Exhibit A to Fifth Amendment

Execution Version

 

US$600 MILLION CREDIT AGREEMENT,

 

dated as of August 3, 2021,

as amended by the First Amendment to Credit Agreement, dated as of November 8, 2022,

the Second Amendment to Credit Agreement, dated as of May 30, 2023,

the Third Amendment to Credit Agreement, dated as of October 16, 2023,

the Fourth Amendment to Credit Agreement, dated as of November 29, 2023, and

the Fifth Amendment to Credit Agreement, dated as of July 10, 2025

 

among

 

GENCO SHIPPING & TRADING LIMITED,

as Borrower,

 

THE OTHER GUARANTORS PARTY HERETO,

as Guarantors,

 

THE LENDERS PARTY HERETO,

 

NORDEA BANK ABP, NEW YORK BRANCH,

as Administrative Agent, Collateral Agent, Security Trustee, Coordinator and Sustainability Coordinator,

 

NORDEA BANK ABP, NEW YORK BRANCH, SKANDINAVISKA ENSKILDA BANKEN AB

(PUBL), DNB MARKETS, INC. and ING CAPITAL LLC,

as Bookrunners

 

NORDEA BANK ABP, NEW YORK BRANCH, SKANDINAVISKA ENSKILDA BANKEN AB

(PUBL), DNB MARKETS, INC., ING CAPITAL LLC and CTBC BANK CO., LTD.,

as Mandated Lead Arrangers

 

FIRST-CITIZENS BANK & TRUST COMPANY,

as Co-Arranger

 

TABLE OF CONTENT

 

			Page
ARTICLE I DEFINITIONS			2
	Section 1.01	Defined Terms	2
	Section 1.02	Classification of Loans and Borrowings	40
	Section 1.03	Terms Generally	40
	Section 1.04	Accounting Terms; GAAP	41
	Section 1.05	Resolution of Drafting Ambiguities	41
	Section 1.06	Rounding	41
	Section 1.07	Currency Equivalents Generally	41
	Section 1.08	Divisions	42
	Section 1.09	Rates	42

ARTICLE II THE CREDITS			42
	Section 2.01	Commitments	42
	Section 2.02	Loans	43
	Section 2.03	Borrowing Procedure	43
	Section 2.04	Repayment of Loans	44
	Section 2.05	Fees	45
	Section 2.06	Interest on Loans	45
	Section 2.07	Termination and Reduction of Commitments	46
	Section 2.08	Interest Elections	46
	Section 2.09	Scheduled Reduction of Revolving Commitments	47
	Section 2.10	Optional and Mandatory Prepayments of Loans; Commitment Reductions	47
	Section 2.11	Benchmark Replacement Setting	50
	Section 2.12	Increased Costs; Change in Legality	52
	Section 2.13	Breakage Payments	53
	Section 2.14	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	53
	Section 2.15	Taxes	55
	Section 2.16	Mitigation Obligations; Replacement of Lenders	58
	Section 2.17	Defaulting Lenders	59
	Section 2.18	Nature of Obligations	60
	Section 2.19	Increases of the Revolving Commitments	61
	Section 2.20	Inability to Determine Rates	64

ARTICLE III REPRESENTATIONS AND WARRANTIES			64
	Section 3.01	Organization; Powers	64
	Section 3.02	Authorization; Enforceability	64
	Section 3.03	No Conflicts; No Default	65
	Section 3.04	Financial Statements; Projections	65
	Section 3.05	Properties.	65
	Section 3.06	[Reserved]	66
	Section 3.07	Equity Interests and Subsidiaries	66
	Section 3.08	Litigation; Compliance with Legal Requirements	67
	Section 3.09	Agreements	67
	Section 3.10	Federal Reserve Regulations	67
	Section 3.11	Investment Company Act; etc.	67
	Section 3.12	Use of Proceeds	67
	Section 3.13	[Reserved]	67
	Section 3.14	Taxes	67

	Section 3.15	No Material Misstatements	67
	Section 3.16	Labor Matters	68
	Section 3.17	Solvency	68
	Section 3.18	Employee Benefit Plans	68
	Section 3.19	Environmental Matters	69
	Section 3.20	Insurance	69
	Section 3.21	Security Documents	70
	Section 3.22	Anti-Terrorism Law; Foreign Corrupt Practices Act	71
	Section 3.23	Concerning Collateral Vessels	72
	Section 3.24	Form of Documentation; Citizenship	72
	Section 3.25	Compliance with ISM Code and ISPS Code	72
	Section 3.26	Threatened Withdrawal of DOC, SMC or ISSC	72
	Section 3.27	No Immunity	73
	Section 3.28	Pari Passu or Priority Status	73
	Section 3.29	No Undisclosed Commission	73
	Section 3.30	Patents, Licenses, Franchises and Formulas	73

ARTICLE IV CONDITIONS TO CREDIT EXTENSIONS			73
	Section 4.01	[Reserved]	73
	Section 4.02	Conditions to All Credit Extensions	73

ARTICLE V AFFIRMATIVE COVENANTS			74
	Section 5.01	Financial Statements, Reports, etc.	74
	Section 5.02	Litigation and Other Notices	77
	Section 5.03	Existence; Businesses and Properties	77
	Section 5.04	Insurance	78
	Section 5.05	Obligations and Taxes	79
	Section 5.06	Employee Benefits	79
	Section 5.07	Maintaining Records; Access to Properties and Inspections	79
	Section 5.08	Use of Proceeds	79
	Section 5.09	Compliance with Environmental Laws and other Legal Requirements	79
	Section 5.10	Additional Vessel Collateral:  Additional Vessel Subsidiary Guarantors	80
	Section 5.11	Security Interests; Further Assurances	80
	Section 5.12	Certain Information Regarding the Loan Parties	81
	Section 5.13	Appraisals	81
	Section 5.14	Earnings Accounts	81
	Section 5.15	Post Closing Matters	82
	Section 5.16	Flag of Collateral Vessel; Collateral Vessel Classifications; Operation of Collateral Vessels	82
	Section 5.17	Material Agreements	83
	Section 5.18	Collateral Vessel Management	83
	Section 5.19	Agent for Service of Process	83
	Section 5.20	Poseidon Principles	83
	Section 5.21	Sanctions Laws	84

ARTICLE VI NEGATIVE COVENANTS			84
	Section 6.01	Indebtedness	84
	Section 6.02	Liens	85
	Section 6.03	Sale and Leaseback Transactions	87
	Section 6.04	Investments, Loans and Advances	87
	Section 6.05	Mergers and Consolidations	88
	Section 6.06	Asset Sales	89

	Section 6.07	Bank Accounts	90
	Section 6.08	Dividends	90
	Section 6.09	Transactions with Affiliates	91
	Section 6.10	Financial Covenants.	91
	Section 6.11	Prepayments of Other Indebtedness; Modifications of Organizational Documents and Certain Other Documents, etc	92
	Section 6.12	Limitation on Certain Restrictions on Subsidiaries.	92
	Section 6.13	Limitation on Issuance of Capital Stock.	93
	Section 6.14	Business	93
	Section 6.15	Operation of Collateral Vessels	93
	Section 6.16	Fiscal Periods	93
	Section 6.17	No Further Negative Pledge	93
	Section 6.18	Anti-Terrorism Law; Anti-Money Laundering	94
	Section 6.19	Embargoed Person	94
	Section 6.20	Restrictions on Chartering.	94
	Section 6.21	Additional Covenants	94
	Section 6.22	Employee Benefits	94

ARTICLE VII GUARANTEE			95
	Section 7.01	The Guarantee	95
	Section 7.02	Obligations Unconditional	95
	Section 7.03	Reinstatement	96
	Section 7.04	Subrogation; Subordination	96
	Section 7.05	Remedies	96
	Section 7.06	Instrument for the Payment of Money	96
	Section 7.07	Continuing Guarantee	97
	Section 7.08	General Limitation on Guarantee Obligations	97
	Section 7.09	Release of Guarantors	97
	Section 7.10	Right of Contribution	97
	Section 7.11	Keepwell	98

ARTICLE VIII EVENTS OF DEFAULT			98
	Section 8.01	Events of Default	98
	Section 8.02	Rescission	101

ARTICLE IX APPLICATION OF COLLATERAL PROCEEDS			101
	Section 9.01	Application of Proceeds	101

ARTICLE X THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT			102
	Section 10.01	Appointment	102
	Section 10.02	Agent in Its Individual Capacity	103
	Section 10.03	Exculpatory Provisions	103
	Section 10.04	Reliance by Agent	105
	Section 10.05	Delegation of Duties	105
	Section 10.06	Successor Agent	105
	Section 10.07	Non-Reliance on Agent and Other Lenders	106
	Section 10.08	Name Agents	106
	Section 10.09	Indemnification	106
	Section 10.10	Withholding Taxes	107
	Section 10.11	Lender’s Representations, Warranties and Acknowledgements	107
	Section 10.12	Security Documents and Guarantees	107
	Section 10.13	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim	109

	Section 10.14	Ship Mortgage Trust	110
	Section 10.15	Erroneous Payments	110

ARTICLE XI MISCELLANEOUS			111
	Section 11.01	Notices	111
	Section 11.02	Waivers; Amendment	114
	Section 11.03	Expenses; Indemnity	116
	Section 11.04	Successors and Assigns	119
	Section 11.05	Survival of Agreement	122
	Section 11.06	Counterparts; Integration; Effectiveness	122
	Section 11.07	Severability	122
	Section 11.08	Right of Setoff; Marshalling; Payments Set Aside	122
	Section 11.09	Governing Law; Jurisdiction; Consent to Service of Process	123
	Section 11.10	Waiver of Jury Trial	124
	Section 11.11	Headings	124
	Section 11.12	Confidentiality	124
	Section 11.13	Interest Rate Limitation	125
	Section 11.14	Assignment and Acceptance	126
	Section 11.15	Obligations Absolute	126
	Section 11.16	Waiver of Defenses; Absence of Fiduciary Duties	126
	Section 11.17	Patriot Act; Beneficial Ownership Regulation Notice	127
	Section 11.18	Bank Product Providers	127
	Section 11.19	EXCLUDED SWAP OBLIGATIONS	128
	Section 11.20	Flag Jurisdiction Transfer	128
	Section 11.21	Judgment Currency	128
	Section 11.22	Waiver of Sovereign Immunity	129
	Section 11.23	Acknowledgment and Consent to Bail-In of Affected Financial Institutions	129
	Section 11.24	Certain ERISA Matters	130
	Section 11.25	Acknowledgement Regarding Any Supported QFCs	131

ANNEXES
Annex I	--	Initial Lenders and Commitments
SCHEDULES
Schedule 1.01(a)	--	Collateral Vessels
Schedule 1.01(b)	--	Acceptable Third Party Technical Managers
Schedule 1.01(c)	--	Approved Brokers
Schedule 1.01(d)	--	Commercial Managers
Schedule 1.01(e)	--	Subsidiary Guarantors
Schedule 1.01(f)	--	Sustainability Pricing Adjustment Schedule
Schedule 1.01(h)	--	Disqualified Institutions
Schedule 2.09	--	Scheduled Revolving Commitment Reductions
Schedule 3.07(a)	--	Equity Interests
Schedule 3.07(c)	--	Corporate Organizational Chart
Schedule 3.20	--	Required Insurance
Schedule 5.14	--	Earnings Account
Schedule 5.15	--	Post-Closing Matters
Schedule 6.01(b)	--	Existing Indebtedness
Schedule 6.04(a)	--	Existing Investments
Schedule 6.09(d)	--	Certain Affiliate Transactions

EXHIBITS
Exhibit A	--	Form of Assignment and Acceptance
Exhibit B	--	Form of Borrowing Request
Exhibit C	--	Form of Compliance Certificate
Exhibit D	--	Form of Subordination Provisions
Exhibit E	--	Form of Interest Election Request
Exhibit F-1	--	[Reserved]
Exhibit F-2	--	Form of Revolving Note
Exhibit G	--	Form of Pledge Agreement
Exhibit H	--	Form of Portfolio Interest Certificate
Exhibit I	--	Form of Solvency Certificate
Exhibit J	--	Form of Bank Product Provider Letter Agreement
Exhibit K-1	--	Form of Marshall Islands Collateral Vessel Mortgage
Exhibit K-2	--	Form of Liberian Collateral Vessel Mortgage
Exhibit K-3	--	Form of Hong Kong Collateral Vessel Mortgage
Exhibit L	--	Form of General Assignment Agreement
Exhibit M	--	Form of Assignment of Insurances

CREDIT AGREEMENT

 

This CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Agreement”), dated as of August 3, 2021, is among Genco Shipping & Trading Limited, a Marshall Islands corporation (the “Borrower”), the Subsidiary Guarantors from time to time party hereto, the Lenders from time to time party hereto, Nordea Bank Abp, New York Branch, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), Nordea Bank Abp, New York Branch, as collateral agent and security trustee for the Secured Parties (in such capacity, the “Collateral Agent” or the “Security Trustee” as the context requires) and Nordea Bank Abp, New York Branch, as sustainability coordinator (in such capacity, the “Sustainability Coordinator”).

 

W I T N E S S E T H:

 

WHEREAS, the Lenders made available to the Borrower a senior secured term loan facility on the Closing Date, in an aggregate principal amount of $150,000,000 and a senior secured revolving credit facility available for borrowings from time to time on and after the Closing Date in an aggregate principal amount not in excess of $300,000,000;

 

WHEREAS, pursuant to the Fourth Amendment, the Borrower has, with the consent of the Lenders, among other things, incurred additional Revolving Commitments from the Lenders and, with the consent of the Term Lenders (as defined in this Agreement immediately prior to the Fourth Amendment), converted all outstanding Term Loans (as defined in this Agreement immediately prior to the Fourth Amendment Effective Date) to Revolving Loans such that on and after the Fourth Amendment Effective Date, the Lenders as of such date have agreed to make available to the Borrower a senior secured revolving loan facility in an aggregate principal amount not in excess of  $500,000,000, as more particularly set forth and subject to the terms and conditions herein and in the Fourth Amendment;

 

WHEREAS, pursuant to the Fifth Amendment, the Borrower has, with the consent of the Lenders, among other things, incurred additional Revolving Commitments from the Lenders such that on and after the Fifth Amendment Effective Date, the Lenders as of such date have agreed to make available to the Borrower a senior secured revolving loan facility in an aggregate principal amount not in excess of $600,000,000, as more particularly set forth and subject to the terms and conditions herein and in the Fifth Amendment;

 

WHEREAS, the Borrower has agreed to secure its Obligations by granting to the Collateral Agent or the Security Trustee (as applicable), for the benefit of the Secured Parties, a perfected lien on its Equity Interests in the Subsidiary Guarantors, each Collateral Vessel and certain other assets of the Borrower and Subsidiary Guarantors, subject to certain agreed exceptions contained herein and in the other Loan Documents;

 

WHEREAS, the Subsidiary Guarantors have agreed to guarantee the Obligations of the Borrower and the other Loan Parties hereunder and to secure their respective Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a First Priority mortgage of their respective Collateral Vessels and certain other Collateral, 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 Borrower 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:

 

 

 

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

 

“ABR” shall mean, for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.50%; provided that if ABR determined as provided above shall ever be less than the Floor, then ABR shall be deemed to be the Floor.  Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate.

 

“ABR Loan” shall mean a Loan that bears interest based on ABR.

 

“Acceptable Classification Society” shall mean DNV, Lloyd’s Register, American Bureau of Shipping (ABS), Bureau Veritas, Nippon Kaiji Kyokai or such other vessel classification society that the Administrative Agent (acting on instructions from the Required Lenders) may approve from time to time.

 

“Acceptable Collateral Vessel” shall mean a vessel which (i) is a dry bulk vessel of similar quality and type as the Collateral Vessels, (ii) is not older than ten years on the date it becomes a Collateral Vessel and was built not prior to 2016, (iii) is classed with an Acceptable Classification Society free of overdue recommendations and conditions affecting class, (iv) is registered in an Acceptable Flag Jurisdiction, and (v) is, on the date it becomes a Collateral Vessel, owned by a Subsidiary Guarantor and subject to a Collateral Vessel Mortgage.

 

“Acceptable Flag Jurisdiction” shall mean the Republic of the Marshall Islands, Liberia, Hong Kong, Panama, the Bahamas or such other flag jurisdiction as may be otherwise approved by the Administrative Agent (acting on the instructions from the Required Lenders).

 

“Acceptable Third Party Technical Managers” shall mean those third party technical managers as are listed on Schedule 1.01(b) and their Affiliates.

 

“Accordion Vessel” shall mean a vessel acquired by any Loan Party using the proceeds of Incremental Revolving Loans or a vessel whose acquisition costs were refinanced or reimbursed with the proceeds of Incremental Revolving Loans, in each case, which becomes a Collateral Vessel after the date of such acquisition, refinancing or reimbursement, as the case may be, and  is an Acceptable Collateral Vessel.

 

“Account Control Agreement” shall have the meaning provided in the definition of “Vessel Collateral Requirements”.

 

“Additional Collateral” shall mean additional property of the Borrower or any Subsidiary Guarantor reasonably satisfactory to the Required Lenders, posted in favor of the Collateral Agent as Collateral to cure non-compliance with Sections 6.10(d) (it being understood that cash collateral comprised of Dollars (which shall be valued at par) shall be satisfactory), pursuant to security documentation reasonably satisfactory in form and substance to the Collateral Agent, in an aggregate amount or with value sufficient to cure such non-compliance.

 

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

 

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

 

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

“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 for purposes of Section 6.09, the term “Affiliate” shall also include (i) any person that directly or indirectly owns more than 5% of any class of Equity Interests of the person specified and (ii) any person that is an officer or director of the person specified.

 

“Agency Fee Letter” shall mean the confidential Agency Fee Letter, dated June 23, 2021, between the Borrower and Nordea.

 

“Agents” shall mean the Mandated Lead Arrangers, the Bookrunners, the Co-Arranger, the Coordinator, the Sustainability Coordinator, the Administrative Agent, the Collateral Agent and the Security 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.

 

“Annex VI” shall mean Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), as modified by the Protocol of 1978 relating thereto.

 

“Anti-Corruption Laws” shall mean all applicable laws relating to the prevention of corruption and bribery, including, without limitation, the FCPA, the UKBA, and any other similar law of any jurisdiction.

 

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

 

“Applicable Margin” shall mean (a) until the delivery of financial statements pursuant to Section 5.01(a) and the related Compliance Certificate pursuant to Section 5.01(c) for the period ending on September 30, 2025, a percentage per annum equal to 1.75% per annum and (b) at any time thereafter, a percentage per annum set forth in the table below under the appropriate caption based on the Total Net Leverage Ratio set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.01(c):

 

PRICING LEVEL	APPLICABLE MARGIN	TOTAL NET LEVERAGE RATIO
I	1.75%	< 3.00:1.00
II	2.00%	> 3.00:1.00 and < 5.00:1.00.
III	2.15%	> 5.00:1.00

 

Any increase or decrease in the Applicable Margin pursuant to clause (b) above resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date the applicable financial statements are delivered pursuant to Section 5.01(a)

and (b) and the related Compliance Certificate pursuant to Section 5.01(c); provided that if notification is provided to the Borrower by the Administrative Agent that the Required Lenders have so elected, “Pricing Level III” (such level, the “Highest Applicable Margin”) shall apply (x) in the event that the financial statements required to be delivered pursuant to Sections 5.01(a) and (b) and the related Compliance Certificate pursuant to Section 5.01(c) were not delivered, as of the first Business Day after the date on which the financial statements were required to be delivered pursuant to Section 5.01(a) and (b) and the related Compliance Certificate were so required to be delivered, and shall continue to so apply to and including the date on which such financial statements and related Compliance Certificate are so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply), (y) in the event of an Event of Default under Sections 8.01(a), (b), (g) or (h), as of the first Business Day after such Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (z) upon direction of the Required Lenders, as of the first Business Day after any other Event of Default under Section 8.01 shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply); provided that the Required Lenders shall not be required to take any acceleration action in connection with an election to apply the Highest Applicable Margin following any such other Event of Default.

 

In addition, upon the delivery of a Sustainability Certificate pursuant to Section 5.01(d), the Applicable Margin shall be adjusted in accordance with the Sustainability Pricing Adjustment Schedule.

 

“Approved Broker” shall mean any of the entities listed in Schedule 1.01(c), or any other independent shipbroker to be mutually agreed upon between the Administrative Agent (acting on behalf of the Lenders) and the Borrower.

 

“Approved Electronic Communications” shall mean any notice, demand, communication, information, document or other material that any Loan Party or Security Provider 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).

 

“Asset Sale” shall mean any disposition of a Collateral Vessel by any Subsidiary Guarantor to any person other than the Borrower or any other Subsidiary Guarantor (including, without limitation, any disposition of capital stock or other securities of, or Equity Interests in, a Person which directly or indirectly owns such Collateral Vessel).  Notwithstanding the foregoing, an “Asset Sale” shall not include any disposition of property by a Subsidiary Guarantor permitted by, or expressly referred to in, Sections 6.06(a), 6.06(c), 6.06(d), 6.06(e), 6.06(f), 6.06(g), 6.06(h), 6.06(i), 6.06(j) or 6.06(k).

 

“Assignment and Acceptance” shall mean an assignment and acceptance agreement 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.

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

 

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

“Bail-In Legislation” shall mean (a) 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, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

“Bank Product Provider” shall mean any Agent, any Lender or any of their respective Affiliates (or any person who at the time the respective Secured Hedging 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 Secured Hedging Agreement unless and until the Administrative Agent shall have received a Bank Product Provider Letter Agreement from such person with respect to the applicable Secured Hedging Agreement (and acknowledged by the Borrower) within 30 days after the provision of such Secured Hedging Agreement to the Borrower or Subsidiary Guarantor.

 

“Bank Product Provider Letter Agreement” shall mean a letter agreement substantially in the form of Exhibit J, 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 Borrower.

 

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

 

“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.11.

 

“Benchmark Replacement” shall mean the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(a)          Daily Simple SOFR; or

 

(b)         the sum of:  (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.

 

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

 

“Benchmark Replacement Date” shall mean a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:

 

(a)         in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

 

(b)        in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a)        a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

(b)         a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication,

there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c)         a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Unavailability Period” shall mean, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.21 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.21.

 

“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation in form and substance satisfactory to the Lender or the Administrative Agent requesting the same.

 

“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.

 

“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.

 

“Bookrunner Fee Letter” shall mean the Bookrunner Fee Letter, dated June 23, 2021, between the Borrower and Nordea.

 

“Bookrunners” shall mean Nordea Bank Abp, New York Branch, Skandinaviska Enskilda Banken AB (publ), DNB Markets, Inc., ING Capital LLC and such other financial institution(s) as may be agreed between the Borrower and the Mandated Lead Arrangers for the Revolving Facility hereunder.

 

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

 

“Borrowing” shall mean Loans of the same Class made or continued on the same date and as to which a single Interest Period is in effect.

 

“Borrowing Request” shall mean a request by the 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 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, London, Paris, Oslo, Stockholm or Taipei are authorized or required by law or other governmental action to close.

 

“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 Borrower and its Subsidiaries prepared in accordance with GAAP, and (b) Capital Lease Obligations and Synthetic Lease Obligations, but excluding (i) 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 (ii) 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, liquidity 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 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 90 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 and (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.

 

“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 Person. “Casualty Event” shall include any actual, constructive, compromised or arranged Total Loss.

 

“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)         the Borrower ceases to own, directly or indirectly, 100% of the shares in the Guarantors other than subsequent to the sale of the Collateral Vessel owned by such Guarantor and the prepayment of the Loan required hereby; 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 of its respective subsidiaries, and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) (i) becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 of the Securities Exchange Act of 1934), of more than 35% of the total voting power or Voting Equity Interests of the Borrower or (ii) obtains the power (whether or not exercised) to elect, appoint or remove a majority of the Borrower’s managers or board of directors or similar body or executive committee thereof, or

 

(c)         the majority of the directors on the board of directors of the Borrower replaced over a two-year period from the directors who constituted the board of directors of the Borrower at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the board of directors of the Borrower still in office who either were members of such board of directors at the beginning of such period or whose election as a member of such board of directors were previously so approved.

 

“Change in Law” shall mean the occurrence, after the Closing Date, 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.

 

“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 Fifth Amendment Effective Date, the Revolving Loans made pursuant to Section 2.01 and (ii) additional Classes of Revolving Loans that may be added after the Fifth Amendment Effective Date pursuant to Section 2.19.

 

“Closing Date” shall mean August 3, 2021.

 

“Closing Fee Letter” shall mean the Fee Letter, dated June 23, 2021, among the Borrower, and the Mandated Lead Arrangers.

 

“Co-Arranger” shall mean First-Citizens Bank & Trust Company, as co-arranger for the Revolving Facility hereunder.

 

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

 

“Collateral” shall mean, collectively, all of the Collateral Vessels, all Pledge Agreement Collateral, all Earnings and Insurance Collateral 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.

 

“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 Security Trustee).

 

“Collateral Maintenance Test” shall have the meaning assigned to such term in Section 6.10(d).

 

“Collateral Vessel Release Election” shall have the meaning assigned to such term in Section 2.10(a)(ii).

 

“Collateral Vessel” shall mean (a) as of the Fifth Amendment Effective Date, the vessels identified on Schedule 1.01(a) and (b) thereafter, (i) any Accordion Vessel acquired by a Subsidiary Guarantor after the Fifth Amendment Effective Date pursuant to Section 2.19, (ii) any other vessel otherwise subject to a security interest or purported to be subject to a security interest under any Security Document from time to time after the Fifth Amendment Effective Date pursuant to a Permitted Collateral Vessel Acquisition or otherwise and (iii) any Substitution Vessel.

 

“Collateral Vessel Mortgage” shall mean a first preferred ship mortgage or a statutory mortgage and deed of covenants, as applicable, substantially in the form of Exhibit K-1, K-2, or K-3 attached hereto, or such other form as may be reasonably satisfactory to the Administrative Agent (including any such forms delivered pursuant to a Flag Jurisdiction Transfer), as such preferred mortgage or statutory mortgage and deed of covenants, as applicable, may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof granted by the applicable Subsidiary Guarantor in favor of the Security Trustee, as security trustee and mortgagee.

 

“Commercial Manager” shall mean the entities listed on Schedule 1.01(d), and one or more other Pool Operators and commercial managers (including Genco Ship Management LLC, Genco Shipping Pte., Ltd., Genco Shipping A/S and any other Subsidiary of the Borrower) selected by the Borrower and reasonably acceptable to the Administrative Agent (acting on instructions from the Required Lenders).

 

“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment.

 

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

 

“Commitment Letters” shall mean (i) the Commitment Letter, dated June 23, 2021 (as amended, modified or supplemented prior to the Closing Date), among the Borrower, and the Mandated Lead Arrangers and (ii) the Commitment Letter, dated October 19, 2023 (as amended, modified or supplemented prior to the Fourth Amendment Effective Date), between the Borrower and Nordea.

 

“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 the Borrower and its Subsidiaries; and “Company” shall mean any one of them.

 

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

 

“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S.  Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.11 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

“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” shall mean the consolidation of accounts in accordance with GAAP.

 

“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, adjusted by:

 

(a)          adding thereto the following to the extent deducted in calculating such Consolidated Net Income:

 

(i)         the sum of all interest, premium payments, debt discount, fees, charges and related expenses of such Person and its Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with a deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP,

 

(ii)         the provision for Federal, state, local and foreign income Taxes (and similar Taxes to the extent based on income or profits) payable by such Person and its Subsidiaries for such period,

 

(iii)     depreciation and amortization expense and extraordinary or non-recurring charges or losses (including without limitation the cumulative effect of changes in GAAP and impairment charges related to long lived assets and goodwill) of such Person and its Subsidiaries which do not represent a cash item in such period or any future period,

 

(iv)        amortization of expense relating to non-vested awards of Equity Interests,

 

(v)          fees, expenses and losses (if any) in connection with the Transaction,

 

(vi)          any losses relating to sales, transfers or other dispositions of any Vessel for such period,

 

(b)          subtracting therefrom the following to the extent added in calculating such Consolidated Net Income:

 

(i)          all extraordinary or non-recurring noncash items increasing Consolidated Net Income for such period,

 

(ii)          any extraordinary gains for such period; and

 

(iii)       any gains relating to sales, transfers or other dispositions of any Vessel for such period (which, for the avoidance of doubt, shall not include any charter of any such Vessel).

 

Unless otherwise agreed to by the Administrative Agent, for purposes of this definition of “Consolidated EBITDA,” “non-recurring” means any expense, loss or gain as of any date that (x) did not occur in the ordinary course of the Borrower or its Subsidiaries’ business; (y) is of a nature and type that has not occurred in the prior two years and is not reasonably expected to recur in the future; and (z) any fees, expenses or charges related to any equity offering, investment or Financial Indebtedness or amendments thereto permitted by this Agreement, whether or not consummated.

 

“Consolidated Net Income” shall mean, for any period, the Consolidated net income (or loss) with respect to any Person, determined on a Consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:

 

(a)        the net income of any Subsidiary of the Borrower during such period to the extent that the declaration and/or payment of dividends or similar distributions by such 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 Subsidiary or its equityholders during such period, except that the Borrower’s equity in the net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income; and

 

(b)         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 Subsidiary of the Borrower or all or substantially all of the property of such person is acquired by the Borrower or any of its Subsidiaries.

 

“Consolidated Net Indebtedness” shall mean, with respect to any Person, at any relevant date, (x) Total Indebtedness less (y) an amount equal to the Unrestricted Cash and Cash Equivalents described in clause (A) of the definition of “Unrestricted Cash and Cash Equivalent”, provided that all Contingent Liabilities of such Person shall be excluded from the calculation of Consolidated Net Indebtedness to the extent not reflected as indebtedness on the Consolidated balance sheet of such Person.

 

“Consolidated Tangible Net Worth” shall mean, at any time of determination for any Person, the Net Worth (i.e., Equity) of such Person and its Subsidiaries at any relevant date determined on a Consolidated basis in accordance with GAAP minus goodwill.

 

“Contingent Liability” shall mean, as to any Person, any obligation, agreement, understanding or arrangement of such Person guaranteeing or intended to guarantee any Financial Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, 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 (x) for the purchase or payment of any such primary obligation or (y) 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 loss or the payment of such primary obligation (in whole or in part) in respect thereof; provided, however, that the term Contingent Liability shall not include endorsements of instruments for deposit or collection in the ordinary course of business and any products warranties extended in the ordinary course of business.  The amount of any Contingent Liability 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 Liability is made (or, if the 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 evidencing such Contingent Liability) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

“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.

 

“Coordinator” shall mean Nordea Bank Abp, New York Branch, as coordinator for the Revolving Facility hereunder.

 

“Credit Extension” shall mean the making of a Loan by a Lender.

 

“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion; provided that if Daily Simple SOFR as so determined shall ever be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor.

 

“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 2.17.

 

“Default Period” shall have the meaning assigned to such term in Section 2.17.

 

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

 

“Defaulted Loans” shall have the meaning assigned to such term in Section 2.17.

 

“Defaulting Lender” shall mean any Lender that has (a) failed to fund its portion of any Borrowing, 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 Borrower and such Lender related hereto), (b) notified the Borrower, the Administrative Agent 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 Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless the subject of a good faith dispute between the 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 Borrower, (d) otherwise failed to pay over to the Borrower, the Administrative Agent 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 Borrower and the Administrative Agent 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.  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 Borrower and each other.  In no event shall the reallocation of funding obligations provided for in Section 2.17 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.

 

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

 

“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, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for common shares of the Borrower) pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Secured Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for common shares of the Borrower), in whole or in part, (c) provides for the scheduled payments of dividends in cash (except that an Equity Interest shall not be deemed to be within this clause (c) if its terms provide that (i) cash dividends shall not be paid if prohibited by law or any agreement to which the Person is a party or (ii) such Person may substitute dividends of Equity Interests other than Disqualified Capital Stock of such Person for cash) or (d) is or becomes convertible into or exchangeable for Financial Indebtedness or any other Equity Interests that would constitute Disqualified Capital Stock, in each case, prior to the first anniversary of the Revolving Maturity Date; provided, however, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or

are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Capital Stock; provided, further, however, that if such Equity Interest is issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Capital Stock solely because they may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

 

“Disqualified Institution” shall mean any Person listed on Schedule 1.01(h) hereto and any affiliates thereof which are clearly identifiable solely on the basis of similarity of name.

 

“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 Equity Interests 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 (other than Qualified Equity Interests) 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 and shall include any stock buy-backs.

 

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

 

“Earnings Account Pledge Agreement” shall mean the earnings account pledge agreement to be entered into by each Security Provider and the Collateral Agent for the benefit of the Secured Parties and pursuant to which the Earnings Accounts (subject to Section 5.14) of each Security Provider with respect to a Collateral Vessel shall have been pledged to secure the Secured Obligations.

 

“Earnings Accounts” shall mean each account listed on Schedule 5.14 and each other deposit account held with Nordea Bank Abp, New York Branch, as deposit account bank and into which Earnings and Insurance Collateral are deposited (or are required to be deposited) pursuant to Section 5.14.

 

“Earnings and Insurance Collateral” shall mean all “Earnings Collateral” and “Insurance Collateral”, as the case may be, as defined in the General Assignment Agreement.

 

“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.

 

“Eligible Assignee” shall mean and include a commercial bank, insurance company, financial institution, fund, trust or other Person which regularly purchases interests in loans or extensions of credit

of the types made pursuant to this Agreement, any other Person which would constitute a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act as in effect on the Closing Date or other “accredited investor” (as defined in Regulation D of the Securities Act); provided that neither (i) any Loan Party or any Affiliate of any Loan Party nor (ii) any natural Person nor (iii) any Disqualified Institution nor any (iv) Defaulting Lender shall be an Eligible Assignee at any time.

 

“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.

 

“Environment” shall mean air, land, soil, seas, surface waters, ground waters, and inland waters, including rivers, streams and river sediments.

 

“Environmental Claim” shall mean any written claim, notice, demand, Order, action, suit, proceeding or other written communication alleging or asserting liability or obligations relating to Environmental Law, Hazardous Materials or the Environment, including liability or obligation for reporting, 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 (ii) any actual or alleged 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, pollution, any Hazardous Materials, including the Release or threatened Release of any Hazardous Material and exposure to any Hazardous Material, 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 Closing Date or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.

 

“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.

 

“ERISA Event” shall mean:  (a) the failure to make any required contribution to any Pension Plan or Multiemployer Plan; or (b) 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.

 

“Erroneous Payment” has the meaning assigned to it in Section 10.16(a).

 

“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 10.16(e).

 

“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.

 

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

 

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

 

“Excluded Swap Obligation” shall mean, with respect to any Subsidiary 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 Subsidiary 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 Subsidiary 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 Subsidiary Guarantor or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Subsidiary 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.

 

“Excluded Taxes” shall mean, with respect to a Recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office, or in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, 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 Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.16(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.15, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.15(f), and (d) any withholding Taxes imposed under FATCA.

 

“Executive Order” shall have the meaning assigned to such term in Section 3.22(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 Borrower, or the Subsidiary of the Borrower selling such asset or (y) in the case of Collateral Vessels or Accordion Vessels for purposes of calculating the Collateral Maintenance Test or the Vessel Appraisal Value.

 

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

“FCPA” shall mean the United States Foreign Corrupt Practices Act of 1977, as amended.

 

“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.

 

“Fee Letters” shall mean, collectively, the Agency Fee Letter, the Bookrunner Fee Letter, the Closing Fee Letter, the Fourth Amendment Fee Letter and the Fifth Amendment Fee Letter, in each case, as the same may be amended, amended and restated, modified or otherwise supplemented.

 

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

 

“Fifth Amendment” shall mean that certain Fifth Amendment to Credit Agreement, dated as of July 10, 2025, by and among the Borrower, Nordea, as Administrative Agent, Collateral Agent, Security Trustee, Sustainability Coordinator, the Guarantors party thereto and the Lenders party thereto.

 

“Fifth Amendment Effective Date” shall have the meaning assigned to “Fifth Amendment Effective Date” in the Fifth Amendment.

 

“Fifth Amendment Fee Letter” shall mean that certain Fee Letter, dated as of June 4, 2025 between Nordea (on behalf of itself and the Lenders) and the Borrower.

 

“Financial Covenants” shall mean the covenants set forth in Section 6.10.

 

“Financial Indebtedness” of any person shall mean, without duplication, (a) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services (including, for the avoidance of doubt, any Disqualified Capital Stock); (b) the maximum amount available to be drawn under all letters of credit issued for the account of such Person and all unpaid drawings in respect of such letters of credit (it being understood that undrawn amounts in respect of letters of credit shall not constitute Financial Indebtedness); (c) all indebtedness of the types described in paragraphs (a) to (g) of this definition secured by any Collateral on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (to the extent of the value of the respective property); (d) the aggregate amount required to be capitalized under leases under which such Person is the lessee; (e) all obligations of such person to pay a specified purchase price for goods or services, whether or not delivered or accepted (i.e. take-or-pay and similar obligations); (f) all Contingent Liabilities of such Person and (g) all obligations under any Permitted Hedging Agreements.  Notwithstanding the foregoing, Financial Indebtedness shall not include trade payables and expenses, or

indebtedness (other than indebtedness for borrowed money) incurred in connection with Permitted Hedging Agreements or in the ordinary course of business to pay for alterations or modifications of a Collateral Vessel to comply with regulatory requirements, accrued expenses and deferred tax and other credits incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person.

 

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

 

“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 Liens which may, under applicable law, be entitled to priority over such Collateral Vessel Mortgage).

 

“Flag Jurisdiction” shall mean, with respect to any Collateral Vessel, the flag jurisdiction of such Collateral Vessel on the Fourth Amendment Effective Date (or such later date on which a vessel becomes a Collateral Vessel), which, for the avoidance of doubt, must be an Acceptable Flag Jurisdiction.

 

“Flag Jurisdiction Transfer” shall mean the transfer of the registration and flag of a Collateral Vessel from one Acceptable Flag Jurisdiction to another Acceptable Flag Jurisdiction in accordance with Section 11.20; provided that the following conditions are satisfied:

 

(a)          On each Flag Jurisdiction Transfer Date, the Loan Party which is consummating a Flag Jurisdiction Transfer on such date shall have duly authorized, executed and delivered, and caused to be recorded in the appropriate vessel registry a Collateral Vessel Mortgage (which Collateral Vessel Mortgage shall, to the extent possible, be registered as a “continuation mortgage” to the original Collateral Vessel Mortgage recorded in the initial Acceptable Flag Jurisdiction) with respect to the Collateral Vessel being transferred (the “Transferred Collateral Vessel”) and such Collateral Vessel Mortgage shall be effective to create in favor of the Collateral Agent and/or the Lenders a legal, valid and enforceable First Priority security interest, in and lien upon such Transferred Collateral Vessel, subject only to Permitted Liens.  All filings, deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve such security interests shall have been duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent (acting on instructions from the Required Lenders).

 

(b)       On each Flag Jurisdiction Transfer Date, the Administrative Agent shall have received from counsel to the Loan Parties consummating the relevant Flag Jurisdiction Transfer reasonably satisfactory to the Administrative Agent practicing in those jurisdictions in which the Transferred Collateral Vessel is registered and/or the Loan Party owning such Transferred Collateral Vessel is organized, opinions which shall be addressed to the Administrative Agent and each of the Lenders and dated such Flag Jurisdiction Transfer Date, which shall (x) be in form and substance reasonably acceptable to the Administrative Agent (acting on instructions from the Required Lenders) and (y) cover the perfection of the security interests granted pursuant to the Collateral Vessel Mortgage(s) and such other matters incident thereto as the Administrative Agent may reasonably request.

 

(c)          On each Flag Jurisdiction Transfer Date:

 

(i)         the Administrative Agent shall have received (x) a certificate of ownership issued by the registry of the applicable Acceptable Flag Jurisdiction showing the registered ownership of the Transferred Collateral Vessel transferred on such date in the name of the relevant Subsidiary Guarantor and (y) a certificate of ownership and encumbrance or, as applicable, a transcript of registry with respect to the Transferred Collateral Vessel transferred on such date, indicating no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted Liens; and

 

(ii)         the Administrative Agent shall have received a report, in form and scope reasonably satisfactory to the Administrative Agent, from a firm of independent marine insurance brokers reasonably acceptable to the Administrative Agent with respect to the insurance maintained by the Loan Party in respect of the Transferred Collateral Vessel transferred on such date, together with a certificate from such broker certifying that such insurances (x) are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds for the protection of the Collateral Agent as mortgagee and (y) conform with the insurance requirements of the respective Collateral Vessel Mortgages.

 

(d)         On or prior to each Flag Jurisdiction Transfer Date, the Administrative Agent shall have received a certificate, dated the Flag Jurisdiction Transfer Date, signed by a Responsible Officer, member, or general partner of the Loan Party consummating such Flag Jurisdiction Transfer, certifying that (i) all necessary governmental (domestic and foreign) and third party approvals and/or consents, including evidence of deletion from the existing Flag Jurisdiction, in connection with the Flag Jurisdiction Transfer being consummated on such date and otherwise referred to herein shall have been obtained and remain in effect or that no such approvals and/or consents are required, (ii) there exists no judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions upon such Flag Jurisdiction Transfer or the other transactions contemplated by this Agreement and (iii) copies of any authorizing resolutions approving the Flag Jurisdiction Transfer of such Loan Party and any other matter the Administrative Agent may request.

 

(e)          On each Flag Jurisdiction Transfer Date, the Vessel Collateral Requirements for the Transferred Collateral Vessel shall have been satisfied.

 

(f)          On each Flag Jurisdiction Transfer Date, (i) no Event of Default has occurred and is continuing and (ii) all representations and warranties contained herein or in any other Loan Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).

 

“Flag Jurisdiction Transfer Date” shall mean the date on which a Flag Jurisdiction Transfer occurs.

 

“Floor” shall mean a rate of interest equal to 0.00% per annum.

 

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

 

“Fourth Amendment” shall mean that Fourth Amendment to Credit Agreement, dated as of November 29, 2023, by and among the Borrower, Nordea, as Administrative Agent, Collateral Agent, Security Trustee, Sustainability Coordinator, the Guarantors party thereto and the Lenders party thereto.

 

“Fourth Amendment Effective Date” shall have the meaning assigned to “Fourth Amendment Effective Date” in the Fourth Amendment.

 

“Fourth Amendment Fee Letter” shall mean that certain Fee Letter, dated as of October 19, 2023 between Nordea (on behalf of itself and the Lenders) and the Borrower.

 

“Funding Default” shall have the meaning assigned to such term in Section 2.17.

 

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

 

“General Assignment Agreement” shall have the meaning set forth in the definition of “Vessel Collateral Requirements”.

 

“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 international or supra-national bodies such as the International Maritime Organization, the European Union or the European Central Bank).

 

“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) each Subsidiary Guarantor and (ii) the Borrower but only in its capacity, and to the extent, if any, as a guarantor of the Secured Hedging Obligations of another Loan 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 substances required or recommended to be listed on a Collateral Vessel’s IHM prepared in compliance with Resolution MEPC.269(68) (adopted on 15 May 2015) by the Marine Environment Protection Committee of the International Maritime Organization and petroleum, petroleum products, petroleum by-products, petroleum breakdown products, petroleum-derived substances, crude oil or any fraction thereof.

 

“IHM” shall mean, in relation to a Collateral Vessel, an “Inventory of Hazardous Materials” prepared in accordance with IMO Resolution MEPC.269(68), “2015 Guidelines for the Development of the Inventory of Hazardous Materials”, issued by that Collateral Vessel’s classification society, which includes a list of required materials known to be potentially hazardous and listed in the construction of or on board that Collateral Vessel, their location and approximate quantities.

 

“Increasing Lenders” shall have the meaning assigned to such term in Section 2.19(b).

 

“Incremental Joinder Agreement” shall have the meaning assigned to such term in Section 2.19(d).

 

“Incremental Revolving Loan Amendment” shall have the meaning assigned to such term in Section 2.19(d).

 

“Indemnified Taxes” shall mean (a) all Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document 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 Borrowing Date” shall mean August 31, 2021.

 

“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 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 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.

 

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

 

“Interest Election Request” shall mean a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08(b), substantially in the form of Exhibit E or such other form as the Administrative Agent and the Borrower may agree to from time to time.

 

“Interest Payment Date” shall mean the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a 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, the Revolving Maturity Date (or such earlier date on which the Revolving Commitments are terminated).

 

“Interest Period” shall mean, with respect to any Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one or three months thereafter or other interest period that may be agreed to by all Lenders in writing; 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 continuation of such Borrowing.

 

“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.

 

“IRS” shall mean the United States Internal Revenue Services.

 

“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.

 

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

 

“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).

 

“Legal Requirements” shall mean, as to any person, any treaty, convention, 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 Fifth Amendment Effective Date, 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.

 

“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 (or any financing lease having substantially the same economic effects as any of the foregoing) relating to such property and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

“Loan” or “Loans” shall mean, one or more Revolving Loans.

 

“Loan Documents” shall mean this Agreement, the Notes, if any, the Security Documents, each Intercompany Note, each Incremental Joinder Agreement and all other documents, certificates, instruments or agreements executed by or on behalf of a Loan Party or a Security Provider for the benefit of any Agent or any Lender in connection herewith on or after the Closing Date, each other document, instrument or agreement that the Administrative Agent and the Borrower agree shall be a Loan Document and, except for purposes of Section 11.02(b), the Fee Letters.  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.

 

“Loan Parties” shall mean the Borrower and the Guarantors and “Loan Party” shall mean any of them.

 

“LTV Ratio” shall mean the ratio of (a) the aggregate outstanding principal amount of Loans (which shall not include undrawn Revolving Commitments) to (b) the Vessel Appraisal Value of all Collateral Vessels.

 

“Manager’s Undertaking” shall have the meaning provided in Section 5.16(h).

 

“Mandated Lead Arrangers” shall mean Nordea Bank Abp, New York Branch, Skandinaviska Enskilda Banken AB (publ), DNB Markets, Inc., ING Capital LLC and CTBC Bank Co., Ltd., as mandated lead arrangers for the Revolving Facility hereunder.

 

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

 

“Market Disruption Event” shall have the meaning assigned to such term in Section 2.11(a)(ii).

 

“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 Companies, taken as a whole, (b) an impairment of the ability of the Loan Parties to fully and timely perform any of their payment obligations or of the Loan Parties and any other Security Provider to fully and timely perform any of their material obligations under any Loan Document (taken as a whole), (c) a material impairment of the rights of or benefits or remedies available to the Lenders or any Agent under any Loan Document, or (d) a material adverse effect on the Collateral (taken as a whole) 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 the Borrower and its Subsidiaries or any of their respective securities for purposes of foreign, United States Federal and state securities laws.

 

“Maximum Leverage Ratio” shall mean, at any time of determination for any Person, the ratio of (x) Consolidated Net Indebtedness to (y) Total Capitalization.

 

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

 

“Minimum Liquidity Threshold” shall have the meaning assigned to such term in Section 6.10(a).

 

“Minimum Reduction Profile” shall mean the amount of scheduled reductions of Revolving Commitments on the last day of each fiscal quarter, in equal installments in an amount reflecting a straight-line amortization sufficient to result in a reduction of the aggregate principal amount of the Revolving Commitments to $0 upon the Collateral Vessels having achieved an average age of 20 years, calculated, notwithstanding the date of the first scheduled reduction as set forth herein,  as if the scheduled reductions commenced on the last day of the first fiscal quarter ending after the Fifth Amendment Effective Date (for the avoidance of doubt, such that the outstanding commitments at the Maturity Date reflect the outstanding commitments that would have been outstanding if the scheduled reductions had commenced on the last day of the first fiscal quarter ending after the Fifth Amendment Effective Date in an amount reflecting a straight-line amortization sufficient to result in a reduction of the aggregate principal amount of the Revolving

Commitments to $0 upon the Collateral Vessels having achieved an average age of 20 years); provided that (i) the first quarterly scheduled reduction following the Fifth Amendment Effective Date shall occur as determined in accordance with the definition of “Revolving Loan Commitment Reduction Date”, and (ii) in the event that the first Revolving Loan Commitment Reduction Date occurs prior to March 31, 2027, such quarterly scheduled reductions shall be adjusted downward to reflect the number of quarters remaining after such Revolving Loan Commitment Reduction Date (in accordance with the methodology described above).

 

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

 

“Mortgagee’s Insurances” means all policies and contracts of mortgagees interest insurance, mortgagees interest insurance additional perils (pollution) insurance and any other insurance from time to time taken out by the Collateral Agent in relation to a Collateral Vessel.

 

“Multiemployer Plan” shall mean an employee benefit plan of the type described in 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.

 

“NASDAQ” shall mean the NASDAQ Stock Market.

 

“Net Worth” shall mean, as to any Person, the sum of its capital stock, capital in excess of par or stated value of shares of its capital stock, retained earnings and any other account which, in accordance with GAAP, constitutes stockholders’ equity, but excluding treasury stock and the effect of any impairment of intangible assets on and after the Closing Date.

 

“New Collateral Vessel” shall have the meaning assigned to such term in the Fourth Amendment.

 

“New Lender” shall have the meaning assigned to such term in Section 2.19(c).

 

“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.

 

“Nordea” shall mean Nordea Bank Abp, New York Branch and its legal successors and permitted assigns.

 

“Notes” shall mean any notes evidencing the Revolving Loans issued pursuant to Section 2.04(e), if any, substantially in the form of Exhibit F-2.

 

“NYSE” shall mean the New York Stock Exchange.

 

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

 

“Obligations” shall mean (a) all obligations of the Borrower, the other Loan Parties and, if any, the Security Providers 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 (including any obligation to pay, discharge and satisfy the Erroneous Payment Subrogation Rights), and (ii) all other monetary obligations, including fees (including the fees provided for in the Fee Letters), 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 Borrower, the other Loan Parties and,

if any, the Security Providers under this Agreement and the other Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower, the other Loan Parties and the other Security Providers 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).

 

“Other Taxes” shall mean any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16(b)).

 

“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).

 

“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.

 

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

 

“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

 

“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 Subsidiary of such person, (c) merger or consolidation or any other combination with any person (so long as, (i) in the event the Borrower is a party to such merger, consolidation or combination, the Borrower shall be the surviving person and (ii) in any other case, a Subsidiary Guarantor shall be the surviving person and shall remain, directly or indirectly, a Wholly Owned Subsidiary of the Borrower) or (d) acquisition by the Borrower or any Subsidiary of the Borrower (other than any Subsidiary Guarantor) of one or more Vessels (other than Collateral Vessels), 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 Borrower shall be in compliance with the Financial Covenants; and

 

(iii)      with respect to an acquisition of a Vessel, the Vessel shall be a dry bulk vessel, and, with respect to persons or businesses, the person or business to be acquired shall be, or shall be engaged in, a business of the type that the Borrower and its Subsidiaries are permitted to be engaged in under Section 6.14.

 

“Permitted Charter” shall mean a charter of a Collateral Vessel to a third party:

 

(a)         which is a time charter, voyage charter, consecutive voyage charter, pooling agreement or contract of affreightment entered into on bona fide arm’s length terms; and

 

(b)          bareboat or demise charters approved by the Required Lenders.

 

“Permitted Collateral Vessel Acquisition” shall mean any transaction or series of related transactions for the acquisition of the whole of a vessel (either from a third party or via intercompany transfer) or substitution of a vessel owned by a Subsidiary of the Borrower for any Collateral Vessel, if each of the following conditions is met:

 

(i)          no Event of Default then exists or would result therefrom at the time of such acquisition;

 

(ii)         after giving effect to such acquisition or substitution on a Pro Forma Basis, the Borrower shall be in compliance with the Financial Covenants;

 

(iii)       the vessel so acquired or substituted becomes a Collateral Vessel on the date of such acquisition or substitution, the person which owns such vessel becomes a Subsidiary Guarantor with respect to the Secured Obligations and the Vessel Collateral Requirements with respect to such Vessel and such Subsidiary Guarantor have been satisfied;

 

(iv)        the LTV Ratio (after giving effect to the acquisition, substitution or refinancing on a pro forma basis) shall be equal to or less than 0.59 on a Pro Forma Basis;  and

 

(v)         each Vessel acquired or substituted in connection with such Permitted Collateral Vessel Acquisition shall be a Substitution Vessel.

 

“Permitted Hedging Agreement” shall mean any agreement documenting hedging, swap or derivative transactions to the extent constituting a swap, cap, collar, forward purchase or similar agreements

or arrangements dealing with interest rates, currency exchange rates, bunkers, fuel, other commodities, forward commitments for bunkers or fuel and forward freight futures, either generally or under specific contingencies, in each case entered into in the ordinary course of business and not for speculative purposes.

 

“Permitted Hedging Obligations” shall mean all obligations of the Borrower and, if applicable the other Loan Parties from time to time arising under or in respect of the due and punctual payment of all amounts due, including fees, 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), pursuant to Permitted Hedging Agreements.

 

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

 

“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.

 

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

 

“Pledge Agreement” shall mean a Pledge Agreement substantially in the form of Exhibit G between the Loan Parties and the Collateral Agent for the benefit of the Secured Parties and pursuant to which the Earnings Accounts (subject to Section 5.14) and all of the Equity Interests of each Subsidiary Guarantor that owns a Collateral Vessel (and the Equity Interests of the Person that owns, directly or indirectly, the Equity Interests in such Subsidiary Guarantor, if any) shall have been pledged to secure the Obligations and shall have (A) delivered to the Collateral Agent all the Securities Collateral referred to therein, together with executed and undated stock powers in the case of capital stock constituting Securities Collateral, and (B) otherwise complied with all of the requirements set forth in the Pledge Agreement.

 

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

 

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

 

“Poseidon Principles” shall mean the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published on 18 June 2019, available at http://www.poseidonprinciples.org, as the same may be amended or replaced, including but not limited to, to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organization from time to time.

 

“Prime Rate” shall mean the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).  Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.

 

“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 Financial Indebtedness (other than revolving Financial

Indebtedness, except to the extent the same is incurred to refinance other outstanding Financial 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 Financial Indebtedness had been incurred (and the proceeds thereof applied) on the first day of such Test Period, (y) the permanent repayment of any Financial Indebtedness (other than revolving Financial Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) after the first day of the relevant Test Period, as if such Financial 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:

 

(i)        all Financial Indebtedness (x) (other than revolving Financial Indebtedness, except to the extent that the same is incurred to refinance other outstanding Financial 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 Financial 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 Financial 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 Financial 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 Financial Indebtedness (although interest expense with respect to any Financial 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

 

“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, cash, securities, accounts, revenues and contract rights.

 

“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

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

 

“Qualified Equity Interests” 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 Subsidiary 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.

 

“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, Collateral Agent or any Lender, as applicable.

 

“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.

 

“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.

 

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

 

“Relevant Amount” shall have the meaning assigned to such term in Section 2.10(b)(iv).

 

“Relevant Governmental Body” shall mean the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

 

“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 Revolving Loans and unused Revolving Commitments representing more than 66 2/3% of the sum of all outstanding Revolving Loans and unused Revolving Commitments at such time.  The Loans and Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

“Requisition” means: (a) any expropriation, confiscation, requisition or acquisition of a Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 30 days redelivered to the full control of the Subsidiary Guarantor being the owner thereof; and (b) any arrest, capture or seizure of a Vessel (including any hijacking or theft) unless it is within 60 days redelivered to the full control of the Subsidiary Guarantor being the owner thereof.

 

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

“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 Cash and Cash Equivalents” shall mean all cash and Cash Equivalents of the Borrower and its Subsidiaries other than Unrestricted Cash and Cash Equivalents.

 

“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 Financial Indebtedness of any Company, the payment, prepayment, repurchase, defeasance or acquisition for value of which is restricted under Section 6.13.

 

“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 the same may be (a) reduced from time to time pursuant to Section 2.07 and/or Section 2.09, (b) increased from time to time pursuant to Section 2.19 and/or (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.04.  The aggregate principal amount of the Lenders’ Revolving Commitments on the Fifth Amendment Effective Date is $600,000,000.

 

“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.

 

“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 Borrower pursuant to Section 2.01(a).

 

“Revolving Loan Commitment Reduction Date” shall mean the last Business Day of each March, June, September and December, commencing with the earlier of (i) March 31, 2027 and (ii) the first such date occurring after the date on which the Total Revolving Exposure exceeds 50% of the Revolving Commitment unless (x) such excess is in its entirety the direct result of Borrowings incurred solely to finance the acquisitions of one or more vessels meeting the requirements of an Acceptable Collateral Vessel that becomes a Collateral Vessel (and with respect to which the Vessel Collateral Requirements are satisfied) within thirty (30) days of such acquisition and (y) the LTV Ratio (which, for the avoidance of doubt shall include such new Collateral Vessel) remains less than 40%, in which case, this clause (ii) shall not apply; provided, further, that, if any such date is not a Business Day, on the immediately following Business Day, unless such next following Business Day would fall in the next calendar month, in which case such date shall be the next preceding Business Day.

 

“Revolving Maturity Date” shall mean July 10, 2030.

 

“Revolving Obligations” shall mean (i) all Revolving Loans, and Revolving Commitments and (ii) all Obligations relating to the Financial 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 mean any arrangement of any person, directly or indirectly, with any other person whereby such initial person shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

 

“Sanctions Authority” shall mean the respective governmental institutions and agencies of the United States, the European Union (and its member states), the United Kingdom, the Kingdom of Norway, the European Economic Area (and its member states), 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, the European Union (and its member states), the United Kingdom, the Kingdom of Norway, the European Economic Area (and its member states), 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.

 

“Scheduled Revolving Commitment Reduction Amount” shall mean for any Revolving Loan Commitment Reduction Date the corresponding amount for such date set forth on Schedule 2.09, as such amount may be reduced from time to time pursuant to Section 2.07 and Section 2.10(g); provided that such amounts shall reflect a straight-line amortization not less than amounts reflecting the Minimum Reduction Profile.

 

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

 

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

 

“Secured Hedging Obligations” shall mean (a) all Permitted Hedging Obligations of the Borrower and, if applicable, the other Loan Parties from time to time pursuant to Secured 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 Secured Hedging Agreements provided by such Bank Product Provider to the Borrower or any Subsidiary Guarantor; provided that, in order for any item described in clause (a) or (b) above, as applicable, to constitute “Secured Hedging Obligations,” the applicable Secured Hedging Agreement 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 Borrower) within 30 days after the date of the entry into a 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 with the Borrower or any Subsidiary Guarantor.

 

“Secured Obligations” shall mean (a) the Obligations and (b) the due and punctual payment and performance of all Secured Hedging Obligations of the Borrower 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 and (d) each Bank Product Provider.

 

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

 

“Securities Collateral” shall mean “Collateral” (as defined in the Pledge Agreement).

 

“Security Documents” shall mean the Pledge Agreement, the Earnings Account Pledge Agreement, each Collateral Vessel Mortgage, each Account Control Agreement, each General Assignment Agreement, each Assignment of Insurances, each Manager’s Undertaking 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 First Priority) 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 Pledge Agreement, any Collateral Vessel Mortgage, any Account Control Agreement, any General Assignment Agreement, any Assignment of Insurances, any Manager’s Undertaking 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 Pledge Agreement, any Collateral Vessel Mortgage, any Account Control Agreement, any General Assignment Agreement, any Manager’s Undertaking and any other document or instrument utilized to pledge any property as collateral for the Secured Obligations.

 

“Security Provider” shall mean each direct or indirect Subsidiary of the Borrower (other than a Loan Party) which grants a First Priority perfected security interest in any of its property as collateral for the Secured Obligations.  On the Fourth Amendment Effective Date, the only Security Providers will be Genco Shipping A/S, a company formed in Denmark, Genco Shipping Pte. Ltd., a company formed in Singapore, and Genco Ship Management LLC, each of which is a direct or indirect Wholly Owned Subsidiary of the Borrower.

 

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

 

“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.

 

“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

“SOFR Borrowing” shall mean, as to any Borrowing, the SOFR Loans comprising such Borrowing.

 

“SOFR Loan” shall mean a Loan that bears interest at a rate based on Term SOFR.

 

“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.

 

“Statement of Compliance” shall mean a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.

 

“Subordinated Indebtedness” shall mean unsecured Financial Indebtedness of the Borrower or any of its 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.

 

“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; provided that notwithstanding anything herein to the contrary GS Shipmanagement Pte Ltd., a Singapore private limited company, nor any of its subsidiaries, shall not be deemed a Subsidiary for so long as the Borrower or any Subsidiary thereof owns 50% or less of GS Shipmanagement Pte Ltd. Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of the Borrower.

 

“Subsidiary Guarantor” shall mean each Subsidiary of the Borrower that is the owner of a Collateral Vessel and each Subsidiary of the Borrower that directly or indirectly owns Equity Interests in any owner of a Collateral Vessel, as well as any additional Subsidiary of the Borrower that becomes a Subsidiary Guarantor pursuant to Section 5.10. As of the Fifth Amendment Effective Date, the Subsidiary Guarantors are listed on Schedule 1.01(e).

 

“Substitution Vessel” or “Substitution Vessels” shall mean, as applicable, one or more dry bulk vessels which shall be of similar quality and type as the vessel(s) being replaced as a Collateral Vessel(s) and shall (i) be an Acceptable Collateral Vessel, (ii) be not older than the vessel(s) being replaced as a Collateral Vessel(s), and (iii) have an equal to or higher aggregate Vessel Appraisal Value than the vessel(s) being replaced as Collateral Vessel(s) (so that the ratio of Revolving Commitments not including the Suspended Commitments, if any, to the Vessel Appraisal Value of the Collateral Vessels after the substitution shall be equal or lower than such ratio immediately prior to the substitution) in accordance with Section 2.10(e).

 

“Sustainability Certificate” shall mean a certificate signed by a financial officer, in a form and substance reasonably satisfactory to the Administrative Agent and the Sustainability Coordinator delivered pursuant to Section 5.01(d).

 

“Sustainability Coordinator” shall have the meaning assigned to such term in the preamble hereto.

 

“Sustainability Pricing Adjustment Schedule” shall mean Schedule 1.01(f), as amended from time to time in accordance with Section 11.02 of this Agreement.

 

“Swap Obligation” shall mean, with respect to the 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.

 

“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 Loan 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 Loan 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 any interest, penalties or additions to tax applicable thereto.

 

“Technical Manager” shall mean (i) an Acceptable Third Party Technical Manager or (ii) one or more other technical managers (including a Subsidiary of the Borrower) selected by the Borrower and reasonably acceptable to the Administrative Agent (acting on instructions from the Required Lenders).

 

“Term SOFR” shall mean the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.

 

“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

 

“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.

 

“Test Period” shall mean each period of four consecutive fiscal quarters of the Borrower then last ended (in each case taken as one accounting period) for which financial statements of the Borrower have been delivered pursuant to Section 5.01(a) or (b), as the case may be.

 

“Total Capitalization” shall mean, at any time of determination for any Person, the sum of Total Indebtedness of such Person at any relevant date and Consolidated Tangible Net Worth of such Person at any relevant date.

 

“Total Indebtedness” shall mean, as at any date of determination for any Person, the aggregate stated balance sheet amount of all Financial Indebtedness (but including in any event the then outstanding principal amount of the Loans) of such Person and its Subsidiaries on a Consolidated basis as determined in accordance with GAAP.

 

“Total Loss” means: (a) actual, constructive, compromised, agreed or arranged total loss of a Vessel; or (b) any Requisition of a Vessel.

 

“Total Loss Date” means, in relation to the Total Loss of a Vessel:  (a) in the case of an actual loss of a Vessel, the date on which it occurred or, if that is unknown, the date when that Vessel was last heard of; (b) in the case of a constructive, compromised, agreed or arranged total loss of a Vessel, the earlier of:  (i) the date on which a notice of abandonment is given to the insurers; and (ii) the date of any compromise, arrangement or agreement made by or on behalf of the Borrower and/or the Subsidiary Guarantor who owns such Vessel with the Vessel’s insurers in which the insurers agree to treat that Vessel as a total loss; and (c) in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Administrative Agent that the event constituting the Total Loss occurred.

 

“Total Net Leverage Ratio” shall mean, at any date of determination, the ratio of (i) Consolidated Net Indebtedness of the Borrower and its Subsidiaries on such date to (ii) Consolidated EBITDA of the Borrower and its 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 Fifth Amendment Effective Date is in the aggregate amount of $600,000,000, as the same may be reduced from time to time pursuant to Section 2.07 and/or Section 2.09 or increased from time to time pursuant to Section 2.19.

 

“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.

 

“Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Loan Parties of the Fifth Amendment, the performance by the Loan Parties of this Agreement and the execution, delivery and performance by the Loan Parties and the other Security Providers of the other Loan Documents to which they are a party, (b) the Credit Extensions made on the Fifth Amendment Effective Date and the use of the proceeds thereof and (c) the payment of the fees and expenses related to the foregoing.

 

“Transferred Collateral Vessel” shall have the meaning provided in the definition of “Flag Jurisdiction Transfer” in this Section 1.01.

 

“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 Security 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 Security Trustee in the Collateral Vessel Mortgages), (b) all moneys, property and other assets paid or transferred to or vested in the Security Trustee, or any agent of the Security Trustee whether from any Loan Party, any Security Provider 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 Security Trustee or any agent of the Security Trustee in respect of the same (or any part thereof).

 

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

 

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

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

 

“Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

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

 

“Unrestricted Cash and Cash Equivalents” shall mean (A) cash or Cash Equivalents that (i) do not appear (or would not be required to appear) as “restricted” on a Consolidated balance sheet of the Borrower or any of its Subsidiaries, (ii) are not subject to any Lien in favor of any Person other than (a) the Collateral Agent or Security Trustee for the benefit of the Lenders or (b) if required by law, the deposit account bank holding such accounts, (iii) are otherwise generally available for use by the Borrower or such Subsidiary and (B) undrawn amounts under the Revolving Facility.

 

“U.S. Borrower” shall mean any Borrower that is a U.S. Person.

 

“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

“U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” shall have the meaning specified in Section 2.15(f).

 

“Vessel Appraisal” shall mean a written desktop appraisal of the fair market value of each Collateral Vessel or Accordion 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 selected by the Borrower on the basis of a charter-free arm’s-length transaction between a willing and able buyer and seller not under duress, addressed to the Collateral Agent and upon which the Administrative Agent, the Collateral Agent and the Lenders are expressly permitted to rely.

 

“Vessel Appraisal Value” of any Collateral Vessel or Accordion Vessel at any time of determination shall mean the average of Vessel Appraisals from two Approved Brokers most recently delivered to, or obtained by, and addressed to the Administrative Agent prior to such time in accordance with Sections 2.19(a)(ii), 5.01(c) or 6.10(d), as applicable, or at such other time or times set forth in this Agreement.

 

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

 

(a)          the Subsidiary Guarantor 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 Security 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 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

 

(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 and any charter contract guarantees in connection therewith;

 

(ii)         a confirmation of class certificate issued by an Acceptable Classification Society showing the Collateral Vessel to be free of overdue recommendations issued not more than 10 days prior to (x) the Closing Date or (y) otherwise, the date a vessel becomes Collateral Vessel and certified 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 Liens) for such Collateral Vessel, such certificate to be issued within 30 days prior to (x) the Closing Date or (y) otherwise, the date a vessel becomes 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, the adequacy of such marine insurances 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 each relevant marine insurance broker, the protection and indemnity club or war risks association through or with whom any obligatory insurances are placed or effected for such Collateral Vessel; 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.

 

(d)        (A) the Borrower and each Subsidiary Guarantor that owns such Collateral Vessel (and each other relevant Loan Party) shall have duly authorized, executed and delivered a General Assignment Agreement substantially in the form of Exhibit L (as modified, supplemented or amended from time to time, each a “General Assignment Agreement”) assigning all of such Loan Party’s present and future Earnings and Insurance Collateral, and any Permitted Charter with a term in excess of thirty-six (36) months (any such charter, a “Pledged Charter”) to the extent obtainable by the Borrower using reasonable commercial efforts, (B) each Commercial Manager and Technical Manager which, in either case, is a Subsidiary of the Borrower, as applicable (to the extent such Commercial Manager or Technical Manager is a named assured in the insurances of such Collateral Vessel) shall have duly authorized, executed and delivered an Assignment of Insurances substantially in the form of Exhibit M (as modified, supplemented or amended from time to time, each an “Assignment of Insurances”) assigning all of such Commercial Manager and Acceptable Third Party Technical Manager’s present and future Insurance Collateral and (C) each such Loan Party or Commercial Manager or Technical Managers, as applicable, shall use

commercially reasonable efforts to provide appropriate notices and consents related thereto, together granting a security interest and lien on (i) all of such Loan Party’s present and future Earnings and Insurance Collateral and present and future rights and receivables under Pledged Charters and (ii) all of such Commercial Manager’s and Technical Manager’s Insurance Collateral, in each case together with proper Financing Statements (Form UCC-1) in form for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary to perfect the security interests purported to be created by General Assignment Agreement and the Assignment of Insurances, as applicable;

 

(e)          Subject to Section 5.14, the Borrower, the Collateral Agent and Nordea, as depositary bank, shall have duly authorized, executed and delivered a control agreement substantially in the form attached to the Pledge Agreement and/or the Earnings Account Pledge Agreement, as applicable, with respect to the Earnings Accounts (as modified, supplemented or amended from time to time, the “Account Control Agreement”).

 

“Vessels” shall mean all Collateral Vessels and other vessels owned by the Borrower or any of its Subsidiaries, and “Vessel” shall mean any one of them.

 

“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.

 

“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 Borrower.

 

“Withdrawn Vessel” shall have the meaning assigned to such term in Section 2.10(a)(ii).

 

“Withholding Agent” shall mean the Borrower and the Administrative Agent, as applicable.

 

“Write-Down and Conversion Powers” shall mean,

 

(a)          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; and

 

(b)         with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

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”).  Borrowings also may be classified and referred to by Class (e.g., a “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.

 

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 or the Financial Covenants set forth in any Loan Document, and the Borrower, the Required Lenders or the Administrative Agent shall so request, the Administrative Agent and the 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 Borrower); provided, that, until so amended, such ratio, Financial Covenants or requirement shall continue to be computed in accordance with GAAP prior to such change therein, and the 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 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.

 

Any amount specified in this Agreement (other than 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 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.

 

Section 1.08      Divisions.  For all purposes under the Loan Documents, in connection with any division or plan or division under Delaware law (or any comparable event under a different jurisdiction’s law):  (a) if any asset, right, obligation or liability on any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

Section 1.09       Rates.  The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate, or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes.  The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower.  The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

 

 

Section 2.01       Commitments.  (a)  Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Revolving Lender agrees, severally and not jointly, to make Revolving Loans to the Borrower, on the Fifth Amendment Effective Date and at any time and from time to time after the Fifth Amendment Effective Date until the earlier of the date which is one (1) month prior to 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.  Subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans.

 

(b)          Notwithstanding the foregoing, in no event will the principal amount of the Revolving Commitments on the Fifth Amendment Effective Date exceed the lesser of (i) 59.0% of the Vessel Appraisal Value of the Collateral Vessels subject to a Collateral Vessel Mortgage on the Fifth Amendment Effective Date determined in accordance with two (2) Vessel Appraisals, dated no earlier than forty five (45) days prior to the Fifth Amendment Effective Date and (ii) $600,000,000.

 

Section 2.02       Loans.  (a)  Each Loan 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).  Any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $1,000,000 and not less than $5,000,000 or (ii) equal to the remaining available balance of the applicable Commitments.

 

(b)         Each Lender may at its option make any 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 Borrower to repay such Loan in accordance with the terms of this Agreement; provided, that the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than 10 Borrowings in the aggregate outstanding hereunder at any one time (or such greater number of 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)         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 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 or waived, 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 Borrower 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 Borrower agrees 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 Borrower until the date such amount is repaid to the Administrative Agent (i) in the case of such Lender, 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 and (ii) in the case of the Borrower, 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 Borrower’s 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 Borrower shall be returned to the Borrower.

 

(e)        Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to continue, any 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, the Borrower shall deliver a written request (by email through a “pdf” copy, 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

not later than 1:00 p.m., New York City time, on the third U.S. Government Securities Business Day before the date of the proposed Borrowing.  Each Borrowing Request for a Revolving 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)       the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period” contained herein;

 

(iv)        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); and

 

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

 

If no Interest Period is specified with respect to any requested Borrowing, then the Borrower shall be deemed to have selected an Interest Period of three months’ 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.

 

Section 2.04        Repayment of Loans.  Subject to the provisions of Section 2.09, (a) the Borrower hereby unconditionally promises to pay to 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.

 

(b)        Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower 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 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 Borrower 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 Borrower, the other Loan Parties and the Security Providers, as applicable, 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.

 

(e)          Any Lender by written notice to the 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 Borrower 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 F-2.

 

Section 2.05         Fees.

 

(a)          Commitment Fee.  The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee (a “Commitment Fee”) equal to 35% of the Applicable Margin multiplied by the average daily unused amount of the Commitment then in effect (including any Suspended Commitment) of such Lender during the period from and including the Fifth Amendment Effective Date to but excluding the date on which such Commitment terminates; provided that, it is understood and agreed that the accrued but unpaid Commitment Fee accrued under this Agreement prior to the Fifth Amendment Effective Date shall be based on the Applicable Margin (and Commitment) in effect prior to such date.  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 September 30, 2021 and (B) on the date on which such 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 Commitment of a Lender shall be deemed to be used to the extent of the outstanding Loans of such Lender.

 

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

 

(c)          Other Fees.  The Borrower agrees to pay to the Agent, for the account of the Lenders and/or the Mandated Lead Arrangers, the fees set forth in the Closing Fee Letter and Bookrunner Fee Letter.

 

(d)        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 Borrower shall pay the Fees provided under Section 2.05(b) and (c) directly to the applicable Agents.  Once paid, none of the Fees shall be refundable under any circumstances.

 

(e)          Any fees otherwise payable by the Borrower to any Defaulting Lender pursuant to this Section 2.05 shall be subject to Section 2.17.

 

Section 2.06       Interest on Loans.  (a)  Subject to the provisions of Section 2.06(b), the Revolving Loans shall bear interest at a rate per annum equal to the Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin, each as in effect from time to time.

 

(b)          Notwithstanding the foregoing, upon the occurrence and during the continuance of (i) any Default under Section 8.01(a) or (b) or (ii) on the instructions of the Required Lenders, any Event of Default, each Loan shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is two percentage points higher than the rate then borne by such Loans (the “Default Rate”).

 

(c)        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(b) (and all interest on past due interest) shall be payable on demand and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.

 

(d)          All interest hereunder shall be computed on the basis of a year of 360 days and 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 Term SOFR Rate shall be determined by the Administrative Agent

 

Section 2.07         Termination and Reduction of Commitments.

 

(a)          The Revolving Commitments shall automatically terminate on the Revolving Maturity Date.

 

(b)          At its option, the Borrower 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 $1,000,000 and not less than $1,000,000 in the aggregate (or such lesser amount as is acceptable to Administrative Agent) and (ii) the Revolving Commitments shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.10, the Total Revolving Exposure would exceed the Total Revolving Commitments.

 

(c)         The Borrower shall notify the Administrative Agent in writing of any election to terminate or reduce Commitments of any Class under Section 2.07(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 Borrower pursuant to this Section 2.07 shall be irrevocable; provided, that a notice of termination of all then remaining Commitments delivered by the 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 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 initially shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to continue such Borrowing and may elect Interest Periods therefor, all as provided in this Section 2.08.  The Borrower 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 Borrower shall not be entitled to request any continuation that, if made, would result in more than eight Interest Periods with respect to any Borrowings outstanding hereunder at any one time (or such greater number of Borrowings as may be acceptable to the Administrative Agent in its sole discretion).

 

(b)         To make an election pursuant to this Section 2.08, the Borrower shall deliver, by hand delivery, email through “pdf” copy, 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.  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

 

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

 

(iii)        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 does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of three months 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.

 

Section 2.09         Scheduled Reduction of Revolving Commitments.

 

(a)          [Reserved].

 

(b)          On each Revolving Loan Commitment Reduction Date, the Total Revolving Commitments shall be permanently reduced by an amount equal to the Scheduled Revolving Commitment Reduction Amount (as adjusted from time to time pursuant to Section 2.10) for such Revolving Loan Commitment Reduction Date and the Borrower shall pay to the Administrative Agent, for the account of the Revolving Lenders, any amounts required to be prepaid after giving effect to such reduction of the Total Revolving Commitments pursuant to Section 2.10(b), together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.

 

Section 2.10         Optional and Mandatory Prepayments of Loans; Commitment Reductions.

 

(a)          Optional Prepayments.

 

(i)         The Borrower 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 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 $1,000,000 and not less than $5,000,000 (or such lesser amount as is acceptable to the Administrative Agent).

 

(ii)        The Borrower shall have the right (at its sole discretion) at any time and from time to time to notify the Administrative Agent that it elects to withdraw one or more Vessels built prior to 2014 from the existing pool of Collateral Vessels (such election, a “Collateral Vessel Release Election” and each Collateral Vessel subject to such Collateral Vessel Release Election, a “Withdrawn Vessel”); provided, that, subject to  Section 2.10(e) (including the reinstatement of the Reinstated Commitments), to the extent the Borrower makes a Collateral Vessel Release Election, the Total Revolving Commitments shall be automatically and permanently reduced by an aggregate principal amount equal to the Relevant Amount for such Withdrawn Vessel.

 

(b)          Mandatory Prepayments and Commitment Reductions.

 

(i)          In the event of the termination of all the Revolving Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Loans.

 

(ii)         In the event of any partial reduction of the Revolving Commitments pursuant to Section 2.07 or Section 2.09(b), then (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Borrower and the Revolving Lenders of the Total Revolving Exposure after giving effect thereto and (y) if the Total Revolving Exposure would exceed the Total Revolving Commitments after giving effect to such reduction, then the Borrower shall, on the date of such reduction, repay or prepay Revolving Loans in an aggregate amount sufficient to eliminate such excess for such date.

 

(iii)       If at any time the Total Revolving Exposure exceeds the Revolving Commitments at such time, the Borrower shall, without notice or demand, immediately repay or prepay Revolving Loans in an aggregate amount sufficient to eliminate such excess; provided, that any such repayment or prepayment shall not be required to permanently reduce the Revolving Commitments below the Total Revolving Commitment then in effect.

 

(iv)        On (i) the date of any Asset Sale in respect of a Collateral Vessel, Sale and Leaseback Transaction or other disposition (a “Collateral Disposition”) in respect of a Collateral Vessel (or Asset Sale in respect of the Equity Interests in the owner of a Collateral Vessel) (such date, the “Collateral Disposition Date”) and (ii) the earlier of (A) the date which is one hundred and eighty (180) days following the Total Loss Date in respect of a Collateral Vessel (or, if such date is not a Business Day, on the following Business Day) and (B) the date of receipt by the Borrower, any Subsidiary Guarantor or the Administrative Agent of the insurance proceeds relating to such Total Loss (or, if such date is not a Business Day, on the following Business Day); provided that if any Collateral Vessel which is the subject of a Requisition is redelivered to the full control of the Subsidiary Guarantor prior to such date, no prepayment or reduction shall be required, in each case, the Borrower shall, subject to Section 2.10(e) (including the reinstatement of the Reinstated Commitments), permanently reduce Revolving Commitments (and, if the Total Revolving Exposure exceeds the Revolving Commitments at such time, prepay a corresponding amount of Revolving Loans in an amount sufficient to eliminate such excess) in an amount equal to the then aggregate outstanding principal amount of the Revolving Loans and undrawn Revolving Commitments, multiplied by a fraction, the numerator of which is the Vessel Appraisal Value of the affected Collateral Vessel subject to such sale, total loss or other disposition and the denominator of which is the aggregate of the Vessel Appraisal Values of all Collateral Vessels (including such affected Collateral Vessel) (such amount, the “Relevant Amount”); provided further that the Borrower shall be entitled to reinvest the proceeds of such sale, total loss or other disposition and subsequently reinstate such reduced Revolving Commitments, pursuant to paragraph (e) of this Section 2.10 below.

 

(v)        In the event the Borrower fails to satisfy the Collateral Maintenance Test, the Borrower shall, within 30 days thereafter, either (i) post additional collateral satisfactory to the Required Lenders or (ii) prepay the Revolving Facility and/or reduce the applicable Commitments in an amount sufficient to allow the Borrower to comply with the Collateral Maintenance Test; provided, that, any such prepayment shall not be required to permanently reduce the Revolving Commitments.

 

(c)          [Reserved].

 

(d)        Application of Prepayments under the Revolving Facility.  Prior to any optional prepayment with respect to the Revolving Facility hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to Section 2.10(f), subject to the provisions of this Section 2.10(d).  Any prepayments and/or reductions required pursuant to Section 2.10(b)(iv) or Section 2.12(e) shall be applied to the Revolving Facility to reduce on a pro rata basis the scheduled reductions of the Revolving Facility, including the reduction on

 

(e)         Reinvestment Rights.  On (i) any Collateral Disposition Date, if the Borrower determines that it may, at a future date, use the proceeds of any Collateral Disposition in connection with a Permitted Collateral Vessel Acquisition, or (ii) the delivery of a Collateral Vessel Release Election, if the Borrower determines that it may, at a future date, acquire, finance or provide as Collateral a Substitution Vessel to replace the Withdrawn Vessel subject to such Collateral Vessel Release Election, the Borrower shall notify the Administrative Agent in writing of such determination (such notice, a “Reinvestment Notice”).  Following receipt of the Reinvestment Notice on the Collateral Disposition Date or Collateral Vessel Release Election, (i) the Relevant Amount of Revolving Commitments that would otherwise be required to be permanently reduced in connection with (a) such Collateral Disposition pursuant to Section 2.10(b)(iv), or (b) Collateral Vessel Release Election pursuant to Section 2.10(a)(ii), as applicable, shall remain outstanding, but not available for Revolving Borrowings (such Relevant Amount of Revolving Commitments, the “Suspended Commitments”) and (ii) if the Total Revolving Exposure would exceed the Revolving Commitments after giving effect to such Suspended Commitments, then the Borrower shall immediately repay or prepay Revolving Loans in an aggregate amount sufficient to eliminate such excess.  Within 365 days after a Collateral Disposition Date or Collateral Vessel Release Election (the “Reinvestment Period”), the Borrower will be entitled to make a Permitted Collateral Vessel Acquisition, following which an amount of Revolving Commitments shall be reinstated (the “Reinstated Commitments”) equal to the Vessel Appraisal Value of the vessel(s) acquired or substituted pursuant to the Permitted Collateral Vessel Acquisition multiplied by a fraction, the numerator of which is the aggregate outstanding principal amount of the Revolving Loans and undrawn Revolving Commitments (not including any Suspended Commitments), and the denominator of which is the aggregate of the Vessel Appraisal Values of all Collateral Vessels (not including such acquired or substituted vessel, as the case may be), provided that the Borrower is in compliance with paragraphs (i) and (iv) of the definition of “Permitted Collateral Vessel Acquisition” as of the date the Reinstated Commitments are so reinstated, and provided, further, that the amount of Reinstated Commitments complies with the Substitution Vessel requirements.  For the avoidance of doubt, the amount of Reinstated Commitments may be less than, but not more than the amount of aggregate Suspended Commitments at such time and in no event shall the reinstatement of any Reinstated Commitments result in the Revolving Commitments as of such date of reinstatement exceeding the Total Revolving Commitments as of such date (as such Total Revolving Commitments may be otherwise reduced and/or increased in accordance with this Agreement but not giving effect to the Suspended Commitments then in effect). If no Permitted Collateral Vessel Acquisition occurs during the Reinvestment Period related to a Collateral Disposition Date or Collateral Vessel Release Election, the Suspended Commitments so suspended on such Collateral Disposition Date or date of such Collateral Vessel Release Election shall be permanently reduced on the last day of the Reinvestment Period.  Notwithstanding anything to the contrary set forth in this paragraph (e), nothing shall restrict the Borrower or any Loan Party from (i) making a Permitted Collateral Vessel Acquisition and requesting Reinstated Commitments in connection therewith which were previously Suspended Commitments so suspended on more than one Collateral Disposition Date or Collateral Vessel Release Election had occurred (ii) from making one or more Permitted Collateral Vessel Acquisitions and requesting Reinstated Commitments which were previously Suspended Commitments on a single Collateral Disposition Date or Collateral Vessel Release Election or (iii) using the proceeds from any Collateral Disposition(s) toward a Permitted Collateral Vessel Acquisition (by reimbursement or otherwise) which has been acquired after the Fourth

 

(f)       Notice of Prepayment and/or Reduction.  The Borrower shall notify the Administrative Agent by written notice of any prepayment and/or reduction of Revolving Commitments hereunder, not later than 1:00 p.m., New York City time, not less than three U.S. Government Securities Business Days before the date of prepayment and/or reduction.  Each such notice shall be irrevocable; provided, that a notice of prepayment of all outstanding Loans and/or reduction of all Revolving Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities, the sale of debt securities, or, in the case of an Asset Sale, closing of such sale, in order to refinance in full all Obligations hereunder, in which case such notice may be revoked by the 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 and/or Revolving Commitments reduced, the prepayment and/or reduction date, the principal amount of each Borrowing or portion thereof to be prepaid and/or reduced and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment and/or reduction.  Promptly following receipt of any such notice, 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 and/or reduction of Revolving Commitments shall be in an amount that would be permitted in the case of a Borrowing as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing and/or reduction of Revolving Commitments shall be applied ratably to the Loans and/or Revolving Commitments included in the prepaid Borrowing and/or reduced Revolving Commitments and otherwise in accordance with this Section 2.10.  Prepayments shall be accompanied by accrued interest to the extent required by Section 2.06 and breakage costs to the extent required by Section 2.13.

 

(g)          Scheduled Revolving Commitment Reduction Amounts.  The Scheduled Revolving Commitment Reduction Amounts shall be adjusted, at Borrower’s option, in connection with any mandatory repayment or reduction of the Revolving Commitments (or substitution of one or more Collateral Vessel(s) with a Substitution Vessel or the pledge of one or more Acceptable Collateral Vessels) and to give effect to any permanent reduction of the Revolving Commitments; provided that any adjustments to the Scheduled Revolving Commitment Reduction Amounts shall not result in scheduled repayments and/or reductions less than those required to reflect the Minimum Reduction Profile.

 

Section 2.11         Benchmark Replacement Setting

(a)          Benchmark Replacement.

 

(i)          Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5^th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the

 

(ii)         Notwithstanding anything herein to the contrary, if (x) SOFR is not available or (y) the Administrative Agent receives notifications at any time from two or more Lenders whose commitments and Loans exceed 50% of the then outstanding commitments and Loans at such time that reasonable means do not exist for ascertaining SOFR or that SOFR will not adequately and fairly reflect the cost to such Lender(s) of maintaining or funding their respective commitments (a “Market Disruption Event”), a Market Disruption Event occurs in relation to the, then the rate of interest on each such Lender’s share of the then outstanding commitments and the Loans for any Interest Period shall bear the rate per annum which is the sum of (x) the Applicable Margin and (y) the rate notified to the Administrative Agent by such Lender(s), which expresses the actual cost to such Lender(s) of funding its participation in such outstanding Commitments and Loans from whatever source it may reasonably select.

 

(b)        Benchmark Replacement Conforming Changes.  In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right, acting reasonably and upon prior consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

(c)        Notices; Standards for Decisions and Determinations.  The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement.  The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.21(d) and (y) the commencement of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.21, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.21.

 

(d)         Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(e)        Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of or continuation of SOFR Loans to be made or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or a conversion to ABR Loan.

 

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;

 

(ii)         impose on any Lender or the London interbank market any other condition, cost or expense (other than with respect to Taxes) affecting this Agreement or the Loans made by such Lender; or

 

(iii)        subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) 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 or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, then the Borrower will pay to such Lender or other Recipient such additional amount or amounts as will compensate such Lender or other Recipient for such additional costs incurred or reduction suffered.

 

(b)      If any Lender 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 capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company, for any such reduction suffered.

 

(c)         A certificate of a Lender setting forth in reasonable detail the amount or amounts necessary to compensate such Lender 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 Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error; provided that in no event shall any Lender be required to disclose (i) confidential or price sensitive information or (ii) any other information to the extent prohibited by law.  The Borrower shall pay such Lender 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 to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that (i) the Borrower shall not be required to compensate a Lender for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor, (ii) if the Change in Law giving rise to such increased costs or reductions is

 

(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 Loan or to give effect to its obligations as contemplated hereby with respect to any Loan, then, by written notice to the Borrower and to the Administrative Agent, such Lender may declare that 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 the Borrower shall either (x) if the affected Loan is then being made initially, cancel the respective Credit Extension by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date or the next Business Day that the Borrower was notified by the affected Lender or the Administrative Agent or (y) if the affected Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, repay such affected Loan of such Lender (within the time period required by the applicable law or governmental rule, governmental regulation or governmental order) in full in accordance with the applicable requirements of Section 2.14; provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.12(e).

 

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

 

Section 2.13        Breakage Payments.  In the event of (a) a payment or prepayment, whether optional or mandatory, of any principal of any Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default) (including, for the avoidance of doubt, a prepayment made pursuant to Section 2.12(e)), (b) the failure to borrow, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice is permitted to be withdrawn by the Borrower), or (c) the assignment of any Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.16, then, in any such event, the Borrower 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 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 Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error.  The Borrower 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 Borrower shall make each payment required to be made hereunder or under any other Loan Document (whether of principal, interest, fees 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 12:00 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 1211 Avenue of the Americas, New York, New York,

10036; Attn:  Credit Administration Department, 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.

 

(b)         Subject to Section 9.01, if at any time insufficient funds are received by and available to the Administrative Agent to pay in full all amounts of principal, premium, 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 then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

 

(c)       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, resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving 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 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; 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 Section 2.14(c) shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving 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).  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 Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender 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 Federal Funds Effective Rate.

 

(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) 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.

 

Section 2.15       Taxes.  (a)  Any and all payments by or on account of any obligation of the Loan Parties hereunder or of the Loan Parties or Security Providers under any other Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Legal Requirements.  If any applicable Legal Requirements (as determined in the good faith discretion of the Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Legal Requirements and, if such Tax is an Indemnified Tax, then the sum payable by such Loan Party or Security Provider shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b)         The Borrower 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 Borrower agrees to indemnify each Recipient within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 Borrower by a Lender (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 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 Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower 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).

 

(e)          As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section, the 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.

 

(f)          (i)  Any 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 Borrower and the Administrative Agent, at the time or time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such documentation prescribed by applicable Legal Requirements or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution, and submission of such documentation (other than such documentation set forth in paragraphs (f)(ii)(A), (ii)(B), and (ii)(D) of this Section) shall not be required if in the Lender’s reasonable judgment such completion, execution, or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)          Without limiting the generality of the foregoing,

 

(A)        any Lender that is a U.S.  Person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)     any Foreign Lender shall, to the extent it is legally able to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)        in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)         executed copies of IRS Form W-8ECI;

 

(3)        in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit B-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or

 

(4)        to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-2 or Exhibit B-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-4 on behalf of each such direct and indirect partner.

 

(C)      any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Legal Requirements as a basis for claiming exemption from or a reduction in U.S. federal or non-U.S withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Legal Requirements to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)        If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such times reasonably requested by the Borrower and the Administrative Agent, (A) such documentation prescribed by applicable Legal Requirements (including as prescribed by Section 1471(b)(3)(C)(i) of the Code), and (B) such other documentation reasonably requested by the Borrower and the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA, or to determine the amount, if any, to deduct and withhold from such payment.  Solely for purposes of this Section 2.15(g), “FATCA” shall include any amendments made to FATCA after the Closing Date.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(g)          If any party determines in its sole discretion exercised in good faith that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party

 

(h)          For purposes of this Section, the term “applicable Legal Requirements” includes FATCA.

 

(i)        Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

Section 2.16         Mitigation Obligations; Replacement of Lenders.

 

(a)          Mitigation of Obligations.  If any Lender requests compensation under Section 2.12(a) or (b), or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall, if requested by the Borrower, use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12(a), 2.12(b) or 2.15, as the case may be, in the future, (ii) would not subject such Lender to any unreimbursed cost or expense, (iii) would not require such Lender to take any action inconsistent with its internal policies or legal or regulatory restrictions and (iv) would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.  A certificate setting forth such costs and expenses submitted by each Lender to the Administrative Agent shall be conclusive absent manifest error.

 

(b)          Replacement of Lenders.  In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.12(a) or (b), (ii) any Lender delivers a notice described in Section 2.12(e), (iii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.15, (iv) any Lender refuses to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of 100% of the Lenders or 100% of all affected Lenders and which, in each case, has been consented to by the Required Lenders or (v) any Lender becomes a Defaulting Lender, the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 11.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to restrictions contained in Section 11.04; provided that the failure of such assigning Lender to execute an Assignment and Acceptance shall not affect the validity and effect of such assignment), all of its interests, rights and obligations under this Agreement to an Eligible Assignee which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided, that (w) except in the case of clause (iv) above if the effect of such amendment, waiver or other modification of the applicable Loan Document would cure any Default then ongoing, no Default shall have occurred and be continuing, (x) such assignment shall not conflict with any applicable Legal Requirement, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and interest and any prepayment premium or penalty (if any) accrued to the date of such payment on the outstanding Loans of

 

Section 2.17         Defaulting Lenders.

 

(a)          Anything contained herein to the contrary notwithstanding, in the event that any Lender becomes a Defaulting Lender, then (i) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender,” and the amount of such Defaulting Lender’s Revolving Commitment, Revolving Loans shall be excluded for purposes of voting, and the calculation of voting, on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, except that the amount of such Defaulting Lender’s Revolving Commitment, Revolving Loans shall be included for purposes of voting, and the calculation of voting, on the matters set forth in Sections 11.02(b)(i)-(ix) and 11.02(b)(xi) (including the granting of any consents or waivers) only to the extent that any such matter disproportionately affects such Defaulting Lender; (ii) to the extent permitted by applicable Legal Requirements, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, (A) any optional prepayment of the Revolving Loans pursuant to Section 2.10(a) shall, if the Borrower so directs at the time of making such optional prepayment, be applied to the Revolving Loans of other Revolving Lenders in accordance with Section 2.10 as if such Defaulting Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were zero, and (B) any mandatory prepayment of the Revolving Loans pursuant to Section 2.10 shall, if the Borrower so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans and Revolving Exposure of other Revolving Lenders (but not to the Revolving Loans and Revolving Exposure of such Defaulting Lender) in accordance with Section 2.10 as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being understood and agreed that the Borrower shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (B); (iii) the amount of such Defaulting Lender’s Revolving Commitment and Revolving Loans shall be excluded for purposes of calculating the Commitment Fee payable to Revolving Lenders pursuant to Section 2.05(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any Commitment Fee pursuant to Section 2.05(a) with respect to such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such Defaulting Lender; and (iv) the Revolving Exposure of all Lenders as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender.  In the event that each of the Administrative Agent and the Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Revolving Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such

 

For purposes of this Agreement, (i) “Funding Default” shall mean, with respect to any Defaulting Lender, the occurrence of any of the events set forth in the definition of “Defaulting Lender,” (ii) “Default Period” shall mean, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default and ending on the earliest of the following dates:  (a) the date on which all Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable; (b) with respect any Funding Default (other than any such Funding Default arising pursuant to clause (e) of the definition of “Defaulting Lender”), the date on which (1) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Revolving Loan of such Defaulting Lender (such Revolving Loans being “Defaulted Loans”) or by the non-pro rata application of any optional or mandatory prepayments of the Revolving Loans in accordance with the terms hereof or any combination thereof) and (2) such Defaulting Lender shall have delivered to the Borrower and the Administrative Agent a written reaffirmation of its intention to honor its obligations under this Agreement with respect to its Revolving Commitment; and (c) the date on which the Borrower, the Administrative Agent and the Required Lenders waive all Funding Defaults of such Defaulting Lender in writing, and (iii) “Default Excess” shall mean, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Percentage of the aggregate outstanding principal amount of Revolving Loans of all Revolving Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of Revolving Loans of such Defaulting Lender.

 

No amount of the Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in Section 2.17, performance by the Borrower of its obligations under this Agreement and the other Loan Documents shall not be excused or otherwise modified, as a result of any Funding Default or the operation of Section 2.17.  The rights and remedies against a Defaulting Lender under Section 2.17 are in addition to other rights and remedies that the Borrower may have against such Defaulting Lender with respect to any Funding Default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default.

 

Section 2.18         Nature of Obligations.

 

(a)          Notwithstanding anything to the contrary contained elsewhere in this Agreement or any other Loan Document, it is understood and agreed by the various parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to, all Loans and all other Obligations pursuant to this Agreement and each other Loan Document (including all fees, indemnities, taxes and other Obligations in connection therewith or in connection with the related Revolving Commitments) shall constitute the obligations of the Borrower.  In addition to the direct obligations of the Borrower with respect to Obligations as described above, all such Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantees.

 

(b)          The obligations of the Borrower with respect to the Obligations are independent of the obligations of the Guarantors under the Guarantees of such Obligations, and a separate action or actions may be brought and prosecuted against the Borrower and each Guarantor (in its capacity as a Guarantor), whether or not any Guarantor is joined in any such action or actions.  The Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof.

 

(c)          The Borrower authorizes the Administrative Agent, the Collateral Agent and the Lenders without notice or demand (except as shall be required by applicable statute and cannot be waived), and without affecting or impairing its liability hereunder, from time to time to, to the maximum extent permitted by applicable law and the Loan Documents:

 

(i)          exercise or refrain from exercising rights against any Guarantor or others or otherwise act or refrain from acting;

 

(ii)         release or substitute endorsers, Guarantors or other obligors;

 

(iii)       settle or compromise any of the Obligations of any other Loan Party, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Borrower to its creditors other than the Lenders;

 

(iv)       apply any sums paid by any other person, howsoever realized to any liability or liabilities of the Borrower or other person regardless of what liability or liabilities of such other Borrower or other person remain unpaid; and/or

 

(v)       consent to or waive any breach of, or act, omission or default under, this Agreement or any of the instruments or agreements referred to herein, or otherwise, by any person.

 

(d)         It is not necessary for the Administrative Agent, the Collateral Agent or any Lender to inquire into the capacity or powers of the Borrower or any of its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall constitute the obligations of the Borrower.

 

(e)         The Borrower waives any right to require the Administrative Agent, the Collateral Agent or the Lenders to (a) proceed against any Guarantor or any other party, (b) proceed against or exhaust any security held from the Borrower, any Guarantor or any other party or (c) pursue any other remedy in the Administrative Agent’s, the Collateral Agent’s or the Lenders’ power whatsoever.  The Borrower waives any defense based on or arising out of suretyship or any impairment of security held from the Borrower, any Guarantor or any other party or on or arising out of any defense of any Guarantor or any other party other than payment in full in cash of the Obligations, including any defense based on or arising out of the disability of any Guarantor or any other party, or the unenforceability of the Obligations or any part thereof from any cause, in each case other than as a result of the payment in full in cash of the Obligations.

 

Section 2.19         Increases of the Revolving Commitments.

 

(a)        The Borrower may, from time to time after the Fifth Amendment Effective Date, but no later than 48 months after the Fifth Amendment Effective Date, request to increase the then effective aggregate principal amount of the Revolving Commitments and make additional Revolving Loans pursuant thereto (such Revolving Loans, “Incremental Revolving Loans” and such Revolving Commitments, “Incremental Revolving Commitments”); provided that:

 

(i)        the Incremental Revolving Loans shall be used by the Borrower or any other Loan Party solely to (i) finance the acquisition of one or more Accordion Vessels or (ii) refinance or reimburse the cost of the acquisition of an Accordion Vessel acquired after the Fifth Amendment Effective Date, but within six (6) months prior to the date such Incremental Revolving Commitments are made available to the Borrower (each such date, an “Incremental Commitment Date”);