violation or breach of, a restriction pursuant to the applicable contract governing the respective credit card or lease obligations and (y) the only proceeds held in such Deposit Account or Securities Account are used for the purposes set forth in preceding clause (i) or (ii), as applicable, or (b) that is identified as such on Schedule 3.27 as being maintained, and for so long as it remains maintained, by any Borrower or Subsidiary Guarantor in the ordinary course of business as agent or administrator exclusively for any pool arrangement with third parties so long as the proceeds held in (or credited to) such Deposit Accounts or Securities Accounts are distributed promptly pursuant to the rules of the relevant pool arrangement to such Borrower, Subsidiary Guarantor and third parties.

 

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Excluded Collateral” shall mean: (i) any contract, instrument, license or other agreement to which any Loan Party is a party, any of its rights or interests thereunder, or any assets subject thereto, the granting of a security interest in which is prohibited by, or constitutes a violation or breach of a restriction pursuant to applicable Legal Requirements or the respective contract, instrument, license or other agreement (including any requirement to obtain the consent of any Governmental Authority or third party (other than Holdings or any of its Subsidiaries or Controlled Affiliates)), in each case, only for so long as the grant of such security interest shall constitute or result in (x) the abandonment, invalidation or unenforceability of any right, title or interest of any Loan Party therein or (y) a breach or termination pursuant to the terms of, or a default under, any such contract, instrument, license, property rights or other agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant or any other applicable Legal Requirement (including the Bankruptcy Code) or principles of equity); provided, however, that such security interest shall attach immediately and automatically at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied or any such consent has been obtained; and provided, further, that, to the extent severable, shall attach immediately to any portion of such contract, instrument, license or other agreement or any rights or interests thereunder or any assets subject thereto that does not result in any of the consequences specified in preceding clause (x) or (y) including any proceeds and receivables of any such contract, instrument, license or other agreement or any rights or interests thereunder or any assets subject thereto; (ii) any Margin Stock; (iii) any Equity Interests in, and assets of, any Joint Ventures or non-Wholly Owned Subsidiaries to the extent the pledge thereof would (A) violate or breach the terms of, or require the consent of any third party (other than Holdings or any of its Subsidiaries or Controlled Affiliates) pursuant to, any shareholder, joint venture or similar arrangements relating to such Joint Venture or non-Wholly Owned Subsidiary, except to the extent that any such consent has been obtained, or (B) result (including following any exercise of remedies) in a change in control, repurchase obligation or other materially adverse consequence to any of the Loan Parties; (iv) any property subject to a Lien securing Purchase Money Obligations permitted hereunder to the extent that a grant of a security interest therein would violate the terms of such Indebtedness, other than proceeds and receivables thereof; (v) any United States “intent to use” trademark applications filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. Section 1051, prior to the accepted filing of a “Statement of Use” and issuance of a “Certificate of Registration” pursuant to Section 1(d) of the Lanham Act or an accepted filing of an “Amendment to Allege Use” whereby such intent-to-use trademark application is converted to a “use in commerce” application pursuant to Section 1(c) of the Lanham Act and any other Intellectual Property in any jurisdiction where the grant of a Lien thereon would cause the invalidation or abandonment of such Intellectual Property under applicable law; (vi) assets to the extent a security interest in such assets would result in a material adverse tax consequence to the Administrative Borrower, as reasonably determined by the Administrative Borrower in consultation with the Administrative Agent; (vii) assets as to which the costs of obtaining and/or perfecting such security interest are excessive in relation to the practical benefit of the security to be afforded thereby (as reasonably determined by the Administrative Borrower and the Administrative Agent); (viii) assets owned by a Subsidiary Guarantor after release of the Subsidiary Guarantor from its Guarantee pursuant to the Loan Documents; (ix) any Equity Interests of an SPV Buyer and any property of an SPV Buyer or Vessel Holding Person, in each case, to the extent that (and only for so long as) such Equity Interests or property have been pledged as collateral pursuant to Section 6.02(y); (x) any leasehold interests in Real Property; (xi) any Excluded Accounts; (xii) motor vehicles, aircraft and other assets subject to certificates of title (other than Vessels) to the extent that a Lien on such assets cannot be perfected solely by the filing of a financing statement; (xiii) commercial tort claims with respect to claimed damages of less than $2,500,000; (xiv) letter of credit rights (other than to the extent consisting of supporting obligations that can be perfected solely by the filing of a financing statement); (xv) any Equity Interests in any Unrestricted Subsidiary other than the SPV VLCC Parent; and (xvi) Pool Financing Receivables and any proceeds thereof that are the subject of a Lien incurred under a Pool Financing (for so long as such Lien remains in effect); provided, however, it is understood and agreed that (x) to the extent any consent of a third party (that is not Holdings or any of its Subsidiaries or Controlled Affiliates) is required by the terms of any charter to a third party with respect to any Vessel that will comprise Collateral in order for a Loan Party to grant a Collateral Vessel Mortgage on such Vessel, such Loan Party shall use its commercially reasonable efforts to promptly obtain such consent in coordination with the Administrative Agent and, (y) to the extent that any asset or property (including a Vessel) that is owned by a Loan Party ceases to be Excluded Collateral because none of the applicable exclusions set forth above continue to apply to such asset or property, such asset or property shall thereafter constitute Collateral and the applicable Loan Party shall take all such actions as may be required by the Loan Documents to grant a perfected security interest therein to the Collateral Agent for the benefit of the Secured Parties and (z) the Equity Interests in the SPV VLCC Parent shall not constitute Excluded Collateral pursuant to clause (i) as a result of any restriction contained in the Sinosure Facility Agreement.

 

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Excluded Subsidiary” shall mean (a) any Immaterial Subsidiary, (b) any Subsidiary that is not a Wholly Owned Subsidiary, (c) any Subsidiary that is prohibited by any applicable Legal Requirement of any Governmental Authority or by any contractual obligation existing on the Closing Date (or, if later, the date it became a Restricted Subsidiary so long as such contractual obligation was existing prior to becoming a Restricted Subsidiary and was not entered into in contemplation thereof and only applies to such Restricted Subsidiary) from guaranteeing the Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received, (d) any SPV Buyer that has incurred Indebtedness pursuant to Section 6.01(q) and its Vessel Holding Persons (if any), but only so long as such Indebtedness remains outstanding and (e) any Unrestricted Subsidiary; provided, that (i) any Subsidiary of Holdings that provides a guarantee or is otherwise an obligor in respect of the obligations under the Additional Permitted Unsecured Debt Documents shall be required to be a Subsidiary Guarantor hereunder and (ii) in no event shall any Borrower constitute an Excluded Subsidiary.

 

Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation incurred after the Closing Date 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 at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time. 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 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 the applicable Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder.

 

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Excluded Taxes” shall mean, with respect to a Recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) income or franchise taxes and backup withholding taxes imposed on (or measured by) its net income (i) by the jurisdiction under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, including (for the avoidance of doubt) U.S. federal income tax imposed on the net income of a Foreign Lender as a result of such Foreign Lender engaging in a trade or business in the United States; (b) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.16), any U.S. Federal withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.15 (it being understood and agreed, for the avoidance of doubt, that any withholding tax imposed on a Foreign Lender as a result of a Change in Law or regulation or interpretation thereof occurring after the time such Foreign Lender became a party to this Agreement shall not be an Excluded Tax under this clause (b)); (c) taxes imposed as a result of a Foreign Lender’s failure to comply with Section 2.15(f); (d) branch profits taxes imposed by any jurisdiction described in clause (a) above; (e) any U.S. federal withholding taxes imposed under FATCA; and (f) any U.S. federal withholding taxes imposed as a result of such Foreign Lender’s failure to comply with Section 2.15(g).

 

Excluded Vessel” shall mean any Vessel owned by a Loan Party that constitutes Excluded Collateral. The Excluded Vessels as of the Closing Date are identified as such on Schedule 1.01(a), which Schedule also sets forth the basis for each such Vessel being an Excluded Vessel.

 

Executive Order” shall have the meaning assigned to such term in Section 3.22(a).

 

Existing Lien” shall have the meaning assigned to such term in Section 6.02(c).

 

Existing Credit Agreement” shall mean that certain Credit Agreement, dated as of August 5, 2014 (as amended, supplemented or otherwise modified prior to the Closing Date), by and among Holdings, the Borrowers, Jefferies Finance LLC, as administrative agent and the other parties party thereto.

 

Extended Revolving Commitments” shall have the meaning assigned to such term in Section 2.20(a).

 

Extended Revolving Loans” shall have the meaning assigned to such term in Section 2.20(a).

 

Extended Term Loans” shall have the meaning assigned to such term in Section 2.20(a).

 

Extending Lender” shall have the meaning assigned to such term in Section 2.20(a).

 

Extending Revolving Lender” shall have the meaning assigned to such term in Section 2.20(a).

 

Extending Term Lender” shall have the meaning assigned to such term in Section 2.20(a).

 

Extension” shall have the meaning assigned to such term in Section 2.20(a).

 

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Extension Amendment” shall have the meaning assigned to such term in Section 2.20(d).

 

Extension Election” shall have the meaning assigned to such term in Section 2.20(c).

 

Extension Request” shall have the meaning assigned to such term in Section 2.20(a).

 

Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined (x) in good faith by the Board of Directors or, pursuant to a specific delegation of authority by such Board of Directors or a designated senior executive officer, of the Administrative Borrower, or the Subsidiary of the Administrative Borrower selling such asset or (y) in the case of Collateral Vessels and, the FSO JV Equity Interests and the SPV VLCC Parent Equity Interests for purposes of calculating the Loan to Value Test, by the most recent applicable appraisal that has been delivered to the Administrative Agent pursuant to the terms hereof (subject, in the case of the FSO JV Equity Interests and the SPV VLCC Parent Equity Interests, to any adjustments pursuant to clause (I)(b) or (II)(b) below, as applicable); provided, however, in the case of (I) the FSO JV Equity Interests, (a) prior to the earlier to occur of (i) the first appraisal delivered to the Administrative Agent pursuant to the terms hereof and (ii) the date on which the Compliance Certificate is delivered to the Administrative Agent pursuant to Section 5.01(f)(ii)(x) for the fiscal year ending December 31, 2017 (and subject to any adjustments pursuant to clause (b) below), the Fair Market Value of the FSO JV Equity Interests shall be deemed to be $250,000,000 and (b) upon the occurrence or consummation of any condition, event or transaction (or one or more related conditions, events or transactions) (such as, but not limited to, any sale or other disposition by any FSO JV of any asset, any casualty or condemnation event affecting any asset of any FSO JV, any incurrence of any Indebtedness by any FSO JV or the incurrence by, or imposition of any liability on, any FSO JV) that could, in the good faith judgment of the Administrative Borrower (in consultation with the Administrative Agent), impact the Fair Market Value of the FSO JV Equity Interests by 10% or more, the Administrative Borrower shall, promptly after the occurrence or consummation of such condition, event or transaction (or series of related conditions, events or transactions), provide the Administrative Agent with an updated valuation of the Fair Market Value of the FSO JV Equity Interests (in form and detail reasonably satisfactory to the Administrative Agent) and at such time, the Fair Market Value of the FSO JV Equity Interests shall be automatically adjusted to reflect such updated valuation until such time as a new appraisal is delivered to the Administrative Agent in accordance with the terms hereof. and (II) the SPV VLCC Parent Equity Interests, (a) prior to the earlier to occur of (i) the first appraisal delivered to the Administrative Agent pursuant to the terms hereof and (ii) the date on which the Compliance Certificate is delivered to the Administrative Agent for the fiscal year ending December 31, 2018 (and subject to any adjustments pursuant to clause (b) below), the Fair Market Value of the SPV VLCC Parent Equity Interests shall be deemed to be $172,000,000 and (b) upon the occurrence or consummation of any condition, event or transaction (or one or more related conditions, events or transactions) (such as, but not limited to, any sale or other disposition of any SPV VLCC Vessel or SPV VLCC Vessel Owner, any casualty or condemnation event affecting any asset of any SPV VLCC Vessel Owner, any incurrence of any Indebtedness by SPV VLCC Parent or any of its Subsidiaries or the incurrence by, or imposition of any liability on, SPV VLCC Parent or any of its Subsidiaries) that could, in the good faith judgment of the Administrative Borrower (in consultation with the Administrative Agent), impact the Fair Market Value of the SPV VLCC Parent Equity Interests by 10% or more, the Administrative Borrower shall, promptly after the occurrence or consummation of such condition, event or transaction (or series of related conditions, events or transactions), provide the Administrative Agent with an updated valuation of the Fair Market Value of the SPV VLCC Parent Equity Interests (in form and detail reasonably satisfactory to the Administrative Agent) and at such time, the Fair Market Value of the SPV VLCC Parent Equity Interests shall be automatically adjusted to reflect such updated valuation until such time as a new appraisal is delivered to the Administrative Agent in accordance with the terms hereof.

 

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FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (and related legislation or official administrative guidance) implementing the foregoing.

 

FCPA” shall have the meaning assigned to such term in Section 3.22(d).

 

Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1.00%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

 

Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the LC Participation Fees, the Fronting Fees and the other fees referred to in Section 2.05.

 

Financial Officer” of any person shall mean any of the chief financial officer, principal accounting officer, treasurer or assistant treasurer of such person.

 

Financial Support Direction” shall mean a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.

 

FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

 

First Amendment” shall mean that certain First Amendment to Credit Agreement, dated as of the First Amendment Effective Date, among the Borrowers, Holdings, the other Guarantors, the Administrative Agent and the Lenders party thereto.

 

First Amendment Effective Date” shall mean July 24, 2017.

 

First Priority” shall mean, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is (a) the most senior Lien to which such Collateral is subject (subject only to non-consensual Permitted Liens that arise under any Legal Requirement), or (b) a Collateral Vessel Mortgage duly recorded or registered in accordance with the laws of the applicable Acceptable Flag Jurisdiction in which such Collateral Vessel is registered covering a Collateral Vessel (subject only to Permitted Collateral Vessel Liens which may, under applicable law, be entitled to priority over such Collateral Vessel Mortgage).

 

Flood Laws” shall mean, collectively, (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973, (c) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (d) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statue thereto and (e) the Biggert-Waters Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto and any and all official rulings and interpretation thereunder or thereof.

 

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Foreign Lender” shall mean any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

 

Foreign Restricted Subsidiary” shall mean any Foreign Subsidiary that is a Restricted Subsidiary.

 

Foreign Subsidiary” shall mean a Subsidiary that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia.

 

Fronting Fee” shall have the meaning assigned to such term in Section 2.05(c).

 

FSO JV” shall mean each of TI Africa Limited and TI Asia Limited, in each case, a limited corporation formed under the laws of Hong Kong.

 

FSO JV Debt Dividend” shall have the meaning assigned to such term in Section 6.02.

 

FSO JV Equity Interests” shall mean the Equity Interests of an FSO JV to the extent owned by an FSO Parent, (a) the Fair Market Value of which Equity Interests owned by an FSO Parent have been appraised through an appraisal in form, scope and methodology, and by an independent third party appraiser, in either case, reasonably satisfactory to the Administrative Agent not less than once during each fiscal year of the Administrative Borrower (or more frequently as may be requested by the Administrative Agent at any time an Event of Default has occurred and is continuing) (but otherwise subject to the proviso to the definition of “Fair Market Value” contained herein) and (b) either (i) such Equity Interests have been pledged by the applicable FSO Parent as Collateral to secure the Secured Obligations under the Loan Documents or (ii) the Equity Interests of such FSO JV’s FSO Parent have been pledged by its direct parent company as Collateral to secure the Secured Obligations under the Loan Documents and such FSO Parent has no Indebtedness other than Indebtedness permitted pursuant to the last paragraph of Section6.01. Each such appraisal shall be addressed to the Administrative Agent and upon which the Administrative Agent, the Collateral Agent and the Lenders are expressly permitted to rely and shall have been delivered to the Administrative Agent.

 

FSO JV Net Debt Proceeds” shall mean the cash proceeds received by an FSO JV from the incurrence of Indebtedness by it after the Closing Date, net of (i) the repayment of any Indebtedness of such FSO JV with the cash proceeds therefrom and (ii) reasonable and customary fees, commissions, costs and expenses incurred in connection therewith.

 

FSO Parent” shall mean a direct or indirect Wholly Owned Subsidiary of the Administrative Borrower that is a Subsidiary Guarantor and directly owns FSO JV Equity Interests (it being understood that, on the Closing Date, the FSO Parent is Africa Tanker Corporation, a Marshall Islands corporation and a direct Wholly Owned Subsidiary of the Administrative Borrower that is a Subsidiary Guarantor).

 

Funding Default” shall have the meaning assigned to such term in Section 2.16(c).

 

GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis.

 

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Governmental Approval” shall mean any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.

 

Governmental Authority” shall mean any federal, state, local or foreign (whether civil, administrative, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality, regulatory or self-regulatory, body or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Granting Lender” shall have the meaning assigned to such term in Section 11.04(h).

 

Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.

 

Guarantees” shall mean the guarantees issued pursuant to Article VII by each of the Guarantors.

 

Guarantors” shall mean (i) Holdings, (ii) each Subsidiary Guarantor and (iii) each Borrower in its capacity as a guarantor of the Bank Product Obligations of another Restricted Party.

 

Hazardous Materials” shall mean hazardous substances, hazardous wastes, hazardous materials, or any other pollutants, contaminants, chemicals, wastes, materials, compounds, constituents or substances, defined under, subject to regulation under, or which can give rise to liability or obligations under, any Environmental Laws, including polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs, asbestos or any asbestos-containing materials in any form or condition, lead- based paint, urea formaldehyde, pesticides, radon or any other radioactive materials including any source, special nuclear or by-product material, petroleum, petroleum products, petroleum-derived substances, crude oil or any fraction thereof, or any mold, microbial or fungal contamination that could pose a risk to human health or the Environment.

 

Hedging Agreement” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, currency swap transactions, cross-currency rate swap transactions, currency options, cap transactions, floor transactions, collar transactions, spot contracts, futures contracts or other liabilities for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract or any other similar transactions or any combination of any of the foregoing (including any options or warrants to enter into any of the foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement, and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such agreement or documentation, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

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Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.

 

Hedging Termination Value” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of any netting agreements relating to such Hedging Agreements (to the extent, and only to the extent, such netting agreements are legally enforceable in Insolvency Proceedings against the applicable counterparty obligor thereunder), (i) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (ii) for any date prior to the date referenced in preceding clause (i), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include an Agent, a Lender or any Affiliate of an Agent or a Lender).

 

Holdings” shall have the meaning assigned to such term in the preamble hereto.

 

Holdings Pledge Agreement” shall mean a Pledge Agreement substantially in the form of Exhibit J-2 between Holdings and the Collateral Agent for the benefit of the Secured Parties.

 

Holdings Specified Expenses” shall mean any charge, tax or expense incurred or accrued by Holdings during any period to the extent that the Administrative Borrower or any of its Restricted Subsidiaries has paid a Dividend (or has made an Investment in lieu thereof pursuant to Section 6.04(q)) to Holdings in respect thereof pursuant to Sections 6.08(c), (d) and (e).

 

Immaterial Subsidiary” shall mean, as of any date of determination, any Wholly Owned Restricted Subsidiary of the Administrative Borrower (i) whose total assets (on a consolidated basis including its Restricted Subsidiaries, but excluding the value attributable to any Unrestricted Subsidiary) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) did not exceed 2.00% of Consolidated Total Assets as of such date or (ii) whose gross revenues (on a consolidated basis including its Restricted Subsidiaries, but excluding the revenues of any Unrestricted Subsidiary) for such Test Period did not exceed 2.00% of the consolidated gross revenues of the Administrative Borrower and its Restricted Subsidiaries for such period, but excluding the revenues of any Unrestricted Subsidiary; provided, however, (x) a Wholly Owned Restricted Subsidiary of the Administrative Borrower that no longer meets the foregoing requirements of this definition or is otherwise required to become a Loan Party pursuant to Section 5.10 shall no longer constitute an Immaterial Subsidiary for purposes of this Agreement and (y) notwithstanding the foregoing, (A) the Administrative Borrower may elect to cause an Immaterial Subsidiary to become a Loan Party pursuant to Section5.10, in which case such Immaterial Subsidiary shall, upon satisfaction of the provisions of such Section, no longer constitute an Immaterial Subsidiary, and (B) in no event shall the Co-Borrower be an Immaterial Subsidiary. Notwithstanding the foregoing, (i) the total assets (as determined above) of all Immaterial Subsidiaries shall not exceed 5.00% of the Consolidated Total Assets, (ii) the gross revenues (as determined above) of all Immaterial Subsidiaries shall not exceed 5.00% of the consolidated gross revenues of the Administrative Borrower and its Restricted Subsidiaries (as determined above) and (iii) any Restricted Subsidiary of the Administrative Borrower that guarantees or is an obligor of the Indebtedness incurred under this Agreement and the other Loan Documents or Indebtedness under the Additional Permitted Unsecured Debt Documents shall not be deemed an Immaterial Subsidiary. For the avoidance of doubt, an Immaterial Subsidiary shall include any Wholly Owned Restricted Subsidiary that is a Parent Restricted Subsidiary and that would meet the qualifications set forth above.

 

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Increasing Lenders” shall have the meaning assigned to such term in Section 2.21(b).

 

Incremental Joinder Agreement” shall have the meaning assigned to such term in Section 2.21(d).

 

Incremental Loan Amendment” shall have the meaning assigned to such term in Section 2.21(d).

 

Incremental Revolving Loans” shall have the meaning assigned to such term in Section 2.21(a).

 

Incremental Revolving Commitments” shall have the meaning assigned to such term in Section 2.21(a).

 

Incremental Term Loans” shall have the meaning assigned to such term in Section 2.21(a).

 

Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money; (b) all obligations of such person evidenced by bonds, debentures, notes, loan agreements or similar instruments; (c) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (d) all obligations of such person issued or assumed as part of the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business on normal trade terms and not overdue by more than 90 days); (e) all indebtedness secured by any Lien on property owned or acquired by such person (including indebtedness arising under conditional sales or other title retention agreements), whether or not the obligations secured thereby have been assumed, but limited to the lower of (i) the Fair Market Value of such property and (ii) the amount of the Indebtedness secured; (f) all Capital Lease Obligations, other Purchase Money Obligations and Synthetic Lease Obligations of such person; (g) all obligations of such person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Equity Interests of such person, valued, in the case of a redeemable preferred Equity Interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (h) all Bank Product Obligations under Hedging Agreements valued at the Hedging Termination Value thereof; (i) all obligations of such person for the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions; and (j) all Contingent Obligations of such person in respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above; provided that the term “Indebtedness” shall not include (i) preferred or prepaid revenues, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller of such asset, (iii) any obligations constituting the exercise of appraisal rights and settlements of any claim of actions (whether actual, contingent or potential) with respect thereto, (iv) any Indebtedness of Holdings appearing on the balance sheet of any Borrower or any Subsidiary Guarantor, or solely by reason of push down accounting under GAAP, in each case, so long as neither the Administrative Borrower nor any Restricted Subsidiary thereof has any obligation with respect thereto and the holder of such Indebtedness has no recourse to the Administrative Borrower or any Restricted Subsidiary thereof with respect thereto, and (v) those intercompany payment obligations as and to the extent described in Schedule 6.09(e). 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 that terms of such Indebtedness expressly provide that such person is not liable therefor.

 

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Indemnified Taxes” shall mean (a) all Taxes other than Excluded Taxes and (b) to the extent not covered in preceding clause (a), Other Taxes.

 

Indemnitee” shall have the meaning assigned to such term in Section 11.03(b).

 

Information” shall have the meaning assigned to such term in Section 11.12.

 

Initial Term Loans” shall mean the term loans made on the Closing Date pursuant to Section 2.01(a).

 

Insolvency Laws” shall mean the Bankruptcy Code, and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Insolvency Proceeding” shall mean (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under United States federal or state or non-United States Legal Requirements, including the Bankruptcy Code.

 

Insurance Deliverables Requirement” shall mean, in relation to each Collateral Vessel, with respect to (i) marine, hull and machinery insurance and increased value insurance, (ii) marine protection and indemnity insurance (including (x) insurance for liability arising out of pollution and spillage or leakage of cargo and (y) cargo liability insurance), (iii) war risks insurance and increased value insurance, (iv) such other marine insurance that has been reasonably requested by the Administrative Agent with the written consent of the Administrative Borrower (not to be unreasonably withheld or delayed), in each case that is required to be maintained in accordance with the terms of this Agreement, the Administrative Borrower shall have delivered to, or cause to be delivered, a letter of undertaking from a marine insurance broker attaching cover notes and certificates of entry evidencing such insurance, together with notices of assignment and loss payee clauses, and letters of undertaking issued by the protection and indemnity association, each of which shall be reasonably satisfactory to the Administrative Agent.

 

INSW FSO JV Percentage” shall mean, with respect to any FSO JV at any time, a fraction (expressed as a percentage) the numerator of which is the FSO JV Equity Interests issued by such FSO JV to the applicable FSO Parent at such time and the denominator of which is the total amount of FSO JV Equity Interests issued by such FSO JV to all of its equity holders at such time.

 

Intellectual Property” shall have the meaning assigned to such term in the Security Agreement.

 

Intercompany Note” shall mean a promissory note (which may be a global intercompany note) in form and substance reasonably satisfactory to the Administrative Agent.

 

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Intercompany Subordination Agreement” shall mean an intercompany subordination agreement substantially in the form of Exhibit D.

 

Interest Election Request” shall mean a request by the Administrative Borrower to convert or continue a Revolving Borrowing or a Term Borrowing in accordance with Section2.08(b), substantially in the form of ExhibitE or such other form as the Administrative Agent and the Administrative Borrower may agree to from time to time.

 

Interest Payment Date” shall mean (a) with respect to any ABR Loan (including all Swingline Loans), the last Business Day of each March, June, September and December to occur during any period in which such ABR Loan is outstanding, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Eurodollar Loan is a part and, in the case of a Eurodollar Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with respect to any Term Loan, the applicable Maturity Date for such Term Loan, and (d) with respect to any Revolving Loan or Swingline Loan, the Revolving Maturity Date (or such earlier date on which the Revolving Commitments are terminated).

 

Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing on the date of such Eurodollar Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Administrative Borrower may elect; provided, that (a) 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 unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

Internally Generated Funds” shall mean funds not constituting the proceeds of any Indebtedness, Debt Issuance, Equity Issuance, Asset Sale or Casualty Event (in each case, without regard to the exclusions from the definitions thereof, other than in the case of an Asset Sale only, any disposition of assets permitted by Section 6.06(a) or (h)).

 

Interpolated Screen Rate” shall mean, with respect to the applicable Eurodollar Loan, the rate which results from interpolating on a linear basis between:

 

(a)          the applicable LIBOR Screen Rate for the longest period for which a LIBOR Screen Rate is available for such Eurodollar Loan, which period is less than the Interest Period of such Eurodollar Loan; and

 

(b)          the applicable LIBOR Screen Rate for the shortest period for which a LIBOR Screen Rate is available for such Eurodollar Loan, which period exceeds the Interest Period of such Eurodollar Loan.

 

Investments” shall have the meaning assigned to such term in Section 6.04. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment or any write- offs or write-downs thereof.

 

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ISM Code” shall mean the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention, adopted by the International Maritime Organization.

 

ISP” shall mean, with respect to any Letter of Credit, the ‘International Standby Practices 1998’ (or ‘ISP 98’) published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

 

ISPS Code” shall mean the International Code for the Security of Ships and Port Facilities adopted by the International Maritime Organization.

 

Issuing Bank” shall mean, as the context may require, (a) each of (i) Skandinaviska Enskilda Banken AB (publ) and (ii) any other Lender reasonably acceptable to the Administrative Agent and the Administrative Borrower that agrees to issue Letters of Credit hereunder, with respect to Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.18(j) and (k) with respect to Letters of Credit issued by such Lender; and/or (c) collectively, all of the foregoing, as the context may require. In addition to the provisions of clause (a)(i) above, any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Bank (and such Affiliate shall be deemed to be an “Issuing Bank” for all purposes of the Loan Documents).

 

Joinder Agreement” shall mean a joinder agreement substantially in the form of Exhibit N.

 

Joint Venture” shall mean any person other than a Subsidiary of the Administrative Borrower (i) in which Holdings, the Administrative Borrower or any Restricted Subsidiary thereof holds or acquired a beneficial ownership interest (by way of ownership of Equity Interests or other evidence of ownership) in excess of 20.00% of the Equity Interests of such person and (ii) which is engaged in a business permitted by Section 6.14(b).

 

Judgment Currency” shall have the meaning assigned to such term in Section 11.21(a).

 

Judgment Currency Conversion Date” shall have the meaning assigned to such term in Section 11.21(a).

 

July 2017 Incremental Term Loan Commitments” shall mean the Term Commitments provided to the Borrowers on the First Amendment Effective Date pursuant to the First Amendment.

 

July 2017 Incremental Term Loans” shall mean the Incremental Term Loans made to the Borrowers on the First Amendment Effective Date pursuant to the First Amendment.

 

Latest Maturity Date” shall mean, at any date of determination, the latest Maturity Date applicable to any Class of Loans at such time under this Agreement.

 

LC Commitment” shall mean the aggregate commitments of the Issuing Banks to issue Letters of Credit pursuant to Section 2.18. The amount of the LC Commitment shall be $20,000,000 on the Closing Date, but in no event shall the LC Commitment exceed the Total Revolving Commitments.

 

LC Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.

 

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LC Exposure” shall mean, at any time, the sum of (a) the aggregate amount available to be drawn under all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all Reimbursement Obligations outstanding at such time. The LC Exposure of any Lender at any time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time. For all purposes of this Agreement and the other Loan Documents, 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 (or any other equivalent applicable rule with respect to force majeure events), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn thereunder.

 

LC Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).

 

LC Request” shall mean a request by the Administrative Borrower in accordance with the terms of Section 2.18(b) and substantially in the form of Exhibit F, or such other form as the applicable Issuing Bank and the Administrative Borrower may agree to from time to time.

 

LC Sub-Account” shall mean a cash collateral account maintained with, and under the sole dominion and control of, the Collateral Agent, which shall contain amounts deposited therein as cover for liabilities in respect of Letters of Credit as collateral security to be applied in accordance with Section 2.18(i).

 

LCT Election” shall have the meaning assigned to such term in the definition of “Pro Forma Basis”.

 

LCT Test Date” shall have the meaning assigned to such term in the definition of “Pro Forma Basis”.

 

Legal Requirements” shall mean, as to any person, any treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction, policies and procedures, Order or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration thereof, in each case applicable to or binding upon such person or any of its property or to which such person or any of its property is subject.

 

Lenders” shall mean (a) the financial institutions and other persons party hereto as “Lenders” on the date hereof, and (b) each financial institution or other person that becomes a party hereto pursuant to an Assignment and Acceptance, other than, in each case, any such financial institution or person that has ceased to be a party hereto pursuant to an Assignment and Acceptance. Unless the context clearly indicates otherwise, the term “Lenders” shall include each Issuing Bank and the Swingline Lender.

 

Letter of Credit” shall mean any letter of credit issued or to be issued by an Issuing Bank for the account of the Borrowers pursuant to Section 2.18.

 

Letter of Credit Expiration Date” shall mean, subject to Section 2.18(c), the date which is five Business Days prior to the Revolving Maturity Date.

 

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LIBOR Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period therefor, (x) the rate per annum equal to the rate determined by the Administrative Agent at approximately 11:00 a.m., London, England time, on the date that is two Business Days prior to the commencement of such Interest Period to be the London interbank offered rate as administered by ICE Benchmark Administration Limited (or any other person that takes over the administration of such rate) that appears on the Reuters Screen LIBOR01 Page (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion, in each case, the “LIBOR Screen Rate”) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or, if such LIBOR Screen Rate is not available for the Interest Period of that Eurodollar Loan, the LIBOR Rate shall be the rate per annum determined by the Administrative Agent to be the Interpolated Screen Rate for such Eurodollar Loan) or, if different, the date on which quotations would customarily be provided by leading banks in the London interbank market for deposits in Dollars for delivery on the first day of such Interest Period, provided that if such rate is below zero, the LIBOR Rate will be deemed to be zero, or (y) if the rates referenced in preceding clause (x) are not available, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m., London, England time, two Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Eurodollar Borrowing to be outstanding during such Interest Period. “Reuters Screen LIBOR01 Page” shall mean the display designated on the Reuters 3000 Xtra Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market).

 

LIBOR Screen Rate” shall have the meaning provided in the definition of “LIBOR Rate” contained herein.

 

Lien” shall mean, with respect to any property, (a) any preferred ship mortgage, maritime lien, mortgage, deed of trust, lien (statutory or other), judgment lien, pledge, encumbrance, charge, assignment, hypothecation, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, and any agreement to give any of the foregoing, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

Limited Condition Acquisition” shall mean any Permitted Acquisition whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

 

Loan” or “Loans” shall mean, as the context may require, a Revolving Loan, a Swingline Loan or a Term Loan.

 

Loan Documents” shall mean this Agreement, the Notes, if any, the Security Documents, each Joinder Agreement, the Intercompany Subordination Agreement, each Intercompany Note, each Incremental Joinder Agreement, any documents or certificates executed by any Borrower in favor of an Issuing Bank relating to Letters of Credit, the Letters of Credit and all other documents, certificates, instruments or agreements executed by or on behalf of a Loan Party for the benefit of any Agent, any Issuing Bank or any Lender in connection herewith on or after the date hereof and, except for purposes of Section11.02(b), the Agent Fee Letter. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.

 

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Loan Parties” shall mean the Borrowers and the Guarantors.

 

Loan to Value Test” shall mean, at any time, that (a) the sum of (i) the then aggregate outstanding principal amount of all Loans at such time plus (ii) the Dollar Amount of the aggregate LC Exposure at such time plus (iii) the then aggregate outstanding principal amount of all Refinancing Notes at such time that are secured on a pari passu basis with the Loans plus (iv) the then aggregate outstanding principal amount of all secured Indebtedness incurred pursuant to Sections 6.01(m) and (q) minus (v) the aggregate amount of all unrestricted cash and Cash Equivalents of the Loan Parties (other than Holdings and other than, for purposes of determining compliance with clause (v) of Section 2.21(a), cash proceeds of any Incremental Term Loans or Incremental Revolving Loans) that are deposited in Controlled Accounts at such time shall be no greater than (b) 65% of the sum of (i) the aggregate Fair Market Value of all Collateral Vessels at such time that are subject to a Collateral Vessel Mortgage plus (ii) the aggregate Fair Market Value of the FSO JV Equity Interests and, prior to the SPV VLCC Designations, the SPV VLCC Parent Equity Interests at such time (so long as, in each case, the applicable requirements of the definition thereof have been satisfied).

 

Majority Revolving Lenders” shall mean, at any time, Revolving Lenders having outstanding Revolving Loans, LC Exposure and unused Revolving Commitments representing more than 50% of the sum of all outstanding Revolving Loans, LC Exposure and unused Revolving Commitments at such time; provided, that, (a) if there are fewer than three Revolving Lenders at any time, then Majority Revolving Lenders shall then mean all Revolving Lenders, (b) if there are three Revolving Lenders at any time, then Majority Revolving Lenders shall then mean, in addition to, and not in limitation of, the provisions of this definition that precede this proviso, at least two Revolving Lenders and (c) Revolving Lenders that are Affiliates of one another shall be counted as a single Revolving Lender for purposes of foregoing clauses (a) and (b) of this proviso.

 

Margin Stock” shall have the meaning assigned to such term in Regulation U.

 

Material Adverse Effect” shall mean (a) a material adverse effect on, or a material adverse change in, the condition (financial or otherwise), results of operations, business, properties, assets or liabilities (contingent or otherwise) of the Restricted Parties, taken as a whole (including, for the avoidance of doubt, as a result of any event, change, effect, circumstance, condition, development or occurrence relating to Holdings that is a material adverse effect on, or a material adverse change in, the condition (financial or otherwise), results of operations, business, properties, assets or liabilities (contingent or otherwise) of the Restricted Parties, taken as a whole), (b) an impairment of the ability of the Loan Parties to fully and timely perform any of their payment or other material obligations under any Loan Document, (c) a material impairment of the rights of or benefits or remedies available to the Lenders, the Issuing Banks or any Agent under any Loan Document, or (d) a material adverse effect on the Collateral or any material portion thereof or on the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the other Secured Parties) on the Collateral or the validity, enforceability, perfection or priority of such Liens.

 

Material Non-Public Information” shall mean information and documentation that is (i) not publicly available and (ii) material with respect to Holdings, the Administrative Borrower and its Subsidiaries or any of their respective securities for purposes of foreign, United States Federal and state securities laws.

 

Maturity Date” shall mean, as the context may require, the Term Loan Maturity Date or the Revolving Maturity Date.

 

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Maximum Rate” shall have the meaning assigned to such term in Section 11.13.

 

Moody’s” shall mean Moody’s Investors Service, Inc. and its successors.

 

Mortgage” shall mean an agreement, including a mortgage, deed of trust or any other document, creating and evidencing a First Priority Lien in favor of the Collateral Agent on Mortgaged Property in form and substance reasonably satisfactory to the Administrative Agent, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign Legal Requirements.

 

Mortgage Policy” shall mean an ALTA mortgage title insurance policy or an unconditional commitment therefor issued by one or more title insurance companies reasonably satisfactory to the Collateral Agent (it being understood that the Collateral Agent may, in its reasonable discretion, accept a municipal zoning letter in lieu of a zoning endorsement to such Mortgage Policy).

 

Mortgage Trustee” shall have the meaning assigned to such term in the preamble hereto.

 

Mortgaged Property” shall mean (a) each Real Property owned in fee (if any) identified in Schedule 1.01(f) and (b) each other Real Property owned in fee by any Borrower or Subsidiary Guarantor with a Fair Market Value in excess of $10,000,000, if any, which shall be subject to a Mortgage delivered after the Closing Date pursuant to Section 5.10.

 

Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA and subject to Title IV of ERISA to which any Company or any of its ERISA Affiliates is making or obligated to make contributions or during the preceding five plan years, has made or been obligated to make contributions.

 

Net Cash Proceeds” shall mean: (a) with respect to any Asset Sale (other than any issuance or sale of Equity Interests by the issuer thereof), the proceeds thereof in the form of cash, Cash Equivalents and marketable securities (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 by the sale, transfer or other disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received) received by any Restricted Party (including cash proceeds subsequently received (as and when received by any Restricted Party) in respect of non-cash consideration initially received) net of (i) reasonable and customary selling expenses (including reasonable brokers’ fees or commissions, legal, accounting and other professional and transactional fees, survey costs, title insurance premiums, related search and recording charges, mortgage recording taxes and transfer and similar taxes and the Administrative Borrower’s good faith estimate of income taxes paid or payable in connection with such sale (after taking into account any available tax credits or deductions and any tax sharing arrangements)), (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by any Restricted Party associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness (including, if applicable, any Indebtedness incurred pursuant to Section 6.01(q)) for borrowed money that is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is repaid with such proceeds (other than (x) any such Indebtedness assumed by the purchaser of such properties and (y) the Secured Obligations); (b) with respect to any Debt Issuance, incurrence or issuance of any Specified Refinancing Term Loans or Refinancing Notes or issuance or sale of Equity Interests by any Restricted Subsidiary of the Administrative Borrower, the cash proceeds thereof received by any Restricted Party, net of reasonable and customary fees, commissions, costs and other expenses incurred in connection therewith; and (c) with respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received by any Restricted Party in respect thereof, net of all reasonable costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.

 

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Net Working Capital” shall mean, at any time, Consolidated Current Assets at such time minus Consolidated Current Liabilities at such time.

 

New Lender” shall have the meaning assigned to such term in Section 2.21(c).

 

Non-Conforming Plan of Reorganization” shall mean any Plan of Reorganization that does not provide for payments pursuant to such Plan of Reorganization in respect of the Revolving Exposure to be made with the priority specified in Article IX and that has not been approved by the Majority Revolving Lenders.

 

Non-Controlled Account” shall mean any Specified Account (or newly established Deposit Account or Securities Account into which proceeds of Collateral are paid (or required to be paid)) with respect to which any of the following is true:

 

(a)          such Deposit Account or Securities Account is used exclusively as a payroll or pension account; or

 

(b)          the aggregate average daily balances of such Deposit Account or Securities Account, when aggregated with the aggregate average daily balances of all other Deposit Accounts and Securities Accounts deemed Non-Controlled Accounts pursuant to this clause (b), does not exceed $2,500,000 in the aggregate (it being understood that the average daily balances of the Deposit Accounts or Securities Accounts described in clause (a) of this definition shall not be counted toward such $2,500,000 limit).

 

Non-Recourse Debt” shall mean Indebtedness:

 

(a)          as to which neither the Administrative Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise, or (iii) constitutes the lender;

 

(b)          no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and

 

(c)          as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Administrative Borrower or any of its Restricted Subsidiaries.

 

Non-U.S. Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Company with respect to employees, officers or directors employed, or otherwise engaged, outside the United States.

 

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Notes” shall mean any notes evidencing the Term Loans, Revolving Loans or Swingline Loans issued pursuant to Section2.04(e), if any, substantially in the form of ExhibitH-1, H-2 or H-3, respectively.

 

Obligation Currency” shall have the meaning assigned to such term in Section 11.21.

 

Obligations” shall mean (a) all obligations of the Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers and the other Loan Parties from time to time under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of Reimbursement Obligations, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations, including fees (including the fees provided for in the Agent Fee Letter), costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding), of the Borrowers and the other Loan Parties under this Agreement and the other Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising; provided, that in no circumstances shall Excluded Swap Obligations constitute Obligations.

 

OFAC” shall have the meaning assigned to such term in Section 3.22(b).

 

Officer’s Certificate” shall mean, as to any person, a certificate executed by any of the chairman of the Board of Directors (if an officer), the chief executive officer, the president or one of the Financial Officers of such person, each in his or her official (and not individual) capacity.

 

Order” shall mean any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.

 

Organizational Documents” shall mean, with respect to any person, (i) in the case of any corporation, the certificate of incorporation, articles of incorporation or deed of incorporation and by- laws (or similar documents) of such person, (ii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constituent documents) of such person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constituent documents) of such person (and, where applicable, the equityholders or shareholders registry of such person), (iv) in the case of any general partnership, the partnership agreement (or similar constituent document) of such person, (v) in any other case, the functional equivalent of the foregoing, and (vi) any shareholder, voting trust or similar agreement between or among any holders of Equity Interests of such person.

 

Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction (including any subdivision or taxing authority thereof) imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

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Other Taxes” shall mean any and all present or future stamp, documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes, charges (including fees and expenses to the extent incurred with respect to any such Taxes or charges) or similar levies (including interest, fines, penalties and additions with respect to any of the foregoing) arising from any payment made or required to be made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

 

Participant” shall have the meaning assigned to such term in Section 11.04(e).

 

Participant Register” shall have the meaning assigned to such term in Section 11.04(e).

 

Patriot Act” shall have the meaning assigned to such term in Section 3.22(a).

 

PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

 

Pension Plan” shall mean any Employee Benefit Plan subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 or 303 of ERISA which is maintained or contributed to by any Company or any of its ERISA Affiliates or to which any Company or any of its ERISA Affiliates has an obligation to contribute.

 

Pensions Regulator” shall mean the body corporate called the Pensions Regulator established under Part 1 of the Pensions Act 2004.

 

Perfection Certificate” shall mean a perfection certificate in the form of Exhibit I or any other form reasonably approved by the Collateral Agent.

 

Permitted Acquisition” shall mean any transaction or series of related transactions for the direct or indirect (a) acquisition of all or substantially all of the property of any person, or of any business or division of any person, (b) acquisition of all of the Equity Interests of any person, and otherwise causing such person to become a Wholly Owned Restricted Subsidiary of such person, or (c) merger or consolidation or any other combination with any person, if each of the following conditions is met:

 

(i)          no Event of Default then exists or would result therefrom;

 

(ii)         after giving effect to such transaction on a Pro Forma Basis, the Administrative Borrower shall be in compliance with the Loan to Value Test;

 

(iii)        no Restricted Party shall, in connection with any such transaction, assume or remain liable with respect to any Indebtedness of the related seller or the business, person or properties acquired, except to the extent permitted to be incurred under Section 6.01;

 

(iv)        the person or business to be acquired shall be, or shall be engaged in, a business of the type that the Administrative Borrower and its Restricted Subsidiaries are permitted to be engaged in under Section 6.14(b);

 

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(v)         the Board of Directors of the person to be acquired shall not have indicated its opposition to the consummation of such acquisition (which opposition has not been publicly withdrawn);

 

(vi)        all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable Legal Requirements and the Organizational Documents of the relevant Companies;

 

(vii)       the Administrative Borrower shall have provided the Administrative Agent with (A) historical financial statements for the last three fiscal years (or, if less, the number of years since formation) of the person or business to be acquired (audited if available without undue cost or delay) and unaudited financial statements thereof for the most recent interim period that is available and (B) all such other information and data relating to such transaction or the person or business to be acquired as may be reasonably requested by the Administrative Agent;

 

(viii)      prior to the proposed date of consummation of the transaction, the Administrative Borrower shall have delivered to the Administrative Agent an Officer’s Certificate of the Administrative Borrower certifying that such transaction complies with this definition (which shall have attached thereto reasonably detailed backup data and calculations showing such compliance);

 

(ix)         (a) in the case of an acquisition of all or substantially all of the property of any person, (A) the person making such acquisition is the Administrative Borrower or a Subsidiary Guarantor, and (B) to the extent required under the Loan Documents, including Section 5.10, upon consummation of the Permitted Acquisition, the person being so acquired becomes a Subsidiary Guarantor, (b) in the case of an acquisition of the Equity Interests of any person, (A) the person making such acquisition is the Administrative Borrower or a Subsidiary Guarantor, (B) no less than 100% of the Equity Interests of the target person shall be acquired by the person making such acquisition, and (C) to the extent required under the Loan Documents, including Section 5.10, upon consummation of the Permitted Acquisition, the person the Equity Interests of which are being so acquired becomes a Subsidiary Guarantor, and (c) in the case of a merger or consolidation or any other combination with any person, the person surviving such merger, consolidation or other combination (x) is the Administrative Borrower or a Subsidiary Guarantor or (y) to the extent required under the Loan Documents, including Section 5.10, upon consummation of the Permitted Acquisition becomes a Subsidiary Guarantor;

 

(x)          in the case of the acquisition of 100% of the Equity Interests of any person (including by way of merger, consolidation or other combination), such person shall own no Equity Interests of any other person (other than de minimis amounts) unless either (x) such person owns 100% of the Equity Interests of such other person or (y) if such person owns Equity Interests in any other person which is not a Wholly Owned Subsidiary of such person, (1) such non-Wholly Owned Subsidiary shall not have been created or established in contemplation of, or for purposes of, the respective Permitted Acquisition, (2) any such non-Wholly Owned Subsidiary of the respective person shall have been a non-Wholly Owned Subsidiary of such person prior to the date of the respective Permitted Acquisition and (3) such person and/or its Wholly Owned Subsidiaries own at least 90% of the total value of all the assets owned by such person and its Subsidiaries (for purposes of such determination, excluding the value of the Equity Interests of non-Wholly Owned Subsidiaries held by such person and its Wholly Owned Subsidiaries); and

 

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(xi)         other than with respect to the Qualified Capital Stock of Holdings issued as Acquisition Consideration, the aggregate amount of Acquisition Consideration paid in respect of all Permitted Acquisitions in which the assets will not be held by the Administrative Borrower or a Subsidiary Guarantor or the entities so acquired do not become Subsidiary Guarantors (or are not merged into the Administrative Borrower or a Subsidiary Guarantor) shall not exceed the sum of (I) $15,000,000 plus (II) the Available Amount as in effect immediately prior to such Permitted Acquisition.

 

Permitted Charter” shall mean a charter to a third party:

 

(a)          which is a time charter, voyage charter, consecutive voyage charter or contract of affreightment;

 

(b)          which is entered into on bona fide arm’s length terms at the time at which the Vessel or Chartered Vessel is fixed; and

 

(c)          demise charters existing on the Closing Date as identified on Schedule 1.01(g).

 

Permitted Chartered Vessel Liens” shall have the meaning assigned to such term in Section 5.16(e)(ii).

 

Permitted Collateral Vessel Liens” shall mean the Liens permitted pursuant to clauses (a), (e), (j), (n), (r), (s), (t) and (v) of Section 6.02.

 

Permitted Hedging Agreement” shall mean any Hedging Agreement to the extent constituting a swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates or currency exchange rates, either generally or under specific contingencies, in each case entered into in the ordinary course of business and not for speculative purposes.

 

Permitted Holdings Unsecured Second Amendment Debt” shall mean unsecured Indebtedness of Holdings incurred or issued on or about (but not after) the Second Amendment Effective Date so long as (i) the Net Cash Proceeds of at least $50,000,000 in principal indebtedness thereunder have been substantially contemporaneously contributed to the capital of the Administrative Borrower, (ii) no direct or indirect Subsidiary, Restricted Parent Joint Venture or Joint Venture of either Holdings or the Administrative Borrower (x) provides any credit support of any kind in respect thereof (including any undertaking, agreement or instrument that would constitute Indebtedness, although the Administrative Borrower shall be permitted to pay Dividends as, and to the extent, provided in Section 6.08(i)), (y) is directly or indirectly liable as a guarantor or otherwise in respect thereof or (z) is the lender in respect thereof, (iii) such Indebtedness does not mature earlier than five years after the incurrence or issuance thereof, and (iv) such Indebtedness does not have any scheduled prepayment, amortization, redemption, sinking fund or similar obligation prior to the fifth anniversary of the incurrence or issuance thereof (other than customary offers to purchase upon a change of control).

 

Permitted Liens” shall have the meaning assigned to such term in Section 6.02.

 

Permitted Refinancing Indebtedness” shall mean any Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease or discharge other Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries, as applicable; provided that:

 

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(i)       the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued and unpaid interest on such Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged and the amount of all fees and expenses, including premiums, incurred in connection therewith);

 

(ii)       such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged;

 

(iii)       if the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Obligations on terms at least as favorable to the holders of the Obligations as those contained in the documentation governing the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged;

 

(iv)       such Permitted Refinancing Indebtedness is incurred by the Restricted Party who is the obligor on the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged and does not add any additional obligors or guarantors with respect thereto; and

 

(v)       if such Permitted Refinancing Indebtedness is secured, it shall not be secured by any assets other than the assets that secured the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged.

 

Permitted Tax Distributions” shall mean payments, dividends or distributions by the Administrative Borrower to Holdings to enable Holdings to pay its federal, state, local or foreign taxes (including consolidated or combined taxes) then due and payable for the respective period, which payments by the Administrative Borrower to Holdings are not in excess of the lesser of (x) the tax liabilities that would have been payable by Holdings for the respective period, taking into account only items of income, gain, loss and deduction attributable to the Administrative Borrower and its Restricted Subsidiaries (calculated, for the avoidance of doubt, without regard to the operations of any Unrestricted Subsidiary and without regard to any investment credits, foreign tax credits, net operating losses, capital losses or other tax attributes to the extent Holdings previously reimbursed the Administrative Borrower or its Restricted Subsidiary for utilizing such tax attribute in calculating Holdings’ consolidated or combined federal, state or local tax liability) and (y) the actual tax liabilities then due and payable by Holdings for the respective period; provided, however, that the amount of any Permitted Tax Distribution may include amounts attributable to any income of any Unrestricted Subsidiary so long as any such Unrestricted Subsidiary has paid a cash distribution to the Administrative Borrower to cover such Unrestricted Subsidiary’s allocable share of such Permitted Tax Distribution.

 

Person” and “person” shall mean any natural person, corporation, business trust, joint venture, trust, association, company (whether limited in liability or otherwise), partnership (whether limited in liability or otherwise) or Governmental Authority, or any other entity, in any case, whether acting in a personal, fiduciary or other capacity.

 

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Plan of Reorganization” shall mean any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency Proceeding.

 

Platform” shall mean IntraLinks, SyndTrak or a substantially similar electronic transmission system.

 

Pool Financing” shall mean a financing arrangement entered into by a Pool Operator, as agent for the applicable Shipping Pool, on behalf of the members or participants therein with a third-party lender, which financing is secured by the Pool Financing Receivables of the Vessels in such Shipping Pool.

 

Pool Financing Indebtedness” shall mean indebtedness incurred by a Pool Operator, as agent for the applicable Shipping Pool, on behalf of the members or participants therein, under and pursuant to a Pool Financing.

 

Pool Financing Receivables” shall mean, with respect to a Vessel in a Shipping Pool, (I) Moneys (as defined in Section 1-201 of the UCC) and claims for payment due or to become due to the Administrative Borrower or a Restricted Subsidiary thereof that owns such Vessel, or to the Pool Operator of such Shipping Pool on such Vessel owner’s behalf, whether as charter hire, freights, passage moneys, proceeds of off-hire and loss of hire insurances, loans, indemnities, payments or otherwise, under, and all claims for damages arising out of any breach of, any time or voyage charter, affreightment or other contract for the use or employment of such Vessel and (II) all remuneration for salvage and towage services, demurrage and detention moneys and any other moneys whatsoever due or to become due to such Vessel owner, or the Pool Operator on such Vessel owner’s behalf, arising from the use or employment of such Vessel.

 

Pool Operator” shall mean a third-party operator or manager of any Shipping Pool.

 

Pounds Sterling” shall mean freely transferable lawful money of the United Kingdom.

 

Pro Forma Basis” shall mean:

 

(a) in connection with any calculation of compliance with any financial covenant, financial test or financial term hereunder, the calculation thereof after giving effect on a pro forma basis to (x) the incurrence of any Indebtedness (other than revolving Indebtedness, except to the extent the same is incurred to refinance other outstanding Indebtedness, to finance a Permitted Acquisition or other Investment or to finance a Dividend or Restricted Debt Payment) after the first day of the relevant Test Period, as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of such Test Period, (y) the permanent repayment of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) after the first day of the relevant Test Period, as if such Indebtedness had been retired or repaid on the first day of such Test Period, and (z) any Permitted Acquisition or other Investment then being consummated as well as any other Permitted Acquisition or other Investment if consummated after the first day of the relevant Test Period and on or prior to the date of the respective Permitted Acquisition or other Investment then being effected, with the following rules to apply in connection therewith:

 

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(i)       all Indebtedness (x) (other than revolving Indebtedness, except to the extent that the same is incurred to refinance other outstanding Indebtedness, to finance Permitted Acquisitions or other Investments or to finance a Dividend or Restricted Debt Payment) incurred or issued after the first day of the relevant Test Period (whether incurred to finance a Permitted Acquisition or other Investment, to pay a Dividend to refinance Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of such Test Period and remain outstanding through the date of determination and (y) (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) permanently retired or redeemed after the first day of the relevant Test Period shall be deemed to have been retired or redeemed on the first day of such Test Period and remain retired through the date of determination;

 

(ii)       all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed rate indebtedness, or (y) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding); and

 

(iii)       in making any determination of Consolidated EBITDA on a Pro Forma Basis, pro forma effect shall be given to any Permitted Acquisition or other Investment if effected during the respective Test Period as if same had occurred on the first day of the respective Test Period, and taking into account, in the case of any Permitted Acquisition or other Investment, factually supportable and identifiable cost savings and expenses which would otherwise be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities Act, as if such cost savings or expenses were realized on the first day of the respective period; and

 

(b) in connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the Total Secured Leverage Ratio, the Total Leverage Ratio and the Loan to Value Test, in each case, at the option of the Administrative Borrower (the Administrative Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the binding definitive agreements for such Limited Condition Acquisition are entered into (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition (and the other transactions to be entered into in connection therewith), the Administrative Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio or test, such ratio or test shall be deemed to have been complied with (or satisfied). Upon making an LCT Election, the Administrative Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent demonstrating compliance on a Pro Forma Basis after giving effect to such Limited Condition Acquisition on such LCT Test Date with any relevant ratios or tests. For the avoidance of doubt, if the Administrative Borrower has made an LCT Election and any of the ratios or tests for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio or test, including due to fluctuations in Consolidated EBITDA of the Administrative Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Administrative Borrower has made an LCT Election for any Limited Condition Acquisition, then in connection with any calculation of any event or transaction (each, a “Subsequent Transaction”) occurring after the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the binding definitive agreement or irrevocable notice for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio or test shall be required to be satisfied on a Pro Forma Basis (i) assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.

 

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Pro Rata Percentage” of any Revolving Lender at any time shall mean the percentage of the Total Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment.

 

Process Agent” shall have the meaning assigned to such term in Section 11.09(d).

 

Projections” shall have the meaning assigned to such term in Section 3.04(c).

 

property” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests of any person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property, Vessels, Chartered Vessels, cash, securities, accounts, revenues and contract rights.

 

Public Lenders” shall mean Lenders that do not wish to receive Material Non-Public Information with respect to Holdings, the Administrative Borrower or its Subsidiaries.

 

Purchase Money Obligation” shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets or the cost of installation, construction or improvement of any fixed or capital assets; provided, however, that (i) such Indebtedness is incurred within 120 days after such acquisition, installation, construction or improvement of such fixed or capital assets by such person and (ii) the amount of such Indebtedness (x) does not exceed the lesser of 100% of the Fair Market Value of such fixed or capital asset or the cost of the acquisition, installation, construction or improvement thereof, as the case may be, and (y) equals at least 50% of the lesser of the two amounts referred to in preceding clause (x).

 

Purchase Price” shall have the meaning assigned to such term in Section 11.04(k).

 

Qualified Capital Stock” of any person shall mean any Equity Interests of such person that do not constitute Disqualified Capital Stock.

 

Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as 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.

 

Qualified Public Equity Offering” shall mean the offering by Holdings of shares of its common Equity Interests or shares of its preferred Equity Interests (in either case, which constitute Qualified Capital Stock) in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

 

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Real Property” shall mean, collectively, all right, title and interest (including any leasehold, fee, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

 

Recipient” shall mean the Administrative Agent, any Lender or any Issuing Bank, as applicable.

 

Refinancing” shall mean the repayment in full of (together with any applicable prepayment premium or fee, with the commitments thereunder being terminated, and all guarantees and security in respect thereof being released) all of the outstanding indebtedness of Holdings and its Subsidiaries under the Existing Credit Agreement.

 

Refinancing Amendment” shall mean an amendment to this Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrowers, the Administrative Agent and the Lenders providing Specified Refinancing Term Loans or Specified Refinancing Revolving Commitments, effecting the incurrence of such Specified Refinancing Term Loans or Specified Refinancing Revolving Commitments in accordance with Section 2.23.

 

Refinancing Notes” shall mean one or more series of (1) senior secured notes secured by the Collateral on a first lien “equal and ratable” basis with the Liens securing the Obligations; provided, however, for the avoidance of doubt, any such Liens securing such senior secured notes shall provide for the Revolving Obligations to have the same priority (and to have the same protective provisions) vis-à-vis such senior secured notes (and the holders and representatives thereof) as are set forth in this Agreement and the other Loan Documents vis-à-vis the Term Loans, or (2) senior unsecured notes or senior secured notes secured by the Collateral on a “junior” basis with the Liens securing the Obligations, in each case, in respect of a refinancing of outstanding Indebtedness of the Borrowers under any one or more Classes of Term Loans (subject to the proviso at the end of clause (e) below) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed); provided that, (a) if such Refinancing Notes shall be secured, then such Refinancing Notes shall only be secured by a security interest in the Collateral that secured the Class or Classes of Term Loans being refinanced; (b) if such Refinancing Notes shall be secured or subordinated in right of payment to the Obligations, then such Refinancing Notes shall be issued subject to customary intercreditor and/or subordination arrangements that are reasonably satisfactory to the Administrative Agent (but giving effect to the proviso in clause (1) above, if applicable); (c) no Refinancing Notes shall (i) mature prior to the Latest Maturity Date then in effect immediately after giving effect to such refinancing or (ii) be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights prior to such final maturity (except customary assets sale or change of control offer provisions); (d) the covenants, events of default, guarantees, collateral and other terms of such Refinancing Notes are customary for similar debt securities in light of then prevailing market conditions at the time of issuance (it being understood that no Refinancing Notes shall include any financial maintenance covenants (including by way of a cross-default to this Agreement), but that customary cross- acceleration provisions may be included and that any negative covenants with respect to indebtedness, investments, liens or restricted payments shall be incurrence-based) and in any event are not more restrictive, when taken as a whole, to the Administrative Borrower and its Restricted Subsidiaries than those set forth in this Agreement (other than with respect to interest rate, prepayment premiums and redemption provisions), except for covenants or other provisions applicable only to periods after the Latest Maturity Date then in effect immediately after giving effect to such refinancing (provided that a certificate of a Responsible Officer of the Administrative Borrower that is delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Refinancing Notes, together with a reasonably detailed description of the material terms and conditions of such Refinancing Notes or drafts of the documentation relating thereto, stating that the Administrative Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (d), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Administrative Borrower of its objection during such five Business Day period (including a reasonable description of the basis upon which it objects)); (e) (w) such Refinancing Notes may not have Liens that are more extensive (or on different collateral) than those which applied to the Class of Term Loans being refinanced, (x) the borrower or issuer of the Refinancing Notes shall be the Administrative Borrower, although the Co-Borrower may be a co-borrower or co-issuer with respect thereto, (y) the guarantors with respect to the Refinancing Notes shall only be one or more of the Guarantors (but otherwise subject to the last paragraph of Section6.01) and, if not otherwise a co- borrower or co-issuer thereof, the Co-Borrower, and (z) the aggregate principal amount (or accreted value, if applicable) of such Refinancing Notes shall not exceed the aggregate principal amount (or accreted value, if applicable) of the Term Loans being so refinanced (plus all accrued and unpaid interest on such Term Loans and the amount of all fees and expenses, including premiums, incurred in connection therewith); and (f) the Net Cash Proceeds of such Refinancing Notes shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Term Loans under the applicable Classes of Term Loans being so refinanced; provided, however, the Net Cash Proceeds from any issuance of Refinancing Notes may not be used to prepay any Class of outstanding Term Loans that are either unsecured or secured on a junior basis to the Obligations at a time when more senior Term Loans are outstanding (or will remain outstanding after giving effect to any such prepayment).

 

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Refinancing Notes Indentures” shall mean, collectively, the indentures or other similar agreements pursuant to which any Refinancing Notes are issued, together with all instruments and other agreements in connection therewith, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, but only to the extent permitted under the terms of the Loan Documents.

 

Register” shall have the meaning assigned to such term in Section 11.04(c).

 

Regulation D” shall mean Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Reimbursement Obligations” shall mean the Borrowers’ obligations under Section 2.18(e) to reimburse LC Disbursements.

 

Reinvestment Proceeds Account” shall have the meaning assigned to such term in Section 2.10(b)(vi).

 

Related Person” shall mean, with respect to any person, (a) each Affiliate of such person and each of the officers, directors, employees, Advisors, attorneys, agents, representatives, controlling persons and shareholders, partners, members and trustees of each of the foregoing, and (b) if such person is an Agent, each other person designated, nominated or otherwise mandated by or assisting such Agent pursuant to Section 10.05 or any comparable provision of any Loan Document.

 

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Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Materials in, into, onto, from or through the Environment.

 

Required Insurance” shall mean insurance of the type, deductibles and amounts as set forth on Schedule 3.20.

 

Required Lenders” shall mean, at any date of determination, Lenders having Loans, LC Exposure, unused Revolving Commitments and Term Loan Commitments representing more than 50% of the sum of all outstanding Loans, LC Exposure, unused Revolving Commitments and Term Loan Commitments at such time; provided, however, for purposes of determining the Required Lenders at any time, the LC Exposure shall be the Dollar Amount thereof at such time.

 

Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof with significant responsibility for the administration of the obligations of such person in respect of this Agreement.

 

Restricted Debt Payment” shall mean any payment, prepayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of any Restricted Indebtedness.

 

Restricted Indebtedness” shall mean Indebtedness of any Company, the payment, prepayment, repurchase, defeasance or acquisition for value of which is restricted under Section 6.11.

 

Restricted Parent Joint Ventures” shall mean those Joint Ventures owned, in whole or in part, directly or indirectly by Holdings on or after the Closing Date (and that are not otherwise direct or indirect Joint Ventures of the Administrative Borrower), The Restricted Parent Joint Ventures as of the Closing Date are listed on Part B of Schedule 1.01(i).

 

Restricted Parent Subsidiaries” shall mean those Subsidiaries owned, in whole or in part, directly or indirectly by Holdings on or after the Closing Date (and that are not otherwise Subsidiaries of the Administrative Borrower or the Administrative Borrower itself) that have not been designated Unrestricted Subsidiaries in accordance with Section 5.17 or pursuant to the definition of “Unrestricted Subsidiaries”. The Restricted Parent Subsidiaries as of the Closing Date are listed on Part A of Schedule 1.01(i).

 

Restricted Parties” shall mean the Administrative Borrower and its Restricted Subsidiaries; and “Restricted Party” shall mean any one of them.

 

Restricted Subsidiary” shall mean, at any time, (i) any direct or indirect Subsidiary of the Administrative Borrower that is not then an Unrestricted Subsidiary and (ii) the Restricted Parent Subsidiaries; provided that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary”. For purposes hereof, unless expressly stated to the contrary, (i) any reference herein to “the Administrative Borrower and its Restricted Subsidiaries” or like reference shall be deemed to include the Restricted Parent Subsidiaries and (ii) any Restricted Parent Joint Venture shall be considered owned by a Restricted Party.

 

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Retained Excess Cash Flow Amount” shall mean, at any date of determination, an amount equal to (a) the sum of the amounts of Excess Cash Flow for all Excess Cash Flow Periods ending on or prior to the date of determination for which the amount of Excess Cash Flow shall have been calculated as provided in Section 5.01(f) and with respect to which any payment required under Section 2.10(b)(v) has been paid, minus (b) the sum at the time of determination of the aggregate amount of prepayments required to be made pursuant to Section 2.10(b)(v) through the date of determination (whether or not such prepayments are accepted by Lenders), minus (c) the amount by which the required Excess Cash Flow payment for the respective Excess Cash Flow Period has been reduced pursuant to the proviso to Section 2.10(b)(v).

 

Revolver Covenant Event of Default” shall have the meaning assigned to such term in Section 8.01(d).

 

Revolving Availability Period” shall mean the period from and including the Closing Date to but excluding the earlier of (i) the Business Day preceding the Revolving Maturity Date and (ii) the date of termination of the Revolving Commitments.

 

Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.

 

Revolving Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans hereunder up to the amount set forth on Annex I hereto or on Schedule 1 to the Assignment and Acceptance pursuant to which such Lender assumed its Revolving Commitment, as applicable, as the same may be (a) increased from time to time pursuant to Section 2.21, (b) reduced from time to time pursuant to Section2.07 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.04. In addition, the Revolving Commitment of each Lender shall include any Extended Revolving Commitments and Specified Refinancing Revolving Commitments of such Lender. The aggregate principal amount of the Lenders’ Revolving Commitments on the Closing Date is $50,000,000.

 

Revolving Commitment Increase Lender” shall have the meaning assigned to such term in Section 2.21(e).

 

Revolving Exposure” shall mean, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate Dollar Amount at such time of such Lender’s LC Exposure, plus the aggregate principal amount at such time of such Lender’s Swingline Exposure.

 

Revolving Facility” shall mean, at any time and with respect to any Revolving Lender, such Revolving Lender’s respective Revolving Commitments and the extensions of credit thereunder at such time.

 

Revolving Lender” shall mean a Lender with a Revolving Commitment or with outstanding Revolving Exposure.

 

Revolving Loan” shall mean a revolving loan made by the Lenders to the Borrowers pursuant to Section 2.01(a); provided that, at any time that any Incremental Revolving Commitments, Specified Refinancing Revolving Commitments or Extended Revolving Commitments have been made available, the Incremental Revolving Loans, Extended Revolving Loans and other revolving loans outstanding in respect thereof also shall be Revolving Loans.

 

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Revolving Maturity Date” shall mean December 22, 2021; provided, however, (i) that with respect to any Extended Revolving Commitments (and any related outstandings), the Revolving Maturity Date with respect thereto instead shall be the final maturity date as specified in the applicable Extension Amendment and (ii) that with respect to any Specified Refinancing Revolving Commitments (and related outstandings), the Revolving Maturity Date with respect thereto instead shall be the final maturity date as specified in the applicable Refinancing Amendment.

 

Revolving Obligations” shall mean (i) all Revolving Loans, Swingline Loans, Letters of Credit (including LC Exposure and the requirement to Cash Collateralize such LC Exposure) and Revolving Commitments and (ii) all Obligations relating to the Indebtedness and Revolving Commitments described in preceding clause (i). For the avoidance of doubt, Revolving Obligations includes all interest, fees and expenses accruing or incurred during the pendency of any Insolvency Proceeding with respect to Revolving Obligations, whether or not such interest, fees or expenses are allowed claims under any such Insolvency Proceeding.

 

S&P” shall mean S&P Global Ratings and any successor thereto.

 

Sale and Leaseback Transaction” shall have the meaning assigned to such term in Section 6.03.

 

“Sanctions Authority” shall mean the respective governmental institutions and agencies of the United States, European Union, United Kingdom and the United Nations, including the U.S. Treasury Department, the U.S. Commerce Department, the U.S. State Department, the United Nations Security Council, or other relevant sanctions authority of the United States, European Union, United Kingdom or the United Nations.

 

Sanctions Laws” shall mean the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive measures, decisions, executive orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced by any Sanctions Authority.

 

SEC” shall mean the United States Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions thereof.

 

Second Amendment” shall mean that certain Second Amendment to Credit Agreement, dated as of the Second Amendment Effective Date, among the Borrowers, Holdings, the other Guarantors, the Administrative Agent and the Lenders party thereto.

 

Second Amendment Effective Date” shall mean June 14, 2018.

 

Second Amendment FSO JV Debt Dividend” shall mean the cash Dividend paid by a FSO JV to the Administrative Borrower prior to the Second Amendment Effective Date of 100% of the Second Amendment FSO JV Net Debt Proceeds in an amount equal to $110,000,000, to the extent such Second Amendment FSO JV Net Debt Proceeds were not otherwise used to increase the Available Amount.

 

Second Amendment FSO JV Net Debt Proceeds” shall mean the cash proceeds received by an FSO JV from the incurrence of Indebtedness by it after the Closing Date, net of (i) the repayment of any Indebtedness of such FSO JV with the cash proceeds therefrom, (ii) costs related to any Permitted Hedging Agreement entered into by the FSO JV in connection with such Indebtedness and (iii) reasonable and customary fees, commissions, costs and expenses incurred in connection therewith.

 

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Second Amendment Prepayment” has the meaning specified in the Second Amendment.

 

Second Amendment Prepayment Premium” has the meaning specified in the Second Amendment.

 

Secured Obligations” shall mean (a) the Obligations and (b) the due and punctual payment and performance of all Bank Product Obligations of the Borrowers and the Subsidiary Guarantors; provided, that in no circumstances shall Excluded Swap Obligations constitute Secured Obligations.

 

Secured Parties” shall mean, collectively, (a) the Administrative Agent, (b) the Collateral Agent, (c) the Lenders, (d) the Issuing Banks and (e) each Bank Product Provider.

 

Securities Account” has the meaning specified in the UCC.

 

Securities Account Control Agreement” shall mean a letter agreement, in form and substance reasonably satisfactory to the Collateral Agent, executed by the relevant Loan Party, the Collateral Agent and the relevant Securities Intermediary (or, with respect to any Securities Accounts located outside of the United States, customary security arrangements in the applicable jurisdictions for perfecting a security interest in such Securities Accounts and the assets deposited therein or credited thereto).

 

Securities Act” shall mean the Securities Act of 1933, as amended.

 

Securities Collateral” shall mean “Securities Collateral” (as defined in each of the Security Agreement and the Holdings Pledge Agreement).

 

Securities Intermediary” has the meaning specified in the UCC.

 

Security Agreement” shall mean a Security Agreement substantially in the form of Exhibit J-1 among the Borrowers, the Subsidiary Guarantors and the Collateral Agent for the benefit of the Secured Parties.

 

Security Agreement Collateral” shall mean all property from time to time pledged or granted as collateral pursuant to the Security Agreement or the Holdings Pledge Agreement.

 

Security Documents” shall mean the Security Agreement, the Holdings Pledge Agreement, each Collateral Vessel Mortgage, each Mortgage, each Deposit Account Control Agreement, each Securities Account Control Agreement and each other security document or pledge agreement delivered in accordance with applicable local Legal Requirements to grant a valid, enforceable, perfected security interest (with the priority required under the Loan Documents) in any property as collateral for the Secured Obligations, and all UCC or other financing statements or instruments of perfection required by this Agreement, the Security Agreement, the Holdings Pledge Agreement, any Collateral Vessel Mortgage, any Mortgage, any Deposit Account Control Agreement, any Securities Account Control Agreement or any other such security document or pledge agreement to be filed or registered with respect to the security interests in property created pursuant to the Security Agreement, the Holdings Pledge Agreement, any Collateral Vessel Mortgage, any Mortgage, any Deposit Account Control Agreement, any Securities Account Control Agreement and any other document or instrument utilized to pledge any property as collateral for the Secured Obligations.

 

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Shipping Pool” shall mean a shipping pool arrangement in which a Vessel has been entered, or in which a Vessel is a member, together with other vessels owned or operated by third parties that are part of such shipping pool arrangement.

 

short-form Intellectual Property security agreement” shall have the meaning assigned to such term in Section 3.21(b).

 

Sinosure Facility Agreement” shall mean that certain facility agreement originally dated 30 November 2015 as supplemented by a supplemental agreement dated 28 December 2015, as amended and restated by an amending and restating deed dated 29 June 2016, as supplemented by a supplemental agreement dated 8 November 2017, as supplemented by a supplemental agreement, dated as of June 13, 2018, and as further supplemented, amended and modified thereafter not in contravention of this Agreement, by and among Gener8 Maritime Subsidiary VII Inc., Seaways Holding Corporation and International Seaways, Inc., and the Sinosure Lenders, with an aggregate principal amount of Indebtedness thereunder not exceeding $311,000,000, less the amount of any payments or prepayments of the principal amount thereof occurring after the Second Amendment Effective Date.

 

Sinosure Facility Documents” shall mean the Sinosure Facility Agreement and the supplements, deeds, fee letters security documents, hedging agreements or other documents executed in connection with the Sinosure Facility Agreement.

 

Sinosure Lenders” shall mean Citibank, N.A., London Branch, The Export-Import Bank of China and Bank of China, New York Branch (and its successors and assigns).

 

Solvent” shall mean, with respect to any person, that, as of the date of determination, (a) the fair value of the properties of such person will exceed its debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of such person will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such person generally will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (d) such person will not have unreasonably small capital with which to conduct its business in which it is engaged as such business is now conducted and is proposed, contemplated or about to be conducted following the Closing Date, and (e) such person is not “insolvent” as such term is defined under any bankruptcy, insolvency or similar laws of any jurisdiction in which any person is organized. For the purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time represents the amount that can be reasonably expected to become an actual or matured liability.

 

SPC” shall have the meaning assigned to such term in Section 11.04(h).

 

SPV Acquisition” shall mean an acquisition by an SPV Buyer of (i) Vessels or (ii) 100% of the Equity Interests of a Vessel Holding Person, so long as (a) no Default then exists or would result therefrom, (b) such acquisition is funded with the proceeds of Indebtedness incurred in accordance with the requirements of Section6.01(q) and cash equity Investments made in accordance with the requirements of Section6.04(a), (c) neither the applicable SPV Buyer nor any Vessel Holding Person thereof shall, in connection with any such transaction, assume or remain liable with respect to any Indebtedness of the related seller or the business, person or properties acquired, except to the extent permitted to be incurred under Section 6.01, (d) the Board of Directors of the person to be acquired shall not have indicated its opposition to the consummation of such acquisition (which opposition has not been publicly withdrawn) and (e) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable Legal Requirements and the Organizational Documents of the relevant Companies.

 

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SPV Buyer” shall mean a Wholly Owned Restricted Subsidiary of the Administrative Borrower that is a special purpose vehicle created or formed for the purpose of acquiring Vessels (or acquiring 100% of the Equity Interests of a Vessel Holding Person) so long as the principal asset or assets of such special purpose vehicle are Vessels or 100% of the Equity Interests of the Vessel Holding Person owning such Vessels (and the principal asset or assets of such Vessel Holding Person are Vessels).

 

SPV VLCC Acquisition” shall mean the acquisition (whether directly or indirectly through the acquisition of all of the Equity Interests of SPV VLCC Vessel Owners) by SPV VLCC Unrestricted Subsidiary of all of the SPV VLCC Vessels on or after the Second Amendment Effective Date.

 

SPV VLCC Designations” shall have the meaning assigned to such term in Section 5.17(a).

 

SPV VLCC Equity Interests” shall mean the Equity Interests of SPV VLCC Parent to the extent owned by the Administrative Borrower directly or indirectly through a Subsidiary Guarantor, (a) the Fair Market Value of which Equity Interests have been appraised through an appraisal in form, scope and methodology, and by an independent third party appraiser, in either case, reasonably satisfactory to the Administrative Agent not less than once during each fiscal year of the Administrative Borrower (or more frequently as may be requested by the Administrative Agent at any time an Event of Default has occurred and is continuing) (but otherwise subject to the proviso to the definition of “Fair Market Value” contained herein) and (b) such Equity Interests have been pledged by its direct parent company as Collateral to secure the Secured Obligations under the Loan Documents. Each such appraisal shall be addressed to the Administrative Agent and upon which the Administrative Agent, the Collateral Agent and the Lenders are expressly permitted to rely and shall have been delivered to the Administrative Agent.

 

SPV VLCC Investment” shall mean the Investment of Net Cash Proceeds from the Specified Vessel Sales, Specified Sale and Leaseback Transactions, the Second Amendment FSO JV Debt Dividend and/or the Permitted Holdings Unsecured Second Amendment Debt in an aggregate amount not to exceed the sum of: (a) $434,000,000 and (b) additional amounts necessary to fund working capital, the debt service reserve accounts and the minimum liquidity accounts of the SPV VLCC Unrestricted Subsidiary and the SPV Vessel Owners, up to a maximum of $50,000,000, made by the Administrative Borrower or any Restricted Subsidiary in SPV VLCC Parent, to the extent that such cash is substantially simultaneously therewith contributed to the SPV VLCC Unrestricted Subsidiary and is used by the SPV VLCC Unrestricted Subsidiary to consummate the SPV VLCC Acquisition within 90 days after the Second Amendment Effective Date and for the ongoing working capital and debt service needs of the SPV VLCC Unrestricted Subsidiary and the SPV VLCC Vessel Owners.

 

SPV VLCC Parent” shall mean Seaways Holding Corporation, a Wholly Owned Subsidiary of the Administrative Borrower that is a special purpose vehicle created or formed to acquire, indirectly through SPV VLCC Unrestricted Subsidiary, the SPV VLCC Vessels and, prior to the SPV VLCC Designation, is an Unrestricted Subsidiary.

 

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SPV VLCC Pre-Designation Sale Proceeds Dividend” shall have the meaning assigned to such term in Section 6.15(a).

 

SPV VLCC Transactions” shall mean, collectively, (a) the SPV VLCC Investment, (b) the Second Amendment Prepayment, (c) the contribution of the remaining funds (in an amount not less than $10,000,000) to the balance sheet of the Administrative Borrower from the proceeds of the Specified Asset Sales, the Specified Sale and Leaseback Transactions, the Second Amendment FSO JV Debt Dividend and the Permitted Holdings Unsecured Second Amendment Debt after payment of the SPV VLCC Investment and (d) the payment of fees and expenses in connection therewith and in connection with the effectiveness of the Second Amendment.

 

SPV VLCC Unrestricted Subsidiary” shall mean Gener8 Maritime, Inc., a direct Wholly Owned Subsidiary of SPV VLCC Parent that is a special purpose vehicle created or formed to acquire, directly, the SPV VLCC Vessel Owners and, directly or indirectly, the SPV VLCC Vessels and, prior to the SPV VLCC Designation, is an Unrestricted Subsidiary.

 

SPV VLCC Vessel Owners” shall mean each of the following Persons that own an SPV VLCC Vessel on the Second Amendment Effective Date: (i) Gener8 Andriotis LLC, (ii) Gener8 Chiotis LLC, (iii) Gener8 Militiades LLC, (iv) Gener8 Strength LLC, (v) Gener8 Success LLC and (vi) Gener8 Supreme LLC.

 

SPV VLCC Vessels” shall mean the following VLCC vessels to be acquired from Euronav NV on or after the Second Amendment Effective Date: (i) Gener8 Andriotis, whose record owner is Gener8 Andriotis LLC, whose official number is 6446, which is registered and under the flag of the Marshall Islands, (ii) Gener8 Chiotis, whose record owner is Gener8 Chiotis LLC, whose official number is 6448, which is registered and under the flag of the Marshall Islands, (iii) Gener8 Militiades, whose record owner is Gener8 Militiades LLC, whose official number is 6447, which is registered and under the flag of the Marshall Islands, (iv) Gener8 Strength, whose record owner is Gener8 Strength LLC, whose official number is 6312, which is registered and under the flag of the Marshall Islands, (v) Gener8 Success, whose record owner is Gener8 Success LLC, whose official number is 6313, which is registered and under the flag of the Marshall Islands and (vi) Gener8 Supreme, whose record owner is Gener8 Supreme LLC, whose official number is 6314, which is registered and under the flag of the Marshall Islands.

 

Specified Accounts” shall mean (i) each Reinvestment Proceeds Account, (ii) the Administrative Borrower Concentration Account and (iii) any other Deposit Account or Securities Account into which payments in respect of receivables, accounts, chattel paper, payment intangibles, charters and other contracts owed to any Borrower or Subsidiary Guarantor are paid (or credited to) or are required to be paid (or credited to), but excluding the Excluded Accounts.

 

Specified Asset Sales” shall mean the sale of each of the Seaways Alcesmar, the Seaways Alcmar, the Seaways Raphael, the Seaways Raffles, the Seaways Josefa Camejo and the Seaways Laura Lynn.

 

Specified Joint Venture” shall mean any Restricted Party’s Equity Interest in the following Joint Ventures: (a) TI Africa Limited; (b) TI Asia Limited; and (c) OSG Nakilat Corporation.

 

Specified Refinancing Revolving Commitment” shall have the meaning assigned to such term in Section 2.23(a).

 

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Specified Refinancing Term Loans” shall have the meaning assigned to such term in Section 2.23(a).

 

Specified Sale and Leaseback Transactions” shall mean the Sale and Leaseback Transaction of each of the Seaways Yellowstone and the Seaways Yosemite, in each case, occurring on or prior to the Second Amendment Effective Date.

 

Statutory Reserves” shall mean for any day during any Interest Period for any Eurodollar Borrowing, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under regulations issued from time to time (including Regulation D, issued by the Board (the “Reserve Requirements”)) by member banks of the United States Federal Reserve System in New York City with deposits exceeding one billion Dollars against Eurocurrency funding liabilities (currently referred to as “Eurocurrency liabilities” (as such term is used in Regulation D)). Eurodollar Borrowings shall be deemed to constitute Eurodollar liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under the Reserve Requirements.

 

Subordinated Indebtedness” shall mean unsecured Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries that is by its terms subordinated (on terms reasonably satisfactory to the Administrative Agent) in right of payment to all or any portion of the Obligations.

 

Subsequent Transaction” shall have the meaning assigned to such term in the definition of “Pro Forma Basis”.

 

Subsidiary” shall mean, with respect to any person (the “parent”) at any date, (i) any person 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, (ii) any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of the Administrative Borrower.

 

Subsidiary Guarantor” shall mean each Restricted Subsidiary of the Administrative Borrower (including, for the avoidance of doubt, the Restricted Parent Subsidiaries) listed on Schedule 1.01(h), as well as any additional Restricted Subsidiary of the Administrative Borrower (including, for the avoidance of doubt, the Restricted Parent Subsidiaries) that is not an Excluded Subsidiary and becomes a Subsidiary Guarantor pursuant to Section 5.10.

 

Swap Obligation” shall mean, with respect to any Borrower and any Subsidiary 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 Borrowing” shall mean a Borrowing comprised of Swingline Loans.

 

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Swingline Commitment” shall mean the commitment of the Swingline Lender to make revolving loans pursuant to Section 2.17, as the same may be reduced from time to time pursuant to Section 2.17; provided that in no event shall the Swingline Commitment exceed the Total Revolving Commitments. The aggregate principal amount of the Swingline Commitment shall be $10,000,000 on the Closing Date.

 

Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.

 

Swingline Lender” shall have the meaning assigned to such term in the preamble hereto.

 

Swingline Loan” shall mean any revolving loan made by the Swingline Lender pursuant to Section 2.17.

 

Synthetic Lease” shall mean, as to any person, (a) any lease (including leases that may be terminated by the lessee at any time) of any property (i) that is accounted for as an operating lease under GAAP and (ii) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such person is the lessor or (b)(i) a synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property (including a Sale and Leaseback Transaction), in each case under this clause (b), creating obligations that do not appear on the balance sheet of such person but which, upon the application of any Insolvency Laws to such person, would be characterized as the indebtedness of such person (without regard to accounting treatment).

 

Synthetic Lease Obligations” shall mean, as to any person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations.

 

Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or combination of agreements pursuant to which any Restricted Party is or may become obligated to make (a) any payment in connection with a purchase by any third party from a person other than a Restricted Party of any Equity Interest or Restricted Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness.

 

Tax Returns” shall mean all returns, statements, filings, attachments and other documents or certifications filed or required to be filed in respect of Taxes.

 

Taxes” shall mean (i) any and all present or future taxes, duties, levies, imposts, assessments, fees, deductions, withholdings or other similar charges, imposed by a Governmental Authority, whether computed on a separate, consolidated, unitary, combined or other basis and any and all liabilities (including interest, fines, penalties or additions with respect to any of the foregoing) with respect to the foregoing, and (ii) any transferee, successor, joint and several, contractual or other liability (including liability pursuant to Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law)) in respect of any item described in clause (i).

 

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Term Borrowing” shall mean a Borrowing comprised of Term Loans.

 

Term Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Term Loans hereunder on the Closing Date in the amount set forth on Annex I hereto or on Schedule 1 to the Assignment and Acceptance pursuant to which such Lender assumed its Term Commitment, as applicable, as the same may be (a) increased from time to time pursuant to Section 2.21 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.04. In addition, the Term Commitment of each Lender shall include any commitment to make Extended Term Loans or Specified Refinancing Term Loans. The aggregate principal amount of the Lenders’ Term Commitments on the Closing Date is $500,000,000.

 

Term Lender” shall mean a Lender with a Term Commitment or outstanding Term Loans.

 

Term Loans” shall mean the Initial Term Loans made by the Lenders to the Borrowers on the Closing Date pursuant to Section 2.01(a). Unless the context shall otherwise require, the term “Term Loans” also shall include any Incremental Term Loans, any Extended Term Loans and any Specified Refinancing Term Loans made or extended after the Closing Date.

 

Term Loan Maturity Date” shall mean June 22, 2022; provided, however, that with respect to (i) any Class of Incremental Term Loans, the Term Loan Maturity Date with respect thereto shall be as specified in the applicable Incremental Loan Amendment, (ii) any Class of Specified Refinancing Term Loans, the Term Loan Maturity Date with respect thereto shall be as specified in the applicable Refinancing Amendment and (iii) any Class of Extended Term Loans, the Term Loan Maturity Date with respect thereto instead shall be as specified in the applicable Extension Amendment.

 

Term Loan Repayment Date” shall have the meaning specified in Section 2.09.

 

Test Period” shall mean each period of four consecutive fiscal quarters of the Administrative Borrower then last ended (in each case taken as one accounting period) for which financial statements of the Administrative Borrower have been delivered pursuant to Section 5.01(a) or (b), as the case may be (it being understood and agreed that, until the delivery of the Administrative Borrower’s financial statements in respect of its fiscal quarter ending June 30, 2017, the Test Period then last ended shall be the period of four consecutive fiscal quarters of the Administrative Borrower ended March 31, 2017).

 

Total Leverage Ratio” shall mean, at any date of determination, the ratio of (i) Consolidated Indebtedness of the Administrative Borrower and its Restricted Subsidiaries on such date to (ii) Consolidated EBITDA of the Administrative Borrower and its Restricted Subsidiaries for the Test Period then most recently ended.

 

Total Revolving Commitments” shall mean the aggregate principal amount of all Revolving Commitments, which as of the Closing Date is in the aggregate amount of $50,000,000.

 

Total Revolving Exposure” shall mean, with respect to all Revolving Lenders at any time, the aggregate principal amount at such time of all outstanding Revolving Loans, plus the aggregate Dollar Amount at such time of the LC Exposure, plus (other than for purposes of calculating the Commitment Fee) the aggregate principal amount at such time of the Swingline Exposure.

 

Total Secured Leverage Ratio” shall mean, at any date of determination, the ratio of (i) Consolidated Secured Indebtedness of the Administrative Borrower and its Restricted Subsidiaries on such date to (ii) Consolidated EBITDA of the Administrative Borrower and its Restricted Subsidiaries for the Test Period then most recently ended.

 

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Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents to which they are a party and the initial Credit Extension hereunder on the Closing Date and the use of the proceeds thereof, (b) the Refinancing and (c) the payment of the fees and expenses related to the foregoing.

 

Transferred Guarantor” shall have the meaning assigned to such term in Section 7.09.

 

Treasury Regulations” shall mean the regulations promulgated by the United States Department of the Treasury under the Code, as amended from time to time.

 

Trust Property” shall mean (a) the security, powers, rights, titles, benefits and interests (both present and future) constituted by and conferred on the Mortgage Trustee under or pursuant to the Collateral Vessel Mortgages (including the benefits of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to the Mortgage Trustee in the Collateral Vessel Mortgages), (b) all moneys, property and other assets paid or transferred to or vested in the Mortgage Trustee, or any agent of the Mortgage Trustee whether from any Loan Party or any other person, and (c) all money, investments, property and other assets at any time representing or deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by the Mortgage Trustee or any agent of the Mortgage Trustee in respect of the same (or any part thereof).

 

Type” shall mean, when used in reference to any Loan or Borrowing, shall refer to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBOR Rate or the Alternate Base Rate.

 

UCC” shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

 

UKBA” shall mean the U.K. Bribery Act 2010.

 

Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 

United States” and “U.S.” shall mean the United States of America.

 

Unrestricted Subsidiary” shall mean (a) as of the Closing Date, any Subsidiary of Holdings that is set forth on Schedule 1.01(e) and (b) (i) any other Subsidiary of the Administrative Borrower (other than the Co-Borrower) or, at any time the direct parent of the SPV VLCC Parent is not the Administrative Borrower, the direct parent of the SPV VLCC Parent) and/or (ii) if necessary for purposes of the liquidation or winding down thereof, OSG-NNA Ship Management Services, Inc., in each case, that is designated by the Board of Directors of the Administrative Borrower after the Closing Date as an Unrestricted Subsidiary pursuant to a resolution of such Board of Directors and such designation otherwise complies with Section 5.17 (in each case until such time (if any) as the Board of Directors of the Administrative Borrower designates any such Subsidiary as a Restricted Subsidiary pursuant to such Section 5.17), but (in each case) only to the extent that such Subsidiary:

 

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(i)          has no Indebtedness other than Non-Recourse Debt;

 

(ii)         except as permitted by Section6.09, is not party to any agreement, contract, arrangement or understanding with Holdings, the Administrative Borrower or any Restricted Subsidiary of the Administrative Borrower unless the terms of any such agreement, contract, arrangement or understanding are not less favorable to Holdings, the Administrative Borrower or such Restricted Subsidiary than those that might be obtained at the time from persons who are not Affiliates of the Administrative Borrower;

 

(iii)        is a person with respect to which none of Holdings, the Administrative Borrower or any of its Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional Equity Interests or (y) to maintain or preserve such person’s financial condition or to cause such person to achieve any specified levels of operating results (other than, with respect to Holdings, an unsecured performance guaranty or unsecured credit support guaranty, in each case, on customary terms in respect of the obligations of such Unrestricted Subsidiary;

 

(iv)        has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Administrative Borrower or any of its Restricted Subsidiaries; and

 

(v)         does not hold any Indebtedness of, or Lien on any property of, Holdings, the Administrative Borrower or any of its Restricted Subsidiaries, and does not own any Equity Interests in the Administrative Borrower or any of its Restricted Subsidiaries.

 

For the avoidance of doubt, (x) a Subsidiary of an Unrestricted Subsidiary shall be an Unrestricted Subsidiary and (y) after the Closing Date, no Subsidiary of Holdings that is not also a Subsidiary of the Administrative Borrower may be designated as an Unrestricted Subsidiary.

 

Vessel Appraisal” shall mean a written desktop appraisal of each Collateral Vessel delivered to the Administrative Agent and the Collateral Agent, in form, scope and methodology reasonably acceptable to the Collateral Agent and prepared by an Approved Broker, addressed to the Collateral Agent and upon which the Administrative Agent, the Collateral Agent and the Lenders are expressly permitted to rely.

 

Vessel Collateral Requirements” shall mean, with respect to a Collateral Vessel, the requirement that:

 

(a)          the entity that owns such Collateral Vessel shall have duly authorized, executed and delivered, and caused to be recorded or registered in accordance with the laws of the applicable Acceptable Flag Jurisdiction in which such Collateral Vessel is registered, a Collateral Vessel Mortgage with respect to such Collateral Vessel and such Collateral Vessel Mortgage shall be effective to create in favor of the Mortgage Trustee for the benefit of the Secured Parties a legal, valid and enforceable first preferred ship mortgage lien upon such Collateral Vessel, subject only to Permitted Collateral Vessel Liens related thereto;

 

(b)          all filings, deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve the security interests described in clause(a) above under the laws of the Acceptable Flag Jurisdiction in which such Collateral Vessel is registered and (if required) in the jurisdiction of organization of the entity that is the owner of such Collateral Vessel shall have been duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to it and such customary legal opinions reasonably satisfactory to it; and

 

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(c)          the Administrative Agent shall have received each of the following:

 

(i)          certified copies of all technical management agreements and commercial management agreements, if any, and all pooling agreements and charter contracts having a remaining term in excess of six months related to such Collateral Vessel;

 

(ii)         a confirmation of class certificate issued by an Approved Classification Society showing the Collateral Vessel to be free of overdue recommendations issued not more than 10 days prior to the date such vessel becomes a Collateral Vessel and copies of all ISM Code and ISPS Code documentation for such Collateral Vessel and its owner or manager, as appropriate, which shall be valid and unexpired;

 

(iii)        a certificate of ownership and encumbrance or transcript of register confirming registration of such Collateral Vessel under the law and flag of the applicable Acceptable Flag Jurisdiction, the record owner of the Collateral Vessel and all Liens of record (which shall be only Permitted Collateral Vessel Liens) for such Collateral Vessel, such certificate to be issued within 60 days of the date such vessel becomes a Collateral Vessel, and reasonably satisfactory to the Administrative Agent;

 

(iv)        a report, addressed to and in form and scope reasonably acceptable to the Administrative Agent, from a firm of marine insurance brokers reasonably acceptable to the Administrative Agent (including Marsh and Willis), confirming the particulars and placement of the marine insurances covering such Collateral Vessel and its compliance with the provisions hereunder, the endorsement of loss payable clauses and notices of assignment on the policies, and containing such other confirmations and undertakings as are customary in the New York market (including the Insurance Deliverables Requirement);

 

(v)         a customary letter of undertaking addressed to the Administrative Agent, issued by the protection and indemnity association in which such Collateral Vessel is entered; and

 

(vi)        a report from an independent marine insurance consultant appointed by the Administrative Agent confirming the adequacy of the marine insurances covering such Collateral Vessel.

 

Vessel Holding Person” shall mean a Subsidiary of an SPV Buyer, the principal assets of which are Vessels.

 

Vessels” shall mean the vessels owned by the Administrative Borrower or any of its Restricted Subsidiaries. The Vessels as of the Closing Date are identified on Schedule 1.01(a).

 

Voting Equity Interests” shall mean, with respect to any person, any class or classes of Equity Interests pursuant to which the holders thereof have the power under ordinary circumstances to vote for persons to serve on the Board of Directors of such person.

 

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Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

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

 

(ii)           the then outstanding principal amount of such Indebtedness.

 

Wholly Owned Restricted Subsidiary” shall mean a Wholly Owned Subsidiary that is a Restricted Subsidiary. Unless the context requires otherwise, “Wholly Owned Restricted Subsidiary” refers to a Wholly Owned Restricted Subsidiary of the Administrative Borrower.

 

Wholly Owned Subsidiary” shall mean, as to any person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) is at the time owned by such person and/or one or more Wholly Owned Subsidiaries of such person and (b) any partnership, association, joint venture, limited liability company or other entity in which such person and/or one or more Wholly Owned Subsidiaries of such person have a 100% Equity Interest (other than directors’ qualifying share and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) at such time. Unless the context requires otherwise, “Wholly Owned Subsidiary” refers to a Wholly Owned Subsidiary of the Administrative Borrower.

 

Write-Down and Conversion Powers” shall mean, 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.

 

Section 1.02       Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).

 

Section 1.03       Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The phrase “Material Adverse Effect” shall be deemed to be followed by the phrase “, individually or in the aggregate.” The words “asset” and “property” shall be construed to have the same meaning and effect. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such Loan Document, agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in any Loan Document), (b) any reference herein to any person shall be construed to include such person’s successors and assigns, (c) the words “herein,” “hereof’ and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits, exhibits, Schedules and schedules shall be construed to refer to Articles and Sections of, and Exhibits, exhibits, Schedules and schedules to, this Agreement, unless otherwise indicated and (e) any reference to any law or regulation shall (i) include all statutory and regulatory provisions consolidating, amending, replacing or interpreting or supplementing such law or regulation, and (ii) unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time. This Section 1.03 shall apply, mutatis mutandis, to all Loan Documents.

 

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Section 1.04       Accounting Terms; GAAP. Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with, and all terms of an accounting or financial nature shall be construed and interpreted in accordance with, GAAP as in effect from time to time. If at any time any change in GAAP would affect the computation of any financial ratio set forth in any Loan Document, and the Administrative Borrower, the Required Lenders or the Administrative Agent shall so request, the Administrative Agent and the Administrative Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Required Lenders and the Administrative Borrower); provided, that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein, and the Administrative Borrower shall provide to the Administrative Agent and the Lenders within five days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of a Financial Officer of the Administrative Borrower setting forth in reasonable detail the differences that would have resulted if such financial statements had been prepared as if such change had been implemented.

 

Section 1.05      Resolution of Drafting Ambiguities. Each Loan Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of this Agreement and the other Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.

 

Section 1.06       Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Section 1.07        Currency Equivalents Generally.

 

(a)          Any amount specified in this Agreement (other than in Section 2.18 or as set forth in clause (b) of this Section 1.07) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the applicable Exchange Rate; provided that (x) the determination of any Dollar Amount shall be made in accordance with Section2.18(m) and (y) if any basket amount expressed in Dollars is exceeded solely as a result of fluctuations in applicable currency exchange rates after the last time such basket was utilized, such basket will not be deemed to have been exceeded solely as a result of such fluctuations in currency exchange rates.

 

(b)          For purposes of determining the Total Secured Leverage Ratio and the Total Leverage Ratio, amounts denominated in a currency other than Dollars will be converted to Dollars at the Exchange Rate as of the date of calculation, and will, in the case of Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of Swap Obligations permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.

 

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(c)          For the purposes of determining the Dollar Amount of any amount specified in ArticleII on any date, any amount in a currency other than Dollars shall be converted to Dollars at the Exchange Rate as of the most recent Exchange Rate Reset Date occurring on or prior to such date.

 

Section 1.08        Change in Currency.

 

(a)          Each obligation of any Loan Party to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency.

 

(b)          Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

(c)          If a change in any currency of a country occurs, this Agreement will, to the extent the Administrative Agent (acting reasonably and after consultation with the Administrative Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice relating to the applicable currency and otherwise to reflect the change in currency.

 

Section 1.09      Available Amount Transactions. If more than one action occurs on any given date the permissibility of the taking of which is determined hereunder by reference to the amount of the Available Amount immediately prior to the taking of such action, the permissibility of the taking of each such action shall be determined independently and in no event may any two or more such actions be treated as occurring simultaneously.

 

ARTICLE II

 

THE CREDITS

 

Section 2.01       Commitments. Subject to the terms and conditions and relying upon the representations and warranties herein set forth, (a) each Term Lender agrees, severally and not jointly, to make Initial Term Loans to the Borrowers (on a joint and several basis) on the Closing Date in the principal amount equal to its Term Commitment on the Closing Date and (b) each Revolving Lender agrees, severally and not jointly, to make Revolving Loans to the Borrowers (on a joint and several basis), at any time and from time to time on or after the Closing Date until the earlier of the Revolving Maturity Date and the termination of the Revolving Commitment of such Revolving Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in such Revolving Lender’s Revolving Exposure exceeding such Revolving Lender’s Revolving Commitment; provided, however, no Revolving Loans shall be permitted to be made on the Closing Date. Amounts paid or prepaid in respect of Term Loan may not be reborrowed. Within the limits set forth in clause (b) of the second preceding sentence and subject to the terms, conditions and limitations set forth herein, the Borrowers may borrow, pay or prepay and reborrow Revolving Loans.

 

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Section 2.02       Loans. (a) Each Loan (other than Swingline Loans) shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable Commitments; provided, that the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). Except for Revolving Loans deemed made pursuant to Section 2.18(e), any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $100,000 and not less than $500,000 or (ii) equal to the remaining available balance of the applicable Commitments.

 

(b)          Subject to Sections2.11 and 2.12, each Borrowing of Loans shall be comprised entirely of ABR Loans or Eurodollar Loans as the Administrative Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided, that any exercise of such option shall not affect the obligation of the Lender to make such Loan or the Borrowers to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; provided, that the Administrative Borrower shall not be entitled to request any Borrowing that, if made, would result in more than 10 Eurodollar Borrowings in the aggregate outstanding hereunder at any one time (or such greater number of Eurodollar Borrowings as may be acceptable to the Administrative Agent in its sole discretion). For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

 

(c)          Except with respect to Revolving Loans made pursuant to Section 2.18(e), each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate from time to time not later than 10:00 a.m., New York City time, and the Administrative Agent shall promptly credit or remit the amounts so received to an account in the United States as directed by the Administrative Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, promptly return the amounts so received to the respective Lenders.

 

(d)          Unless the Administrative Agent shall have received written notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with clause (c) above, and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and the Borrowers (on a joint and several basis) agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Administrative Agent at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation, and (ii) in the case of the Borrowers, the greater of the interest rate applicable at the time to ABR Loans of the applicable Class and the interest rate applicable to such Borrowing. If such Lender shall subsequently repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement, and the Borrowers’ obligation to repay the Administrative Agent such corresponding amount pursuant to this Section 2.02(d) shall cease and any amounts previously so repaid by the Borrowers shall be returned to the Borrowers.

 

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(e)          Notwithstanding any other provision of this Agreement, the Borrowers shall not be entitled to request, or to elect to convert or continue, any Eurodollar Borrowing if the Interest Period requested with respect thereto would end after the applicable Maturity Date.

 

Section 2.03       Borrowing Procedure. (a) To request a Revolving Borrowing or a Term Borrowing, the Administrative Borrower shall deliver a written request (by hand delivery, email through a “pdf” copy or telecopier, or facsimile transmission (or transmit by other electronic transmission if arrangements for doing so have been approved in writing by the Administrative Agent)), a duly completed and executed Borrowing Request to the Administrative Agent (i) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, on the third Business Day before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time, one Business Day prior to the proposed Borrowing. Each Borrowing Request for a Revolving Loan or a Term Loan shall be irrevocable and shall specify the following information in compliance with Section 2.02:

 

(i)         the aggregate principal amount of such Borrowing, which shall comply with the requirements of Section 2.02(a);

 

(ii)        the date of such Borrowing, which shall be a Business Day;

 

(iii)       whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

 

(iv)       in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period” contained herein;

 

(v)        the location and number of the respective Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(c);

 

(vi)       that the conditions set forth in Sections 4.02(b) and (c) are satisfied as of the date of the notice; and

 

(vii)      whether the requested Borrowing is to be a Revolving Borrowing or a Term Borrowing.

 

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Administrative Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each applicable Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

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(b)          The Co-Borrower hereby irrevocably appoints the Administrative Borrower as its agent to request and receive Loans and Letters of Credit pursuant to this Agreement in the name or on behalf of the Co-Borrower. The Administrative Agent and the Lenders may disburse the Loans to such bank account of the Administrative Borrower or the Co-Borrower or otherwise make such Loans to a Borrower and provide such Letters of Credit to a Borrower as the Administrative Borrower may designate or direct, without notice to the other Borrower or any Guarantor. The Administrative Borrower hereby accepts the appointment by the Co-Borrower to act as the agent of the Co-Borrower and agrees to ensure that the disbursement of any Loans to a Borrower requested by or paid to or for the account of such Borrower, or the issuance of any Letter of Credit for a Borrower hereunder, shall be paid to or for the account of such Borrower. The Co-Borrower hereby irrevocably appoints and constitutes the Administrative Borrower as its agent to receive statements on account and all other notices from the Agents and the Lenders with respect to the Obligations or otherwise under or in connection with this Agreement and the other Loan Documents. Any notice, election, representation, warranty, agreement or undertaking made on behalf of the Co-Borrower by the Administrative Borrower shall be deemed for all purposes to have been made by the Co-Borrower, as the case may be, and shall be binding upon and enforceable against the Co-Borrower to the same extent as if made directly by the Co-Borrower.

 

(c)          All Loans or Letters of Credit requested by the Administrative Borrower for ultimate use by the Loan Parties may be drawn or obtained in the name of the Administrative Borrower or the name of the Co-Borrower. Upon request, the Administrative Borrower shall promptly confirm for the Administrative Agent that each Loan or Letter of Credit has been issued in the name of the appropriate Borrower and, in the event of any error, the respective records shall be adjusted without prejudice to the rights of the Agents or the Lenders.

 

Section 2.04       Repayment of Loans. (a) Each of the Borrowers hereby unconditionally promises, jointly and severally, to pay to (i) the Administrative Agent for the account of each Term Lender, the principal amount of each Term Loan of such Term Lender as provided in Section 2.09, (ii) the Administrative Agent for the account of each Revolving Lender, the then unpaid principal amount of each Revolving Loan of such Revolving Lender on the Revolving Maturity Date and (iii) the Swingline Lender, the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Maturity Date and the date that is three Business Days after such Swingline Loan is made; provided, that on each date that a Revolving Borrowing is made, the Borrowers shall repay all Swingline Loans that were outstanding on the date such Borrowing was requested.

 

(b)          Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

 

(c)          The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type and Class thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrowers to each Lender hereunder, and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

(d)          The entries made in the accounts maintained pursuant to clauses (b) and (c) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrowers and the other Loan Parties to pay, and perform, the Obligations in accordance with the Loan Documents. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such entries, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

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(e)          Any Lender by written notice to the Administrative Borrower (with a copy to the Administrative Agent) may request that Loans of any Class made by it be evidenced by a promissory note. In such event, the Borrowers shall promptly execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in the form of Exhibit H-1, H-2 or H-3, as the case may be.

 

Section 2.05        Fees.

 

(a)          CommitmentFee. The Borrowers, jointly and severally, agree to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee (a “Commitment Fee”) equal to 1.40% per annum of the average daily unused amount of the Revolving Commitment of such Revolving Lender during the period from and including the date hereof to but excluding the date on which such Revolving Commitment terminates. Accrued Commitment Fees shall be payable in arrears (A) on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the date hereof, and (B) on the date on which such Revolving Commitment terminates. Commitment Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing Commitment Fees, the Revolving Commitment of a Revolving Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and Dollar Amount of the LC Exposure of such Revolving Lender (and the Swingline Exposure of such Revolving Lender shall be disregarded for such purpose).

 

(b)          Administrative Agent and Collateral Agent Fees. The Borrowers, jointly and severally, agree to pay to the Administrative Agent and the Collateral Agent (as applicable), for their own account, the fees set forth in the Agent Fee Letter and such other fees payable in the amounts and at the times separately agreed upon between and/or among the Administrative Borrower, the Administrative Agent and the Collateral Agent (the “Administrative Agent Fees”).

 

(c)           LC and Fronting Fees. The Borrowers, jointly and severally, agree to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee (the “LC Participation Fee”) with respect to its participations in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Margin from time to time used to determine the interest rate on Eurodollar Revolving Loans pursuant to Section2.06 on the average daily amount of the Dollar Amount of such Revolving Lender’s LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Closing Date to but excluding the later of the date on which such Revolving Lender’s Revolving Commitment terminates and the date on which such Revolving Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank for its own account, with respect to Letters of Credit issued by such Issuing Bank, a fronting fee (“Fronting Fee”), which shall accrue at the rate of 0.25% per annum (or such other rate per annum as such Issuing Bank and the Administrative Borrower may from time to time agree) on the average daily amount of the Dollar Amount of the LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure in respect of Letters of Credit issued by such Issuing Bank, as well as each Issuing Bank’s customary fees and charges with respect to the administration, issuance, amendment, negotiation, renewal, payment or extension of any Letter of Credit or processing of drawings thereunder. Accrued LC Participation Fees and Fronting Fees shall be payable in arrears (i) on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date, and (ii) on the date on which the Revolving Commitments terminate and no Letters of Credit remain outstanding. Any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this Section2.05(c) shall be payable within five Business Days after demand therefor. All LC Participation Fees and Fronting Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Notwithstanding the foregoing, upon the occurrence and during the continuance of any Default under Section 8.01(a) or (b) or any Event of Default under Section 8.01(a), (b), (g) or (h), the LC Participation Fee and the Fronting Fee shall accrue, after as well as before judgment, at a rate per annum equal to 2.00% in excess of the rate then borne by the LC Participation Fee or the Fronting Fee, as the case may be. Each payment of fees hereunder on any Letters of Credit denominated in an Alternative Currency shall be made in Dollars.

 

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(d)          Other Fees. The Borrowers, jointly and severally, agree to pay to the Agents, each for their own accounts, such fees payable in the amounts and at the times as have been or may be separately agreed upon between the Borrowers and the applicable Agent.

 

(e)          Payment of Fees. All Fees shall be paid on the dates due, in immediately available funds in Dollars, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the Borrowers shall pay (i) the Fronting Fees directly to the applicable Issuing Bank and (ii) the Fees provided under Section 2.05(d) directly to the applicable Agents. Once paid, none of the Fees shall be refundable under any circumstances.

 

(f)           Any fees otherwise payable by the Borrowers to any Defaulting Lender pursuant to this Section 2.05 shall be subject to Section 2.16(c).

 

Section 2.06       Interest on Loans. (a) Subject to the provisions of Section 2.06(c), the Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear interest at a rate per annum equal to the Alternate Base Rate in effect from time to time plus the Applicable Margin.

 

(b)          Subject to the provisions of Section 2.06(c), the Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBOR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.

 

(c)          Notwithstanding the foregoing, (i) upon the occurrence and during the continuance of any Default under Section 8.01(a) or (b) or any Event of Default under Section 8.01(a), (b), (g) or (h), each Loan shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2.00% in excess of the rate then borne by such Loans, and (ii) without duplication of any amounts payable pursuant to preceding clause (i), (x) overdue principal and, to the extent permitted by applicable law, overdue interest, in respect of the Loans shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2.00% in excess of the rate applicable to respective Term Loans from time to time, and (y) without duplication of any amounts payable pursuant to the last sentence of Section 2.05(c) in respect of the LC Participation Fee, all other overdue amounts owing under the Loan Documents shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2.00% in excess of the rate otherwise applicable to ABR Loans from time to time (in each such case, the “Default Rate”).

 

(d)          Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided, that (i) interest accrued pursuant to Section 2.06(c) (and all interest on past due interest) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan or Swingline Loan), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

 

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(e)          All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual numbers of days elapsed (including the first day but excluding the last day); provided, that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.13, bear interest for one day. The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any Insolvency Proceeding.

 

Section 2.07        Termination and Reduction of Commitments. (a) Subject to the provisions of Section2.21, (i) the initial Term Commitments made effective on the Closing Date shall automatically terminate on the Closing Date immediately upon the making of the Initial Term Loans on such date and (ii) the July 2017 Incremental Term Loan Commitments made effective on the First Amendment Effective Date shall automatically terminate upon the making of the July 2017 Incremental Term Loans on the First Amendment Effective Date. The Revolving Commitments, the Swingline Commitment and the LC Commitment shall automatically terminate on the Revolving Maturity Date.

 

(b)          At their option, the Borrowers may at any time terminate, or from time to time permanently reduce, the Commitments of any Class; provided, that (i) each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $100,000 and not less than $500,000 and (ii) the Revolving Commitments shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in accordance with Section 2.10, the Total Revolving Exposure would exceed the Total Revolving Commitments.

 

(c)          Upon the incurrence of any Specified Refinancing Revolving Commitments, the Revolving Commitments of the Revolving Lenders under the Class of Revolving Loans being refinanced shall be automatically and permanently reduced on a ratable basis by an amount equal to 100% of the Specified Refinancing Revolving Commitments so incurred.

 

(d)          The Administrative Borrower shall notify the Administrative Agent in writing of any election to terminate or reduce Commitments of any Class under Section2.07(b) at least three Business Days prior to the effective date of such termination or reduction (which effective date shall be a Business Day), specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each notice delivered by the Administrative Borrower pursuant to this Section2.07 shall be irrevocable; provided, that a notice of termination of all then remaining Commitments delivered by the Administrative Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities in order to refinance in full the Obligation hereunder, in which case such notice may be revoked by the Administrative Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments for such Class.

 

Section 2.08        Interest Elections. (a) Each Revolving Borrowing and Term Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrowers may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section2.08. The Borrowers may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. Notwithstanding anything herein to the contrary, the Borrowers shall not be entitled to request any conversion or continuation that, if made, would result in more than eight Interest Periods with respect to Eurodollar Borrowings outstanding hereunder at any one time (or such greater number of Eurodollar Borrowings as may be acceptable to the Administrative Agent in its sole discretion). This Section 2.08 shall not apply to Swingline Borrowings, which may not be converted into a Eurodollar Borrowing and shall, at all times, be maintained as an ABR Borrowing.

 

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(b)          To make an election pursuant to this Section 2.08, the Administrative Borrower shall deliver, by hand delivery, email through “pdf” copy or telecopies, or facsimile transmission (or transmit by other electronic transmission if arrangements for doing so have been approved in writing by the Administrative Agent), a duly completed and executed Interest Election Request to the Administrative Agent not later than the time that a Borrowing Request would be required under Section 2.03 if the Administrative Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each Interest Election Request shall be irrevocable.

 

(c)          Each Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)         the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding Borrowings are being combined, allocation to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

(ii)        the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)       whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

 

(iv)       if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” contained herein.

 

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Administrative Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

(d)          Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)          If an Interest Election Request with respect to a Eurodollar Borrowing is not timely delivered prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to the Administrative Borrower, that (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

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Section 2.09       Amortization of Term Borrowings. (a) The Borrowers, jointly and severally, shall pay to the Administrative Agent, for the account of the Term Lenders, on each March 31, June 30, September 30 and December 31 (commencing on September 30, 2017) or, if any such date is not a Business Day, on the immediately following Business Day (each such date, a “Term Loan Repayment Date”), a principal amount of the Initial Term Loans equal to the Applicable Amortization Percentage of the initial aggregate principal amount of such Initial Term Loans (as adjusted from time to time pursuant to Section 2.10 and/or Section 2.21), together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.

 

(b)          To the extent not previously irrevocably paid in full in cash, all Term Loans of a Class shall be due and payable on the Term Loan Maturity Date for such Class of Term Loans.

 

Section 2.10       Optional and Mandatory Prepayments of Loans. (a) Optional Prepayments. Subject to the provisions of Section 2.10(h), the Borrowers shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty (except as provided in Section 2.10(g)) subject to the requirements of this Section 2.10; provided, that each partial prepayment shall be in an amount that is an integral multiple of $100,000 and not less than $500,000.

 

(b)          Mandatory Prepayments.

 

(i)          In the event of the termination of all the Revolving Commitments, the Borrowers, jointly and severally, shall, on the date of such termination, repay or prepay all outstanding Revolving Loans and Swingline Loans and either (A) replace all outstanding Letters of Credit or (B) Cash Collateralize all outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i).

 

(ii)          In the event of any partial reduction of the Revolving Commitments by the Borrowers, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Administrative Borrower and the Revolving Lenders of the Total Revolving Exposure after giving effect thereto and (y) if the Total Revolving Exposures would exceed the aggregate amount of Revolving Commitments after giving effect to such reduction, then the Borrowers, jointly and severally, shall, on the date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay Revolving Loans and third, replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i) in an aggregate amount sufficient to eliminate such excess.

 

(iii)         If at any time the Total Revolving Exposure exceeds the Revolving Commitments at such time, the Borrowers, jointly and severally, shall, without notice or demand, immediately first, repay or prepay Swingline Loans, second, repay or prepay Revolving Loans, and third, replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i) in an aggregate amount sufficient to eliminate such excess.

 

(iv)         In the event that the aggregate Dollar Amount of the LC Exposure exceeds the LC Commitment then in effect, the Borrowers, jointly and severally, shall, without notice or demand, immediately replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section2.18(i) in an aggregate amount sufficient to eliminate such excess.

 

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(v)          No later than the earlier of (i) 90 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section5.01(a), the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to 5075% of Excess Cash Flow for the Excess Cash Flow Period then ended; provided that the aggregate principal amount of optional prepayments of Term Loans made pursuant to Section2.10(a) (and including any Term Loans prepaid pursuant to a Discounted Prepayment Offer(otherthaninconnectionwiththeSecond Amendment Prepayment), but in the case of a Discounted Prepayment Offer, limited to the amount of cash actually expended to purchase principal of such Term Loans) and the aggregate principal amount of optional prepayments of Revolving Loans (but only to the extent accompanied by a permanent reduction in the Total Revolving Commitments), in each case made during such Excess Cash Flow Period with Internally Generated Funds shall reduce on a dollar- for-dollar basis the amount of such mandatory prepayment otherwise required pursuant to this Section 2.10(b)(v) in respect of such Excess Cash Flow Period.

 

(vi)         Not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale or Casualty Event by any Restricted Party (other than Net Cash Proceeds of less than $5,000,000 in the aggregate in any fiscal year of the Administrative Borrower), the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) apply 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(d); provided that: (x) so long as no Default shall then exist or would arise therefrom, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that the Administrative Borrower shall have delivered an Officer’s Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are reasonably expected to be reinvested (or committed to be reinvested) in fixed or capital assets of any Borrower or any Subsidiary Guarantor (or, with respect to the Net Cash Proceeds from the sale of any Equity Interests in any Specified Joint Venture, in a vessel (or vessels) that will become a Collateral Vessel (or Collateral Vessels)) within 12 months following the date of such Asset Sale or Casualty Event, as applicable (which Officer’s Certificate shall set forth the estimates of the Net Cash Proceeds to be so expended); provided that, if the property subject to such Asset Sale or Casualty Event constituted Collateral or Equity Interests in a Specified Joint Venture, then all property purchased or otherwise acquired with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the First Priority perfected Lien (subject to Permitted Liens or, in the case of any Vessels, Permitted Collateral Vessel Liens) of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.10 and the preceding proviso in the case of the sale of any Equity Interests in any Specified Joint Ventures; and (y) if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if committed to be reinvested pursuant to a legally binding commitment within such 12-month period and not so reinvested within six months thereafter), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.10(b)(vi); and provided, further, that (x) so long as no Default then exists or would result therefrom and (y) if the Net Cash Proceeds of any Asset Sales and/or Casualty Events exceed $10,000,000 in the aggregate, such Net Cash Proceeds shall be deposited in a Deposit Account (a “Reinvestment Proceeds Account”) of the Administrative Borrower with the Administrative Agent (or another Deposit Account Bank reasonably satisfactory to the Administrative Agent) pursuant to a cash collateral arrangement in form and substance reasonably satisfactory to the Administrative Agent (and subject to a Deposit Account Control Agreement) whereby such Net Cash Proceeds shall be disbursed to the Administrative Borrower from time to time as needed to pay actual costs incurred by it or the applicable Subsidiary Guarantor in connection with the replacement or restoration of the respective properties or assets (or, with respect to the Net Cash Proceeds from the sale of any Equity Interests in any Specified Joint Venture, in connection with the reinvestment in or purchase of a Collateral Vessel (or Collateral Vessels)) (pursuant to such certification requirements as may be reasonably established by the Administrative Agent) (it being understood and agreed that at any time while an Event of Default has occurred and is continuing, the Required Lenders may direct the Administrative Agent (in which case the Administrative Agent shall, and is hereby authorized by the Administrative Borrower to, follow said directions) to apply any or all proceeds then on deposit in such Reinvestment Proceeds Account to the repayment of the Secured Obligations).; and provided, further, that (A) so long as no Event of Default shall then exist or would arise therefrom, such Net Cash Proceeds from the Specified Asset Sales and Specified Sale and Leaseback Transaction shall not be required to be so applied on such date to the extent that the Administrative Borrower shall have, within 90 days after the Second Amendment Effective Date, (x) applied such Net Cash Proceeds to consummate the SPV VLCC Transactions and (y) delivered an Officer’s Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds have been so applied and invested within 90 days following the Second Amendment Effective Date (which Officer’s Certificate shall describe in reasonable detail the Net Cash Proceeds so applied and invested) and (B) if all or any portion of such Net Cash Proceeds are not so used to consummate the SPV VLCC Transactions within such 90 day period, such unused portion shall be applied and/or reinvested as (and to the extent) required or permitted by the immediately preceding proviso (and within the applicable time periods set forth therein).

 

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(vii)        Not later than one Business Day following the receipt of any Net Cash Proceeds of any Debt Issuance by any Restricted Party, the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to 100% of such Net Cash Proceeds.

 

(viii)      Upon the incurrence or issuance by any Borrower of any Refinancing Notes or any Specified Refinancing Term Loans, the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) prepay an aggregate principal amount of the applicable Class or Classes of Term Loans that are to be refinanced with the proceeds of such Refinancing Notes or Specified Refinancing Term Loans in accordance with Section2.10(d) in an aggregate principal amount equal to 100% of the Net Cash Proceeds received therefrom.

 

(c)          [Reserved].

 

(d)          ApplicationofPrepayments. Prior to any optional prepayment hereunder, the Administrative Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to Section2.10(e), subject to the provisions of this Section 2.10(d). Any prepayments pursuant to Sections 2.10(b)(v)-(vii) shall be applied (i) first, to prepay principal of outstanding Term Loans and, to the extent so applied, to reduce future scheduled amortization payments required under Section2.09 (including the payment due on the applicable Term Loan Maturity Date) on a pro rata basis among the payments remaining to be made on each Term Loan Repayment Date, and (ii) second, to the extent there are prepayment amounts remaining after the application of such prepayments under preceding clause (i), such excess amounts shall be applied to the prepayment of principal of outstanding Revolving Loans (but without any corresponding reduction in Revolving Commitments (unless an Event of Default then exists, in which case the Revolving Commitments shall be so reduced and the Borrowers shall comply with Sections 2.10(b)(i)-(iv)); provided, however, to the extent that a prepayment is required pursuant to Section2.10(b)(vi) with Net Cash Proceeds from the sale of a Vessel within six months after the Borrowers incurred Revolving Loans to pay all or a portion of the consideration attributable to the purchase of a Collateral Vessel, such Net Cash Proceeds may be applied (x) first, to the prepayment of principal of outstanding Revolving Loans up to the amount so incurred to purchase such Collateral Vessel (without any corresponding reduction in Revolving Commitments unless an Event of Default then exists, as provided in preceding clause (ii)) and (y) thereafter, to prepay the principal of outstanding Loans in accordance with clauses (i) and (ii) above. Any prepayments of Term Loans pursuant to Section 2.10(b)(viii) shall be applied to reduce future scheduled amortization payments required under Section 2.09 (including the payment due on the applicable Term Loan Maturity Date) on a pro rata basis among the payments remaining to be made on each Term Loan Repayment Date. Optional prepayments of Term Loans pursuant to Section 2.10(a) shall be applied to reduce future scheduled amortization payments under Section 2.09 (including the payment due on the applicable Term Loan Maturity Date) in the manner directed by the Administrative Borrower in the respective notice of prepayment or, in the absence of such direction, in direct order of maturity. Amounts to be applied pursuant to this Section 2.10 to the prepayment of Loans of any Class shall be applied first to reduce outstanding ABR Loans of such Class. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans of such Class.

 

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(e)          Notice of Prepayment. The Administrative Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by written notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, on the third Business Day before the date of prepayment (ii) in the case of prepayment of an ABR Borrowing (other than a Swingline Borrowing), not later than 1:00 p.m., New York City time, one Business Day before the date of prepayment, and (iii) in the case of prepayment of a Swingline Borrowing, not later than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable; provided, that a notice of prepayment of all outstanding Loans may state that such notice is conditioned upon the effectiveness of other credit facilities in order to refinance in full all Obligations hereunder, in which case such notice may be revoked by the Administrative Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Each such notice shall specify the Class of Loans being prepaid, the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the applicable Lenders of the contents thereof. Such notice to the Lenders may be by electronic communication. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing and otherwise in accordance with this Section 2.10. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.06.

 

(f)          Notwithstanding the foregoing provisions of this Section 2.10, (i) in the case of any mandatory prepayment of the Term Loans (other than any mandatory prepayment pursuant to Section 2.10(b)(vii) or (viii)), any Term Lender may waive, by written notice to the Administrative Borrower and the Administrative Agent on or before the date on which such mandatory prepayment would otherwise be required to be made hereunder, the right to receive its pro rata share of the amount of such mandatory prepayment of its Term Loans, and (ii) if any Term Lender or Term Lenders elect to waive the right to receive the amount of such mandatory prepayment, all of the amount that otherwise would have been applied to mandatorily prepay the Term Loans of such Term Lender or Term Lenders may be retained by the Borrowers.

 

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(g)          Any (x) prepayment, repayment, refinancing, substitution, conversion or replacement of any Initial Term Loans (other than pursuant to Section 2.09(a), 2.10(b)(v), 2.10(b)(vi) (but in the case of such Section 2.10(b)(vi), only in respect of a Casualty Event) or 2.22), in whole or in part, (y) acceleration in accordance with the Loan Documents of the then outstanding principal amount of Initial Term Loans, and (z) amendment to this Agreement that, directly or indirectly, reduces the Effective Yield applicable to the Initial Term Loans, in each case, occurring on or prior to June 22December 31, 2019, shall be accompanied by the payment by the Borrowers (on a joint and several basis) of (i) in the case of preceding clause (x) or (y), a prepayment premium equal to (A) 2.00% of the aggregate principal amount of the Initial Term Loans so prepaid, repaid, refinanced, substituted, replaced, converted or accelerated on or prior to the first anniversary of the Closing DateDecember 31, 2018, and (B) 1.00% of the aggregate principal amount of the Initial Term Loans so prepaid, repaid, refinanced, substituted, replaced, converted or accelerated after the first anniversary of the Closing DateDecember 31, 2018, but on or prior to the second anniversary of the Closing DateDecember 31, 2019, and (ii) in the case of preceding clause (z), a fee equal to (A) 2.00% of the aggregate principal amount of the applicable Initial Term Loans so amended on or prior to the first anniversary of the Closing DateDecember 31, 2018, and (B) 1.00% of the aggregate principal amount of the applicable Initial Term Loans so amended after the first anniversary of the Closing DateDecember 31, 2018, but on or prior to the second anniversary of the Closing DateDecember 31, 2019. Any determination by the Administrative Agent as contemplated by clause (z) of the immediately preceding sentence shall be conclusive and binding on the Borrowers and all Lenders, absent manifest error.

 

(h)          Restrictions on Term Loan Prepayments. Notwithstanding anything to the contrary set forth in this Agreement or in any other Loan Document, (x) if any Revolving Lender has any Revolving Exposure or any other outstanding Revolving Obligations and any Event of Default has occurred and is continuing, no optional prepayment of Term Loans shall be permitted pursuant to this Section2.10 and (y) if any Event of Default has occurred and is continuing at the time any mandatory repayment of Terms Loans is otherwise required to be made pursuant to this Section2.10, then (i) (x) Swingline Loans, and if no Swingline Loans are or remain outstanding, Revolving Loans, and if no Swingline Loans or Revolving Loans are or remain outstanding, LC Exposure, shall first be repaid in full in cash or, in the case of Letters of Credit, Cash Collateralized, as applicable, in the amount otherwise required to be applied to the repayment of Term Loans pursuant to this Section 2.10 in the absence of this clause (h) and (y) if any Event of Default has occurred and is continuing, the Revolving Commitments also shall be permanently reduced by the amount of any required payment pursuant to preceding clause (x) (determined as if Revolving Loans and Swingline Loans were outstanding in such amount) and (ii) after application pursuant to preceding clause (i), any excess portion of such mandatory repayment of Term Loans not so applied shall be applied to the repayment of Term Loans as otherwise required by this Section 2.10 in the absence of this clause (h). If any Lender collects or receives any amounts received on account of the Obligations to which it is not entitled as a result of the application of this Section 2.10(h), such Lender shall hold the same in trust for the Revolving Lenders and shall forthwith deliver the same to the Administrative Agent and/or the Collateral Agent, for the account of the applicable Revolving Lenders, to be applied in accordance with this Section2.10(h). Without limiting the generality of the foregoing, this Section 2.10(h) is intended to constitute and shall be deemed to constitute a “subordination agreement” within the meaning of Section 510(a) of the Bankruptcy Code and is intended to be and shall be interpreted to be enforceable to the maximum extent permitted pursuant to applicable non-bankruptcy law.

 

Section 2.11       Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

 

(a)          the Administrative Agent determines (which determination shall be final and conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBOR Rate for such Interest Period; or

 

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(b)          the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period; then the Administrative Agent shall give written notice thereof to the Administrative Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.

 

Section 2.12        Increased Costs; Change in Legality. (a) If any Change in Law shall:

 

(i)           impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge, liquidity or similar requirement against property of, deposits with or for the account of, or credit extended by or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBOR Rate) or any Issuing Bank;

 

(ii)          impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than with respect to Taxes) affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein; or

 

(iii)         subject any Lender or any Issuing Bank to any Taxes (other than (A) Indemnified Taxes or Other Taxes indemnified pursuant to Section2.15, (B) Taxes described in clauses (b) through (f) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, principal, letters of credit, Commitments or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or such Lender’s or such Issuing Bank’s holding company, if any, of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrowers will, jointly and severally, pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered; it being understood that this Section 2.12 shall not apply to Taxes that are Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.15.

 

(b)          If any Lender or any Issuing Bank determines (in good faith, but in its sole absolute discretion) that any Change in Law regarding Capital Requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by such Lender, or participations in Letters of Credit or Swingline Loans held by such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then from time to time the Borrowers will, jointly and severally, pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company, for any such reduction suffered.

 

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(c)          A certificate of a Lender or an Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in clause (a) or (b) of this Section 2.12 shall be delivered to the Administrative Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error. The Borrowers, jointly and severally, shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

 

(d)          Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that (i) the Borrowers shall not be required to compensate a Lender or an Issuing Bank for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor, (ii) if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to indicate the period of retroactive effect thereof and (iii) such increased costs or reductions shall only be payable by the Borrowers to the applicable Lender or the applicable Issuing Bank under this Section2.12 to the extent that such Lender or such Issuing Bank is generally imposing such charges on similarly situated borrowers.

 

(e)          Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Administrative Borrower and to the Administrative Agent:

 

(i)         such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness (as determined in good faith by such Lender)) be made by such Lender hereunder (or be continued for additional Interest Periods and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans), whereupon any request for a Eurodollar Loan (or to convert an ABR Loan to a Eurodollar Loan or to continue a Eurodollar Loan for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn by such Lender by written notice to the Administrative Borrower and to the Administrative Agent; and

 

(ii)        such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in Section 2.12(f).

 

In the event any Lender shall exercise its rights under clause (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans.

 

(f)           For purposes of clause (e) of this Section 2.12, a notice to the Administrative Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Administrative Borrower.

 

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Section 2.13       Breakage Payments. In the event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice is permitted to be withdrawn by the Borrowers), or (d) the assignment of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by the Administrative Borrower pursuant to Section 2.16, then, in any such event, the Borrowers, jointly and severally, shall compensate each Lender for the loss, cost and expense attributable to such event (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Eurodollar Loans but excluding loss of anticipated profits). Each Lender shall calculate any amount or amounts in good faith and in a commercially reasonable manner. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 shall be delivered to the Administrative Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error. The Borrowers, jointly and severally, shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof. Notwithstanding the foregoing, this Section 2.13 shall not apply to losses, costs or expenses resulting from Taxes, as to which Section 2.15 shall govern.

 

Section 2.14       Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The Borrowers shall make each payment required to be made hereunder or under any other Loan Document (whether of principal, interest, fees or Reimbursement Obligations or of amounts payable under Section 2.12, 2.13 or 2.15, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 520 Madison Avenue, New York, New York, 10022; Attn: Account Manager – International Seaways Operating Corporation, except that payments pursuant to Sections 2.12, 2.13, 2.15 and 11.03 shall be made directly to the persons entitled thereto and payments pursuant to other Loan Documents shall be made to the persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document shall be made in Dollars; provided that, LC Disbursements paid by the Borrowers in respect of Letters of Credit denominated in an Alternative Currency shall be made in such Alternative Currency.

 

(b)          Subject to Section9.01, if at any time insufficient funds are received by and available to the Administrative Agent to pay in full all amounts of principal, premium, Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest, premium and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest, premium and fees then due to such parties, and (ii) second, towards payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Reimbursement Obligations then due to such parties.

 

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(c)          Other than in connection with a prepayment of the Term Loans pursuant to Section 2.22 or as provided in Section 2.10(b)(viii), if any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 11.08) or otherwise (including by exercise of its rights under the Security Documents), obtain payment in respect of any principal of or premium or interest on any of its Revolving Loans, Term Loans, or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender entitled thereto, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest and premium on their respective Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans; provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this Section2.14(c) shall not be construed to apply to (A) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender (x) as consideration for the assignment of or sale of a participation in any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans to any Eligible Assignee or participant, other than to any Company or any Affiliate thereof (as to which the provisions of this Section 2.14(c) shall apply) or (y) in connection with any prepayment of Revolving Loans in accordance with Section 2.21(e). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(c) to share in the benefits of the recovery of such secured claim.

 

(d)          Unless the Administrative Agent shall have received written notice from the Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.

 

(e)          If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.14(d), 2.17(d), 2.18(d), 2.18(e) or 11.03(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

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Section 2.15       Taxes. (a) Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall be made without setoff, counterclaim or other defense and free and clear of and without deduction, reduction or withholding for any and all Taxes except as required by applicable Legal Requirements. If any amounts on account of Indemnified Taxes are required to be deducted or withheld from such payments, then (i) the sum payable by or on behalf of such Loan Party shall be increased as necessary so that after making all required deductions (including deductions, reductions or withholdings applicable to additional sums payable under this Section 2.15) the Administrative Agent, any Lender or any Issuing Bank, as the case may be, receives an amount equal to the sum it would have received had no such deductions, reductions or withholdings been made, (ii) the Borrowers shall make such deductions, reductions or withholdings and (iii) the Borrowers, jointly and severally, shall timely pay to the relevant Governmental Authority the full amount deducted or withheld in accordance with applicable Legal Requirements.

 

(b)          In addition, the Borrowers, jointly and severally, shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Legal Requirements, or at the option of the Administrative Agent reimburse it for payment of any Other Taxes.

 

(c)          The Borrowers agree, jointly and severally, to indemnify the Administrative Agent, each Lender and each Issuing Bank within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrowers hereunder or under any other Loan Document or any Other Taxes paid by the Administrative Agent or such Lender (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section2.15) and any penalties, interest and expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Administrative Borrower by a Lender or an Issuing Bank (in each case with a copy delivered concurrently to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Bank shall be conclusive absent manifest error.

 

(d)          Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrowers have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.04(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d).

 

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(e)          As soon as practicable after any payment of Indemnified Taxes or Other Taxes, and in any event within 30 days following any such payment being due by the Borrowers to a Governmental Authority, the Administrative Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the Tax Return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. If the Borrowers fail to pay any Indemnified Taxes or Other Taxes when due to the appropriate Governmental Authority or fail to remit to the Administrative Agent the required receipts or other documentary evidence, the Borrowers, jointly and severally, shall indemnify the Administrative Agent, each Lender and each Issuing Bank for any incremental Taxes or expenses that may become payable by the Administrative Agent or such Lender or such Issuing Bank, as the case may be, as a result of any such failure.

 

(f)           Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the Administrative Borrower and the Administrative Agent such properly completed and executed documentation and information reasonably requested by the Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. Without limiting the generality of the foregoing, each Foreign Lender shall, to the extent it is legally able to do so, (i) furnish to the Administrative Borrower and the Administrative Agent on or prior to the date it becomes a party hereto, either (a) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (or successor form) (claiming the benefits of an applicable tax treaty), (b) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8ECI (or successor form), together with required attachments, (c) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8IMY (or successor form), (d) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8EXP (or successor form) or (e) if such Foreign Lender is relying on the so-called “portfolio interest exemption,” an accurate and complete originally executed “Portfolio Interest Certificate” in the form of Exhibit K and two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (or successor form), in the case of each of the preceding clauses (a) through (e), together with any required schedules or attachments, certifying, in each case, to such Foreign Lender’s legal entitlement to an exemption or reduction from U.S. federal withholding tax with respect to all payments hereunder, (ii) promptly notify the Administrative Borrower and the Administrative Agent if such Foreign Lender no longer qualifies for the exemption or reduction that it previously claimed as a result of change in such Foreign Lender’s circumstances, and (iii) to the extent it may lawfully do so at such times, provide a new Form W-8BEN or W-8BEN-E, as applicable (or successor form), Form W-8ECI (or successor form), Form W-8IMY (or successor form), Form W-8EXP (or successor form) and/or Portfolio Interest Certificate upon the expiration or obsolescence of any previously delivered form, or at any other time upon the reasonable request of the Administrative Borrowe