TIDEWATER INC Form 8-K Current Report Filed 2025-07-07

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On July 7, 2025, Tidewater Inc., a Delaware corporation (the “Company”), certain of the Company’s subsidiaries (the “Guarantors”), and Wilmington Trust, National Association, as trustee (the “Trustee”), entered into an indenture (the “Indenture”), pursuant to which the Company issued $650,000,000 in aggregate principal amount of the Company’s 9.125% Senior Notes due 2030 (the “2030 Notes”). The 2030 Notes are unconditionally guaranteed on a senior unsecured basis by the Guarantors and will be unconditionally guaranteed on the same basis by certain of the Company’s future subsidiaries that guarantee certain indebtedness of the Company and the Guarantors, including the New Revolving Credit Facility (as defined below).

The 2030 Notes mature on July 15, 2030. Interest on the 2030 Notes is payable semi-annually in arrears on each January 15 and July 15, commencing January 15, 2026, to holders of record on the January 1 and July 1 immediately preceding the related interest payment date, at a rate of 9.125% per annum.

At any time prior to July 15, 2027, the Company may, from time to time, redeem up to 40% of the aggregate principal amount of 2030 Notes, upon not less than 10 or more than 60 days’ notice, at a redemption price of 109.125% of the principal amount of the 2030 Notes redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date), in an amount not greater than the net cash proceeds of one or more qualified equity offerings by the Company, subject to certain requirements. In addition, prior to July 15, 2027, the Company may redeem the 2030 Notes, in whole at any time or in part from time to time, upon not less than 10 or more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the 2030 Notes redeemed, plus an applicable make-whole premium and accrued and unpaid interest, if any, to, but excluding, the redemption date.

At any time on or after July 15, 2027, the Company may redeem the 2030 Notes, in whole or in part at any time or from time to time, upon not less than 10 or more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the 2030 Notes redeemed to, but excluding, the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date), if redeemed during the twelve-month period beginning on July 15 of the years indicated below:

If a Change of Control Triggering Event (as defined in the Indenture) occurs, each holder of 2030 Notes may require the Company to purchase all or any part of that holder’s 2030 Notes for cash at a price equal to 101% of the principal amount of the 2030 Notes to be purchased, plus any accrued and unpaid interest thereon, if any, to, but excluding, the date on which the notes are purchased.

The Indenture contains covenants that, among other things and subject to certain exceptions, limit the Company’s ability and the ability of its restricted subsidiaries to: (i) incur, assume or guarantee additional indebtedness or issue certain preferred stock; (ii) create liens to secure indebtedness; (iii) pay distributions on equity interests, repurchase equity securities, make investments or redeem subordinated indebtedness; (iv) restrict distributions, loans or other asset transfers from the Company’s restricted subsidiaries to the Company; (v) consolidate with or merge with or into, or sell substantially all of the Company’s assets to, another person; (vi) sell or otherwise dispose of assets, including equity interests in subsidiaries; (vii) designate a subsidiary as an Unrestricted Subsidiary (as defined in the Indenture); and (viii) enter into transactions with affiliates.

The Indenture contains customary events of default, including, among other things, failure to make required payments, failure to comply with certain agreements or covenants, failure to pay or acceleration of certain other indebtedness, certain events of bankruptcy and insolvency, and failure to pay certain judgments. An event of default under the Indenture will allow either the Trustee or the holders of at least 25% in aggregate principal amount of the then-outstanding 2030 Notes to accelerate the amounts due under the 2030 Notes.

The foregoing description of the Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Indenture and the form of 9.125% Senior Notes due 2030, which are filed with this Current Report on Form 8-K (this “Current Report”) as Exhibit 4.1 and Exhibit 4.2, respectively.

On July 7, 2025, the Company and the Guarantors entered into a credit agreement with DNB Bank ASA, New York Branch, as facility agent and security trustee, and a syndicate of lenders (the “New Credit Agreement”) providing for a new $250 million senior secured revolving credit facility (the “New Revolving Credit Facility”). The New Credit Agreement will replace the Company’s existing $25 million super senior secured revolving credit facility provided by that certain Credit Facility Agreement, dated November 16, 2021, by and among the Company, DNB Bank ASA, New York Branch, as facility agent, Nordic Trustee AS, as security trustee, DNB Markets, Inc. as bookrunner and mandated lead arranger, and the lenders party thereto (the “Existing Credit Facility”), which has been terminated in connection with the financing transactions described in this Current Report. Borrowing availability under the New Revolving Credit Facility is subject to customary conditions precedent that the Company expects will be satisfied in the near term.

All obligations of the Company under the New Credit Agreement and certain swap obligations will be unconditionally guaranteed, on a joint and several basis, by the Company and certain of its current and future material U.S. subsidiaries. All such obligations, including the guarantees of the New Revolving Credit Facility, will be secured by senior priority liens on substantially all assets of the Company and the guarantors, subject to certain exceptions and limitations described in the New Credit Agreement.

Loans under the New Revolving Credit Facility will bear interest at a rate per annum equal to Term SOFR plus an applicable margin ranging from 250 to 350 basis points, depending on the Company’s net leverage ratio, in the case of SOFR loans and ABR plus an applicable margin ranging from 250 to 350 basis points, depending on the Company’s net leverage ratio in the case of an ABR advance.

The New Credit Agreement requires payment of customary quarterly commitment fees and letter of credit and fronting fees under the New Revolving Credit Facility.

Under certain circumstances, mandatory prepayments or commitment reductions will be required under the New Credit Agreement in connection with certain asset sales, asset swaps and events of loss that cause the collateral coverage ratio to drop below 5.00 to 1.00 (subject to reinvestment rights), unless the Company causes one or more additional vessels to become collateral vessels such that the Company’s collateral coverage ratio is at least 5.00 to 1.00. Available cash and cash equivalents in excess of $175 million, subject to certain exclusions, will be required to be applied monthly to prepay outstanding loans (without a commitment reduction). Additionally, the Company will not be permitted to make a new borrowing if such borrowing would result in the Company’s available cash and cash equivalents to exceed $175 million, subject to certain exclusions. Any loans under the New Revolving Credit Facility will be subject to voluntary prepayment, and the commitments thereunder subject to voluntary termination or reduction, by the Company at any time without premium or penalty, other than customary breakage costs.

The New Credit Agreement requires the Company and its restricted subsidiaries to comply with the following financial maintenance covenants:

The New Credit Agreement contains affirmative and negative covenants, representations and warranties and events of default that the Company considers customary for facilities of this type.

As described in Item 1.01 under “New Credit Agreement,” the Company has terminated the Existing Credit Facility in connection with entering the New Credit Agreement.

Further, in connection with the issuance of the 2030 Notes, the Company paid in full, including all outstanding principal, accrued interest and fees, and terminated that certain Term Loan Credit Agreement, dated as of June 30, 2023, by and among (i) TDW International Vessels (Unrestricted), LLC, a Delaware limited liability company and wholly owned subsidiary of the Company, as borrower, (ii) the Company, as parent guarantor, (iii) the banks and financial institutions listed on Schedule 1 thereto, as lenders, and (iv) DNB Bank ASA, New York Branch, as facility agent for the Lenders and as security trustee for the secured creditors.

In connection with the pricing of the 2030 Notes, the Company notified Nordic Trustee AS (“Nordic Trustee”), as trustee for the Company’s outstanding 8.50% Senior Secured Bonds due 2026 (the “2026 Bonds”) and 10.375% Senior Unsecured Bonds due 2028 (the “2028 Bonds”), of the Company’s election to redeem 100% of the aggregate outstanding principal amount of the 2026 Bonds and 2028 Bonds (the “Redemption”), and instructed Nordic Trustee to provide notice of such full Redemption to the holders of the 2026 Bonds and 2028 Bonds in accordance with the indenture governing each of the 2026 Bonds and 2028 Bonds. All conditions for the Redemption were met effective July 7, 2025.

The information set forth under Item 1.01 of this Current Report is incorporated herein by reference.

(c) On June 30, 2025, the Company announced that Piers Middleton, 52, has been named Executive Vice President and Chief Operating Officer of the Company, effective July 1, 2025. From June 2024 until his appointment, Mr. Middleton, served as the Company’s Executive Vice President and Chief Commercial Officer. From June 2023 until June 2024, he served as the Company’s Senior Vice President and Chief Commercial Officer, and from September 2020 until June 2023, he served as the Company’s Vice President, Sales and Marketing. Prior to joining the Company, Mr. Middleton was a Managing Director at Clarksons PLC (London: CKN), a global company providing various services in the maritime industry, including brokering, finance, port services and research, where he founded and lead the global Offshore & Newbuilding Divisions for over 19 years. He began his career in 1996 with Derrick Offshore Ltd., which was a leading international shipbroker specializing in the offshore energy and subsea cable industries that merged with Pareto JGO Shipbrokers in 2014. Mr. Middleton has a Bachelor of Arts with Honors in Ancient History and Classical Archaeology from the University of Warwick in the UK, completed the Corporate Governance Program at UCLA in 2024 and graduated from the Executive Program at UCLA in February 2025.

There are no arrangements or understandings between Mr. Middleton and any other person pursuant to which he was selected as an officer. No relationships exist between Mr. Middleton and the Company or any of their respective subsidiaries that would require disclosure pursuant to Item 404(a) of Regulations S-K or any familial relationship that would require disclosure under Item 401(d) of Regulation S-K.

On July 7, 2025, the Company issued a press release relating to closing of the 2030 Notes offering and entry into the New Credit Agreement. A copy of the press release is attached as Exhibit 99.1 to this Current Report and is incorporated by reference into this Item 7.01.

The information in this Item 7.01, including Exhibit 99.1, is being furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section and shall not be deemed to be incorporated by reference into any registration statement or other document filed pursuant to the Securities Act, regardless of any general incorporation language in such filing, except as shall be expressly set forth by specific reference in such filing.

This Current Report includes “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than historical facts included in this Current Report on Form 8-K, are forward-looking statements. Forward-looking statements include words or phrases such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “likely,” “plan,” “project,” “could,” “may,” “might,” “should,” “will” and similar words and specifically include statements regarding the Offering and the use of proceeds therefrom. The forward-looking statements contained in this press release are subject to numerous risks, uncertainties and assumptions that may cause actual results to vary materially from those indicated. Each forward-looking statement speaks only as of the date of the particular statement, and the Company undertakes no obligation to update or revise any forward-looking statements, except as required by law.

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

This Indenture, dated as of July 7, 2025, is by and among Tidewater Inc., a Delaware corporation (as more fully defined herein, the “Issuer”), the Guarantors listed on the signature pages hereto, and Wilmington Trust, National Association, as trustee (the “Trustee”), paying agent and registrar.

The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (i) the Issuer’s 9.125% Senior Notes due 2030 issued on the date hereof (the “Initial Notes”) and (ii) Additional Notes (as defined herein) that are subsequently issued subject to the conditions and in compliance with the provisions of this Indenture:

(1)            with respect to any Person that becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course of such Person’s business to acquire assets used or useful in its business) existing at the time such Person becomes a Restricted Subsidiary; and

(2)            with respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a Person (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course of such Person’s business to acquire assets used or useful in its business), other than the Issuer or a Restricted Subsidiary, existing at the time such Person is merged with or into the Issuer or a Restricted Subsidiary, or Indebtedness expressly assumed by the Issuer or any Restricted Subsidiary in connection with the acquisition of an asset or assets from another Person.

“Additional Notes” means Notes (other than the Initial Notes) issued pursuant to Article II and otherwise in compliance with the provisions of this Indenture whether or not they bear the same CUSIP number.

“Affiliate” of any Person means any other Person which directly or indirectly controls or is controlled by, or is under direct or indirect common control with, the referent Person. For purposes of this definition, “control” of a Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

“Agent” means any Registrar, Paying Agent, co-registrar or other agent appointed pursuant to this Indenture.

“amend” means to amend, supplement, restate, amend and restate or otherwise modify, including successively, and “amendment” shall have a correlative meaning.

“Applicable Premium” means, with respect to any Note on any applicable redemption date, the greater of:

(1)            1.0% of the principal amount of such Note; and

(a)            the present value at such redemption date of (i) the redemption price of such Note at July 15, 2027 (such redemption price being set forth in the table appearing in Section 3.7(b)) plus (ii) all required interest payments (in each case excluding accrued and unpaid interest to such redemption date) due on such Note through July 15, 2027, computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months); over

“asset” means any asset or property, including, without limitation, Equity Interests.

(1)            an Investment by the Issuer or any Restricted Subsidiary of the Issuer in any other Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary of the Issuer, or shall be merged with or into the Issuer or any Restricted Subsidiary of the Issuer;

(2)            the acquisition by the Issuer or any Restricted Subsidiary of the Issuer of all or substantially all of the assets of any other Person (other than a Restricted Subsidiary of the Issuer) or any division or line of business of any such other Person (other than in the ordinary course of business); or

(3)            the acquisition by the Issuer or any Restricted Subsidiaries of one or more Vessels or other material assets outside the ordinary course of business.

(1)            any sale, conveyance, transfer, lease, license, assignment or other disposition by the Issuer or any Restricted Subsidiary to any Person other than the Issuer or any Restricted Subsidiary (including by means of a sale and leaseback transaction or a merger or consolidation), of any assets of the Issuer or any of its Restricted Subsidiaries, including, without limitation, Equity Interests in any Person, other than in the ordinary course of business; or

(2)            any issuance of Equity Interests of a Restricted Subsidiary (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.9) to any Person other than the Issuer or any Restricted Subsidiary (the actions described in these clauses (1) and (2), collectively, for purposes of this definition, a “transfer”).

(b)           transfers of assets (including Equity Interests) that are governed by, and made in accordance with, Section 4.13 or Section 5.1;

(d)           the creation of or realization on any Lien not prohibited under this Indenture and any transfer of assets resulting from the enforcement or foreclosure of any such Lien;

(e)            sales or grants of licenses or sublicenses to use the patents, trade secrets, know-how and other Intellectual Property, and licenses, leases or subleases of other assets, of the Issuer or any Restricted Subsidiary to the extent not materially interfering with the business of the Issuer and the Restricted Subsidiaries;

(f)            a transfer of inventory in the ordinary course of business;

(g)            a transfer of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring and similar arrangements or transfers or dispositions of rights in respect of judgments, lawsuits or other claims;

(h)            transfers of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between joint venture parties set forth in, joint venture agreements or any similar binding arrangements;

(i)            the transfer of assets received in settlement of debts accrued in the ordinary course of business;

(j)            (I) the surrender or waiver in the ordinary course of business of contract rights or the settlement, release or surrender of contractual, non-contractual or other claims of any kind and (II) any transfers of property or assets effected as part of a closure or buyout of a pension or other defined benefit plan or in furtherance of a recovery plan in support of any such pension or other defined benefit plan;

(k)            transfers of Equity Interests in or Indebtedness of an Unrestricted Subsidiary;

(l)            any issuance or sale of Equity Interests of any Restricted Subsidiary to the Issuer or any Restricted Subsidiary; provided that, in the case of such an issuance by a non-wholly owned Restricted Subsidiary, such issuance may also be made to any other owner of Equity Interests of such non-wholly owned Restricted Subsidiary based on such owner’s relative ownership interests (or lesser share) of the relevant class of Equity Interests;

(m)           any transfer or series of related transfers that, but for this clause (m), would be Asset Sales, if after giving effect to such transfers, the aggregate Fair Market Value of the assets transferred in such transaction or any such series of related transactions does not exceed $35.0 million per occurrence;

(n)            the demise, bareboat, time, voyage, other charter, lease or right to use of any Vessel in the ordinary course of business;

(o)            transfers of property subject to casualty or condemnation proceedings (or similar events);

(p)            leases and subleases of real or personal property in the ordinary course of business and not interfering in any material respect with the business of the Issuer and its Restricted Subsidiaries, taken as a whole;

(q)            the transfer of Equity Interests in a Subsidiary that becomes a Local Content Entity as a result of such transfer to one or more Persons referred to in clause (b) of the definition of “Local Content Entity”;

(r)            transfers of equipment, personal property, fixtures or other assets that are either (i) obsolete, worn-out or no longer used or useable in the ordinary course of business for their intended purposes, or (ii) replaced by equipment, personal property, fixtures or assets of comparable suitability within 365 days of such transfer, including but not limited to the transfer of any boilers, engines, machinery, masts, spars, anchors, cables, chains, rigging, tackle, capstans, outfit, tools, pumps, pumping equipment, apparel, furniture, fittings, equipment, spare parts or any other appurtenances of any Vessel that are no longer useful, necessary, profitable or advantageous in the operation of such Vessel, replaced by new boilers, engines, machinery, masts, spars, anchors, cables, chains, rigging, tackle, capstans, outfit, tools, pumps, pumping equipment, apparel, furniture, fittings, equipment, spare parts or any appurtenances of comparable suitability; and

(s)            abandoning, failing to maintain, allowing to lapse or otherwise disposing of Intellectual Property rights that are not material to the conduct of the business of the Issuer and the Restricted Subsidiaries, taken as a whole, or that the Issuer or any Restricted Subsidiary determines, in its reasonable business judgment, are not economically practicable to maintain.

“Asset Swap” means any transaction or series of related transactions pursuant to which the Issuer and/or one or more Restricted Subsidiaries shall exchange, with a Person that is not an Affiliate, one or more Permitted Business Assets owned by them for one or more Permitted Business Assets owned by such Person; provided that any cash or Cash Equivalents received in connection with an Asset Swap that constitutes an Asset Sale must be applied in accordance with Section 4.10.

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal, state or foreign law for the relief of debtors, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, winding-up, restructuring, examinership or similar debtor relief laws.

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning. For purposes of this definition, a Person shall be deemed not to Beneficially Own securities that are the subject of a stock, unit or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until consummation of the transactions or, as applicable, series of related transactions contemplated by such agreement.

“Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person and, (ii)  in any other case, the functional equivalent of the foregoing or, in each case, any duly authorized committee of such body.

“Business Day” means a day other than a Saturday, Sunday or other day on which banking institutions in the State of New York, Houston, Texas or in the place of payment are authorized or required by law, regulation or executive order to close.

(1)            marketable obligations issued or directly and fully guaranteed or insured by the governments of the United States, the United Kingdom, any member state of the European Union, Canada, Japan, Singapore, Australia or New Zealand or, in each case, any agency or instrumentality thereof (provided that the full faith and credit of such government is pledged in support thereof), maturing within one year of the date of acquisition thereof;

(2)            demand and time deposits and certificates of deposit of any lender under any Debt Facility or any Eligible Bank organized under the laws of the United States, any state thereof or the District of Columbia or a U.S. branch of any other Eligible Bank maturing within one year of the date of acquisition thereof;

(3)            commercial paper and Eurocommercial paper rated at least A1 or the equivalent thereof by S&P, at least P-1 or the equivalent thereof by Moody’s, at least an F-1 by Fitch or an equivalent rating by a nationally recognized rating agency if each of S&P, Moody’s and Fitch cease publishing ratings of commercial paper issuers generally, and in each case maturing not more than one year after the date of acquisition thereof;

(4)            repurchase obligations with a term of not more than one year for underlying securities of the types described in clause (1) above entered into with any Eligible Bank and maturing not more than one year after such time;

(5)            securities issued and fully guaranteed by any state, commonwealth or territory of the United States, the United Kingdom, any member state of the European Union or Canada, Japan, Singapore, Australia or New Zealand or by any political subdivision or taxing authority thereof, rated at least A by Moody’s or S&P and having maturities of not more than one year from the date of acquisition;

(6)            investments in money market or other funds substantially all of whose assets comprise securities of the types described in clauses (1) through (5) above;

(7)            demand deposit accounts maintained in the ordinary course of business; and

(8)            in the case of any Subsidiary of the Issuer organized or having its principal place of business outside the United States, investments denominated in the currency of the jurisdiction in which such Subsidiary is organized or has its principal place of business which are similar to the items specified in clauses (1) through (7) above.

“Change of Control” means the occurrence of any of the following events after the Issue Date:

(1)            the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, to any “person” or “group” (as such terms are used in Section 13(d) of the Exchange Act) other than a Restricted Subsidiary;

(2)            the adoption of a plan relating to the liquidation or dissolution of the Issuer; or

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” or “group” becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Issuer, measured by voting power rather than number of shares.

Notwithstanding the preceding or any provision of Section 13(d)-3 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement and (ii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the Board of Directors of such parent entity.

Notwithstanding the preceding, (a) a transaction will not be deemed to involve a Change of Control if (i) the Issuer becomes a direct or indirect wholly owned Subsidiary of a Parent Company and (ii) immediately following that transaction no Person (other than a Parent Company satisfying the requirements of this sentence) is the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of such Parent Company (or its general partner, if applicable), and (b) (i) a conversion of the Issuer or any of its Restricted Subsidiaries from a limited partnership, corporation, limited liability company or other form of entity to a limited liability company, corporation, limited partnership or other form of entity or (ii) an exchange of all the outstanding Equity Interests in one form of entity for Equity Interests in another form of entity each shall not constitute a Change of Control, so long as immediately following such conversion or exchange or transaction no “person” Beneficially Owns more than 50% of the Voting Stock of such entity (or its general partner, if applicable). No Change of Control will be deemed to have occurred unless and until such Change of Control has actually been consummated.

Notwithstanding anything to contrary under this Indenture, the entry by the Issuer or any Restricted Subsidiary into any one or more charter party agreements or the demise, bareboat, time, voyage, other charter, lease or other right to use of any of the Issuer’s or the Restricted Subsidiaries’ Vessels, in each case, in the ordinary course of business shall not be deemed to involve a Change of Control.

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline with respect to the Notes.

“Common Stock” means with respect to any Person, any and all shares, interest or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock, whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.

“Consolidated Amortization Expense” for any period means the amortization expense of the relevant Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Cash Flow” for any period means, with respect to any specified Person and its Restricted Subsidiaries, without duplication, the sum of the amounts for such period of:

(2)            without duplication, (a) the amount of net cost savings, operating expense reductions and synergies projected by the Issuer in good faith to be realized as a result of specified actions taken or to be taken (which cost savings, operating expense reductions or synergies shall be calculated on a pro forma basis as though such cost savings, operating expense reductions or synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions or synergies are reasonably identifiable and factually supportable, (B) such actions have been taken or are to be taken within 18 months after the date of determination to take such action and (C) the aggregate amounts added to Consolidated Cash Flow pursuant to this clause (2)(a) in any such period, together with any such amounts added to Consolidated Cash Flow pursuant to clause (3)(g) below, shall not exceed 15% of Consolidated Cash Flow for such period (calculated before giving effect to the adjustment set forth in this clause (2)(a)), (b) gains, losses and non-cash charges related to the cancellation of debt, swaps and/or other derivatives, (c) any non-cash adjustments and charges stemming from the application of fresh start accounting, (d) transaction expenses and integration costs incurred in connection with any acquisition or disposition, (e) non-cash charges and expenses relating to employee benefit plans, management incentive plans, equity compensation plans or other stock-based compensation arrangements, plus

(3)            in each case only to the extent deducted in determining Consolidated Net Income,

(e)            net cash proceeds from business interruption insurance or reimbursement of expenses received related to any acquisition or disposition,

(f)            charges, costs or losses attributable to severance in connection with any undertaking or implementation of restructurings (including any tax restructuring), cost savings initiatives and cost rationalization programs, business optimization initiatives, systems implementation, termination or modification of material contracts, entry into new markets, strategic initiatives, expansion or relocation, consolidation of any facility, modification to any pension and post-retirement employee benefit plan, software development, new systems design, project startup, consulting, business integrity and corporate development; provided that the aggregate amount of cash charges, costs or losses under this clause (3)(f), together with any amounts added to Consolidated Cash Flow pursuant to clause (2)(a) above, shall not exceed 15% of Consolidated Cash Flow for such period (calculated before giving effect to the adjustment set forth in clause (2)(a) above), and

(g)            all other non-cash items reducing the Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period) for such period.

“Consolidated Depreciation Expense” for any period means the depreciation expense of the relevant Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Income Tax Expense” for any period means the provision for taxes of the relevant Person and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Coverage Ratio” means, on any date of determination, with respect to any Person, the ratio of (x) Consolidated Cash Flow during the Four-Quarter Period ending on or prior to the date of the transaction giving rise to the need to calculate the Consolidated Interest Coverage Ratio (the “Transaction Date”) to (y) Consolidated Interest Expense for the Four-Quarter Period. For purposes of this definition, Consolidated Cash Flow and Consolidated Interest Expense shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(1)            the incurrence of any Indebtedness or the issuance of any Disqualified Equity Interests of the Issuer or Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary (and the application of the proceeds thereof) and any repayment, repurchase or redemption of other Indebtedness or other Disqualified Equity Interests or Preferred Stock (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to any revolving credit arrangement) occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date (subject to the proviso below), as if such incurrence, repayment, repurchase, issuance or redemption, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four-Quarter Period; provided, however, that the pro forma calculation shall not give effect to any Indebtedness incurred on the Transaction Date pursuant to the provisions described in Section 4.9(b) and Section 4.9(g), other than those provisions that are based on a ratio; and

(2)            any Asset Sale or other material disposition of assets outside the ordinary course of business or Asset Acquisition (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of the Issuer or any Restricted Subsidiary (including any Person who becomes a Restricted Subsidiary as a result of such Asset Acquisition) incurring Acquired Indebtedness and also including any Consolidated Cash Flow (including any pro forma expense and cost reductions that have occurred or are reasonably expected to occur within the next 12 months)) in each case occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence of, or assumption or liability for, any such Indebtedness or Acquired Indebtedness) occurred on the first day of the Four-Quarter Period; provided, that such pro forma calculations shall be determined in good faith by a responsible financial or accounting officer of the Issuer whether or not such pro forma adjustments would be permitted under SEC rules or guidelines.

In calculating Consolidated Interest Expense for purposes of this Consolidated Interest Coverage Ratio:

(a)            interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date;

(b)            if interest on any Indebtedness actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four-Quarter Period; and

(c)            notwithstanding clause (a) or (b) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“Consolidated Interest Expense” for any period means the sum, without duplication, of the total interest expense of the relevant Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, including, without duplication:

(1)            imputed interest on Finance Lease Obligations;

(2)            commissions, discounts and other fees and charges owed with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings;

(3)            the net costs associated with Hedging Obligations related to interest rates;

(4)            amortization of debt issuance costs, debt discount or premium and other financing fees and expenses;

(5)            the interest portion of any deferred payment obligations;

(8)            all dividend payments on any series of Disqualified Equity Interests or Designated Preferred Stock of the Issuer or any Preferred Stock of any Restricted Subsidiary (other than dividends on Equity Interests to the extent payable in Qualified Equity Interests of the Issuer or to the Issuer or a Restricted Subsidiary of the Issuer);

(9)            all interest payable with respect to discontinued operations; and

(10)          all interest on any Indebtedness described in clause (6) or (7) of the definition of Indebtedness.

Notwithstanding the foregoing, the interest component of any lease that is not a Finance Lease Obligation will not be included in Consolidated Interest Expense.

“Consolidated Net Income” for any period means the net income (or loss) of such Person and its Restricted Subsidiaries, in each case for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded in calculating such net income (or loss), to the extent otherwise included therein, without duplication:

(1)            the net income (or loss) of any Person (other than a Restricted Subsidiary) in which any Person other than the Issuer and the Restricted Subsidiaries has an ownership interest, except (i) to the extent that cash in an amount equal to any such income or other return on investment has actually been received by such Person or to any of its Restricted Subsidiaries or (ii) the amount of any loans repaid by such other Person to such Person or to any of its Restricted Subsidiaries during such period, as the case may be;

(2)            except to the extent includible in the net income (or loss) of the Issuer pursuant to the foregoing clause (1), the net income (or loss) of any Person that accrued prior to the date that (a) such Person becomes a Restricted Subsidiary or is merged into or consolidated with the Issuer or any Restricted Subsidiary or (b) the assets of such Person are acquired by the Issuer or any Restricted Subsidiary;

(3)            the net income of any Unrestricted Subsidiary except to the extent of (i) the amount of dividends or distributions or other return on investment actually paid in cash during such period by such Unrestricted Subsidiary to the Issuer or to any of its Restricted Subsidiaries (or to the extent non-cash dividends or distributions are received and converted into cash by the Issuer or any of its Restricted Subsidiaries during such period), as the case may be, (ii) the amount of any loans repaid by such Unrestricted Subsidiary to the Issuer or to any of its Restricted Subsidiaries, as the case may be and (iii) any other amount paid in cash by such Unrestricted Subsidiary pursuant to the Revolving Credit Facility;

(4)            the net income (but not loss) of any Restricted Subsidiary other than a Guarantor during such period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not permitted by operation of the terms of its charter or any agreement or instrument applicable to that Subsidiary (other than by the terms of any Indebtedness of such Restricted Subsidiary outstanding pursuant to Section 4.9) except to the extent such income is actually paid in cash during such period by such Restricted Subsidiary to the Issuer or another Restricted Subsidiary (or to the extent non-cash dividends or distributions are received and converted into cash by the Issuer or any of its Restricted Subsidiaries during such period);

(5)            any (i) non-cash compensation charge or expense arising from any issue or grant of stock, stock options or other equity-based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions and (ii) income (loss) attributable to deferred compensation plans or trusts;

(6)            non-cash gains and losses due solely to fluctuations in currency values;

(7)            the cumulative effect of any change in accounting principles or policies;

(8)            (A) any costs, expenses or charges (including advisory, legal and professional fees) related to any issuance of debt or equity, investments, acquisition, disposition, recapitalization or incurrence, amendment, waiver, modification, extinguishment or refinancing of any Indebtedness, whether or not consummated, including such fees, expenses or charges related to the offering of the Notes and any Debt Facilities, (B) any costs, expenses or charges relating to the Transactions, and (C) legal settlement expenses;

(9)            non-cash gains or losses or positive or negative adjustments under ASC 815 (and any statements replacing, modifying or superseding such statement) as the result of changes in the fair market value of derivatives; and

(10)          write-ups, write-downs or other non-cash impairments of goodwill or other assets.

“Consolidated Total Assets” means, with respect to any Person as of any date, the amount which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries determined in accordance with GAAP.

“Consolidated Total Debt Ratio” means, as of any date of determination, the ratio of (1) (i) Consolidated Total Indebtedness of the Issuer and its Restricted Subsidiaries minus (ii) unrestricted cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries, in each case, as of the end of the Four-Quarter Period immediately preceding the date of determination to (2) Consolidated Cash Flow of the Issuer for such Four-Quarter Period, with such pro forma adjustments to Consolidated Total Indebtedness, Cash Equivalents and Consolidated Cash Flow as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Interest Coverage Ratio.”

“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of the aggregate amount of all outstanding Indebtedness of the Issuer and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money or Obligations in respect of Finance Lease Obligations.

“Corporate Trust Office” means the offices of the Trustee at which at any time its corporate trust business shall be principally administered, which office as of the date hereof is located at 50 South Sixth Street, Suite 1290, Minneapolis, MN 55402, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Issuer).

“Customary Recourse Exceptions” means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary, fraud, misapplication of cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.

“Debt Facilities” means one or more debt facilities or other credit agreements, indentures or commercial paper facilities (which may be outstanding at the same time and including, without limitation, the Revolving Credit Facility) providing for revolving credit loans, debt securities, capital markets financings, term loans, receivables financing or letters of credit and, in each case, as such agreements may be amended, refinanced, restated, refunded or otherwise restructured, in whole or in part from time to time (including increasing the amount of available borrowings thereunder or adding Subsidiaries of the Issuer as additional borrowers or guarantors thereunder) with respect to all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements and whether by the same or any other agent, lender, group of lenders or institutional lenders or investors.

“Default” means (1) any Event of Default or (2) any event, act or condition that, after notice or the passage of time or both, would be an Event of Default.

“Depositary” means with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Global Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Regulated Bank or a Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Performance References.

“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary of the Issuer in connection with an Asset Sale that is so designated as Designated Non-cash Consideration.

“Designated Preferred Stock” means Preferred Stock of the Issuer that is designated as such by the Issuer pursuant to an Officers’ Certificate.

“Disqualified Equity Interests” of any Person means any class of Equity Interests of such Person that, by its terms, or by the terms of any related agreement or of any security into which it is convertible, puttable or exchangeable (in each case, at the option of the holder thereof), is, or upon the happening of any event or the passage of time would be, required to be redeemed by such Person, at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is 91 days after the Stated Maturity of the Notes; provided, however, that any class of Equity Interests of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified Equity Interests so long as such Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests that are not Disqualified Equity Interests; provided, further, however, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the Issuer to repurchase or redeem such Equity Interests upon the occurrence of a change in control or an Asset Sale occurring prior to the 91st day after the Stated Maturity of the Notes shall not constitute Disqualified Equity Interests if the Equity Interests specifically provide that the Issuer will not repurchase or redeem any such Equity Interests pursuant to such provisions prior to the Issuer’s purchase of the Notes as required pursuant to Section 4.10 and Section 4.13, respectively.

“dollars,” “U.S. dollars” or “$” means lawful money of the United States.

“Domestic Restricted Subsidiary” means, a Restricted Subsidiary that is any direct or indirect Subsidiary of the Issuer that is organized under the laws of the United States, any state of the United States or the District of Columbia.

“Eligible Bank” means any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, capital and surplus aggregating in excess of $250.0 million (or in the equivalent thereof in a foreign currency as of the date of determination) and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization.

“Equity Interests” of any Person means (1) any and all shares or other equity interests (including Common Stock, Preferred Stock, limited liability company interests, trust units and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person, but excluding from all of the foregoing any debt securities convertible or exchangeable for any combination of Equity Interests and/or cash or Cash Equivalents, regardless of whether such debt securities include any right of participation with Equity Interests.

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such asset) that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction as such price is determined in good faith by management of the Issuer.

“Finance Lease Obligations” means, for any Person, the aggregate amount of such Person’s liabilities under all leases that are classified as financing leases (and not operating leases) required to be capitalized on the balance sheet of such Person as determined in accordance with GAAP.

“Fitch” means Fitch Ratings Ltd. or any successor to the rating agency business thereof.

“Foreign Subsidiary” means any Restricted Subsidiary of the Issuer that is not a Domestic Restricted Subsidiary.

“Four-Quarter Period” means the most recently ended four-fiscal quarter period of the Issuer for which internal financial statements are available.

“GAAP” means generally accepted accounting principles in the United States, which are in effect from time to time.

“Global Notes” means the Notes that are in the form of Exhibit A issued in global form and registered in the name of the Depositary or its nominee.

“guarantee” means a direct or indirect guarantee by any Person of any Indebtedness of any other Person and includes any obligation, direct or indirect, contingent or otherwise, of such Person entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); “guarantee,” when used as a verb, and “guaranteed” have correlative meanings.

“Guarantee” means, individually, any guarantee of payment of the Notes by a Guarantor pursuant to the terms of this Indenture and any supplemental indenture hereto, and, collectively, all such guarantees.

“Guarantors” means each Restricted Subsidiary of the Issuer on the Issue Date that is a party to this Indenture for purposes of providing a Guarantee with respect to the Notes, and each other Person that is required to, or at the election of the Issuer, does become a Guarantor by the terms of this Indenture after the Issue Date, in each case, until such Person is released from its Guarantee in accordance with the terms of this Indenture.

“Hedging Obligations” of any Person means the obligations of such Person under option, swap, cap, collar, forward purchase or similar agreements or arrangements intended to manage exposure to interest rates or currency exchange rates or commodity prices (including, without limitation, for purposes of this definition, rates for electrical power used in the ordinary course of business), either generally or under specific contingencies.

“incur” means, with respect to any Indebtedness or Obligation, incur, create, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to such Indebtedness or Obligation; provided that (1) the Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of the Issuer shall be deemed to have been incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the Issuer and (2) neither the accrual of interest nor the accretion of original issue discount or the accretion or accumulation of dividends on any Equity Interests shall be deemed to be an incurrence of Indebtedness.

(1)            all liabilities, contingent or otherwise, of such Person for borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof);

(2)            all obligations of such Person evidenced by bonds, debentures, bankers’ acceptances, notes or other similar instruments;

(3)            all reimbursement obligations of such Person in respect of letters of credit, letters of guaranty and similar credit transactions;

(4)            all obligations of such Person to pay the deferred and unpaid purchase price of property or services due more than six months after such property is acquired or services are provided;

(5)            all Finance Lease Obligations of such Person (but not any lease that is not a Finance Lease Obligation);

(6)            all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;

(7)            all Indebtedness of others guaranteed by such Person to the extent of such guarantee; provided that Indebtedness of the Issuer or its Subsidiaries that is guaranteed by the Issuer or the Issuer’s Subsidiaries shall only be counted once in the calculation of the amount of Indebtedness of the Issuer and its Subsidiaries on a consolidated basis;

(8)            to the extent not otherwise included in this definition, net Hedging Obligations of such Person; and

(9)            all obligations of such Person under conditional sale or other title retention agreements relating to assets purchased by such Person if and to the extent that any of the foregoing items (other than letters of credit or Hedging Obligations) would appear on a balance sheet of such Person in accordance with GAAP;

provided that the definition of “Indebtedness” shall not include: (i) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty, indemnity or other unperformed obligations of the seller of such asset; (ii) customary cash pooling and cash management practices and other intercompany indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extension of terms) incurred in the ordinary course of business; (iii) deferred compensation, trade payables and accrued expenses arising in the ordinary course of business, deferred taxes, obligations assumed or liabilities incurred under vessel time charters or other forms of service agreement in the ordinary course of business (e.g., bid bonds, performance guarantees, and pre-paid hire under vessel time charters or similar contracts which have not yet been earned), or obligations in respect of Equity Interests that do not constitute Disqualified Equity Interests; (iv) liabilities resulting from endorsements of instruments for collection in the ordinary course of business; (v) any indebtedness with respect to which cash or Cash Equivalents in an amount sufficient to repay in full the principal and accrued interest on such indebtedness has been escrowed with the trustee or other depository for the benefit of the lenders or holders in respect of such indebtedness but only to the extent the foregoing constitutes a complete defeasance of such indebtedness pursuant to the applicable agreement governing such indebtedness and (vi) any repayment or reimbursement obligation of a Person or any of its Restricted Subsidiaries with respect to Customary Recourse Exceptions, unless and until an event or circumstance occurs that triggers the Person’s or such Restricted Subsidiary’s direct repayment or reimbursement obligation (as opposed to contingent or performance obligations) to the lender or other Person to whom such obligation is actually owed, in which case the amount of such direct payment or reimbursement obligation shall constitute Indebtedness. For purposes of this Indenture, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture to the extent such Indebtedness is recourse to such Person.

The amount of any Indebtedness which is incurred at a discount to the principal amount at maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above, the maximum liability of such Person for any such contingent obligations at such date and, in the case of clause (6), the lesser of (a) the Fair Market Value of any asset subject to a Lien securing the Indebtedness of others on the date that the Lien attaches and (b) the amount of the Indebtedness secured.

“Indenture” means this Indenture, as amended or supplemented from time to time.

“Intellectual Property” means all patents, patent applications, trademarks, trade names, service marks, copyrights, technology, trade secrets, proprietary information, domain names, know-how and processes necessary for the conduct of the Issuer’s or any Restricted Subsidiary’s business.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by Fitch, and BBB- (or the equivalent) by S&P, in each case, with a stable or better outlook.

(1)            all direct or indirect investments by such Person in any other Person (including Affiliates) in the form of loans, advances or capital contributions or other credit extensions constituting Indebtedness of such other Person, and any guarantee of Indebtedness of any other Person;

(2)            all purchases (or other acquisitions for consideration) by such Person of Indebtedness, Equity Interests or other securities of any other Person (other than any such purchase that constitutes a Restricted Payment of the type described in clause (2) of the definition thereof);

(3)            all other items that would be classified as investments in another Person on a balance sheet of such Person prepared in accordance with GAAP; and

(4)            the Designation of any Subsidiary as an Unrestricted Subsidiary.

Except as otherwise expressly specified in this definition, the amount of any Investment (other than an Investment made in cash) shall be the Fair Market Value thereof on the date such Investment is made. The amount of an Investment pursuant to clause (4) shall be the Designation Amount determined in accordance with Section 4.16. If the Issuer or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted Subsidiary issues any Equity Interests, in either case, such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary, the Issuer shall be deemed to have made an Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Equity Interests of and all other Investments in such Restricted Subsidiary retained. Notwithstanding the foregoing, purchases or redemptions of Equity Interests of the Issuer shall be deemed not to be Investments.

“Issue Date” means July 7, 2025, the date on which the Initial Notes are originally issued.

“Issuer” means Tidewater Inc., a Delaware corporation, and any successor Person resulting from any transaction permitted by Section 5.1.

“Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory or other), assignment, assignment by way of security, pledge, lease, easement, restriction, covenant, charge, security interest or similar encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement.

“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Equity Interests or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third-party financing (or, if such a condition does exist, the Issuer or any Restricted Subsidiary would be required to pay any fee, liquidated damages or other amount or be subject to any indemnity, claim or other liability as a result of such third party financing not having been available or obtained) and (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interests or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.

“Local Content Entity” means any Affiliate of the Issuer (a) that owns or is contemplated to own a Vessel or that is a party to or contemplated to be a party to a charter party agreement or any demise, bareboat, time, voyage, other charter, lease or other right to use of a Vessel owned by it or by the Issuer, any Restricted Subsidiary or another Local Content Entity and (b) the Equity Interests of which is jointly owned by the Issuer or any Restricted Subsidiary(ies) and any other Person(s) that is(are) required or necessary under local law or custom to own the Equity Interests in the Local Content Entity as a condition for (i) the operation of a Vessel in such jurisdiction, (ii) the ownership of any asset owned, or contemplated to be acquired, by such entity in such jurisdiction or (iii) the business transacted, or contemplated to be transacted, by such entity in such jurisdiction; provided that Local Content Entities shall not include joint ventures that are formed in the ordinary course and for purposes other than local law requirements or local law customs.

“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.

“Moody’s” means Moody’s Investors Service, Inc., or any successor to its rating agency business.

“Net Available Proceeds” means, with respect to any Asset Sale, the proceeds thereof in the form of cash or Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries from such Asset Sale, net of:

(1)            brokerage commissions and other fees and expenses (including fees, discounts and expenses of legal counsel, accountants and investment banks, consultants and placement agents) of such Asset Sale;

(2)            provisions for taxes payable (including any withholding or other taxes paid or reasonably estimated to be payable in connection with the transfer to the Issuer of such proceeds from any Restricted Subsidiary that received such proceeds) as a result of such Asset Sale (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(3)            amounts required to be paid to any Person (other than the Issuer or any Restricted Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale or having a Lien thereon;

(4)            payments of unassumed liabilities (not constituting Indebtedness) relating to the assets sold at the time of, or within 30 days after the date of, such Asset Sale; and

(5)            appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve required in accordance with GAAP against any adjustment in the sale price of such asset or assets or liabilities associated with such Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including pensions and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale; provided, however, that any amounts remaining after adjustments, revaluations or liquidations of such reserves shall constitute Net Available Proceeds.

“Net Short” means, with respect to a holder of Notes or beneficial owner, as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds the sum of (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Issuer, any Guarantor or any Parent Company immediately prior to such date of determination.

“Non-Recourse Debt” means Indebtedness of an Unrestricted Subsidiary as to which neither the Issuer nor any Restricted Subsidiary (a) provides credit support of any kind through any undertaking, agreement or instrument that would constitute Indebtedness, except for Customary Recourse Exceptions, or (b) is directly or indirectly liable as a guarantor or otherwise, except in each case with pledges of Equity Interests in an Unrestricted Subsidiary.

“Note Custodian” means the Person appointed as custodian for the Depositary with respect to the Global Notes, or any successor entity thereto.

“Notes” means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes, if any, shall be treated as a single class for all purposes under this Indenture.

“Obligation” means any principal, interest, penalties, fees, indemnification, reimbursements, costs, expenses, damages and other liabilities payable under the documentation governing any Indebtedness.

“Offering Memorandum” means the Issuer’s offering memorandum, dated June 24, 2025, relating to the offer and sale of the Initial Notes.

“Officer” means any of the following of the Issuer or any Guarantor: the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, Managing Director, the Treasurer or the Secretary.

“Officers’ Certificate” means a certificate signed by two Officers that meets the requirements of Section 11.4 of this Indenture.

“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or the Trustee.

“Parent Company” means any Person that is or becomes after the Issue Date a direct or indirect parent (which may be organized as, among other things, a partnership) of the Issuer.

“Pari Passu Indebtedness” means any Indebtedness of the Issuer or any Restricted Subsidiary that is not Subordinated Indebtedness.

“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.

“Paying Agent” means any Person authorized by the Issuer to pay the principal of, premium, if any, or interest on any Notes on behalf of the Issuer.

“Payment Default” means any default in payment of amounts when due on the Notes, without giving effect to any grace period.

“Performance References” means any one or more of the Issuer, the Guarantors or any Parent Company.

“Permitted Business” means any business that is the same as or related, ancillary or complementary to any of the businesses of the Issuer or the Restricted Subsidiaries on the Issue Date and any reasonable extension or evolution of any of the foregoing as determined in good faith by the Issuer.

“Permitted Business Asset” means (a) one or more Vessels, (b) the Equity Interests of a Person owning one or more Vessels and/or (c) any other asset that is useful in the business of the Issuer or its Restricted Subsidiaries.

“Permitted Business Investment” means Investments in any Person (including an Unrestricted Subsidiary or joint venture) engaged in Permitted Business.

(1)            Investments by the Issuer or any Restricted Subsidiary in (a) any Restricted Subsidiary or Local Content Entity or (b) any Person that will become immediately after such Investment a Restricted Subsidiary or Local Content Entity or that will merge or consolidate into the Issuer or any Restricted Subsidiary and any Investment held by any such Person at such time that was not incurred in contemplation of such acquisition, merger or consolidation;

(2)            Investments in the Issuer by any Restricted Subsidiary;

(3)            loans and advances to directors, employees and officers of the Issuer and its Restricted Subsidiaries (i) in the ordinary course of business (including payroll, travel and entertainment related advances) (other than any loans or advances to any director or executive officer (or equivalent thereof) that would be in violation of Section 402 of the Sarbanes Oxley Act) and (ii) to purchase Equity Interests of the Issuer not in excess of $10.0 million in the aggregate outstanding at any one time;

(4)            Hedging Obligations entered into in the ordinary course of business for bona fide hedging purposes of the Issuer or any Restricted Subsidiary not for the purpose of speculation;

(5)            Investments in cash, Cash Equivalents, U.S. Treasury securities, government securities of the United Kingdom, any member state of the European Union, Norway, Singapore, Japan, Canada, Australia and New Zealand, investment grade corporate debt securities or any fund invested primarily in the foregoing;

(6)            receivables owing to the Issuer or any Restricted Subsidiary if created or acquired, and advances or extensions of credit in the nature of accounts receivable arising from the sale or lease of goods or services, the leasing of equipment or the licensing of property, in each case in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Issuer or any such Restricted Subsidiary deems reasonable under the circumstances;

(7)            Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or received in compromise or resolution of litigation, arbitration or other disputes with such parties;

(8)            Investments made by the Issuer or any Restricted Subsidiary as a result of consideration received in connection with an Asset Sale made in compliance with Section 4.10 or a transaction excluded from the definition of Asset Sale;

(9)            lease, utility and other similar deposits in the ordinary course of business;

(10)          stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Issuer or any Restricted Subsidiary or in satisfaction of judgments;

(11)          Investments in Unrestricted Subsidiaries not to exceed the greater of (x) $50.0 million and (y) 2.0% of the Issuer’s Consolidated Total Assets determined at the time of Investment; provided, however, that if any Investment pursuant to this clause (11) is made in any Person that later becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (11) for so long as such Person continues to be a Restricted Subsidiary;

(12)          guarantees of Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted in accordance with Section 4.9;

(13)          repurchases of, or other Investments in, the Notes or other Indebtedness of the Issuer and its Restricted Subsidiaries;

(14)          any Investment existing on, or made pursuant to binding commitments existing on, the Issue Date, and any modifications, renewals or extensions that do not increase the amount of the Investment being modified, renewed or extended (as determined as of such date of modification, renewal or extension) unless the incremental increase in such Investment is otherwise permitted hereunder;

(15)          Investments the payment for which consists of Equity Interests (exclusive of Disqualified Equity Interests) of the Issuer; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under the Restricted Payments Builder Basket;

(16)          other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) that, when taken together with all other Investments made pursuant to this clause (16) since the Issue Date and then outstanding, do not exceed $100.0 million;

(17)          performance guarantees of any trade or non-financial operating contract (other than such contract that itself constitutes Indebtedness) in the ordinary course of business;

(18)           Investments made in accordance with recovery plans to support defined benefit plans or pension schemes sponsored by the Issuer or any Restricted Subsidiary; and

(19)          Permitted Business Investments in an unlimited amount so long as after giving pro forma effect thereto the Consolidated Total Debt Ratio does not exceed 1.25 to 1.00.

In determining whether any Investment is a Permitted Investment, the Issuer may allocate or reallocate all or any portion of an Investment among the clauses of this definition and any of the provisions of Section 4.7.

(1)            Liens for taxes, assessments or governmental charges or levies not yet due and payable or delinquent or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Issuer or its Restricted Subsidiaries, as the case may be, in conformity with GAAP;

(2)            Liens in respect of property of the Issuer or any Restricted Subsidiary imposed by law or contract, which were not incurred or created to secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, and which do not in the aggregate materially detract from the value of the property of the Issuer or its Restricted Subsidiaries, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole;

(3)            (i) pledges or deposits made in connection therewith in the ordinary course of business in connection with obligations of the type described in Section 4.9(b)(7) and (ii) Liens incurred in connection with or for the benefit of defined benefit plans or pension schemes sponsored by the Issuer or its Restricted Subsidiaries;

(4)            Liens (i) incurred in the ordinary course of business to secure the performance of tenders, bids, trade contracts, stay and customs bonds, leases, statutory obligations, surety and appeal bonds, statutory bonds, government contracts, performance and return money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or (ii) incurred in the ordinary course of business to secure liability for premiums or in respect of reimbursement or indemnification obligations to insurance carriers;

(5)            Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(6)            Liens arising out of judgments or awards not resulting in a Default or an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;

(7)            minor defects, irregularities and deficiencies in title to, and easements, rights of way, restrictions (including zoning restrictions), covenants, encroachments, protrusions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within areas covered by, and other rights in real property in favor of the Issuer or any Restricted Subsidiary, in each case which do not interfere with the ordinary conduct of business, and which do not materially detract from the value of the property which they affect;

(8)            (i) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other assets relating to such letters of credit and products and proceeds thereof, and (ii) Liens securing Indebtedness represented by letters of credit, bankers’ acceptances, letters of guaranty and similar credit transactions (or reimbursement agreements in respect thereof);

(9)            Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Issuer or any Restricted Subsidiary, including rights of offset and setoff;

(10)           bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Issuer or any Restricted Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements;

(11)           any interest or title of a lessor under any lease entered into by the Issuer or any Restricted Subsidiary not in violation of this Indenture;

(12)           the filing of financing statements under the Uniform Commercial Code solely as a precautionary measure in connection with operating leases, consignments of goods or transfers of accounts, in each case to the extent not securing performance of a payment or other obligation;

(13)           Liens securing the Notes and any Guarantee;

(14)          Liens securing Hedging Obligations entered into for bona fide hedging purposes of the Issuer or any Restricted Subsidiary not for the purpose of speculation;

(15)          Liens securing Specified Cash Management Agreements entered into in the ordinary course of business;

(16)          Liens in favor of the Issuer or a Restricted Subsidiary;

(17)          Liens securing Indebtedness under Debt Facilities incurred and then outstanding pursuant to Section 4.9(b)(1);

(18)          Liens arising pursuant to Purchase Money Indebtedness or Finance Lease Obligations; provided that (i) the Indebtedness (including any fees and expenses incurred in connection therewith) secured by any such Lien (including refinancings thereof) does not exceed 100.0% of the cost of the property being acquired or leased at the time of the incurrence of such Indebtedness and (ii) any such Liens attach only to the property being financed pursuant to such Purchase Money Indebtedness (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) and do not encumber any other property of the Issuer or any Restricted Subsidiary;

(19)           Liens securing Acquired Indebtedness; provided that such Indebtedness was not initially incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or being acquired or merged into the Issuer or a Restricted Subsidiary of the Issuer and such Liens do not extend to assets not subject to such Lien at the time of acquisition (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof);

(20)           Liens on property of a Person existing at the time such Person is acquired or amalgamated or merged with or into or consolidated with the Issuer or any Restricted Subsidiary (and not created in anticipation or contemplation thereof); provided that such Liens do not extend to property not subject to such Liens at the time of acquisition (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof);

(21)          Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned by the Issuer or any Restricted Subsidiary of the Issuer to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or joint venture;

(22)           Liens arising from the deposit of funds or securities in trust for the purpose of decreasing or defeasing Indebtedness so long as such deposit of funds or securities and such decreasing or defeasing of Indebtedness are permitted under Section 4.9;

(23)            (i) sales or grants of licenses or sublicenses of (or other grants of rights to use or exploit) licenses of Intellectual Property (x) existing as of the Issue Date, or (y) between or among the Issuer and its Restricted Subsidiaries or between or among any of the Restricted Subsidiaries, or (ii) licenses of Intellectual Property granted by the Issuer or any Restricted Subsidiary in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Issuer or such Restricted Subsidiary;

(24)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;

(25)           Liens in favor of the Trustee as provided for in this Indenture on money or property held or collected by the Trustee in its capacity as Trustee;

(26)           Liens existing on the Issue Date (other than pursuant to the Revolving Credit Facility);

(28)           other Liens with respect to obligations which do not in the aggregate exceed at any time outstanding the greater of (i) $85.0 million and (ii) 4.0% of the Issuer’s Consolidated Total Assets determined at the time of incurrence;

(29)           Liens to secure Permitted Indebtedness recorded as finance leases in accordance with GAAP;

(30)           any right of set-off arising under common law or by statute or customary account documentation; and

(31)           any Lien renewing, extending, refinancing or refunding a Lien permitted by clauses (13), (18), (19), (20), (26), (28) and this clause (31); provided that such Liens do not extend to any additional assets (other than improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) and the amount of such Indebtedness is not increased except as necessary to pay accrued and unpaid interest, premiums, fees or expenses in connection with such refinancing.

If any Liens securing obligations are incurred to refinance Liens securing obligations initially incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets, and such refinancing would cause the percentage of Consolidated Total Assets to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets will not be deemed to be exceeded to the extent the principal amount of such obligations secured by such newly incurred Lien does not exceed the principal amount of such obligations secured by such Liens being refinanced, plus any accrued and unpaid interest on the Indebtedness plus the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such refinanced Indebtedness, and any defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, or the extension, replacement, refunding, refinancing, renewal or defeasance of such refinanced Indebtedness.

(1)            Liens for crews’ wages (including the wages of the master of the Vessel) that are discharged in the ordinary course of business and have accrued for not more than 90 days (or such longer period provided for under the Revolving Credit Facility) unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Issuer or relevant Restricted Subsidiary, and the Issuer or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture or loss;

(2)            Liens for salvage (including contract salvage) or general average, and Liens for wages of stevedores employed by the owner of the Vessel, the master of the Vessel or a charterer or lessee of such Vessel, which in each case have accrued for not more than 90 days (or such longer period provided for under the Revolving Credit Facility) unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Issuer or relevant Restricted Subsidiary, and the Issuer or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture or loss;

(3)            shipyard Liens and other Liens arising by operation of law arising in the ordinary course of business in operating, maintaining, repairing, modifying, refurbishing, or rebuilding the Vessel (other than those referred to in clauses (1) and (2) above), including maritime Liens for necessaries, which in each case have accrued for not more than 90 days (or such longer period provided for under the Revolving Credit Facility) unless any such Lien is being contested in good faith and by appropriate proceedings or other acts by the Issuer or relevant Restricted Subsidiary, and the Issuer or relevant Restricted Subsidiary shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject the Vessel to sale, forfeiture, or loss;

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

(5)            Liens that, as indicated by the written admission of liability therefor by an insurance company, are covered by insurance (subject to reasonable deductibles); and

(6)            Liens for charters or subcharters or leases or subleases not prohibited under this Indenture.

“Person” means any individual, corporation, company, exempted company, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trust, mutual fund trust, unincorporated organization or government or other agency or political subdivision thereof or other legal entity of any kind.

“Preferred Stock” means, with respect to any Person, any and all preferred or preference stock or other Equity Interests (however designated) of such Person whether now outstanding or issued after the Issue Date that is preferred as to the payment of dividends upon liquidation, dissolution or winding up.

“principal” means, with respect to the Notes, the principal of, and premium, if any, on the Notes.

“Purchase Money Indebtedness” means Indebtedness, including Finance Lease Obligations, of the Issuer or any Restricted Subsidiary incurred for the purpose of financing or refinancing all or any part of the purchase price of property (including Vessels), plant or equipment used or useful in the business of the Issuer or any Restricted Subsidiary or the cost of renovation, repair, upgrade installation, construction or improvement thereof; provided, however, that (except in the case of Finance Lease Obligations) the amount of such Indebtedness shall not exceed such purchase price or cost of such activities.

“Qualified Equity Interests” of any Person means Equity Interests of such Person other than Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified Equity Interests to the extent sold or owed to a Subsidiary of such Person or financed, directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such Person or any Subsidiary of such Person (including, without limitation, in respect of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of the Issuer.

“Qualified Equity Offering” means any public or private sale of Equity Interests (other than Disqualified Equity Interests) made for cash on a primary basis by the Issuer, or other cash equity contribution to the Issuer, other than (a) any issuance pursuant to employee benefit plans or otherwise in compensation to officers, directors, trustees or employees or (b) public offerings with respect to the Issuer’s Qualified Equity Interests (or options, warrants or rights with respect thereto) registered on Form S-4 or S-8.

“Rating Decline” means the occurrence of a decrease in the rating of the Notes by two or more of the Rating Agencies (including gradations within the ratings categories, as well as between categories) within 60 days after the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Issuer to effect a Change of Control or (b) the occurrence of a Change of Control (which 60-day period shall be extended for a Rating Agency so long as the rating of the Notes is under publicly announced consideration for possible downgrade by such Rating Agency); provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Change of Control Triggering Event for purposes of the definition of Change of Control Triggering Event) unless each such Rating Agency making the reduction in rating to which this definition would otherwise apply announces or publicly confirms or informs the Trustee in writing at the request of the Issuer or the Trustee that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Decline).

“refinance” means to redeem, refinance, replace, defease, discharge, refund or otherwise retire for value.

“Refinancing Indebtedness” means Indebtedness of the Issuer or a Restricted Subsidiary incurred in exchange for, or the proceeds of which are used to redeem, refinance, replace, defease, discharge, refund or otherwise retire for value, in whole or in part, any Indebtedness of the Issuer or any Restricted Subsidiary (the “Refinanced Indebtedness”); provided that:

(1)            the principal amount (or accreted value, in the case of Indebtedness issued at a discount) of the Refinancing Indebtedness does not exceed the principal amount of the Refinanced Indebtedness plus the amount of accrued and unpaid interest on the Refinanced Indebtedness, any premium paid to the holders of the Refinanced Indebtedness and reasonable fees and expenses incurred in connection with the incurrence of the Refinancing Indebtedness;

(2)            the obligor of the Refinancing Indebtedness does not include any Person (other than the Issuer or any Guarantor) that is not an obligor of the Refinanced Indebtedness;

(3)            if the Refinanced Indebtedness was subordinated in right of payment to the Notes or the Guarantees, as the case may be, then such Refinancing Indebtedness, by its terms, is subordinate in right of payment to the Notes or the Guarantees, as the case may be, at least to the same extent as the Refinanced Indebtedness;

(4)            the Refinancing Indebtedness has a Stated Maturity either (a) no earlier than the Refinanced Indebtedness being refinanced or (b) no earlier than 91 days after the maturity date of the Notes; and

(5)            the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or prior to the maturity date of the Notes has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred that is equal to or greater than the Weighted Average Life to Maturity of the portion of the Refinanced Indebtedness being refinanced that is scheduled to mature on or prior to the maturity date of the Notes.

“Regulated Bank” means a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000 that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.

“Regulation S Legend” means the legend identified as such in Exhibit A.

“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.

“Restricted Notes Legend” means the legend identified as such in Exhibit A.

(1)            the payment of any dividend or any other distribution (whether made in cash, securities or other property) on or in respect of Equity Interests of the Issuer or any Restricted Subsidiary or any payment made to the direct or indirect holders (in their capacities as such) of Equity Interests of the Issuer or any Restricted Subsidiary, including, without limitation, any payment in connection with any merger or consolidation involving the Issuer or any of its Restricted Subsidiaries but excluding (a) dividends or distributions payable solely in Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests and (b) in the case of Restricted Subsidiaries, dividends or distributions payable to the Issuer or to a Restricted Subsidiary (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other holders of its Equity Interests on a pro rata basis or a basis more favorable to the Issuer and other Restricted Subsidiaries);

(2)            the purchase, redemption, defeasance or other acquisition or retirement for value of any Equity Interests of the Issuer or any direct or indirect parent of the Issuer held by Persons other than the Issuer or a Restricted Subsidiary (including, without limitation, any payment in connection with any merger or consolidation involving the Issuer);

(3)            any Investment other than a Permitted Investment; or

(4)            any principal payment on, purchase, redemption, defeasance, prepayment, decrease or other acquisition or retirement for value prior to any scheduled maturity or prior to any scheduled repayment of principal or sinking fund payment, as the case may be, in respect of Subordinated Indebtedness (other than any such payment made within one year of any such scheduled maturity or scheduled repayment or sinking fund payment and other than any Subordinated Indebtedness owed to and held by the Issuer or any Restricted Subsidiary permitted under Section 4.9(b)(6)).

“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S promulgated under the Securities Act.

“Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary. Unless otherwise specified, references to Restricted Subsidiaries shall be to Restricted Subsidiaries of the Issuer.

“Revolving Credit Facility” means the Credit Agreement dated on or about the Issue Date, by and among the Issuer, as borrower, the Guarantors, DNB Bank ASA, New York Branch, as administrative agent, and the several lenders and other agents party thereto, including any notes, guarantees, collateral and security documents, instruments and agreements executed in connection therewith (including Hedging Obligations related to the Indebtedness incurred thereunder), and in each case as such agreement or facility may be amended (including any amendment or restatement thereof), supplemented or otherwise modified from time to time, including any agreement or indenture exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring, whether in the bank or debt capital markets (or combination thereof) (including increasing the amount of available borrowings thereunder or adding or removing Subsidiaries as borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or facility or any successor or replacement agreement or facility.

“S&P” means S&P Global Ratings or any successor to its rating agency business.

“Screened Affiliate” means any Affiliate of a Holder of Notes (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to Issuer, its Subsidiaries or any Parent Company, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.

“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.

“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act as such Regulation was in effect on the Issue Date.

“Specified Cash Management Agreements” means any agreement providing for treasury, depositary, purchasing card or cash management services, including in connection with any automated clearing house transfers of funds or any similar transactions between the Issuer or any Restricted Subsidiary and any provider thereof.

“Stated Maturity” means, with respect to any Indebtedness, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.

“Subordinated Indebtedness” means Indebtedness of the Issuer or any Guarantor that is expressly subordinated in right of payment to the Notes or the Guarantees, respectively.

(1)            any corporation, company, exempted company, limited liability company, association, trust or other business entity of which more than 50.0% of the total voting power of the Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and

(2)            any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).

Unless otherwise specified, “Subsidiary” refers to a Subsidiary of the Issuer.

“TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended.

“Transaction Date” has the meaning set forth in the definition of “Consolidated Interest Coverage Ratio.”

“Transfer Restricted Notes” means Notes that bear or are required to bear the Restricted Notes Legend.

“Treasury Rate” means, as of any redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 which has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source or similar market data)) most nearly equal to the period from the redemption date to July 15, 2027; provided, however, that if the period from the redemption date to July 15, 2027 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to July 15, 2027 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

“Uniform Commercial Code” means the Uniform Commercial Code or any successor provision thereof as the same may from time to time be in effect in the State of New York.

“Unrestricted Subsidiary” means (a) any Subsidiary that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of the Issuer in accordance with Section 4.16 and (b) any Subsidiary of an Unrestricted Subsidiary.

“U.S. Government Obligations” means direct non-callable obligations of, or guaranteed by, the United States for the payment of which guarantee or obligations the full faith and credit of the United States is pledged.

“Voting Stock” with respect to any Person, means securities of any class of Equity Interests of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock or other relevant equity interest has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person.

“Weighted Average Life to Maturity” when applied to any Indebtedness at any date, means the number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at Stated Maturity, in respect thereof by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (2) the then outstanding principal amount of such Indebtedness.

“Wholly-Owned Subsidiary” means a Restricted Subsidiary, all of the Equity Interests of which (other than directors’ qualifying shares) are owned by the Issuer or another Wholly-Owned Subsidiary.

Section 1.3.           Rules of Construction. Unless the context otherwise requires:

(a)            a term has the meaning assigned to it herein;

(b)            an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;

(d)            words in the singular include the plural, and in the plural include the singular;

(e)            unless otherwise specified, any reference to Section, Article or Exhibit refers to such Section, Article or Exhibit, as the case may be, of this Indenture;

(f)            provisions apply to successive events and transactions; and

(g)            references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time.

Section 1.4.            Limited Condition Transaction.

(a)            Notwithstanding anything to the contrary in this Indenture, when (a) determining compliance with any provision of this Indenture which requires the calculation of the Consolidated Interest Coverage Ratio or the Consolidated Total Debt Ratio, (b) determining compliance with any provision of this Indenture which requires that no Default or Event of Default has occurred, is continuing or would result therefrom or (c) testing availability under baskets set forth in this Indenture (including baskets measured as a percentage of Consolidated Total Assets), in each case in connection with a Limited Condition Transaction, the date of determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the availability under any baskets shall, at the option of the Issuer (the Issuer’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”, which LCT Election may be in respect of one or more of clauses (a), (b) and (c) above), be deemed to be the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Transaction are entered into (the “LCT Test Date”).

(b)            If on a pro forma basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness, Disqualified Equity Interests or Preferred Stock and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recently ended period prior to the LCT Test Date for which annual or quarterly consolidated financial statements of the Issuer are available (as determined in good faith by the Issuer), the Issuer could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to clauses (1), (2) and (7) (solely with respect to the Issuer) under Section 6.1, shall be continuing on the date such Limited Condition Transaction is consummated.

(c)            For the avoidance of doubt, (i) if, following the LCT Test Date, any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations any components of such ratio (including due to fluctuations of the target of any Limited Condition Transaction)) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction, unless on such date an Event of Default pursuant to clauses (1), (2) and (7) (solely with respect to the Issuer) under Section 6.1 shall be continuing. If the Issuer has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision hereunder on or following the relevant LCT Test Date and prior to the earliest of the date on which such Limited Condition Transaction is consummated, the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, basket or compliance with any other provision hereunder shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness, Disqualified Equity Interests or preferred stock, and the use of proceeds thereof) had been consummated on the LCT Test Date.

(d)            Notwithstanding the foregoing, the Issuer may at any time withdraw any LCT Election, in which case any Indebtedness and Liens incurred in reliance on such LCT Election in accordance with the foregoing outstanding at such time, if any, shall be deemed to be incurred on the date of such withdrawal.

Section 2.1.            Form and Dating. The Notes shall be substantially in the form of Exhibit A attached hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes will be issued in registered form, without coupons, and in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The registered Holder will be treated as the owner of such Note for all purposes.

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

(a)            The Notes shall be issued initially in the form of one or more Global Notes, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.

Each Global Note shall represent such of the outstanding Notes as shall be specified therein, and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.6.

(b)            The Initial Notes are being issued by the Issuer only (i) to persons reasonably believed to be “qualified institutional buyers” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) (“QIBs”) and (ii) in reliance on Regulation S under the Securities Act (“Regulation S”). After such initial issuance, Initial Notes that are Transfer Restricted Notes may be transferred to QIBs in reliance on Rule 144A, outside the United States pursuant to Regulation S, to the Issuer, in accordance with certain transfer restrictions. Initial Notes that are offered in reliance on Rule 144A shall be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A and bear the Restricted Notes Legend and the Global Notes Legend (collectively, the “Rule 144A Global Note”), deposited with the Note Custodian, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Initial Notes that are offered in offshore transactions in reliance on Regulation S shall be initially issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A and bearing the Regulation S Legend and the Global Notes Legend (collectively, the “Regulation S Global Note”), deposited with the Note Custodian, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. To the extent CUSIP numbers are issued pursuant to Section 2.14, the Rule 144A Global Note and the Regulation S Global Note shall each be issued with separate CUSIP numbers. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, at the direction of the Trustee, in accordance with the instructions given by the Holder thereof as required by Section 2.6(b) hereof. Transfers of Notes among QIBs and to or by purchasers pursuant to Regulation S shall be represented by appropriate increases and decreases to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.15.

The Issuer shall execute and the Trustee shall, in accordance with this Section 2.1 and Section 2.2, authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depositary or the nominee of the Depositary and (ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Note Custodian for the Depositary.

Section 2.2.           Execution and Authentication. An Officer shall sign the Notes for the Issuer by manual, facsimile or electronic signature.

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

A Note shall not be valid until authenticated by the manual signature of an authorized signatory of the Trustee. The signature of an authorized signatory of the Trustee shall be conclusive evidence that the Note has been authenticated under this Indenture.

The Trustee shall, upon receipt of a written order of the Issuer signed by one Officer directing the Trustee to authenticate the Notes and certifying that all conditions precedent to the issuance of the Notes contained herein have been complied with and receipt of an Opinion of Counsel, authenticate Notes for original issue in the aggregate principal amount stated in such written order.

The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent or agents. An authenticating agent has the same rights as an Agent to deal with Holders or the Issuer or an Affiliate of the Issuer.

Section 2.3.           Registrar; Paying Agent. The Issuer shall maintain (i) an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and (ii) an office or agency where Notes may be presented for payment to a Paying Agent. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional Paying Agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional Paying Agent. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer and/or any Restricted Subsidiary may act as Paying Agent or Registrar.

The Issuer shall notify the Trustee in writing and the Holders, of the name and address of any Agent not a party to this Indenture. The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with Section 7.6.

The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent, at its Corporate Trust Office.

The Issuer initially appoints DTC to act as the Depositary with respect to the Global Notes.

Section 2.4.           Paying Agent to Hold Money in Trust. The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal or premium, if any, or interest on the Notes, and shall notify the Trustee in writing of any Default by the Issuer in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay to the Trustee all money held by it in trust for the benefit of the Holders or the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it in trust for the benefit of the Holders or the Trustee to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or any of its Subsidiaries) shall have no further liability for such money. If the Issuer or any of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon the occurrence of any of the events specified in Section 6.1, the Trustee shall serve as Paying Agent for the Notes.

Section 2.5.           Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

Section 2.6.           Book-Entry Provisions for Global Notes.

(a)            Each Global Note shall (i) deposited with the Trustee as custodian for DTC, (ii) registered in the name of Cede & Co., as nominee of DTC, and (iii) bear the Global Note legends as required by Section 2.6(e). Ownership of beneficial interest in each global note shall be limited to Participants in the Depositary or persons who hold interests through Participants.

Members of, or Participants in, the Depositary shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Note Custodian, or under such Global Note, and the Depositary may be treated by the Issuer, and the Trustee or any Agent and any of their respective agents, as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any Agent or their respective agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants, the operation of customary practices governing the exercise of the rights of an owner of a beneficial interest in any Global Note.

Neither the Trustee nor any Agent shall have any responsibility or obligation to any Holder that is a member of (or a Participant in) the Depositary or any other Person with respect to the accuracy of the records of the Depositary (or its nominee) or of any member or Participant thereof, with respect to any ownership interest in the Notes or with respect to the delivery of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to the Notes. The Trustee and any Agent may rely (and shall be fully protected in relying) upon information furnished by the Depositary with respect to its members, Participants and any Beneficial Owners in the Notes.

Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.

(b)            Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of Beneficial Owners in a Global Note may be transferred in accordance with Section 2.15 and the rules and procedures of the Depositary. In addition, certificated Notes shall be transferred to Beneficial Owners in exchange for their beneficial interests only if (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the Issuer within 90 days or (ii) the Issuer, in its sole discretion, notifies the Trustee that it elects to cause the issuance of certificated Notes and any Participant requests a certificated Note in accordance with the Depositary’s procedures.

(c)            In connection with the transfer of an entire Global Note to Beneficial Owners pursuant to Section 2.6(b), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee (in accordance with Section 2.2) shall authenticate and deliver to each Beneficial Owner identified by the Depositary in exchange for its beneficial interest in such Global Note an equal aggregate principal amount of certificated Notes of authorized denominations.

(d)            The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Notes.

(e)            Each Global Note shall bear the Global Note Legend on the face thereof.

(f)            At such time as all beneficial interests in Global Notes have been exchanged for certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for certificated Notes, redeemed, repurchased or cancelled, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note, by the Trustee or the Note Custodian, at the direction of the Trustee, to reflect such reduction.

(g)            General Provisions Relating to Transfers and Exchanges.

(1)            To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate (in accordance with Section 2.2) Global Notes and certificated Notes at the Registrar’s request.

(2)            No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any stamp or transfer tax or similar governmental charge payable in connection therewith (other than any such stamp or transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 3.6, Section 4.10, Section 4.13 or Section 9.4).

(3)            All Global Notes and certificated Notes issued upon any registration of transfer or exchange of Global Notes or certificated Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes (or interests therein) or certificated Notes surrendered upon such registration of transfer or exchange.

(4)            None of the Issuer, the Trustee or the Registrar is required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of 15 days before the day of any selection of Notes for redemption and ending at the close of business on the day of such selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

(5)            Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes (subject to the rights of Holders as of the relevant record dates) and for all other purposes, and none of the Trustee, any Agent, or the Issuer shall be affected by notice to the contrary.

(6)            The Trustee shall authenticate Global Notes and certificated Notes in accordance with the provisions of Section 2.2. Except as provided in Section 2.6(b), neither the Trustee nor the Registrar shall authenticate or deliver any certificated Note in exchange for a Global Note.

(7)            Each Holder agrees to indemnify the Issuer, the Trustee and the Agents against any liability that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law.

(8)            Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or Beneficial Owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(9)            In connection with any proposed exchange of a certificated Note for a Global Note, the Issuer or the Depositary shall be required to provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.

Section 2.7.           Replacement Notes. If any mutilated Note is surrendered to the Trustee, or the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon the written order of the Issuer signed by an Officer of the Issuer, shall authenticate a replacement Note if the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee to protect the Trustee and in the judgement of the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer, the Trustee and the Agents may charge for their expenses in replacing a Note.

Every replacement Note is an additional obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section 2.8.           Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.8 as not outstanding. Except as set forth in Section 2.9, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.

If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser within the meaning of Section 8-405 of the Uniform Commercial Code.

If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on any payment date, money sufficient to pay the amounts under the Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

Section 2.9.           Treasury Notes. In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or by any Affiliate of the Issuer shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes of which a Responsible Officer of the Trustee has written notice as being so owned shall be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Issuer or an Affiliate of the Issuer pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title to such Notes passes to such entity.

Section 2.11.         Cancellation. The Issuer at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder or which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. All Notes surrendered for registration of transfer, exchange or payment, if surrendered to any Person other than the Trustee, shall be delivered to the Trustee. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation. Subject to Section 2.7, the Issuer may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All cancelled Notes held by the Trustee shall be disposed of in accordance with its retention policy then in effect, and certification of their disposal delivered to the Issuer upon its written request therefor.

Section 2.12.         Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, which date shall be the earliest practicable date but in all events at least five Business Days prior to the payment date, in each case at the rate provided in the Notes and in Section 4.1. The Issuer shall fix or cause to be fixed each such special record date and payment date and shall promptly thereafter notify the Trustee of any such date. At least 15 days before the special record date, the Issuer (or, at the written request of the Issuer, the Trustee, in the name and at the expense of the Issuer) shall send or cause to be sent to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. The Trustee will have no duty whatsoever to determine whether any defaulted interest is payable or the amount thereof.

Notwithstanding the foregoing, if the Issuer pays the defaulted interest prior to the date that is 30 days after the date of default in payment of interest, no special record date will be set and payment will be made to the Holders as of the original record date.

Section 2.13.         Computation of Interest. Interest, if any, on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

Section 2.14.         CUSIP Number. The Issuer in issuing the Notes may use a “CUSIP” number, and if it does so, the Trustee shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee in writing of any change in any CUSIP number.

Section 2.15.         Special Transfer Provisions. Each Note issued pursuant to an exemption from registration under the Securities Act (other than in reliance on Regulation S) will constitute a Transfer Restricted Note and be required to bear the Restricted Notes Legend until the date that is six months after the later of the date of original issue and the last date on which the Issuer or any affiliate (within the meaning of Rule 405 under the Securities Act) of the Issuer was the owner of such Notes (or any predecessor thereto), unless and until such Transfer Restricted Note is transferred or exchanged pursuant to an effective registration statement under the Securities Act.

(a)            Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Note issued in reliance on Regulation S to a QIB:

(1)            The Registrar shall register the transfer of a Note issued in reliance on Regulation S by a Holder to a QIB if such transfer is being made by a proposed transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a certificate substantially in the form set forth in Exhibit C from the proposed transferor; provided that the letter required by this clause (b) shall only be required prior to the expiration of the Restricted Period.

(2)            If the proposed transferee is a Participant and the Note to be transferred consists of an interest in the Regulation S Global Note, upon receipt by the Registrar of (x) the items required by paragraph 2.15(a)(1) above and (y) instructions given in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the beneficial interest in the Regulation S Global Note to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in such Regulation S Global Note to be so transferred.

(b)            Transfers Pursuant to Regulation S. The following provisions shall apply with respect to registration of any proposed transfer of a Transfer Restricted Note pursuant to Regulation S:

(1)            The Registrar shall register any proposed transfer of a Transfer Restricted Note by a Holder pursuant to Regulation S upon receipt of (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a certificate substantially in the form set forth in Exhibit D hereto from the proposed transferor.

(2)            If the proposed transferee is a Participant and the Transfer Restricted Note to be transferred consists of an interest in the Rule 144A Global Note upon receipt by the Registrar of (x) the letter, if any, required by paragraph 2.15(b)(1) above and (y) instructions in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the beneficial interest in such Rule 144A Global Note to be transferred.

(c)            In the event that a Global Note is exchanged for Notes in certificated, registered form pursuant to Section 2.6, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of clauses (a) and (b) of this Section 2.15 above (including the certification requirements intended to ensure that such transfers comply with Rule 144A, Regulation S or other applicable exemption, as the case may be) and such other procedures as may from time to time be adopted by the Issuer and notified to the Trustee in writing.

(d)            Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing the Restricted Notes Legend, the Registrar shall deliver Notes that do not bear the Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing the Restricted Notes Legend, the Registrar shall deliver only Notes that bear the Restricted Notes Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

(e)            Regulation S Legend. Upon the transfer, exchange or replacement of Notes not bearing the Regulation S Legend, the Registrar shall deliver Notes that do not bear the Regulation S Legend. Upon the transfer, exchange or replacement of Notes bearing the Regulation S Legend, the Registrar shall deliver only Notes that bear the Regulation S Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

(f)            General. By its acceptance of any Note bearing the Restricted Notes Legend or the Regulation S Legend, as applicable, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Restricted Notes Legend or the Regulation S Legend, as applicable, and agrees that it shall transfer such Note only as provided in this Indenture. A transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a certificated Note or a beneficial interest in another Global Note shall be subject to compliance with applicable law and the applicable procedures of the Depositary but is not subject to any procedure required by this Indenture.

In connection with any proposed transfer pursuant to Regulation S or pursuant to any other available exemption from the registration requirements of the Securities Act (other than pursuant to Rule 144A), the Issuer may require the delivery of an Opinion of Counsel, other certifications or other information satisfactory to the Issuer.

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.15.

Section 2.16.           Issuance of Additional Notes. The Issuer shall be entitled to issue Additional Notes in an unlimited aggregate principal amount under this Indenture that shall have identical terms as the Initial Notes, other than with respect to the date of issuance, issue price, first interest payment date applicable thereto, date from which interest will accrue and transfer restrictions; provided that such issuance is not prohibited by the terms of this Indenture, including Section 4.9; provided, further, that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax or other purposes, such Additional Notes shall have a separate CUSIP number from the Initial Notes. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture.

With respect to any Additional Notes, the Issuer shall set forth in an Officers’ Certificate, a copy of which shall be delivered to the Trustee, the following information:

(a)            the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

(b)            the issue price, the issue date, the CUSIP number of such Additional Notes, the first interest payment date and the date from which interest shall accrue;

(d)            that such issuance is not prohibited by this Indenture.

The Trustee shall, upon receipt of the Officers’ Certificate and Opinion of Counsel, authenticate the Additional Notes in accordance with the provisions of Section 2.2 of this Indenture.

Section 3.1.           Notices to Trustee. If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.7, it shall furnish to the Trustee, at least two Business Days (or such shorter period as is acceptable to the Trustee) before sending a notice of such redemption, an Officers’ Certificate setting forth the (i) section of this Indenture pursuant to which the redemption shall occur, (ii) redemption date and (iii) principal amount of Notes to be redeemed.

Section 3.2.           Selection of Notes to Be Redeemed. In the event that less than all of the Notes are to be redeemed at any time pursuant to an optional redemption, the Trustee shall, upon receipt of an Officers’ Certificate and the prior written request of the Issuer, select the Notes for redemption on a pro rata basis (except that any Notes represented by a Global Note will be selected for redemption by such method as the Depositary may require).

On and after the applicable date of redemption, unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on Notes or portions thereof called for redemption so long as the Issuer has deposited with the Paying Agent for the Notes funds in satisfaction of the applicable redemption price (including accrued and unpaid interest on the Notes to be redeemed) pursuant to this Indenture. The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption. The Trustee may select for redemption portions (equal to $1,000 or any integral multiples of $1,000 thereof) of the principal of the Notes that have minimum denominations larger than $2,000.

Section 3.3.         Notice of Optional Redemption. The Issuer shall deliver or cause to be delivered in accordance with Section 11.2, a notice of optional redemption to each Holder whose Notes are to be redeemed (with a copy to the Trustee), at least 10 days but not more than 60 days before a redemption date (except that redemption notices may be delivered more than 60 days before a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII). Any notice of redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent. If such redemption is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions are satisfied (or waived by the Issuer in its sole discretion), or that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions are not satisfied (or waived by the Issuer in its sole discretion) by the redemption date, or by the redemption date as so delayed, or that such notice may be rescinded at any time in the Issuer’s discretion if as determined in good faith by the Issuer, any or all of such conditions will not be satisfied. The Issuer shall provide the Trustee with written notice of the satisfaction or waiver of such conditions precedent, the delay of such redemption or the rescission of such notice of redemption in the same manner that the related notice of redemption was given to the Trustee, and, upon the Issuer’s written request, the Trustee shall send a copy of such notice to the Holders in the same manner that the related notice of redemption was given to such Holders. In addition, the Issuer may provide in such notice that payment of the redemption price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person. In no event will the Trustee be responsible for monitoring or charged with knowledge of, the maximum aggregate amount of Notes eligible under this Indenture to be redeemed.

(b)            the redemption price (or the method by which it is to be determined);

(c)            if any Note is being redeemed in part only, the portion of the principal amount of such Note to be redeemed and that, after the redemption date, upon surrender of such Note, a new Note or Notes in a principal amount equal to the unredeemed portion of the Note shall be issued upon cancellation of the original Note;

(d)            the name and address of the Paying Agent;

(e)            that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(f)            that, unless the Issuer defaults in making such redemption payment, interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date;

(g)            the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;

(h)            that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes; and

(i)            any conditions precedent to such redemption.

At the Issuer’s written request, the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall have delivered to the Trustee, at least two Business Days prior to the date of the giving of the notice of redemption (or such shorter period as is acceptable to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in the notice as provided in the preceding paragraph. The notice sent in the manner herein provided shall be deemed to have been duly given whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note shall not affect the validity of the proceeding for the redemption of any other Note.

Section 3.4.         Effect of Notice of Redemption. Once notice of redemption is delivered in accordance with Section 3.3, Notes called for redemption become due and payable on the redemption date at the applicable redemption price, subject to satisfaction of any conditions specified in the notice of redemption and as further contemplated by the first paragraph of Section 3.3.

Section 3.5.         Deposit of Redemption Price. On or before 11:00 a.m. (New York City time) on the redemption date, the Issuer shall deposit with the Trustee or with the Paying Agent (other than the Issuer or an Affiliate of the Issuer) money sufficient to pay the redemption price on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of all Notes to be redeemed.

If Notes called for redemption are paid or if the Issuer has deposited with the Trustee or Paying Agent money sufficient to pay the redemption price of, and unpaid and accrued interest, if any, on, all Notes to be redeemed, on and after the redemption date, and interest, if any, shall cease to accrue on the Notes or the portions of Notes called for redemption (regardless of whether certificates for such securities are actually surrendered). If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest, if any, shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, and interest, if any, shall be paid on the unpaid principal from the redemption date until such principal is paid, and to the extent lawful on any interest, if any, not paid on such unpaid principal, in each case, at the rate provided in the Notes and in Section 4.1.

Section 3.6.         Notes Redeemed in Part. Upon surrender and cancellation of a Note that is redeemed in part, the Issuer shall issue and, upon the written request of an Officer of the Issuer as provided in Section 2.2, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered and canceled; provided that each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.

(a)            The Notes may be redeemed, in whole or in part, at any time or from time to time prior to July 15, 2027 at the option of the Issuer, upon notice as provided in Section 3.3, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium, and accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date). The Issuer will calculate the Treasury Rate and Applicable Premium and, prior to the redemption date, provide an Officers’ Certificate to the Trustee setting forth the Treasury Rate and the Applicable Premium. The Trustee shall have no duty to calculate or verify the Issuer’s calculations of the Treasury Rate or the Applicable Premium.

(b)            At any time or from time to time on or after July 15, 2027, the Issuer, at its option, may redeem the Notes, in whole or in part, upon notice as provided in Section 3.3, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, together with accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date), if redeemed during the 12-month period beginning July 15 of the years indicated below:

(c)            At any time or from time to time prior to July 15, 2027, the Issuer, at its option, may, on any one or more occasions, redeem up to 40.0% of the principal amount of the outstanding Notes issued under this Indenture, upon notice as provided in Section 3.3, in an amount not greater than the net cash proceeds of one or more Qualified Equity Offerings at a redemption price equal to 109.125% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that:

(1)            at least 60.0% of the aggregate principal amount of Notes originally issued under this Indenture on the Issue Date (excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after giving effect to any such redemption (unless all such Notes are redeemed substantially concurrently); and

(2)            the redemption occurs not more than 180 days after the date of the closing of any such Qualified Equity Offering.

(d)            In connection with any tender offer for the Notes, including any Change of Control Offer or Alternate Offer, if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer shall have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following any such purchase date, to redeem all Notes that remain outstanding following such purchase at a price equal to the price paid to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the redemption date or purchase date, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date falling on or prior to the redemption date.

(e)            The Issuer may acquire Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase, negotiated transaction or otherwise, in accordance with applicable securities laws.

Section 4.1.         Payment of Notes. The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid for all purposes hereunder on the date the Trustee or the Paying Agent (if other than the Issuer or a Subsidiary thereof) holds, as of 11:00 a.m. (New York City time) on the relevant payment date, U.S. dollars deposited by the Issuer in immediately available funds and designated for and sufficient to pay all such principal, premium, if any, and interest then due. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same rate to the extent lawful.

Section 4.2.         Maintenance of Office or Agency. The Issuer shall maintain an office or agency where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer and Guarantors in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands with respect to the Notes and this Indenture may be made or served at the Corporate Trust Office of the Trustee.

The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.3.

(a)            Whether or not required by the SEC, so long as any Notes are outstanding, the Issuer shall furnish to the Holders within the time periods specified in the SEC’s rules and regulations for non-accelerated filers after giving effect to any applicable grace periods therein:

(1)            all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and

(2)            all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports;

provided that (a) the above information will not be required to contain (i) the separate financial information for Guarantors as contemplated by Rules 3-10, 13-01 or 13-02 of Regulation S-X, (ii) any financial statements of unconsolidated subsidiaries or 50% or less owned persons as contemplated by Rule 3-09 of Regulation S-X, (iii) any information contemplated by Rule 3-16 of Regulation S-X, (iv) any schedules required by Regulation S-X, or (v) in each such case, any successor provisions and (b) such information shall not be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any non-GAAP financial measures contained therein, (v) to the extent pro forma financial information is required to be provided by the Issuer, the Issuer may provide only pro forma revenues, net income, EBITDA, senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, and (vi) the reports referred to in clauses (1) and (2) above shall not be required to present compensation or beneficial ownership information, or to include any exhibits required by Form 10-K, Form 10-Q or Form 8-K.

(b)            If the Issuer is not subject to the requirements of Section 13 or 15(d) of the Exchange Act, then the Issuer may satisfy its obligations under this Section 4.3 with respect to the information relating to the Issuer that would be required in Section 4.3(a) by furnishing such financial information relating to any Parent Company; provided that if the financial information so furnished relates to any Parent Company, the same is accompanied by a reasonably detailed description, either on the face of the financial information or in the footnotes thereto and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, of the quantitative differences between the information relating to such Parent Company, on the one hand, and the information relating to the Issuer and the Restricted Subsidiaries on a standalone basis, on the other hand, if material.

(c)            If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries, and such Unrestricted Subsidiaries, individually or taken together, would constitute a Significant Subsidiary, then the quarterly and annual financial information required by Section 4.3(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries excluding the Unrestricted Subsidiaries.

(d)            So long as any Notes are outstanding (unless restricted by law, including in connection with any proposed securities offering), the Issuer will also:

(1)            use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in quarterly conference calls after the delivery of the information referred to in Section 4.3(a)(1) (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Issuer and/or its Restricted Subsidiaries and/or any Parent Company of the Issuer) to discuss financial and operating results and related matters unless the Issuer reasonably determines that to do so would conflict with applicable securities laws; and

(2)            issue a press release or otherwise provide notice of such conference call in the same manner in which information was delivered pursuant to Section 4.3(a)(1) which will provide the date and time of any such call and will direct Holders, prospective investors and securities analysts to contact the investor relations office of the Issuer to obtain access to the conference call.

(e)            The Issuer may satisfy its delivery obligations with respect to any information required by this covenant by filing the same with the SEC through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) (or any successor system), or by making it available on a public website on which the reports required by Section 4.3(a) are posted along with details regarding the times and dates of conference calls required above and information on how to obtain access to such conference calls, or on Intralinks or any comparable password protected online data system, which may require a confidentiality acknowledgement.

(f)            Any and all Defaults arising from a failure to furnish in a timely manner any information or notice required by this covenant shall be deemed cured (and the Issuer shall be deemed to be in compliance with this Section 4.3) upon furnishing such information or notice as contemplated by this Section 4.3 (but without regard to the date on which such information or notice is so furnished).

(g)            For so long as any Notes remain outstanding, the Issuer shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(h)            Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s, any Guarantor’s or any other person’s compliance with any of the covenants in this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee will not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s, any Guarantor’s or any other person’s compliance with any of the covenants described herein or to determine whether such reports, information or documents have been posted on any website or other online data system or filed with the SEC through EDGAR (or other applicable system), to examine such reports, information, documents to ensure compliance with the provisions of this Indenture, to ascertain the correctness or otherwise of the information or the statements contained therein, or to participate in any conference calls.

Section 4.4.         Compliance Certificate. The Issuer shall deliver to the Trustee annually a statement regarding compliance with this Indenture and, within 30 days after any Officer of the Issuer becomes aware of any Default, an Officer’s Certificate specifying such Default and what action the Issuer is taking or proposes to take with respect thereto. The Issuer will also be obligated to notify the Trustee of any default or defaults in the performance of any covenants or agreements under this Indenture.

Section 4.6.         Stay, Extension and Usury Laws. The Issuer and each of the Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture, and the Issuer and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

(a)            The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:

(1)            a Payment Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;

(2)            the Issuer is not able to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or

(3)            the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to Sections 4.7(b)(2) through (10) and Section 4.7(b)(11)(A); provided that Restricted Payments made after the Issue Date pursuant to Section 4.7(b)(11)(B) shall not cause the amount calculated pursuant to Section 4.7(a)(3) below to be less than zero for any fiscal period), exceeds the sum (the “Restricted Payments Builder Basket”) of (without duplication):

(A)            50.0% of Consolidated Net Income of the Issuer and the Restricted Subsidiaries for the period (taken as one accounting period) commencing on January 1, 2025 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100.0% of such deficit), plus

(B)            100.0% of (i) the aggregate net cash proceeds, or the Fair Market Value of any assets or Equity Interests of any Person engaged in a Permitted Business, in each case received by the Issuer or its Restricted Subsidiaries on or after the Issue Date as a contribution to the Issuer’s common equity capital or from the issue or sale of Qualified Equity Interests of the Issuer or from the issue or sale of convertible or exchangeable Disqualified Equity Interests of the Issuer or convertible or exchangeable debt securities of the Issuer that have been converted into or exchanged for such Qualified Equity Interests (other than Equity Interests or debt securities issued or sold to a Restricted Subsidiary of the Issuer or net cash proceeds received by the Issuer from Qualified Equity Offerings to the extent applied to redeem the Notes in accordance with the provisions set forth under Section 3.7(c)), and (ii) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (i) above, plus

(C)            in the case of the disposition or repayment of or return on any Investment made by the Issuer after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to 100.0% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment, plus

(D)            upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Builder Basket and were not previously repaid or otherwise reduced.

(b)            Notwithstanding the foregoing, Section 4.7(a) shall not prohibit:

(1)            the payment of any dividend or redemption payment or the making of any distribution within 60 days after the date of declaration thereof if, on the date of declaration, the dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture;

(2)            any Restricted Payment made in exchange for, or out of the proceeds of, the substantially concurrent issuance and sale of Qualified Equity Interests (or not more than 180 days after such issuance and sale);

(3)            the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of, the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.9 and the other terms of this Indenture (or not more than 180 days after such incurrence);

(4)            the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (A) at a purchase price not greater than 101.0% of the principal amount of such Subordinated Indebtedness in the event of a Change of Control in accordance with provisions similar to Section 4.13 or (B) at a purchase price not greater than 100.0% of the principal amount thereof in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuer has made the Change of Control Offer or Net Proceeds Offer, if required, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Net Proceeds Offer;

(5)            so long as no Payment Default or Event of Default has occurred and is continuing or would result therefrom, redemptions, repurchases or other acquisitions or retirements for value by the Issuer of Equity Interests of the Issuer, any Parent Company or any Restricted Subsidiary held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (x) upon any such individual’s death, disability, retirement, severance or termination of employment or service or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $20.0 million during any calendar year (with unused amounts in any calendar year being carried forward to succeeding calendar years) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer (to the extent received by or contributed to the Issuer or any Restricted Subsidiary) from the issuance and sale after the Issue Date of Qualified Equity Interests to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (5), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (5);

(6)            (A) redemptions, repurchases or other acquisitions or retirements for value by the Issuer of, Equity Interests of the Issuer or any Parent Company deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests of the Issuer or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) any repurchase, redemptions or other acquisitions or retirements for value of Equity Interests of the Issuer made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or similar rights;

(7)            so long as no Payment Default or Event of Default has occurred and is continuing or would result therefrom, dividends or distributions on Disqualified Equity Interests or Designated Preferred Stock of the Issuer or any Restricted Subsidiary or on any Preferred Stock of any Restricted Subsidiary, in each case issued in compliance with Section 4.9 to the extent such dividends or distributions are included in the definition of Consolidated Interest Expense;

(8)            the payment of cash in lieu of fractional Equity Interests of the Issuer;

(9)            payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with Section 5.1;

(10)           cash distributions by the Issuer to the holders of Equity Interests of the Issuer in accordance with a distribution reinvestment plan or dividend reinvestment plan to the extent such payments are applied to the purchase of Equity Interests directly from the Issuer; or

(11)            so long as no Payment Default or Event of Default has occurred and is continuing or would result therefrom, (A) payment of other Restricted Payments from time to time in an aggregate amount since the Issue Date not to exceed $100.0 million and (B) payment of other Restricted Payments in an unlimited amount so long as after giving pro forma effect thereto the Consolidated Total Debt Ratio does not exceed 1.25 to 1.00.

provided that no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clauses (2) or (5)(B) above shall increase the Restricted Payments Builder Basket to the extent of such payment.

For purposes of determining compliance with this Section 4.7, in the event that any Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in Section 4.7(a) or Sections 4.7(b)(1) through (11) and/or one or more of the clauses contained in the definition of “Permitted Investments,” the Issuer will, in its sole discretion, be entitled to divide or classify (or later divide, classify or reclassify), in whole or in part, such Restricted Payment or Investment (or any portion thereof) among Section 4.7(a) and/or such Sections 4.7(b)(1) through (11) and/or one or more clauses contained in the definition of “Permitted Investments” in a manner that otherwise complies with this covenant.

If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall be Permitted Investments under clause (1)(b) of the definition thereof, and for the avoidance of doubt, all such Investments shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (3) of the definition of “Restricted Payments”, in each case, to the extent such Investments would otherwise be so counted.

For the purposes of determining compliance with any U.S. dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount of such Restricted Payment shall be calculated based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made. The amount of any Restricted Payment (other than cash) will be the Fair Market Value on the date of the Restricted Payment (or, in the case of a dividend, on the date of declaration) of the assets or securities proposed to be transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

Section 4.8.         Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries.

(a)            The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:

(1)            pay dividends or make any other distributions on or in respect of its Equity Interests to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Equity Interests);

(2)            make loans or advances, or pay any Indebtedness or other obligation owed, to the Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness or obligations incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or

(3)            transfer any of its property or assets to the Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above);

(b)            Notwithstanding the foregoing, Section 4.8(a) shall not prohibit encumbrances or restrictions:

(1)            existing under the Revolving Credit Facility existing on the Issue Date or any other agreements existing on the Issue Date;

(2)            existing under this Indenture, the Notes and the Guarantees;

(3)            existing under any instrument governing Acquired Indebtedness or Equity Interests of a Person acquired by the Issuer or any of its Restricted Subsidiaries, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;

(4)            existing under any agreement or other instrument of a Person acquired by the Issuer or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after acquired property);

(5)            existing under any amendment, restatement, modification, renewal, increases, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2), (3), (4) or (10) of this Section 4.8(b) or this clause (5); provided, however, that such encumbrances and restrictions contained in such amendments, restatements, modifications, renewals, increases, supplements, refunding, replacements or refinancing are, in the good faith judgment of the Issuer, not materially more restrictive, taken as a whole, than such encumbrances and restrictions contained in the agreements referred to in such clauses on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;

(6)            existing under or by reason of applicable law, regulation or order;

(7)            resulting from non-assignment provisions of any contract, including any charter party agreement or any demise, bareboat, time, voyage, other charter or any lease, entered into in the ordinary course of business;

(8)            in the case of Section 4.8(a)(3) above, encumbrances or restrictions permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;

(9)            imposed under any agreement to sell Equity Interests or assets, as permitted under this Indenture, to any Person pending the closing of such sale;

(10)            (A) resulting from any other agreement governing Indebtedness or other obligations entered into after the Issue Date that contains encumbrances and restrictions that in the good faith judgment of the Issuer are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date pursuant to agreements in effect on the Issue Date or those contained in this Indenture, the Notes and the Guarantees or (B) contained in agreements or instruments governing such Indebtedness that is customary and does not prohibit (except upon a default or an event of default thereunder) the payment of dividends in an amount sufficient, as determined by the Issuer in good faith, to make scheduled payments of cash interest and principal on the Notes when due;

(11)            as a result of customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, shareholder agreements and other similar agreements entered into in the ordinary course of business that restrict the disposition or distribution of ownership interests in or assets of such partnership, limited liability company, joint venture, corporation or similar Person;

(12)            resulting from any agreement governing Purchase Money Indebtedness and any Refinancing Indebtedness in respect thereof incurred in compliance with Section 4.9 that imposes restrictions of the nature described in Section 4.8(a)(3) on the assets acquired;

(13)            on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;

(14)            with respect to an Unrestricted Subsidiary or Equity Interests thereof pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired; and

(15)            resulting from supermajority voting requirements existing under corporate charters, by-laws, stockholders agreements and similar documents and agreements.

In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.

(a)            The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness); provided that the Issuer and any of its Restricted Subsidiaries may incur additional Indebtedness (including Acquired Indebtedness), in each case, if, after giving effect thereto on a pro forma basis (including giving pro forma effect to the application of the proceeds thereof), the Issuer’s Consolidated Interest Coverage Ratio would be at least 2.00 to 1.00; provided, further, that Restricted Subsidiaries that are not Guarantors may not incur any Indebtedness pursuant to this Section 4.9(a) if the aggregate principal amount of all then outstanding Indebtedness incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.9(a) exceeds the greater of (i) $25.0 million and (ii) 1.25% of the Issuer’s Consolidated Total Assets determined at the time of incurrence (the “Coverage Ratio Exception”).

(b)            Notwithstanding the above, each of the following incurrences of Indebtedness shall be permitted (the “Permitted Indebtedness”):

(1)            Indebtedness of the Issuer or any Restricted Subsidiary under one or more Debt Facilities in an aggregate principal amount incurred under this Section 4.9(b)(1) at any time outstanding, including the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) not to exceed the greater of (A) $300.0 million and (B) 15.0% of the Issuer’s Consolidated Total Assets determined at the time of incurrence;

(2)            Indebtedness represented by (A) the Notes issued on the Issue Date (excluding any Additional Notes) and (B) the Guarantees of the Notes;

(3)            Indebtedness of the Issuer and its Restricted Subsidiaries to the extent outstanding on the Issue Date (other than Indebtedness referred to in clauses (1) and (2) of this Section 4.9(b));

(4)            guarantees by the Issuer or any Restricted Subsidiary of Indebtedness permitted to be incurred in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being guaranteed is Subordinated Indebtedness, then the related guarantee shall be subordinated in right of payment to the Notes or Guarantees, as applicable;

(5)            Indebtedness under Hedging Obligations entered into for bona fide hedging purposes of the Issuer or any Restricted Subsidiary in the ordinary course of business and not for the purpose of speculation;

(6)            Indebtedness of the Issuer owed to and held by a Restricted Subsidiary and Indebtedness of any Restricted Subsidiary owed to and held by the Issuer or any other Restricted Subsidiary; provided, however, that

(A)            if the Issuer or a Guarantor is the obligor on such Indebtedness and a Restricted Subsidiary that is not a Guarantor is the obligee, such Indebtedness is subordinated in right of payment to the Notes or Guarantee of such Guarantor, as applicable; and

(B)            (i) any subsequent issuance or transfer of Equity Interests or any other event which results in any such Indebtedness being held by a Person other than the Issuer or any other Restricted Subsidiary; and (ii) any sale or other transfer of any such Indebtedness to a Person other than the Issuer or any other Restricted Subsidiary shall be deemed, in each case of this subclause (B), to constitute an incurrence of such Indebtedness not permitted by this clause (6);

(7)            Indebtedness in respect of (a) workers’ compensation claims, bank guarantees, warehouse receipt or similar facilities, property, casualty or liability insurance, statutory obligations, take-or-pay obligations in supply arrangements, self-insurance obligations or completion, bids, trade contracts, performance bonds, bid bonds, appeal or surety bonds and similar obligations, in each case provided in the ordinary course of business, including guarantees or obligations with respect to letters of credit supporting such workers’ compensation claims, bank guarantees, warehouse receipt or similar facilities, property, casualty or liability insurance, statutory obligations, take-or-pay obligations in supply arrangements, self-insurance obligations or completion, performance, bids, trade contracts, performance bonds, bid bonds, performance, trade secrets, leases, appeal or surety bonds and similar obligations and (b) pension schemes and pension plans sponsored by the Issuer or its Restricted Subsidiaries for the benefit of past, current or future employees;

(8)            Purchase Money Indebtedness or Finance Lease Obligations incurred by the Issuer or any Restricted Subsidiary in an aggregate principal amount incurred under this Section 4.9(b)(8), taken together with Refinancing Indebtedness in respect thereof, not to exceed at any time outstanding the greater of (A) $120.0 million and (B) 6.0% of the Issuer’s Consolidated Total Assets determined at the time of incurrence;

(9)            Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;

(10)            Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(11)            Refinancing Indebtedness with respect to Indebtedness incurred pursuant to the Coverage Ratio Exception or with respect to Indebtedness incurred pursuant to clauses (2), (3), (8), (11), (13), (15), or (16) of this Section 4.9(b);

(12)            indemnification, adjustment of purchase price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets of the Issuer or any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing or in contemplation of any such acquisition;

(13)            additional Indebtedness of the Issuer or any Restricted Subsidiary in an aggregate principal amount incurred under this clause (13), taken together with Refinancing Indebtedness in respect thereof, not to exceed at any time outstanding the greater of (A) $85.0 million and (B) 4.0% of the Issuer’s Consolidated Total Assets determined at the time of incurrence;

(14)            Indebtedness in respect of Specified Cash Management Agreements entered into in the ordinary course of business;

(15)            Indebtedness of Persons incurred and outstanding on the date on which such Person was acquired by the Issuer or any Restricted Subsidiary, or merged or consolidated with or into the Issuer or any Restricted Subsidiary or Indebtedness incurred by the Issuer or any Restricted Subsidiary to finance any such acquisition or merger; provided, however, that at the time such Person or assets is/are acquired by the Issuer or a Restricted Subsidiary, or merged or consolidated with the Issuer or any Restricted Subsidiary and after giving pro forma effect to the incurrence of such Indebtedness pursuant to this clause (15) and the application of proceeds therefrom, either (A) the Issuer would have been able to incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (B) the Consolidated Interest Coverage Ratio of the Issuer and its Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio immediately prior to such acquisition, merger or consolidation;

(16)            Indebtedness, Disqualified Equity Interests and Preferred Stock of Foreign Subsidiaries in an aggregate principal amount incurred under this clause (16), taken together with Refinancing Indebtedness in respect thereof, not to exceed at any time outstanding the greater of (x) $50.0 million and (y) 2.25% of the Issuer’s Consolidated Total Assets (measured at the time of incurrence or issuance);

(17)            Indebtedness consisting of the financing of insurance premiums; and

(18)            to the extent constituting Indebtedness, prepayments for property or services under any vessel contract, pool agreement or charter party agreement in the ordinary course of business.

(c)            For purposes of determining compliance with this Section 4.9, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (18) above, or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer will be permitted, in its sole discretion, to divide and classify such item of Indebtedness, or later reclassify all or a portion of such item of Indebtedness (provided that at the time of reclassification it meets the criteria in such category or categories), in any manner that complies with this Section 4.9; provided, that Indebtedness incurred under the Revolving Credit Facility on the Issue Date shall be deemed to have been incurred under clause (1) above and may not be reclassified. In addition, for purposes of determining any particular amount of Indebtedness under this covenant, the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.

(d)            The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness under this Section 4.9; provided, in each such case, that the amount thereof is included in Consolidated Interest Expense of the Issuer as accrued.

(e)            For the purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the earlier of the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

(f)            If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this Section 4.9, the Issuer shall be in Default of this Section 4.9).

(g)            Notwithstanding anything to the contrary in this Section 4.9, in the event an item of Indebtedness (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be calculated with respect to such incurrence, issuance or other transaction without giving effect to amounts being utilized under any other exceptions, thresholds or baskets (other than ratio based baskets) on the same date. Each item of Indebtedness that is incurred or issued, each Lien incurred and each other transaction undertaken shall be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant ratio based test.

(h)            If any Indebtedness is incurred in reliance on a basket measured by reference to the Consolidated Total Debt Ratio or a percentage of Consolidated Total Assets, and any refinancing thereof would cause the Consolidated Total Debt Ratio or the percentage of Consolidated Total Assets to be exceeded if calculated based on the Consolidated Total Debt Ratio or Consolidated Total Assets, as applicable, on the date of such refinancing, such Consolidated Total Debt Ratio or percentage of Consolidated Total Assets, as applicable, will not be deemed to be exceeded to the extent the principal amount of such newly incurred Indebtedness does not exceed the sum of (i) the principal amount of such Indebtedness being refinanced, extended, replaced, refunded, renewed or defeased, plus (ii) any accrued and unpaid interest on the Indebtedness (or any accrued and unpaid dividends on the Preferred Stock and any accrued and unpaid dividends on the Disqualified Equity Interests, as applicable) being so refinanced, extended, replaced, refunded, renewed or defeased, plus (iii) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such refinanced Indebtedness and any defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness or the extension, replacement, refunding, refinancing, renewal or defeasance of such refinanced Indebtedness.

(a)            The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale unless:

(1)            the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any Person assuming responsibility for any liability, contingent or otherwise, in connection with the Asset Sale) at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Sale) of the Equity Interests or assets subject to such Asset Sale; and

(2)            except in the case of an Asset Swap, at least 75.0% of the total consideration from such Asset Sale and all other Asset Sales on a cumulative basis since the Issue Date received by the Issuer or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.

For purposes of clause (a)(2) above and for no other purpose, the following shall be deemed to be cash:

(A)            the amount (without duplication) of any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or such Restricted Subsidiary that are cancelled, terminated, forgiven or expressly assumed by the transferee of any such assets pursuant to a written agreement that releases the Issuer or such Restricted Subsidiary from further liability therefor or indemnifies the Issuer or such Restricted Subsidiary against further liability;

(B)            the amount of any securities, notes or other obligations received from such transferee that are within 180 days after such Asset Sale converted by the Issuer or such Restricted Subsidiary into cash (to the extent of the cash actually so received);

(D)            accounts receivable of a business retained by the Issuer or any Restricted Subsidiary, as the case may be, following the sale of such business; provided that such accounts receivable (i) are not past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and

(E)            any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E), not to exceed an amount equal to the greater of (i) $75.0 million and (ii) 3.5% of the Issuer’s Consolidated Total Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.

In the case of any Asset Sale pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clauses (1) and (2) of this Section 4.10(a).

(b)            If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or such Restricted Subsidiary may, no later than 365 days following the receipt of any Net Available Proceeds therefrom, apply all or any of the Net Available Proceeds therefrom to:

(1)            repay, repurchase, redeem, defease or otherwise retire any Indebtedness of the Issuer or a Restricted Subsidiary (other than any Subordinated Indebtedness of the Issuer or a Guarantor, and other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); or

(2)            (A) to make any capital expenditure not prohibited under this Indenture, (B) acquire Qualified Equity Interests held by a Person other than the Issuer or any of its Restricted Subsidiaries in a Person engaged in a Permitted Business that shall become a Restricted Subsidiary immediately upon the consummation of such acquisition or (C) a combination of (A) and (B); provided that the requirements of this clause (b)(2) shall be deemed to be satisfied with respect to any Asset Sale if the Issuer or any Restricted Subsidiary enters into an agreement committing to make the acquisition, investment or expenditure referred to above within 365 days after the receipt of such Net Available Proceeds with the good faith expectation that such Net Available Proceeds will be applied to satisfy such commitment in accordance with such agreement within 180 days after such 365-day period, and if such Net Available Proceeds are not so applied within such 180-day period, then such Net Available Proceeds shall constitute Excess Proceeds (as defined below).

The amount of Net Available Proceeds not applied or invested as provided in clauses (1) or (2) of this Section 4.10(b) shall constitute “Excess Proceeds.”

(c)            On the 366th day after an Asset Sale (or, at the Issuer’s option, an earlier date), if the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Issuer shall be required to make an offer to purchase or redeem (a “Net Proceeds Offer”) from all Holders and, to the extent required by the terms of other Pari Passu Indebtedness of the Issuer, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase or redeem such Pari Passu Indebtedness with the proceeds from any Asset Sale to purchase or redeem the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Net Proceeds Offer applies that may be purchased or redeemed out of the Excess Proceeds, at an offer price in cash in an amount equal to 100.0% of the principal amount of Notes and Pari Passu Indebtedness plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof.

Notwithstanding any other provisions of this covenant, (i) to the extent that any of or all the Net Available Proceeds of any Asset Sales is prohibited or delayed by applicable law, the portion of such Net Available Proceeds so affected will not be required to be applied in compliance with this Section 4.10, and such amounts may be retained by the Issuer or Subsidiary, as applicable, so long, but only so long, as the applicable law will not permit repatriation to the United States (the Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’s good faith judgment) to, or otherwise cause the applicable Subsidiary to, promptly take all actions reasonably required by the applicable law to permit such repatriation), and once such repatriation of any of such affected Net Available Proceeds is permitted under the applicable law, such repatriation will be promptly effected and such repatriated Net Available Proceeds will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this Section 4.10 and (ii) to the extent that the Issuer has determined in good faith that repatriation of any of or all the Net Available Proceeds of any such prohibited or delayed Asset Sale would have a material adverse tax cost consequence with respect to such Net Available Proceeds (which for the avoidance of doubt, may include, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their respective Affiliates and/or equity partners would incur a tax liability, including as a result of a dividend or a deemed dividend, or a withholding tax), the Net Available Proceeds so affected may be retained by the applicable Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. The Trustee shall be entitled to conclusively rely on an Officers’ Certificate from the Issuer to the effect that applicable law will not permit repatriation of such amounts to the United States.

To the extent that the sum of the aggregate principal amount of Notes and Pari Passu Indebtedness so validly tendered pursuant to a Net Proceeds Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds, or a portion thereof, for any purposes not otherwise prohibited by the provisions of this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness so validly tendered pursuant to a Net Proceeds Offer exceeds the amount of Excess Proceeds, the Issuer shall select the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate outstanding principal amount of Notes and Pari Passu Indebtedness (subject to adjustment to maintain the authorized denomination of the Notes). Upon completion of such Net Proceeds Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Net Proceeds Offer was made shall be deemed to be zero.

(d)            The Net Proceeds Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Net Proceeds Offer Period”). No later than five Business Days after the termination of the Net Proceeds Offer Period (the “Net Proceeds Purchase Date”), the Issuer will purchase the principal amount of Notes and Pari Passu Indebtedness required to be purchased pursuant to this Section 4.10 (the “Net Proceeds Offer Amount”) or, if less than the Net Proceeds Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Net Proceeds Offer.

(e)            If the Net Proceeds Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Net Proceeds Offer.

(f)            Pending the final application of any Net Available Proceeds pursuant to this Section 4.10, the holder of such Net Available Proceeds may apply such Net Available Proceeds temporarily to reduce Indebtedness outstanding under a revolving Debt Facility or otherwise invest such Net Available Proceeds in any manner not prohibited by this Indenture.

(g)            On or before the Net Proceeds Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Net Proceeds Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn, in each case in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Issuer or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Net Proceeds Offer Period) mail or deliver to each tendering Holder and the Issuer will mail or deliver to each tendering holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Issuer, in form reasonably satisfactory to the Trustee, and in accordance with Section 2.2, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Net Proceeds Offer as soon as practicable after the Net Proceeds Purchase Date.

(h)            Notwithstanding the foregoing provisions of this Section 4.10, the sale, conveyance or other disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a whole, shall be governed by Section 4.13 and/or Section 5.1 and not by this Section 4.10.

(i)            The Issuer shall comply with all applicable securities laws and regulations in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue of such compliance.

Section 4.11.         Limitation on Transactions with Affiliates.

(a)            The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”) involving aggregate payments or consideration to or from the Issuer or a Restricted Subsidiary in excess of $15.0 million with respect to any single transaction or series of related transactions, unless:

(1)            the terms of such Affiliate Transaction either (i) are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could reasonably be expected to have been obtained in a comparable transaction at the time of such transaction in arm’s length dealings with a Person who is not such an Affiliate, or (ii) if in the good faith judgment of the Issuer’s Board of Directors or senior management no comparable transaction is available with which to compare such Affiliate Transaction, are otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view; and

(2)            the Issuer delivers to the Trustee, (i) with respect to any Affiliate Transaction involving aggregate value in excess of $25.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (a)(1) above and (ii) with respect to any Affiliate Transaction involving aggregate value in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (a)(1) above and which sets forth and authenticates a resolution that has been approved by the Board of Directors of the Issuer, including a majority of the disinterested members of the Board of Directors of the Issuer, if any.

(b)            Notwithstanding the foregoing, Section 4.11(a) shall not apply to:

(1)            transactions to the extent between or among (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries;

(2)            reasonable director, trustee, officer, consultant and employee compensation (including bonuses) and other benefits (including pursuant to any employment agreement or any retirement, health, stock option or other benefit plan), payments or loans (or cancellation of loans) to directors, trustees, officers, consultants and employees of the Issuer and indemnification arrangements, in each case, as determined in good faith by the Issuer’s Board of Directors or senior management;

(3)            Permitted Investments or Restricted Payments which are made in accordance with Section 4.7;

(4)            transactions pursuant to any agreement in effect on the Issue Date or as thereafter amended or replaced in any manner that, taken as a whole, is not materially less advantageous to the Issuer or its Restricted Subsidiaries than such agreement as it was in effect on the Issue Date;

(5)            any transaction with a Person (other than an Unrestricted Subsidiary of the Issuer) which would constitute an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;

(6)            transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, or transactions otherwise related to the purchase or sales of goods or services, in each case in the ordinary course of business and otherwise not in violation of the terms of this Indenture; provided that in the reasonable determination of the Board of Directors of the Issuer or the senior management of the Issuer, such transactions are fair to the Issuer and its Restricted Subsidiaries from a financial point of view or on terms not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Issuer;

(7)            the issuance or sale of any Qualified Equity Interests of the Issuer and the granting of registration, indemnification and other customary rights in connection therewith to, or the receipt of capital contributions from, Affiliates of the Issuer;

(8)            payments to an Affiliate in respect of the Notes or any other Indebtedness of the Issuer or any of its Restricted Subsidiaries on a similar basis as concurrent payments are made or offered to be made in respect thereof to non-Affiliates;

(9)            any transaction in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 4.11(a)(1);

(10)            any transaction where the only consideration paid by the Issuer or the relevant Restricted Subsidiary is Qualified Equity Interests of the Issuer;

(11)            transactions between the Issuer or any Restricted Subsidiary and any Person, a director of which is also a director of the Issuer or any direct or indirect parent company of the Issuer, and such director is the sole cause for such Person to be deemed an Affiliate of the Issuer or any Restricted Subsidiary; provided, however, that such director shall abstain from voting as a director of the Issuer or such direct or indirect parent company, as the case may be, on any matter involving such other Person;

(12)            the entering into of a tax sharing agreement, or payments pursuant thereto, between the Issuer and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes to be used by such Person to pay taxes, and which payments by the Issuer and the Restricted Subsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;

(13)            Intellectual Property licenses in the ordinary course of business or consistent with industry practice;

(14)            the issue and sale of, or payments in respect of, Indebtedness or Equity Interests, in each case on terms substantially the same as those offered or paid to Persons who are not Affiliates of the Issuer; and

(15)            (A) pledges and other transfers of Equity Interests in Unrestricted Subsidiaries and (B) any transactions with an Affiliate in which the consideration paid consists solely of Equity Interests of the Issuer.

(a)            The Issuer shall not, and shall not permit any Guarantor to, directly or indirectly, create, incur, assume or permit or suffer to exist any Lien (an “Initial Lien”) of any kind (other than Permitted Liens) upon any of their property or assets (including Equity Interests of any Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, which Lien secures Indebtedness, unless contemporaneously with the incurrence of such Lien:

(1)            in the case of any Lien securing Indebtedness that is not Subordinated Indebtedness, effective provision is made to secure the Notes or such Guarantee, as the case may be, at least equally and ratably with or prior to such Indebtedness with a Lien on the same collateral; and

(2)            in the case of any Lien securing Subordinated Indebtedness, effective provision is made to secure the Notes or such Guarantee, as the case may be, with a Lien on the same collateral that is senior to the Lien securing such Subordinated Indebtedness.

(b)            A Lien created for the benefit of the Holders pursuant to Section 4.12(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien. In addition, in the event that an Initial Lien is or becomes a Permitted Lien, the Issuer may, at its option and without consent from any Holder of the Notes, elect to release and discharge any Lien created for the benefit of the Holders of the Notes pursuant to Section 4.12(a) in respect of such Initial Lien.

Section 4.13.         Offer to Purchase upon Change of Control Triggering Event.

(a)            Upon the occurrence of any Change of Control Triggering Event, unless the Issuer has previously or concurrently exercised its right to redeem all of the Notes as described under Section 3.7, each Holder shall have the right, except as provided below, to require that the Issuer purchase all or any portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes for a cash price (the “Change of Control Purchase Price”) equal to 101.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase.

(b)            Not later than 30 days following any Change of Control Triggering Event, the Issuer shall deliver, or cause to be delivered, to the Holders, with a copy to the Trustee, a notice:

(1)            describing the transaction or transactions that constitute the Change of Control;

(2)            offering to purchase, pursuant to the procedures required by this Indenture and described in the notice (a “Change of Control Offer”), on a date specified in the notice, which shall be a Business Day not earlier than 30 days, nor later than 60 days, from the date the notice is delivered (the “Change of Control Payment Date”), and for the Change of Control Purchase Price, all Notes properly tendered by such Holder pursuant to such Change of Control Offer prior to 5:00 p.m. New York time on the second Business Day preceding the Change of Control Payment Date; and

(3)            describing the procedures, as determined by the Issuer, consistent with this Indenture, that Holders must follow to accept the Change of Control Offer.

(1)            deposit with the Paying Agent an amount equal to the Change of Control Purchase Price in respect of all Notes or portions of Notes properly tendered;

(2)            accept for payment all Notes or portions of Notes (of $2,000 or integral multiples of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer; and

(3)            deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.

(d)            The Paying Agent shall promptly deliver to each Holder who has so tendered Notes the Change of Control Purchase Price for such Notes, and the Trustee shall promptly, upon the delivery of an Officers’ Certificate from the Issuer, in form satisfactory to the Trustee, authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes so tendered, if any; provided that each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.

(e)            If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.

(f)            A Change of Control Offer shall remain open for at least 20 Business Days or for such longer period as is required by law. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(g)            The Issuer shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer, (ii) in connection with or in contemplation of any publicly announced Change of Control, the Issuer has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than the Change of Control Purchase Price and has purchased all Notes properly tendered in accordance with the terms of the Alternate Offer or (iii) a notice of redemption of all outstanding Notes has been given pursuant to Section 3.3, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.

(h)            The Issuer shall comply with all applicable securities legislation in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.13, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.13 by virtue of such compliance.

(i)            The provisions under this Indenture relating to the Issuer’s obligation to make a Change of Control Offer may be waived, modified or terminated with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.

(j)            Notwithstanding anything to the contrary contained in this Section 4.13, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event or other events or circumstances, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.

Section 4.14.         Corporate Existence. Subject to Article V, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership, limited liability company or other existence of each of the Guarantors in accordance with the respective organizational or constitutional documents (as the same may be amended from time to time) of the Issuer or any such Guarantor and the rights (charter and statutory), licenses and franchises of the Issuer and the Guarantors; provided that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of the Guarantors, if the Issuer shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders.

Section 4.15.         Additional Guarantees. If (i) any Domestic Restricted Subsidiary of the Issuer that is not already a Guarantor shall incur any Indebtedness under a Debt Facility (other than Purchase Money Indebtedness, Indebtedness incurred by a Subsidiary that is not a Wholly-Owned Subsidiary, and Acquired Indebtedness) or (ii) any Restricted Subsidiary of the Issuer that is not already a Guarantor shall guarantee any Indebtedness of the Issuer or any Guarantor under the (x) Revolving Credit Facility or (y) any other Debt Facility of the Issuer or any Guarantor, in the case of either clause (i) or clause (ii)(y), in an aggregate principal amount that exceeds the greater of (x) $25.0 million and (y) 1.25% of the Issuer’s Consolidated Total Assets, then the Issuer shall, within 30 days thereof, cause such Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture in substantially the form attached hereto as Exhibit B pursuant to which such Restricted Subsidiary shall become a Guarantor with respect to the Notes, upon the terms and subject to the release provisions and other limitations set forth in Article X.

Section 4.16.         Limitation on Designation of Unrestricted Subsidiaries.

(a)            The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment therein) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:

(1)            no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and

(2)            the Issuer would be permitted to make, at the time of such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.7, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.

(b)            No Subsidiary shall be designated as an “Unrestricted Subsidiary” unless:

(1)            all of the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of Designation, consist of Non-Recourse Debt, except for (i) any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not otherwise recourse to the Issuer or any Restricted Subsidiary, (ii) any customary keepwell in the ordinary course of business (which keepwell is not recourse to the Issuer or any Restricted Subsidiary) and (iii) any guarantee of Indebtedness of such Subsidiary by the Issuer or a Restricted Subsidiary that is permitted as both an incurrence of Indebtedness and an Investment (in each case in an amount equal to the amount of such Indebtedness so guaranteed) permitted under Section 4.7 and Section 4.9;

(2)            except as permitted by Section 4.11, on the date such Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not party to any agreement, contract, arrangement or understanding (other than a guarantee permitted under clause (1) of this Section 4.16(b)) with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding are not materially less favorable to the Issuer or the Restricted Subsidiary than those that could reasonably be expected to have been obtained at the time from Persons who are not Affiliates of the Issuer; and

(3)            such Subsidiary is a Person with respect to which, on the date such Subsidiary is designated an Unrestricted Subsidiary, neither the Issuer nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests of such Person or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results (in each case other than a guarantee permitted under clause (1) of this Section 4.16(b)) or to the extent treated as an Investment permitted by Section 4.7.

Any such Designation by the Issuer shall be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate giving effect to such Designation and certifying that such Designation complies with the foregoing conditions.

(c)            The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:

(1)            no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and

(2)            all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture.

Any such Redesignation shall be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate certifying that such Redesignation complies with the foregoing conditions.

(1)            at any time after the Issue Date the Notes have an Investment Grade Rating from any two of the Rating Agencies; and

(2)            no Default or Event of Default has occurred and is then continuing; then upon delivery by the Issuer to the Trustee of an Officers’ Certificate to the foregoing effect, the covenants under this Indenture described under the following headings shall thereafter terminate and cease to apply:

The Trustee shall have no duty to monitor the rating of the Notes, or to independently determine or verify if the conditions to termination of the covenants have been satisfied and may conclusively rely on any Officers’ Certificate as to the termination of covenants described above.

Section 5.1.         Consolidation, Merger, Conveyance, Transfer or Lease.

(a)            The Issuer shall not, directly or indirectly, in a single transaction or a series of related transactions, (x) consolidate, or merge with or into another Person (whether or not the Issuer is the surviving Person), or (y) sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of the Issuer and its Restricted Subsidiaries (taken as a whole) to any Person unless:

(A)            the Issuer will be the surviving or continuing Person; or

(B)            the Person (if other than the Issuer) formed by or surviving or continuing from such consolidation or merger or to which such sale, lease, transfer, conveyance or other disposition or assignment shall be made (collectively, the “Successor”) is a corporation, company, limited liability company or limited partnership organized and existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof and the Successor expressly assumes, by supplemental indenture, all of the obligations of the Issuer under the Notes and this Indenture; provided, that if the Successor is not a corporation, a Restricted Subsidiary that is a corporation or a company expressly assumes as co-obligor all of the obligations of the Issuer under this Indenture and the Notes pursuant to a supplemental indenture to this Indenture executed and delivered to the Trustee;

(2)            immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(B) of this Section 5.1(a) and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, no Default shall have occurred and be continuing;

(3)            immediately after giving pro forma effect to such transaction and the assumption of the obligations as set forth in clause (1)(B) of this Section 5.1(a) and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, (i) the Issuer or its Successor, as the case may be, could incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (ii) the Consolidated Interest Coverage Ratio for the Issuer or its Successor, as the case may be, and its Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio prior to such transaction; and

(4)            the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that such merger, consolidation or transfer and such agreement and/or supplemental indenture (if any) comply with this Indenture.

For purposes of this Section 5.1, any Indebtedness of the Successor which was not Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.

(b)            Except in circumstances under which this Indenture provides for the release of the Guarantee of a Guarantor as described under Section 10.5, no Guarantor shall, and the Issuer shall not permit any Guarantor to, directly or indirectly, (x) in a single transaction or a series of related transactions, consolidate or merge with or into another Person (whether or not the Guarantor is the surviving Person), or (y) sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of such Guarantor to any Person, unless either:

(A)            (i) such Guarantor will be the surviving or continuing Person; or (ii) the Person (if other than such Guarantor) formed by or surviving any such consolidation or merger is the Issuer or another Guarantor or assumes, by supplemental indenture, all of the obligations of such Guarantor under the Guarantee of such Guarantor and this Indenture; and

(B)            immediately after giving effect to such transaction, no Default shall have occurred and be continuing; or

(2)            the transaction is not in violation of Section 4.10.

For purposes of this Section 5.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Equity Interests of which constitute all or substantially all of the properties and assets of the Issuer and its Restricted Subsidiaries (taken as a whole), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer. Notwithstanding anything to contrary under this Indenture, the entry by the Issuer or any Restricted Subsidiary into any one or more charter party agreements or the demise, bareboat, time, voyage, other charter, lease or other right to use of any of the Issuer’s or the Restricted Subsidiaries’ Vessels, in each case, in the ordinary course of business shall not be deemed to involve a sale, lease, transfer, conveyance or disposition of assets for purpose of the above covenants.

(c)            Upon any consolidation or merger of the Issuer or a Guarantor, or any transfer of all or substantially all of the assets of the Issuer or a Guarantor in accordance with the foregoing, in which the Issuer or such Guarantor is not the continuing obligor under the Notes or its Guarantee, as applicable, the surviving entity formed by such consolidation or merger or into which the Issuer or such Guarantor is merged or the Person to which the sale, conveyance, lease, transfer, disposition or assignment is made will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor under this Indenture, the Notes and the Guarantees with the same effect as if such surviving entity had been named therein as the Issuer or such Guarantor and, except in the case of a lease, the Issuer or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Notes or in respect of its Guarantee, as the case may be, and all of the Issuer’s or such Guarantor’s other obligations and covenants under the Notes, this Indenture and its Guarantee, if applicable.

(d)            Notwithstanding the provisions of this Section 5.1, (i) any Restricted Subsidiary may consolidate or merge with or into or convey, transfer, sell, dispose, assign or lease, in one transaction or a series of transactions, all or substantially all of its assets to the Issuer or another Restricted Subsidiary and (ii) the Issuer or any Guarantor may (I) consolidate or merge with or into or convey, transfer or lease, in one transaction or a series of transactions, all or part of its properties and assets to the Issuer or another Guarantor or (II) merge with a Restricted Subsidiary of the Issuer solely with respect to this clause (II) for the purpose of reorganizing the Issuer or any Guarantor under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof.

Section 6.1.         Events of Default. Each of the following is an “Event of Default”:

(a)            failure to pay interest on any of the Notes when the same becomes due and payable and the continuance of any such failure for 30 days;

(b)            failure to pay principal of premium, if any, on any of the Notes when it becomes due and payable, whether at Stated Maturity, upon redemption, required purchase, acceleration or otherwise;

(c)            failure by the Issuer or any of its Restricted Subsidiaries to comply with any of their respective agreements or covenants described in Section 5.1, or failure by the Issuer to comply in respect of its obligations to make a Change of Control Offer pursuant to Section 4.13 or a Net Proceeds Offer pursuant to Section 4.10;

(d)            (1) except with respect to Section 4.3, or as described in clause (3) of this Section 6.1, failure by the Issuer or any Restricted Subsidiary to comply with any other covenant or agreement contained in this Indenture and continuance of this failure for 60 days after notice of the failure has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding or (2) failure by the Issuer for 120 days after notice of the failure has been given to the Issuer by the Trustee or by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding to comply with Section 4.3;

(e)            default by the Issuer or any Restricted Subsidiary under any mortgage, indenture or other instrument or agreement under which there is issued or by which there is secured or evidenced Indebtedness for borrowed money by the Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is incurred after the Issue Date, which default:

(1)            is caused by a failure to pay at its Stated Maturity principal on such Indebtedness within the applicable express grace period and any extensions thereof, or

(2)            results in the acceleration of such Indebtedness prior to its Stated Maturity,

and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other Indebtedness with respect to which an event described in clause (A) or (B) has occurred and is continuing, aggregates $75.0 million or more, and in any such case, such Indebtedness is not repaid or such failure to pay is not cured or such acceleration is not rescinded, annulled or otherwise cured within 30 days;

(f)            one or more judgments (to the extent not covered by insurance) for the payment of money in an aggregate amount in excess of $75.0 million shall be rendered against the Issuer or any of its Significant Subsidiaries and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed;

(g)            the Issuer or any Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

(2)            consents to the entry of an order for relief against it in an involuntary case,

(3)            consents to the appointment of a custodian of it or for all or substantially all of its property,

(4)            makes a general assignment for the benefit of its creditors, or

(5)            admits in writing that it generally is not paying its debts as they become due; or

(6)            a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(A)            is for relief against the Issuer or any Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary, in an involuntary case;

(B)            appoints a custodian of the Issuer or any Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary; or

(C)            orders the liquidation of the Issuer or any Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary

and, in each case, the order or decree remains unstayed and in effect for 60 consecutive days; or

(h)            any Guarantee ceases to be in full force and effect (other than in accordance with the terms of such Guarantee and this Indenture) or is declared null and void and unenforceable or found to be invalid or any Guarantor denies its liability under the Guarantee of such Guarantor (other than by reason of release of such Guarantor from its Guarantee in accordance with the terms of this Indenture).

Section 6.2.         Acceleration. If an Event of Default (other than an Event of Default specified in Section 6.1(g) with respect to the Issuer) shall have occurred and be continuing under this Indenture, the Trustee, by written notice to the Issuer, or the Holders of at least 25.0% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Trustee, may declare (an “acceleration declaration”) all amounts owing under the Notes to be due and payable. Upon such acceleration declaration, the aggregate principal of and accrued and unpaid interest on the outstanding Notes shall become due and payable immediately; provided, however, that after such acceleration, but before a judgment or decree based on acceleration, the Holders of a majority in aggregate principal amount of such outstanding Notes may rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal and interest, have been cured or waived as provided in this Indenture.

If an Event of Default specified in Section 6.1(g) occurs with respect to the Issuer, all amounts owing under all outstanding Notes shall become due and payable without any further action or notice to the extent permitted by applicable law.

Section 6.3.         Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payments on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

Section 6.4.         Waiver of Past Defaults. Subject to Section 9.2, the Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may, on behalf of the Holders of all of the Notes, waive any existing Default and its consequences under this Indenture except a continuing Default in the payment of interest or premium, or the principal of, the Notes.

Section 6.5.         Control by Majority. The Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. However, (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction (it being understood that the Trustee does not have an affirmative duty to determine whether or not any such direction is unduly prejudicial to the rights of Holders of the Notes not joining in the giving of such direction) and (ii) the Trustee may take any other action it deems proper that is not inconsistent with any such direction received from the Holders of Notes. Subject to Section 7.1, prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it against all loss, liability and expense caused by taking or not taking such action.

Section 6.6.         Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:

(a)            the Holder gives the Trustee written notice of a continuing Event of Default;

(b)            the Holder or Holders of at least 25.0% in aggregate principal amount of outstanding Notes make a written request to the Trustee to pursue the remedy;

(c)            such Holder or Holders offer and, if requested, provide the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense;

(d)            the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and

(e)            during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request.

A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such use by a Holder prejudices the rights of any other Holders or obtains priority or preference over such other Holders).

Section 6.7.         Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the contractual right of any Holder of a Note to receive payment of principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, shall not be modified without the consent of the Holder.

Section 6.8.         Collection Suit by Trustee. If an Event of Default specified in Section 6.1(a) or Section 6.1(b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel.

Section 6.9.         Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other securities or property payable or deliverable upon the conversion or exchange of the Notes or on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances to the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing in this Section 6.9 shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.10.         Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money and property in the following order:

First: to the Trustee, its agents and attorneys for amounts due under Section 7.6, including payment of all compensation and reasonable expenses and liabilities incurred (including, without limitation, reasonable and documented fees and expenses of legal counsel), and all advances made, by it and the costs and expenses of collection;

Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively;

Third: without duplication, to the Holders for any other Obligations owing to the Holders under this Indenture and the Notes; and

Fourth: to the Issuer or to such party as a court of competent jurisdiction shall direct.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

Section 6.11.         Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as the Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7, or a suit by Holders of more than 10.0% in aggregate principal amount of the then outstanding Notes.

(a)            Notwithstanding the foregoing, no notice of Default may be given with respect to any action taken, and reported publicly, more than two years prior to such notice of Default. Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders of Notes (except any Holder that certifies in the Noteholder Direction that it is a Regulated Bank) (each a “Directing Holder”) must be accompanied by a written representation from each such Holder of Notes delivered to the Issuer and the Trustee that such Holder of Notes is not (or, in the case such Holder of Notes is DTC or its nominee, that such Holder of Notes is being instructed solely by beneficial owners that are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to the delivery of a notice of Default shall be deemed a continuing representation until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder is deemed, at the time of providing a Noteholder Direction, to covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder of Notes is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee, and DTC shall be entitled to rely conclusively on such Position Representation and Verification Covenant in delivering its direction to the Trustee.

(b)            If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an Officers’ Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder of Notes, the percentage of Notes held by the remaining Holders of Notes that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default; provided, however, such voiding of such Noteholder Direction shall not void or invalidate any indemnity or security provided by the Directing Holders to the Trustee, which such indemnification or security obligations shall continue to survive.

(c)            Notwithstanding anything in Section 6.12(a) or Section 6.12(b) to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default under Section 6.1(g) shall not require compliance with Section 6.12(a) or Section 6.12(b). In addition, for the avoidance of doubt, Section 6.12(a) and Section 6.12(b) shall not apply to any Holder of Notes that is a Regulated Bank and has so stated in the applicable Noteholder Direction. For the avoidance of doubt, (a) the Trustee shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant, verify any statements in any Officers’ Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise, (b) shall have no obligation to monitor or to determine whether a Directing Holder is Net Short and (c) can conclusively rely on a Directing Holder’s Position Representation, any Officers’ Certificate delivered by the Issuer to the Trustee and the determinations made by a court of competent jurisdiction. The Trustee shall have no liability to the Issuer, any Holder of Notes or any other Person in acting (or not acting) in good faith on a Noteholder Direction or Officers’ Certificate.

(a)            If an Event of Default has occurred and is continuing of which the Trustee has received written notice or which is actually known to a Responsible Officer of the Trustee, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. The Trustee shall not be liable for any action taken or omitted by it in the performance of its duties under this Indenture except for its own gross negligence or willful misconduct.

(1)            the duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(2)            the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein); provided, however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions furnished to it to determine whether or not they conform on their face to the requirements of this Indenture.

(c)            The Trustee may not be relieved from liabilities for its own grossly negligent actions, its own grossly negligent failure to act, or its own willful misconduct, except that:

(1)            this paragraph 7.1(c) does not limit the effect of paragraph 7.1(b), 7.1(d) or 7.1(e) or 7.2;

(2)            the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;

(3)            the Trustee shall not be liable with respect to any action it takes or omits to take in accordance with a direction received by it pursuant to Section 6.5; and

(4)            no provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.

(d)            The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. The Trustee shall have no investment discretion and the Trustee’s only responsibility for investments shall be to follow the written instructions of the Issuer. Absent written investment instructions, all moneys or deposits held by the Trustee shall be uninvested. The Trustee shall not incur any liability for losses arising from any investments made pursuant to this Indenture. The Trustee shall not be required to determine the suitability or legality of any investments.

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to Article VII.

(a)            The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting on any resolution, certificate, statement, instrument, opinion, notice, report, request, direction, consent, order, bond, debenture or other document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated therein.

(b)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. Prior to taking, suffering or admitting any action, the Trustee may consult with counsel of the Trustee’s own choosing, and the Trustee shall be fully protected from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in conclusive reliance on the advice or opinion of such counsel.

(c)           The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.

(d)           The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.

(e)           Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer or a Guarantor shall be sufficient if signed by an Officer of the Issuer or such Guarantor.

(f)            The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered, and if requested, provided, to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

(g)           The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or documents, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine during normal business hours the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

(h)           The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, to the Agents and to each other agent, custodian and Person employed to act hereunder.

(i)            The Trustee may request that the Issuer and each of the Guarantors shall deliver to the Trustee an Officers’ Certificate setting forth the names of individuals and/or titles of Officers of the Issuer and each Guarantor, as applicable, authorized at such time to take specified actions pursuant to this Indenture of the Issuer, the Notes and the Guarantees, which Officers’ Certificate may be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.

(j)            The Trustee shall not be deemed to have notice of any Default or Event of Default, unless a Responsible Officer of the Trustee has actual knowledge thereof or the Trustee shall have been notified specifically of the Default or Event of Default in a written instrument or document delivered to it, referring to this Indenture, describing such Event of Default and stating that such notice is a “Notice of Default.”

(k)           In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(l)            The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

(m)          The Issuer will be responsible for making calculations called for under the Notes, including but not limited to determination of redemption price, premium, if any, and any other amounts payable on the Notes. The Issuer will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders of the Notes. The Issuer will provide a schedule of its calculations to the Trustee when applicable, and the Trustee is entitled to rely conclusively on the accuracy of the Issuer’s calculations without independent verification.

(n)           The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty.

(o)           The Trustee shall not be liable for any action taken or omitted by it in good faith at the direction of the Holders of not less than a majority in aggregate principal amount of the Notes as to the time, method and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred by this Indenture.

Section 7.3.         Individual Rights of the Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.9.

Section 7.4.         Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes or any Guarantee, it shall not be accountable for the use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes, any Officers’ Certificate delivered to the Trustee hereunder, or any other document in connection with the sale of the Notes or pursuant to this Indenture other than the Trustee’s certificate of authentication hereunder.

Section 7.5.         Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Responsible Officer of the Trustee has knowledge thereof as set forth in Section 7.2(j), the Trustee shall deliver to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders.

Section 7.6.         Compensation and Indemnity. The Issuer shall pay to the Trustee from time to time compensation for its acceptance of this Indenture and for all services rendered by it hereunder as agreed upon in writing; including but not limited to acting as Registrar or Paying Agent. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee, as applicable, promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

Each of the Issuer and the Guarantors, jointly and severally, shall indemnify, defend, protect and hold harmless the Trustee (in its individual and trustee capacities or in its capacity as Registrar or Paying Agent) and its officers, directors, employees and agents from and against any and all claims, damages, losses, liabilities, actions, suits, costs or expenses incurred by it (including, without limitation, the fees and expenses of its agents and counsel and court costs) arising out of or in connection with the acceptance or administration of its duties under this Indenture and trusts thereunder, the performance of its obligations and/or exercise of its rights hereunder, including the costs and expenses of enforcing this Indenture against the Issuer or any Guarantor (including this Section 7.6) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, claim, damage, liability or expense shall be caused by its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer or any Guarantor of its obligations hereunder. The Trustee may have separate counsel, and the Issuer shall pay the reasonable fees and expenses of such counsel for the Trustee. The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.

The obligations of the Issuer and the Guarantors under this Section 7.6 shall survive the satisfaction and discharge of this Indenture, the payment of the Notes or the resignation or removal of the Trustee.

To secure the Issuer’s payment obligations in this Section 7.6, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal or interest, if any, on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture, the payment of the Notes and the resignation or removal of the Trustee.

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(g) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

Section 7.7.         Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor trustee’s acceptance of appointment as provided in this Section 7.7.

The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer not less than 30 days prior to the effective date of such resignation. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee upon 30 days’ prior notice by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:

(a)            the Trustee fails to comply with Section 7.9;

(b)            the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Issuer shall promptly appoint a successor trustee. Within one year after the successor trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor trustee to replace the successor trustee appointed by the Issuer.

If a successor trustee does not take office within 30 days after the retiring Trustee resigns or is removed, such retiring Trustee (at the expense of the Issuer), the Issuer or the Holders of at least 10.0% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor trustee.

If the Trustee, after written request by any Holder who has been a bona fide holder of a Note for at least six months, fails to comply with Section 7.9, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee.

A successor trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor trustee shall have all the rights, powers and the duties of the Trustee under this Indenture. The successor trustee shall deliver a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to such Trustee hereunder have been paid and subject to the Lien provided for in Section 7.6. Notwithstanding replacement of the Trustee pursuant to this Section 7.7, the Issuer’s and the Guarantors’ obligations under Section 7.6 shall continue for the benefit of the retiring Trustee.

Section 7.8.         Successor Trustee by Merger, Etc. If the Trustee or any Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including this transaction) to, another corporation, the successor corporation without any further act shall be the successor Trustee or any Agent, as applicable.

Section 7.9.         Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power and that is subject to supervision or examination by federal or state authorities. Such Trustee together with its affiliates shall at all times have a combined capital surplus of at least $50.0 million as set forth in its most recent annual report of condition.

Section 8.1.         Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, by delivery of an Officers’ Certificate, at any time, elect to have either Section 8.2 or Section 8.3 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.

Section 8.2.         Legal Defeasance. Upon the Issuer’s exercise under Section 8.1 of the option applicable to Section 8.2, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.4, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire Obligations represented by the Notes and the Guarantees, and this Indenture shall cease to be of further effect as to all outstanding Notes and Guarantees, which shall thereafter be deemed to be outstanding only for the purposes of Section 8.5 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of its other Obligations under such Notes, Guarantees and this Indenture (and the Trustee, on written demand of and at the expense of the Issuer, shall execute instruments reasonably requested by the Issuer acknowledging the same), and this Indenture shall cease to be of further effect as to all such Notes and Guarantees, except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, and interest and premium, if any, on such Notes when such payments are due from the trust funds referred to in Section 8.4(b); (b) the Issuer’s obligations with respect to such Notes under Section 2.2, Section 2.3, Section 2.4, Section 2.6, Section 2.7 and Section 4.2; (c) the rights, powers, trusts, duties, indemnities and immunities of the Trustee and the Agents, including without limitation, under Section 7.2, Section 7.6, Section 8.5 and Section 8.7 and the obligations of the Issuer and the Guarantors in connection therewith; and (d) the provisions of this Article VIII. Subject to compliance with this Article VIII, the Issuer may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3.

Section 8.3.         Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 above of the option applicable to this Section 8.3, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.4 below, be released from its obligations under Section 4.3, Section 4.7, Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12, Section 4.13, Section 4.15, Section 4.16 and Section 5.1(a)(3) on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer or any of its Subsidiaries may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default under Section 6.1, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.

Section 8.4.         Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.2 or Section 8.3 to the outstanding Notes:

(a)            the Issuer must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants selected by the Issuer and delivered and addressed to the Trustee, to pay the principal of and premium and interest, if any, on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be,

(b)            in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel from counsel in the United States confirming that:

(1)            the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or

(2)            since the Issue Date, there has been a change in the applicable U.S. federal income tax law,

in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred,

(c)            in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel from counsel in the United States confirming that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred,

(d)            no Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings),

(e)            the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound,

(f)            the Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors or others, and

(g)            the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the conditions precedent provided for in clauses (a) through (f) of this Section 8.4 have been complied with.

Section 8.5.         Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.6, all U.S. dollar and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.5, the “Deposit Trustee”) pursuant to Section 8.4 or Section 8.8 in respect of the outstanding Notes shall be held in trust, shall not be invested, and shall be applied by the Deposit Trustee in accordance with the provisions of such Notes and this Indenture to the payment, either directly or through any Paying Agent (including the Issuer or any Subsidiary acting as Paying Agent) as the Deposit Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

The Issuer shall pay and indemnify the Deposit Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.4 or Section 8.8 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

Anything in this Article VIII to the contrary notwithstanding, the Deposit Trustee shall deliver or pay to the Issuer from time to time upon the written request of the Issuer and be relieved of all liability with respect to any U.S. dollars or non-callable U.S. Government Obligations held by it as provided in Section 8.4 or Section 8.8 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Deposit Trustee (which may be the opinion delivered under Section 8.4(b)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance or satisfaction and discharge, as the case may be.

Section 8.6.         Repayment to Issuer. Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest, if any, on any Note and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Issuer on its written request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof; and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense and the request of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Issuer.

Section 8.7.         Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. dollars or U.S. Government Obligations in accordance with Section 8.2, Section 8.3 or Section 8.8, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer and the Guarantors under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, Section 8.3 or Section 8.8 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2, Section 8.3 or Section 8.8, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

Section 8.8.         Discharge. This Indenture will be discharged and will cease to be of further effect (except as to rights, protections and immunities of the Trustee and the Agents) as to all outstanding Notes when either:

(a)            all the Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from this trust), have been delivered to the Trustee for cancellation; or

(1)            all Notes not delivered to the Trustee for cancellation otherwise (i) have become due and payable, (ii) will become due and payable, or may be called for redemption, within one year or (iii) have been called for redemption pursuant to Section 3.7 and, in any case, the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest (which in the case of a deposit of U.S. Government Obligations will be in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants selected by the Issuer and delivered to the Trustee) to pay and discharge the entire Indebtedness (including all principal, premium and accrued interest, if any) on the Notes not theretofore delivered to the Trustee for cancellation (provided that if such redemption is made as provided under Section 3.7(a), (x) the amount of cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination thereof, that must be irrevocably deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit and (y) the depositor must irrevocably deposit or cause to be deposited additional money in trust on the redemption date as necessary to pay the Applicable Premium as determined by such date) (any such amount, the “Applicable Premium Deficit”) (it being understood that any satisfaction and discharge shall be subject to the condition subsequent that such Applicable Premium Deficit is in fact paid); provided that the Trustee shall have no liability whatsoever in the event that such Applicable Premium Deficit is not in fact paid after any satisfaction and discharge of this Indenture and that any Applicable Premium Deficit will be set forth in an Officers’ Certificate delivered to the Trustee prior to the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit will be applied toward such redemption;

(2)            the Issuer has paid all other sums payable by it under this Indenture; and

(3)            the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the date of redemption, as the case may be.

After the Notes are no longer outstanding, the Issuer’s and the Guarantors’ obligations in Section 7.6, Section 8.5 and Section 8.7 shall survive any discharge pursuant to this Section 8.8.

After such delivery or irrevocable deposit and receipt of an Officers’ Certificate and Opinion of Counsel stating that the conditions precedent to the discharge have been satisfied, the Trustee, upon written request, shall acknowledge in writing the discharge of the Issuer’s obligations under the Notes and this Indenture except for those surviving obligations specified above.

Section 9.1.         Without Consent of Holders of the Notes. Notwithstanding Section 9.2, without the consent of any Holders, the Issuer, the Guarantors and the Trustee, at any time and from time to time, may amend or supplement this Indenture, the Guarantees or the Notes issued hereunder for any of the following purposes:

(a)            to cure any ambiguity, defect or inconsistency;

(b)            to provide for uncertificated Notes in addition to or in place of certificated Notes (provided that such Notes are in registered form within the meaning of Section 163(f) of the Code);

(c)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to the Holders in the case of a merger, consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, or sale, lease, transfer, conveyance or other disposition or assignment in accordance with Section 5.1;

(d)            to add any Guarantee or to effect the release of any Guarantor from any of its obligations under its Guarantee or the provisions of this Indenture (to the extent in accordance with this Indenture);

(e)            to make any change that would provide any additional rights or benefits to the Holders or does not materially adversely affect the rights of any Holder, including to comply with requirements of the SEC or DTC in order to maintain the transferability of the notes pursuant to Rule 144A under the Securities Act or Regulation S under the Securities Act;

(f)            to secure the Notes or any Guarantees or any other obligation under this Indenture or effect the release of any collateral in respect thereof (to the extent in accordance with the provisions of this Indenture);

(g)            to evidence and provide for the acceptance of appointment by a successor Trustee;

(h)            to conform the text of this Indenture or the Notes to any provision of the “Description of notes” contained in the Offering Memorandum, to the extent that such provision in the “Description of notes” was intended to be a substantially verbatim recitation of a provision of this Indenture, the Guarantees or the Notes, as evidenced by an Officers’ Certificate of the Issuer;

(i)            to provide for the issuance of Additional Notes in accordance with this Indenture;

(j)            at the Issuer’s election to comply with the requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;

(k)            to amend the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of the Notes; or

(l)            add covenants of the Issuer and its Restricted Subsidiaries or Events of Default for the benefit of Holders or to make changes that would provide additional rights to the Holders under this Indenture of any Holder or to surrender any right or power conferred upon the Issuer or any Guarantor.

After an amendment under this Indenture becomes effective, the Issuer shall deliver to Holders of the Notes a notice briefly describing such amendment. However, the failure to give such notice to all Holders of the Notes, or any defect therein, will not impair or affect the validity of the amendment.

Section 9.2.         With Consent of Holders of Notes. With the consent of the Holders of not less than a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), the Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or any Guarantees or, subject to Section 6.7, waive any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes; provided, however, that no such amendment, supplement or waiver shall, without the consent of the Holder of each outstanding Note affected thereby (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes):

(a)            reduce, or change the maturity of, the principal of any Note;

(b)            reduce the rate of or extend the time for payment of interest on any Note;

(c)            reduce any premium payable upon redemption of the Notes or change the date on which any Notes are subject to redemption (other than the notice provisions) or waive any payment with respect to the redemption of the Notes; provided, however, that solely for the avoidance of doubt, and without any other implication, any purchase or repurchase of Notes (including pursuant to Section 4.10 and Section 4.13) shall not be deemed a redemption of the Notes;

(d)            make any Note payable in money or currency other than that stated in the Notes;

(e)            reduce the percentage of Holders necessary to consent to an amendment or waiver to this Indenture or the Notes;

(f)            waive a default in the payment of principal of or premium or interest, if any, on any Notes (except a rescission of acceleration of the Notes by the Holders thereof as provided in this Indenture and a waiver of the payment default that resulted from such acceleration);

(g)            modify the contractual rights of Holders to receive payments of principal of or interest, if any, on the Notes on or after the due date therefor or to institute suit for the enforcement of any payment on the Notes;

(h)            release any Guarantor from any of its obligations under its Guarantee or this Indenture, except as permitted by this Indenture; or

(i)            make any change in these amendment and waiver provisions.

The consent of the Holders of the Notes is not necessary under this Section 9.2 to approve the particular form of any proposed amendment or waiver. It shall be sufficient if such consent approves the substance of the proposed amendment or waiver.

Section 9.3.         Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. When an amendment, supplement or waiver becomes effective in accordance with its terms, it thereafter binds every Holder.

The Issuer may, but shall not be obligated to, fix a record date for determining which Holders consent to such amendment, supplement or waiver.

Section 9.4.         Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, in accordance with Section 2.2, authenticate new Notes that reflect the amendment, supplement or waiver.

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.5.         Trustee to Sign Amendments, Etc. The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In signing or refusing to sign any amendment or supplemental indenture, the Trustee shall be provided with and (subject to Section 7.1) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amendment or supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent thereto have been met or waived.

(a)            Each Guarantor hereby jointly and severally, fully and unconditionally guarantees the Notes and obligations of the Issuer hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, that: (i) the principal of and premium, if any, and interest, if any, on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise, together with interest on the overdue principal, if any, and interest on any overdue interest, if any, to the extent lawful, and all other Obligations of the Issuer to the Holders or the Trustee under this Indenture or the Notes shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Guarantees shall be a guarantee of payment and not of collection.

(b)            Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.

(c)            Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee of such Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the obligations contained in such Note and this Indenture and such Guarantee. Each of the Guarantors hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce each such Guarantor’s Guarantee without first proceeding against the Issuer or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders and any other amounts due and owing to the Trustee under this Indenture. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee in enforcing any rights under this Section 10.1.

(d)            If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph 10.1(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph 10.1(d) shall survive the termination of this Indenture.

(e)            Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Guarantee of such Guarantor.

(f)            Each Guarantor that makes a payment for distribution under its Guarantee is entitled upon payment in full of all guaranteed obligations under this Indenture to seek contribution from each other Guarantor in a pro rata amount of such payment based on the respective net assets of all the Guarantors at the time of such payment in accordance with GAAP.

Section 10.2.         Execution and Delivery of Guarantee. To evidence its Guarantee set forth in Section 10.1, each Guarantor agrees that this Indenture or a supplemental indenture in substantially the form attached hereto as Exhibit B shall be executed on behalf of such Guarantor by an Officer of such Guarantor (or, if an officer is not available, by a board member or director) on behalf of such Guarantor by manual or facsimile signature. Each Guarantor hereby agrees that its Guarantee set forth in Section 10.1 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. In case the Officer, board member or director of such Guarantor whose signature is on this Indenture or supplemental indenture, as applicable, no longer holds office at the time the Trustee authenticates any Note, the Guarantee shall be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.

Section 10.3.         Severability. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 10.4.         Limitation of Guarantors’ Liability. Each Guarantor and by its acceptance hereof each Holder confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders and Guarantors hereby irrevocably agree that the obligations of such Guarantor under its Guarantee (other than a company that is a direct or indirect parent of the Issuer) shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any guarantees under the Revolving Credit Facility) and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Guarantee constituting a fraudulent conveyance, fraudulent preference or fraudulent transfer or otherwise reviewable transaction under applicable law.

Section 10.5.         Releases. A Guarantor shall be automatically released of any Obligations under its Guarantee and this Indenture upon:

(a)            any sale or other disposition of all or substantially all of the assets of such Guarantor (by merger, consolidation or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Restricted Subsidiary, if the sale or other disposition does not violate Section 4.10 of this Indenture;

(b)            any sale, exchange or transfer (by merger, consolidation or otherwise) of the Equity Interests of such Guarantor after which the applicable Guarantor is no longer a Restricted Subsidiary, which sale, exchange or transfer does not violate Section 4.10 of this Indenture;

(c)            the proper Designation of such Restricted Subsidiary by the Issuer as an Unrestricted Subsidiary in accordance with the terms of this Indenture;

(d)            such Guarantor ceasing to guarantee or be liable for Indebtedness the guarantee or incurrence of which would obligate it, if it were not a Guarantor, to become a Guarantor pursuant to Section 4.15;

(e)            legal or covenant defeasance or satisfaction and discharge of this Indenture pursuant to Section 8.2, Section 8.3 or Section 8.8; or

(f)            dissolution of such Guarantor; provided no Event of Default has occurred that is continuing.

Upon delivery to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that the conditions to release of a Guarantor’s Guarantee set forth above have been satisfied, the Trustee shall execute any documents reasonably requested by the Issuer to evidence such release.

Any Guarantor not released from its obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article X.

Section 10.6.         Benefits Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.

Section 11.1.         Concerning the Trust Indenture Act. The TIA shall not be applicable to, and shall not govern, this Indenture, the Notes or the Guarantees.

Section 11.2.         Notices. Any notice, request, direction, instruction or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), electronic image scan, facsimile transmission or overnight air courier guaranteeing next day delivery, to the addresses set forth below:

The parties hereto, by written notice to the others, may designate additional or different addresses for subsequent notices or communications.

All notices and communications (other than those sent to Holders and the Trustee) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier promising next Business Day delivery.

Any notice or communication to a Holder and the Trustee shall be mailed by first class mail or by overnight air courier promising next Business Day delivery to its address shown on the register kept by the Registrar. Notwithstanding the foregoing, as long as the Notes are Global Notes, notices to be given to the Holders shall be given to the Depositary, in accordance with its applicable policies as in effect from time to time. Failure to deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directors, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directors, reports notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liability, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions directors, reports, notices or other communications or information. Each other party, agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or indemnifications to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risks of interception and misuse by third parties.

If a notice or communication is delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt by a Responsible Officer of the Trustee.

If the Issuer delivers a notice or communication to Holders, it shall mail or deliver a copy to the Trustee and each Agent at the same time.

Section 11.3.         Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee upon request:

(a)            an Officers’ Certificate (which shall include the statements set forth in Section 11.4) in form reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

(b)            an Opinion of Counsel (which shall include the statements set forth in Section 11.4) in form reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

Section 11.4.         Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(a)            a statement that the Person making such certificate or opinion has read and understands such covenant or condition;

(b)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c)            a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

(d)            a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

Section 11.5.         Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. Each of the Agents may make reasonable rules and set reasonable requirements for its functions.

Section 11.6.         No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder, partner or member of the Issuer or any Guarantor, as such, will have any liability for any indebtedness, obligations or liabilities of the Issuer under the Notes or this Indenture or of any Guarantor under its Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the Guarantees.

Section 11.7.         Governing Law; Consent to Jurisdiction. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES. Each of the parties to this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes, the Guarantees or this Indenture, and all such parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such New York State or federal court and hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.

Section 11.8.         No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 11.9.         Successors. All agreements of the Issuer and the Guarantors in this Indenture and the Notes and the Guarantees, as applicable, shall bind their respective successors and assigns. All agreements of the Trustee in this Indenture shall bind its respective successors and assigns.

Section 11.10.         Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 11.11.         Execution in Counterparts. This Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes, except with respect to authentication of Notes by the Trustee. Except with respect to authentication of Notes by the Trustee, signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

Section 11.12.         Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

(a)            Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing (or, with respect to Global Notes, otherwise in accordance with the rules and procedures of the Depositary); and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section 11.13.

(b)            The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient in its sole discretion.

(d)            Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.

(e)            If the Issuer shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, by or pursuant to a board resolution of the Issuer’s Board of Directors, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

Section 11.14.         Force Majeure. In no event shall the Trustee or Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, fire, riots, strikes, or work stoppages for any reason, embargoes, governmental actions, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the U.S. banking industry to resume performance as soon as practicable under the circumstances.

Section 11.15.         Legal Holidays. If any payment date with respect to the Notes falls on a day that is not a Business Day, the payment to be made on such payment date will be made on the next succeeding Business Day with the same force and effect as if made on such payment date, and no additional interest will accrue solely as a result of such delayed payment.

Section 11.16.         USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The Issuer agrees that it will provide the Trustee with information about the Issuer as the Trustee may reasonably request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

Section 11.17.         Waiver of Jury Trial. EACH OF THE ISSUER, ANY GUARANTOR AND THE TRUSTEE HEREBY, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY OR HEREBY.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.

THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO PURCHASE OR HOLD THIS SECURITY (OR ANY INTEREST IN THIS SECURITY) CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER GOVERNMENTAL PLAN, CHURCH PLAN, U.S. OR NON-U.S. PLAN, OR OTHER PLAN SUBJECT TO FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THIS SECURITY (OR ANY INTEREST IN THIS SECURITY) WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY APPLICABLE SIMILAR LAWS.

THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S UNDER THE SECURITIES ACT) IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT, ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

Tidewater Inc. (including any successor thereto) promises to pay to [Cede & Co.]¹ or registered assigns, the principal sum of $[ · ] (_______________ UNITED STATES DOLLARS) [(as may be increased or decreased as set forth on the Schedule of Increases and Decreases of 9.125% Senior Notes due 2030 attached hereto)]² on July 15, 2030.

Interest Payment Dates: January 15 and July 15, beginning January 15, 2026

Reference is made to further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1)            Interest. Tidewater Inc., a Delaware corporation, and any successor thereto (the “Issuer”) promises to pay interest on the unpaid principal amount of this 9.125% Senior Note due 2030 (a “Note”) at a fixed rate of 9.125% per annum. The Issuer will pay interest in U.S. dollars semiannually in arrears on January 15 and July 15, commencing [January 15, 2026]³ (each an “Interest Payment Date”) or if any such day is not a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, and no additional interest shall accrue solely as a result of such delayed payment. Interest on the Notes shall accrue from the most recent date to which interest has been paid, or, if no interest has been paid, from and including the date of issuance. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

(2)            Method of Payment. The Issuer shall pay interest on the Notes on the applicable Interest Payment Date to the Persons who are registered Holders at the close of business on the January 1 and July 1 preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. If a Holder of at least $5,000,000 aggregate principal amount of the Notes in physical, certificated form has given written wire transfer instructions to the Trustee at least ten Business Days prior to the applicable Interest Payment Date, the Issuer will make all payments of principal, premium, and interest, if any, on such Holder’s Notes by wire transfer of immediately available funds to the account in the United States specified in those instructions. Otherwise, payments on the Notes will be made at the office or agency of the Trustee or Paying Agent unless the Issuer elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

Any payments of principal of this Note prior to Stated Maturity shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. The final principal amount due and payable at the maturity of this Note shall be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the Trustee or the Trustee’s agent appointed for such purposes. Payments in respect of Global Notes will be made by wire transfer of immediately available funds to the Depositary.

(3)            Paying Agent and Registrar. Initially, the Trustee shall act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without prior notice to any Holder, and the Issuer and/or any Restricted Subsidiaries may act as Paying Agent or Registrar.

(4)            Indenture. The Issuer issued the Notes under an Indenture, dated as of July 7, 2025 (the “Indenture”), among the Issuer, the Guarantors thereto and the Trustee. The terms of the Notes include those stated in the Indenture. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. The Initial Notes issued on the Issue Date were initially issued in an aggregate principal amount of $650,000,000. The Indenture permits the issuance of Additional Notes subject to compliance with certain conditions.

The payment of principal and interest on the Notes and all other amounts under the Indenture is unconditionally guaranteed, jointly and severally, on a senior unsecured basis by the Guarantors.

(5)            Redemption and Repurchase. The Notes are subject to optional redemption, a Net Proceeds Offer and a Change of Control Offer, as further described in the Indenture. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to Notes.

(6)            Denominations, Transfer, Exchange. The Notes are in registered form without coupons in initial minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

The transfer of the Notes may be registered and the Notes may be exchanged as provided in the Indenture. The Registrar, the Trustee and the Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay any stamp or transfer tax or similar government charge required by law or permitted by the Indenture in accordance with Section 2.6(g)(2) of the Indenture. The Registrar is not required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of 15 days before the day of any selection of Notes for redemption and ending at the close of business on the day of such selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.

(7)            Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for all purposes.

(8)            Amendment, Supplement and Waiver. The Indenture, the Notes and the Guarantees may be amended or supplemented, and compliance with provisions thereof may be waived, in each case as provided in the Indenture.

(9)            Defaults and Remedies. The remedies of Holders in the event of a Default are as set forth in the Indenture.

(10)            No Recourse Against Others. No director, officer, employee, incorporator or stockholder, partner or member of the Issuer or any Guarantor, as such, will have any liability for any indebtedness, obligations or liabilities of the Issuer under the Notes or the Indenture or of any Guarantor under its Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the Guarantees, to the extent permitted by applicable law.

(11)            Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(12)            Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gifts to Minors Act).

(13)            CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to the Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.

To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to

and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.13 of the Indenture, check the box below:

If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.10 or Section 4.13 of the Indenture, state the amount you elect to have purchased: $_____________

Reference is hereby made to that certain Indenture dated July 7, 2025 (the “Indenture”) among Tidewater Inc. (the “Issuer”), the guarantors named therein, and Wilmington Trust, National Association, as trustee (the “Trustee”). Capitalized terms used but not defined herein have the meanings set forth in the Indenture.

This certificate relates to $___________ principal amount of Notes held in (check applicable space) ___________ book-entry or ___________ definitive form by the undersigned.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the periods referred to in Rule 144(d) under the Securities Act of 1933, as amended, the undersigned confirms that such Notes are being transferred in accordance with its terms:

(1)            ¨ to the Issuer or any of its subsidiaries; or

(2)            ¨ pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended; or

(3)            ¨ to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or

(4)            ¨ outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder; or

(5)            ¨ to an institutional “accredited investor” within the meaning of Rule 501(a) of the Securities Act of 1933, as amended, that is not a qualified institutional buyer and that is purchasing for its own account or for the account of another institutional accredited investor; or

(6)            ¨ pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended.

Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that each of it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”), and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OF NOTES BEARING THE REGULATION S LEGEND

This certificate relates to $___________ principal amount of Notes held in (check applicable space) ___________ book-entry or ___________ definitive form by the undersigned.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the Restricted Period (as defined in the Indenture), the undersigned confirms that such Notes are being transferred in accordance with its terms:

(1)           ¨ to the Issuer or any of its subsidiaries; or

(2)           ¨ pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended; or

(3)           ¨ to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or

(4)           ¨ outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder; or

(5)           ¨ to an institutional “accredited investor” within the meaning of Rule 501(a) of the Securities Act of 1933, as amended, that is not a qualified institutional buyer and that is purchasing for its own account or for the account of another institutional accredited investor; or

(6)           ¨ pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended.

Prior to the expiration of the Restricted Period, unless one of the boxes is checked, the Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof.

The initial outstanding principal amount of this Global Note is $___________. The following transfers, exchanges and redemption of this Global Note have been made:

This Supplemental Indenture and Guarantee, dated as of [ · ], 20[ · ] (this “Supplemental Indenture” or “Guarantee”), among [ · ] (the “New Guarantor”), Tidewater Inc., a Delaware corporation (the “Issuer”), the Existing Guarantors party hereto (the “Existing Guarantors”), and Wilmington Trust, National Association, as trustee under the Indenture (the “Trustee”).

WHEREAS, the Issuer, certain Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of July 7, 2025 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an unlimited aggregate principal amount 9.125% Senior Notes due 2030 of the Issuer (the “Notes”);

WHEREAS, Section 4.15 of the Indenture provides that the Issuer will cause any Restricted Subsidiary of the Issuer that is not an existing Guarantor that guarantees certain Indebtedness as described therein, to execute and deliver a Guarantee with respect to the Notes on the same terms and conditions as those set forth in the Indenture.

WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder to add an additional Guarantor.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Issuer, the Existing Guarantors, and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

Section 1.1         Defined Terms. As used in this Supplemental Indenture, capitalized terms defined in the Indenture or in the preamble or recitals thereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

Section 2.1         Agreement to be Bound. The New Guarantor hereby becomes a party to the Indenture as a Guarantor and as such shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture, including Article X thereof.

Section 3.1         Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 3.2         Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Section 3.3         Ratification of Indenture; Supplemental Indentures Part of Indenture; No Liability of Trustee. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of a Note heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or the New Guarantor’s Guarantee. Additionally, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the New Guarantor and the Trustee makes no representation with respect to any such matters.

Section 3.4         Counterparts. This Supplemental Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

Section 3.5         Headings. The headings of the Articles and the sections in this Guarantee are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

Section 3.6         The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantor.

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]

Re: Tidewater Inc. (the “Issuer”) 9.125% Senior Notes due 2030 (the “Notes”)

In connection with our proposed sale of $[ · ] aggregate principal amount at maturity of the Notes (CUSIP No. [ · ]), we hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A (“Rule 144A”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we hereby further certify that the Notes are being transferred to a person that we reasonably believe is purchasing the Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Notes are being transferred in compliance with any applicable blue sky securities laws of any state of the United States.

The Issuer and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]

Re: Tidewater Inc. (the “Issuer”) 9.125% Senior Notes due 2030 (the “Notes”)

In connection with our proposed sale of $[ · ] aggregate principal amount of the Notes (CUSIP No. U8859YAB3), we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“Regulation S”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:

(1)            the offer of the Notes was not made to a person in the United States;

(2)            either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;

(3)            no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and

(4)            the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

In addition, if the sale is made during a restricted period and the provisions of Rule 903(b) or Rule 904(b) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b) or Rule 904(b), as the case may be.

THIS CREDIT AGREEMENT is made as of the 7^th day of July 2025, by and among (1) Tidewater Inc., a corporation incorporated and existing under the laws of the State of Delaware, as borrower (the “Borrower”), (2) the entities listed in Schedule 1.1(b) hereto, as original guarantors (the “Original Guarantors” and together with any entity which becomes a guarantor pursuant to Section 9.1(q) hereof, the “Guarantors”), (3) the banks and financial institutions listed on Schedule 1.1(a), as lenders (the “Original Lenders” and together with any bank or financial institution which becomes a Lender pursuant to Section 10 hereof, the “Lenders”), and (4) DNB Bank ASA, New York Branch (“DNB”), as facility agent for the Lenders (in such capacity, the “Facility Agent”) and as security trustee for the Secured Creditors (in such capacity, the “Security Trustee”).

WHEREAS, subject to the terms and conditions of this Agreement, the Lenders have agreed to make available to the Borrower a senior secured revolving credit facility in the aggregate principal amount of Two Hundred Fifty Million Dollars ($250,000,000.00) to be used for general corporate purposes including working capital and asset acquisitions and, subject to the terms and sublimit set forth herein, issuing Letters of Credit.

NOW, THEREFORE, in consideration of the premises and of the covenants herein contained, the parties hereto agree as follows:

1.1            Specific Definitions. In this Agreement the words and expressions specified below shall, except where the context otherwise requires, have the meanings attributed to them below:

“2021 Revolving Credit Facility” means the revolving credit facility dated November 16, 2021, by and among the Borrower, as borrower, the lenders party thereto, DNB, as facility agent, and Nordic Trustee AS, as security trustee, as the same may be amended, restated, refinanced, supplemented or otherwise modified from time to time.

“2021 Senior Notes” means the senior secured notes issued pursuant to the bond terms dated November 16, 2021, for 8.5% senior secured USD 200,000,000 bonds with maturity date of November 15, 2026 by, among others, the Borrower, as issuer, and Nordic Trustee AS, as bond trustee, as the same may be amended, restated, refinanced, supplemented or otherwise modified from time to time.

“2023 Senior Notes” means the senior unsecured notes issued pursuant to the bond terms dated June 30, 2023, for 10.375% senior unsecured USD 250,000,000 bonds with maturity date of July 3, 2028 by, among others, the Borrower, as issuer, and Nordic Trustee AS, as bond trustee, as the same may be amended, restated, refinanced, supplemented or otherwise modified from time to time.

“2023 Term Loan” means the secured term loan dated June 30, 2023, by and among TDW International Vessels (Unrestricted), LLC, as borrower, the Borrower, as parent guarantor, the lenders party thereto, and DNB, as facility agent and as security trustee, as the same may be amended, restated, refinanced, supplemented or otherwise modified from time to time.

“2025 Senior Notes” means the senior unsecured notes issued pursuant to the indenture dated as of the date hereof, for 9.125% senior unsecured notes with maturity date of July 15, 2030, by, among others, the Borrower, as issuer, and Wilmington Trust Company, National Association, as trustee, as the same may be amended, restated, refinanced, supplemented or otherwise modified from time to time.

“ABR” means, for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50%, (c) Term SOFR plus 1.00%, and (d) 1.00%. Any change in the ABR due to a change in the Prime Rate or the Federal Funds Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively.

“Account Control Agreement” means an account control agreement in form and substance satisfactory to the Borrower and the Security Trustee, the terms of which shall reflect that the relevant Obligor will have full operational control of the Account subject thereto absent the occurrence of and continuance of a Notified Event of Default.

“Accounts” means all Deposit Accounts, Commodity Accounts and Securities Accounts held in the United States by each Obligor other than the Excluded Accounts, and any Cash Collateral Account.

“Acquired Asset Value” means, in respect of the assets received by any Obligor or Restricted Subsidiary in exchange for the assets exchanged by such Obligor or Restricted Subsidiary pursuant to any Asset Swap permitted hereunder, the total value of such received assets, which value shall be, (a) in the case of a Vessel, as reflected in a third party appraisal obtained in connection with such Asset Swap by or on behalf of such Obligor or Restricted Subsidiary as the fair market value of such Vessel and (b) in the case of any other asset, the fair market value thereof as determined in good faith by the Borrower.

“Acquired Debt” means with respect to any specified Person, (a) Financial Indebtedness of any other Person existing at the time it is merged with or into or became a Subsidiary of such specified Person; or (b) Financial Indebtedness secured by a Lien encumbering any asset acquired by such specified Person; provided that, in each case, such Financial Indebtedness was not incurred in connection with, or in contemplation of, such Person merging with or into or becoming a Subsidiary of such Person, or such encumbered asset being acquired by such Person.

“Additional Security” shall have the meaning ascribed thereto in Section 9.1(q).

“Additional Vessel” means any vessels which become Collateral Vessels after the Effective Date pursuant to Section 9.1(q), Section 9.4 or Section 9.6.

“Advance” means any amount advanced to the Borrower with respect to the Facility as a Term SOFR Advance or an ABR Advance or (as the context may require) the amount thereof then outstanding.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any other financial institution.

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

“Aggregate Collateral Vessel Value” means, at any time of determination, the sum (without duplication) of (a) the aggregate of the Fair Market Values of the Collateral Vessels, and (b) all cash collateral pledged pursuant to Section 9.4.

(a)            the Loan Documents shall not require any Person to take steps to create or perfect any Lien on Excluded Property;

(b)            perfection through DACAs or other actions shall not be required with respect to any Excluded Account; provided that this clause (b) shall not restrict the filing of UCC-1 financing statements, or giving of notice (to the extent otherwise reasonably required in any Security Document) to the extent such account is an Excluded Account, pursuant to clause (d), (e) or (f) of the definition of “Excluded Accounts”;

(c)            neither the Borrower nor any Guarantor shall be required to take any actions with respect to the creation, perfection or priority of any Liens on any Collateral (other than Collateral Vessels, as to which this clause (c) does not apply) within or subject to the laws of the United States other than actions relating to (i) the delivery of certificated securities and certain debt instruments (including intercompany promissory notes) having a value that exceeds (x) individually, $5,000,000 or (y) in the aggregate for all Obligors, $10,000,000, (ii) the subordination of intercompany liabilities, (iii) the execution and delivery of, and performance under, the Security Agreement and any Pledge Agreement, any required short-form intellectual property Security Documents, any required Account Control Agreements and any other Security Documents governed by the laws of the U.S. or a political subdivision thereof, but not overriding the conditions in the remainder of this definition, (iv) any required security interest filings in the U.S. Patent and Trademark Office and the U.S. Copyright Office, (v) the filing of UCC-1 financing statements and (vi) other actions reasonably agreed between any Agent and the Borrower;

(d)            no Obligor shall be required to (i) grant or perfect a security interest in any Vessel other than a Collateral Vessel or (ii) take any actions with respect to the creation, perfection or priority of any Liens on any Collateral that are within or subject to the laws of any jurisdiction other than (A) the jurisdiction in which the Obligor is located, the laws of the State of New York, or any Approved Flag Jurisdictions and (B) with respect to each Collateral Vessel, the execution of a Mortgage (or similar Security Document) and registration thereof in the relevant ship registry of the Approved Flag Jurisdiction under which such Collateral Vessel is registered (it being understood that, in connection with a bareboat registration or a temporary re-flagging (or equivalent) of a Collateral Vessel in any Approved Flag Jurisdiction, none of the Obligors or Restricted Subsidiaries shall be required to execute a Mortgage (or similar Security Document) governed by the laws of, or file any additional mortgage registrations in, the Approved Flag Jurisdiction of such bareboat registration or temporary re-flagging (or equivalent) (other than the filing or registration of the existing Mortgage in the vessel or ship registry in the jurisdiction of such bareboat registration, if such action is required by (or advisable and permitted to be made under) the laws of such jurisdiction) so long as the Borrower provides a customary legal opinion of counsel (if and to the extent customarily available from counsel) in the underlying Approved Flag Jurisdiction in a form and substance reasonably acceptable to the Facility Agent opining that, after giving effect to any such bareboat registration or temporary re-flagging (or equivalent), the existing Mortgage on such Collateral Vessel remains a legal, valid and binding obligation in full force and effect, the Lien of which remains, duly perfected under the law of the underlying Approved Flag Jurisdiction in which such Collateral Vessel is registered and remains enforceable according to its terms); provided that, except as set forth in the foregoing subclause (B), or otherwise expressly provided for in these Agreed Security Principles, no Guaranty or Security Documents shall be required to be delivered under the laws of any jurisdiction other than the laws of the State of New York, the laws of a jurisdiction in which an Obligor is incorporated, organized or formed, or any Approved Flag Jurisdictions; provided however, that this clause (d) shall be without force or effect while an Event of Default has occurred and is continuing;

(e)            general statutory limitations, financial assistance, fiduciary duties, corporate benefit, fraudulent preference, illegality, criminal or personal liability, “thin capitalization” rules, “earnings stripping”, “controlled foreign corporation” rules, capital maintenance rules (and, for any relevant jurisdictions, requirements for compliance with the Shari’ah) and analogous principles may restrict a Restricted Subsidiary from providing a Guaranty or granting Liens on its assets or may require that any Guaranty of and/or Liens securing the Secured Obligations be limited to a certain amount. To the extent that any such limitations, rules and/or principles referred to above require that the Guaranty provided and/or the security or other Liens granted by such Restricted Subsidiary be limited in amount or otherwise in order to make the provision of such Guaranty or the grant of such security or other Liens legal, valid, binding or enforceable or to avoid the relevant Restricted Subsidiary from breaching any applicable law or otherwise in order to avoid personal, civil or criminal liability of the officers or directors (or equivalent) of any Obligor, the limit shall be no more than the minimum limit required by those limitations, rules or principles. To the extent the minimum limit can be reduced by actions or omissions on the part of any Obligor, each Obligor shall use commercially reasonable efforts to take such actions or not to take actions (as appropriate) in order to reduce the minimum limit required by those limitations, rules or principles (and, in this respect, shall have regard to any and all representations made by any Agent);

(f)            registration of any Liens created under any Security Document and other legal formalities and perfection steps, if required under applicable law or regulation or where customary or consistent with market practice, will be completed by each Obligor in the relevant jurisdictions required by this Agreement and the Security Documents, subject to these Agreed Security Principles, as soon as reasonably practicable in line with applicable market practice after that security is granted and, in any event, within the time periods specified in the relevant Loan Document or within the time periods specified by applicable law or regulation (to the extent that, if registration is made after the time period specified by applicable law or regulation, such Lien will not be perfected or enforceable), in order to ensure due priority, perfection and enforceability of the Liens on the Collateral required to be created by the relevant Loan Document;

(g)            where there is material incremental cost involved in creating or perfecting liens over all assets of a particular category owned by an Obligor in a particular jurisdiction (other than the United States), such Obligor’s grant of security over, or perfection of a security interest with respect to, as applicable, such category of assets may be limited to the material assets in that category where determined appropriate by the Borrower and any Agent in light of the principles set forth in this definition; provided however that this paragraph (g) shall not apply to Collateral Vessels;

(h)            no Lien granted on motor vehicles and other assets (other than Collateral Vessels) subject to certificates of title shall be required to be perfected (other than to the extent such rights can be perfected by filing a UCC-1 financing statement);

(i)            the Restricted Subsidiaries shall pledge, or cause to be pledged, 100% of the Equity Interests of each Restricted Subsidiary (or 66%, with respect to each Restricted Subsidiary that is a First-Tier Foreign Subsidiary) that is or becomes an Obligor. Each Security Document in respect of security over Equity Interests in any Subsidiary of the Borrower will be governed by the laws of the country (or state thereof) in which such entity is incorporated, organized or formed; provided that each Security Document in respect of Liens on Equity Interests in (x) any U.S. incorporated, organized or formed Obligor will be governed by the laws of the State of New York, or (y) any Guarantor that is not incorporated, organized or formed in a state in the United States of America may be governed by the laws of the State of New York or the laws of the jurisdiction of formation thereof. No Obligor or Restricted Subsidiary shall be required to grant any Lien or take any perfection step in respect of any Equity Interests held in any direct Restricted Subsidiary (other than an Obligor) incorporated, organized or formed outside the United States of America or any entity which is an Excluded Subsidiary, (x) other than the relevant Foreign Subsidiary Share Pledge or (y) unless such security can be granted under a customary composite “all asset” security document under the laws of such jurisdiction of incorporation, organization or formation, it being understood and agreed that absent a Notified Event of Default that is continuing, there shall be no requirement (and no Agent nor any other Creditor shall request) that any local law perfection steps (or Security Documents) with respect to Equity Interests be taken in any jurisdiction (other than the preparation and delivery of local law governed share certificates, customary local law stock transfer powers (or equivalent transfer powers) and any filings with the applicable Governmental Authority in such jurisdiction in line with market practice in respect of pledged Equity Interests in such Restricted Subsidiary);

(j)            information, such as lists of assets, if required by applicable law or market practice to be provided in order to create or perfect any security under a Security Document will be specified in that Security Document and all such information shall be provided by the relevant Obligor at intervals no more frequent than annually (unless it is market practice to provide such information more frequently in order to perfect or protect such security under that Security Document); provided that the frequency of any such delivery of information and materiality thresholds with respect thereto shall be in line with the customary market practice in the applicable jurisdiction or, so long as an Event of Default is continuing, following the Facility Agent’s request;

(k)            unless an Event of Default has occurred and is continuing, no registration of the Liens on intellectual property constituting Collateral shall be required other than in the relevant U.S. federal registries, as applicable;

(l)            no Obligor shall be required to give notice of any Liens on any of its book debts or accounts receivable to the relevant debtors unless (i) a Notified Event of Default has occurred and is continuing or (ii) such notice is required pursuant to the laws of the relevant Approved Flag Jurisdiction to perfect the Security Trustee’s security interest in such book debts or accounts receivable that relate to any Collateral Vessel (for the avoidance of doubt, subject to any other applicable Agreed Security Principle);

(m)            each Obligor shall use commercially reasonable efforts to create and perfect first ranking liens, security interests and floating (all assets) and general business charges (as applicable) over its assets that are required to constitute Collateral, which floating charges and general business charges shall in each case be in the form and to the extent consistent with market practice in the relevant jurisdiction of incorporation, organization or formation of the applicable Obligor; provided that, for the avoidance of doubt, this clause (m) shall not apply to Collateral that is subject to clauses (c) or (d) above;

(n)            the Security Documents shall be limited to those documents agreed among counsel for the Borrower and for the Facility Agent, which documentation shall in each case be (i) in form and substance consistent with the principles set forth in this definition, (ii) customary for the form of Collateral and (iii) as mutually agreed between the Facility Agent and the Borrower;

(o)            no Obligor shall be required to grant or perfect a security interest in intellectual property other than intellectual property registered with the United States Patent and Trademark Office or the United States Copyright Office material to the operations of the Group, taken as a whole; and

(p)            no Lien searches shall be required other than customary searches (i) in the United States, (ii) in any other Approved Flag Jurisdiction, (iii) in any jurisdiction in which an Obligor or a First-Tier Foreign Subsidiary is incorporated or formed or otherwise located for purposes of the New York UCC (as defined in the Security Agreement) (but, in the case of clauses (i) and (ii), only to the extent (A) the concept of “lien” searches exists therein), (B) such requirement would be customary or consistent with market practice in such jurisdiction and (C) such searches can be obtained at commercially reasonable costs) or (iv) with respect to owned Vessels (which shall be customary registry searches).

“Agreement” means this Credit Agreement, as modified, supplemented, amended or restated from time to time.

“Annex VI” means Annex VI to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997) entitled Regulations for the Prevention of Air Pollution from Ships.

“Approved Broker” means Clarksons Valuations Limited, Fearnley Offshore AS, Dufour, Laskay & Strouse, VesselsValue and any other broker reasonably approved by the Facility Agent.

“Approved Flag Jurisdiction” means Bahamas, Brazil, Canada, Cyprus, Gibraltar, Greece, Isle of Man, Liberia, Marshall Islands, Mexico, Norway (either registry), Panama, Singapore, the United States, Vanuatu, or any other jurisdiction acceptable to the Facility Agent (with the consent of the Majority Lenders).

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender; “Fund” as used above means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“Approved Lender List” means that certain approved lender list agreed to by the Borrower and the Mandated Lead Arrangers prior to the date hereof, a copy of which is retained by the Facility Agent, as modified, supplemented, amended or restated from time to time by the Borrower and the Majority Lenders.

“Asset Swap” means any transaction or series of related transactions pursuant to which one or more Obligors or Restricted Subsidiaries shall exchange, with a Person that is not an Affiliate of the Borrower, one or more Related Business Assets owned by them for one or more Related Business Assets owned by such Person; provided that (a) the Acquired Asset Value is greater than or equal to the greater of (i) 90% of the total value of the asset(s) given in exchange by such Obligor or Restricted Subsidiary (which value shall be, (A) in the case of a Vessel, as reflected in the most recent third party appraisal delivered by the Borrower to the Facility Agent as the fair market value of such Vessel, and (B) in the case of any other asset so given in exchange, the fair market value thereof as determined in good faith by the Borrower) and (ii) the Acquired Asset Value that would result in a Collateral Maintenance Ratio of greater than or equal to 2.50 to 1.00 immediately after giving pro forma effect thereto (assuming for such purpose that any such acquired Related Business Assets constitute Collateral to the extent required by Section 9.1(q)) and (b) the assets, including Equity Interests, acquired pursuant to such transaction(s) (or acquired with the Net Cash Proceeds received therefor pursuant to such transaction) will become Collateral to the extent required by Section 9.1(q) (within the applicable time periods thereafter as set forth in Section 9.1(q)).

“Assignment and Assumption Agreement” means any Assignment and Assumption Agreement executed pursuant to Section 10 substantially in the form set out in Exhibit F.

“Availability Period” means the period commencing on the Effective Date and ending on the Final Availability Date.

“Available Commitments” means an amount equal to the total Commitments, minus the Total Utilization of Commitments.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 6.4(d).

“Bail-In Action” means 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” means (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).

“Banking Day(s)” means day(s) on which banks are open for the transaction of business in Oslo, Norway, Houston, Texas, Frankfurt, Germany and New York, New York.

“Benchmark” means, initially, Term SOFR; 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 6.4(a).

“Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Facility Agent for the applicable Benchmark Replacement Date:

(a)            Daily Simple SOFR plus the related Benchmark Replacement Adjustment; or

(b)            the sum of: (i) the alternate benchmark rate that has been selected by the Facility 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” means, 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 Facility 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.

“Benchmark Replacement Date” means a date and time determined by the Facility 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 or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment 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” means 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 or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component 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 or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.

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” means, 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 6.4 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 6.4.

“Benefit Plan” means any “employee benefit plan,” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, which is or within the past six years was sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower or any of its Subsidiaries or, in the case of any such plan subject to ERISA, any ERISA Affiliate, or in respect of which the Borrower or any of its Subsidiaries or, in the case of any such plan subject to ERISA, any ERISA Affiliate could have any liability.

“Bilateral LC Documents” means with respect to any outstanding letter of credit issued for the account of the Borrower or any of its Subsidiaries, which is not a Letter of Credit under this Agreement, such letter of credit, the applicable letter of credit application, the applicable letter of credit agreement or reimbursement agreement, and any other document, agreement, and instrument required by the applicable issuing lender and relating to such letter of credit, in each case in the form agreed to by the applicable issuing lender from time to time and the Borrower or its applicable Subsidiary.

“Binding Commitment” means a contractual obligation of an Obligor to acquire one or more Collateral Vessels or Related Business Assets, or to complete a Permitted Acquisition, during the relevant Designated Reinvestment Period.

“Bookrunners” means Deutsche Bank AG, DNB Markets, Inc. and JPMorgan Chase Bank, N.A., each, in its capacity as bookrunner.

“Cash Collateral Account” means an account held at, and subject to the sole dominion and control of, the Facility Agent.

“Cash Collateralize” means, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance satisfactory to the Facility Agent or an Issuing Bank, as applicable (and “Cash Collateralization” has a corresponding meaning). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” means (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than twelve (12) months from the date of acquisition, (b) time deposits and certificates of deposits maturing within one year from the date of acquisition thereof or repurchase agreements with any Lender or any other financial institution whose short-term unsecured debt rating is A or above as obtained from either S&P or Moody’s, (c) commercial paper or Euro commercial paper with a rating of at least A-1 by S&P or at least P-1 by Moody’s, with maturities of not more than twelve (12) months from the date of acquisition, (d) repurchase obligations entered into with any Lender, or any other Person whose short-term senior unsecured debt rating from S&P is at least A-1 or from Moody’s is at least P-1, which are secured by a fully perfected security interest in any obligation of the type described in clause (a) above and has a market value of the time such repurchase is entered into of not less than 100% of the repurchase obligation of such Lender or such other Person thereunder, (e) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within twelve (12) months from the date of acquisition thereof or providing for the resetting of the interest rate applicable thereto not less often than annually and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s and (f) money market or other investment funds which have at least $1,000,000,000 in assets and which invest primarily in securities of the types described in clauses (a) through (e) above, (g) foreign currencies held from time to time in the ordinary course of business and freely tradeable (subject to ordinary course of business foreign exchange trading constraints impacting the timing of execution of such transactions) on customary foreign exchange markets, and (h) short term investments made or maintained outside the United States (i) of the general type described herein above which have reasonably equivalent credit ratings from comparable foreign ratings agencies, (ii) in bank deposits, at one of the five largest banks in the country in which such deposit is made, or at any local affiliate of Citibank NA, JPMorgan Chase Bank, NA, DNB Bank ASA or Hong Kong & Shanghai Banking Corporation Ltd., or (iii) substantially similar to those described in clauses (a) through (f) above (including, for the avoidance of doubt, government issued treasury obligations and other applicable in country equivalents to such clauses) which are otherwise customarily utilized by or for the benefit of Foreign Subsidiaries in accordance with prudent investment practices (having the principal goal of preservation of capital) in the applicable foreign jurisdiction in which such Foreign Subsidiary is doing business or managing cash.

“Cash Interest Expense” means, with respect to any Relevant Period, an amount equal to the interest expense (including Commitment Fees) of the Borrower and its Restricted Subsidiaries paid in cash during such Relevant Period, calculated on a consolidated basis for such period, in each case, after giving effect to any net payments, if any, made or received during such Relevant Period by the Borrower and its Restricted Subsidiaries with respect to Swap Agreements.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, 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) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder 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.

“Change of Control” means the occurrence of any event or series of events by which any “person” or related persons constituting a “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules 13(d)(3) and 13(d)(5) under the Exchange Act), directly or indirectly, of more than 50% of the total voting power or Equity Interests (or securities convertible into Equity Interests) of the Borrower.

“Classification Society” means, with respect to any vessel, a member of the International Association of Classification Societies with whom such Collateral Vessel is entered and who conducts periodic physical surveys and/or inspections of such Collateral Vessel.

“Closing Date Collateral Vessels” means the Vessels listed on Schedule 1.1(c).

“Collateral” means all property or other assets, real or personal, tangible or intangible, whether now owned or hereafter acquired in which the Secured Creditors have been or were intended pursuant to the terms hereof to have been granted a security interest pursuant to a Security Document. For the avoidance of doubt, “Collateral” shall in no event include any Excluded Property.

“Collateral Maintenance Ratio” means the ratio of (i) the aggregate Fair Market Value of the Collateral Vessels as of the latest valuations provided by the Borrower pursuant to Section 9.1(e) (provided that if the Borrower has, since the last appraisal delivery date made capital expenditures in respect of certain Collateral Vessels, the Borrower can, at its option, deliver updated valuations for such Collateral Vessels), divided by (ii) the total amount of the Commitments then in effect.

“Collateral Vessel Owners” means (a) on the Effective Date, the entities identified as such on Schedule 1.1(b) under the heading “Collateral Vessel Owners” and (b) from and after the Effective Date, each Obligor of the Borrower that then owns a Collateral Vessel.

“Collateral Vessels” means (a) on the Effective Date, Closing Date Collateral Vessels and the Reflag Collateral Vessels, and (b) otherwise from and after the Effective Date, each Vessel owned or acquired by an Obligor that is subject to, or at such Obligor’s election, in accordance with the provisions of this Agreement, required to be subject to, a Mortgage, pursuant to Section 9.1(q), in each case other than (i) any Excluded Vessel, or (ii) any vessel that ceases to be a Collateral Vessel as a result of a Disposal or designation of an Obligor as an Unrestricted Subsidiary expressly permitted by this Agreement.

“Commitment” means the commitment of a Lender to make or otherwise fund any Advance and to acquire participations in Letters of Credit hereunder and “Commitments” means such commitments of all Lenders in aggregate. The amount of each Lender’s Commitment, if any, is set forth opposite its name in Schedule 1.1(a), as such amount may from time to time be increased pursuant to Section 3.9, or, as the case may be, in any relevant Assignment and Assumption Agreement. The aggregate amount of the Commitments as of the Effective Date is Two Hundred Fifty Million Dollars ($250,000,000).

“Commodities Account” has the meaning given to such term in the Security Agreement.

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

“Compliance Certificate” means a certificate certifying the compliance with the Financial Covenants contained herein and showing the calculations thereof in reasonable detail, delivered by the Borrower to the Facility Agent from time to time pursuant to Section 9.1(a) in the form set out in Exhibit B-1 or in such other form agreed between the Facility Agent and the Borrower.

“Conforming Changes” means, with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Banking Day,” the definition of “U.S. Government Securities Banking 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 6.4 and other technical, administrative or operational matters) that the Facility 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 Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Facility Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Facility Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

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

“Consolidated Cash” means, on a consolidated basis at any time, the sum of (a) cash and (b) Cash Equivalents, in each case, on the then most recent consolidated balance sheet delivered by the Borrower pursuant to Section 9.1(a), held by the Borrower and its Restricted Subsidiaries, which is not Restricted.

“Consolidated Cash Group” means the Obligors and Restricted Subsidiaries, excluding any Restricted Subsidiary that is a West Africa Subsidiary.

“Consolidated EBITDA” means, for any Relevant Period, for the Borrower and its Restricted Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income:

(i)            any interest expense as determined in accordance with GAAP;

(ii)           any non-cash charges relating to any premium or penalty paid, write off of deferred finance costs or other charges in connection with redeeming or retiring any Financial Indebtedness prior to its stated maturity;

(iii)          the provision for direct and indirect Federal, state, local and foreign income tax expense of the Borrower or any Restricted Subsidiary thereof (including, for the avoidance of doubt, withholding tax expense on any bareboat charter);

(iv)          depreciation and amortization expense (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and non-cash equity based compensation expense (or any revaluation of compensation paid in equity), including expensing of stock options and other equity compensation grants;

(v)           non-cash losses realized on the disposition of property of the Borrower and any Restricted Subsidiaries;

(vi)          unrealized losses resulting from mark to market accounting for hedging activities and related derivatives (if any), including, without limitation those resulting from the application of FASB ASC 815;

(vii)         unrealized non-cash losses resulting from foreign currency balance sheet adjustments required by GAAP;

(viii)        impairment and other non-cash items other than write downs of current assets of the Borrower or any Restricted Subsidiary for such period;

(ix)          other extraordinary, unusual or non-recurring expenses of the Borrower or any Restricted Subsidiary thereof reducing such Consolidated Net Income, but limited to, together with the add-back described in paragraph (xii) below, 5% of Consolidated EBITDA in such Relevant Period;

(x)            any fees, costs and expenses incurred in connection with the negotiation and execution and/or modification or refinancing of Financial Indebtedness (including the Facility and the 2025 Senior Notes) and any rating agency fees incurred in connection therewith;

(xi)           fees, expenses, or restructuring charges (including, without limitation, professional fees, severance costs, retention bonuses and management and operational transition fees and expenses), related to a (i) reduction in force or (ii) acquisition or a disposition, whether effected by merger, consolidation, asset sale, share acquisition or otherwise (including, for the avoidance of doubt, any disposition, or acquisition from a Person that is not a manufacturer thereof, of one or more Vessels in a single transaction or series of related transactions); and

(xii)          integration costs and expenses related to the acquisition or a disposition, whether effected by merger, consolidation, asset sale, share acquisition or otherwise (including, for the avoidance of doubt, any disposition, or acquisition from a Person that is not a manufacturer thereof, of one or more Vessels in a single transaction or series of related transactions), but limited to, together with the add-back described in paragraph (ix) above, 5% of Consolidated EBITDA in such Relevant Period on a pro forma basis;

(i)            any interest income as determined in accordance with GAAP;

(ii)           any reversal of any depreciation and amortization expense (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and any write-up of any asset of the Obligors or any Restricted Subsidiary that was previously written down;

(iii)          Federal, state, local and foreign income tax credits;

(iv)          all non-cash gains added to Consolidated Net Income;

(v)           unrealized gains resulting from mark to market accounting for hedging activities, including, without limitation, those resulting from the application of FASB ASC 815;

(vi)          reversal of any impairment (other than in connection with write downs of current assets of the Borrower or any Restricted Subsidiaries) for such period; and

(vii)         other extraordinary, unusual or non-recurring income of the Borrower or any Restricted Subsidiary thereof increasing such Consolidated Net Income, provided such amounts increasing Consolidated Net Income shall not be deducted until such amounts exceed 5% of Consolidated EBITDA in such Relevant Period;

“Consolidated Net Income” means, for any period, for the Borrower and its Restricted Subsidiaries on a consolidated basis, net income (excluding extraordinary items), all as determined in accordance with GAAP, provided that:

(i)            net income shall be calculated without giving effect to the cumulative effect of a change in accounting principle;

(ii)           net income of any Person that is accounted for by the equity method of accounting will be included, but only to the extent of the amount of Distributions paid in cash during the calculation period to the Borrower or any Restricted Subsidiary thereof; and

(iii)          net losses of any Person that is accounted for by the equity method of accounting will be included, but only to the extent of the value of any contributions to capital (in cash or in the form of other assets) made to such Person by the Borrower or a Restricted Subsidiary thereof;

“Control” means, when used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Creditors” means the Facility Agent, the Security Trustee, the Issuing Banks and the Lenders.

“DACA” means, with respect to any Account, an agreement, in form and substance reasonably satisfactory to the Security Trustee, establishing Control (as defined in the Security Agreement) of such Account, by the Security Trustee (it being understood and agreed that, unless an Event of Default has occurred and is continuing and notice has been delivered by an Agent under such agreement, no Agent shall exercise dominion or control over any Account subject to such agreement or issue any instructions with respect thereto or any cash or other assets on deposit in or held in any such Account). For the avoidance of doubt, no DACA shall be required with respect to any Excluded Account.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Facility 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 Facility Agent decides that any such convention is not administratively feasible for the Facility Agent, then the Facility 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.

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means any event that would, with the giving of notice or passage of time, or both, constitute an Event of Default.

“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or part of its portion of an Advance within two (2) Banking Days of the date such Advance was required to be funded hereunder unless such Lender notifies the Facility Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Facility Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Banking Days of the date when due, (b) has notified the Borrower or the Facility Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund its portion of an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Banking Days after written request by the Facility Agent or the Borrower to confirm in writing to the Facility Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Facility Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation, or any other state or federal regulatory authority acting in such a capacity. Notwithstanding anything herein to the contrary, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Facility Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error;

“Deposit Account” has the meaning given to such term in the Security Agreement.

“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or one of its Restricted Subsidiaries in connection with a Disposal that is so designated as “Designated Non-Cash Consideration” pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by a Responsible Officer of the Borrower, less the amount of cash and Cash Equivalents received in connection with a sale or collection of such “Designated Non-Cash Consideration.”

“Designated Reinvestment Period” means such period beginning on the date that an Obligor receives the Net Cash Proceeds of a Total Loss of a Collateral Vessel pursuant to Section 9.6 and ending on the date falling 360 days thereafter, which period shall be extended to the date falling 540 days after receipt of such Net Cash Proceeds if a Binding Commitment has been executed within the first 360 day period.

“Disposal” means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, and “Dispose” shall have a corresponding meaning.

“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Equity Interest), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in whole or in part, on or prior to the date that is ninety-one (91) days after the Maturity Date; provided that only the portion of Equity Interest which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests; provided, further, 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 Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Equity Interest of such Person that by its terms authorizes such Person, at such Person’s sole option, to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Equity Interests shall not be deemed to be Disqualified Equity Interests. Notwithstanding the preceding sentence, any Equity Interests that would constitute Disqualified Equity Interests solely because the holders of the Equity Interests have the right to require the Borrower to repurchase or redeem such Equity Interests upon the occurrence of a change of control or an asset sale will not constitute Disqualified Equity Interests if the terms of such Equity Interests provide that the Borrower may not repurchase or redeem any such Equity Interests pursuant to such provisions prior to the occurrence of termination of the Commitments and repayment of the Obligations in full.

“Distributable Free Cash Flow” means, as of any date of determination, an amount equal to (a) the sum of, without duplication, the Free Cash Flow of each Relevant Period starting with the Relevant Period in which the Effective Date occurs to the Relevant Period most recently ended on or prior to such date of determination minus (b) the aggregate amount of the Free Cash Flow Utilizations that have occurred during the period beginning on the first day of the Relevant Period in which the Effective Date occurs and ending on such date of determination. For the avoidance of doubt, any amount deducted in calculating Distributable Free Cash Flow as of any date of determination shall be without duplication of amounts deducted in calculating Free Cash Flow for purposes of such calculation of Distributable Free Cash Flow.

“Distribution” means, in respect of the relevant entity (a) any making or payment of any dividend or other distribution on or in respect of any of its Equity Interests, and (b) any redemption, repurchase, defeasance, retirement or repayment of its share capital or Equity Interests.

“DOC” means a document of compliance issued to a Collateral Vessel’s manager in accordance with rule 13 of the ISM Code.

(a)            with respect to any Advance denominated in Dollars, the principal amount thereof then outstanding (or in which such participation is held);

(b)            with respect to any Letter of Credit Obligation (or any risk participation therein) denominated in Dollars, the amount thereof; and

(c)            with respect to any other amount (i) if denominated in Dollars, the amount thereof and (ii) if denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Facility Agent or the applicable Issuing Bank, as applicable, on the basis of the Exchange Rate (determined in respect of the most recent relevant date of determination) for the purchase of Dollars with such currency;

“Dollars” and the sign “$” means the legal currency, at any relevant time hereunder, of the United States of America and, in relation to all payments hereunder, in same day funds settled through the New York Clearing House Interbank Payments System (or such other Dollar funds as may be determined by the Facility Agent to be customary for the settlement in New York City of banking transactions of the type herein involved).

“Drawdown Date” means the date, being a Banking Day, upon which the Borrower has requested that an Advance be made available to the Borrower, and such Advance is made available, as provided in Section 3; provided, however, that no Drawdown Date shall occur after the Final Availability Date.

“Earnings” means, in relation to a Collateral Vessel, all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Collateral Vessel Owner or the Security Trustee and which arise out of the use or operation of that Collateral Vessel, including (but not limited to): (i) all moneys and claims for moneys due and to become due thereto, whether as charter hire, freights, passage moneys, proceeds of off-hire and loss of hire insurances, indemnities, payments or otherwise, under, and all claims for damages arising out of any breach of, any bareboat, time or voyage charter, contract of affreightment or other contract for the use or employment of that Collateral Vessel, (ii) all remuneration for salvage and towage services, demurrage and detention moneys and any other moneys whatsoever due or to become due to the Collateral Vessel Owner arising from the use or employment of that Collateral Vessel, (iii) all moneys and claims for moneys due and to become due to the Collateral Vessel Owner, and all claims for damages and any other compensation payable, in respect of the actual or constructive total loss of or the requisition for title or for hire or other compulsory acquisition of that Collateral Vessel; but, notwithstanding the foregoing, “Earnings” shall not include without duplication, (i) any proceeds of Permitted Indebtedness received by any Collateral Vessel Owner and (ii) equity contributions made to such Collateral Vessel Owner.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that 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” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Assignee” means any Person to which an assignment is permitted pursuant to Section 10.1.

“Environmental Affiliate(s)” means any Person, the liability of which for Environmental Claims any of the Obligors or a Subsidiary of any of the Obligors may have assumed by contract or operation of law.

“Environmental Approval(s)” shall have the meaning ascribed thereto in Section 2.1(q).

“Environmental Claim(s)” shall have the meaning ascribed thereto in Section 2.1(q).

“Environmental Law(s)” shall have the meaning ascribed thereto in Section 2.1(q).

“Equity Interest” means shares of capital stock (including, without limitation, shares in a Cayman Islands exempted company), partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest; provided, however, that, for the avoidance of doubt, any Financial Indebtedness of the Borrower which by its terms may be converted into Equity Interests of the Borrower shall not constitute an “Equity Interest” prior to the consummation of such conversion.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute and any regulation promulgated thereunder.

“ERISA Affiliate” means a trade or business (whether or not incorporated) that, together with any Obligor or any of their Subsidiaries, would be deemed a single employer under Section 414 of the Code or a member of a “controlled group” under Section 4001 of ERISA.

“ERISA Funding Event” means (i) any failure by any Plan to satisfy the minimum funding standards (for purposes of Section 412 of the Code or Section 302 of ERISA), whether or not waived; (ii) the filing pursuant to Section 412 of the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (iii) the failure by the Borrower or any of its Subsidiaries or any ERISA Affiliate to make any required contribution to a Multiemployer Plan; (iv) a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430(i) of the Code); (v) the incurrence by the Borrower or any of its Subsidiaries or any ERISA Affiliate of, or the receipt by the Borrower or any of its Subsidiaries or any ERISA Affiliate of any notice, or the receipt by any Plan or Multiemployer Plan from the Borrower or any of its Subsidiaries or any ERISA Affiliate of any notice, concerning the imposition of, any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vi) a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Section 4245 of ERISA, or in endangered status within the meaning of Section 432 of the Code or Section 305 of ERISA.

“ERISA Termination Event” means (i) a “reportable event”, as such term is defined in Section 4043 of ERISA (other than a “reportable event” for which the 30-day notice requirement to the PBGC has been waived) with respect to any Plan or Multiemployer Plan, (ii) the imposition of any lien under Section 430(k) of the Code or any other lien in favor of the PBGC or any Plan or Multiemployer Plan on any asset of the Borrower or any of its Subsidiaries or any ERISA Affiliate; (iii) the receipt by the Borrower or any of its Subsidiaries or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan or Multiemployer Plan under Section 4042 of ERISA; (iv) the receipt by the Borrower or any of its Subsidiaries or any ERISA Affiliate of any notice that a Multiemployer Plan is in critical status within the meaning of Section 432 of the Code or Section 305 of ERISA; (v) the filing of a notice of intent to terminate a Plan under Section 4041 of ERISA or the termination or the treatment of a Multiemployer Plan amendment as a termination under Section 4041A of ERISA; (vi) the incurrence by the Borrower or any of its Subsidiaries or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; or (vii) the occurrence of any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan.

“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor Person) from time to time.

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.

“Exchange Rate” means, on any date with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 a.m., London time, on such date on the applicable Bloomberg page for such currency. In the event that such rate does not appear on any Bloomberg page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying the exchange rates as may be reasonably selected by the Facility Agent and applied to similarly situated borrowers (if any), or, in the event no such service is selected, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Facility Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of the relevant currency for delivery two Banking Days later; provided that, if at the time of any such determination, for any reason no such spot rate is being quoted, the Facility Agent, after consultation with the Borrower, may use any reasonable method that it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

“Excluded Account” means: (a) Accounts and other bank accounts specially and exclusively used in the ordinary course of business for payroll, payroll taxes and other employee wage and benefit payments (or the equivalent thereof in non-U.S. jurisdictions) to or for the benefit of any employees of the Borrower or any Restricted Subsidiary; (b) Accounts and other bank accounts constituting pension fund accounts, 401(k) accounts and trust accounts (or the equivalent thereof in non-U.S. jurisdictions); (c) Accounts and other bank accounts (i) exclusively used for withholding tax and other tax accounts (including sales tax accounts) or (ii) that are fiduciary accounts, escrow accounts, or trust accounts (or the equivalent thereof in any non-U.S. jurisdiction), or other accounts which solely contain deposits made for the benefit of, or otherwise holds funds on behalf of, another Person (other than the Borrower or any Restricted Subsidiary); (d) Accounts and other bank accounts that are zero balance accounts; (e) petty cash and similar local accounts; (f) any other Accounts and other bank accounts of the Obligors having an average monthly account balance, in the aggregate for such all accounts of the Obligors referred to in this clause (f), not exceeding, (i) for all such accounts that are U.S. accounts, $3,000,000 and (ii) for all such accounts that are non-U.S. accounts, $7,000,000; and (g) any non-U.S. account as to which the Facility Agent and the Borrower reasonably agree in writing that the cost of obtaining or perfecting a security interest therein is excessive in relation to the practical benefit to the Secured Creditors afforded thereby.

(a)            (i) any fee owned real property, in the aggregate, with a fair market value of less than $50,000,000, (ii) any real property leasehold rights and interests (it being understood there shall be no requirement to obtain any landlord or other third party waivers, estoppels or collateral access letters) and (iii) any fixtures affixed to any real property, except to the extent perfected by the filing of an “all assets” UCC-1 financing statement in the applicable Obligor’s jurisdiction of organization or formation;

(b)            any Commercial Tort Claim (as defined in the Security Agreement), except for any Commercial Tort Claim held by an Obligor with respect to which a complaint has been filed in a court of competent jurisdiction asserting damages (individually for any such Commercial Tort Claim) in excess of $5,000,000 for each such claims in the United States (but for each such claim in excess of $5,000,000 outside of the United States, only to the extent the concept of commercial tort claims exists under applicable local law and such local law includes procedures for perfecting against a commercial tort claim);

(c)            Letter-of-Credit Rights (as defined in the Security Agreement) (other than to the extent consisting of supporting obligations that can be perfected solely by the filing of a UCC-1 financing statement (it being understood that no actions shall be required to perfect a security interest in Letter-of-Credit Rights other than the filing of a UCC-1 financing statement));

(d)            any assets (other than any Collateral Vessel and assets and proceeds related thereto) to the extent the grant of a Lien on such assets is prohibited or restricted by applicable law, rule or regulation (including as a result of any requirement to obtain the consent, approval, license or authorization of any Governmental Authority unless such consent has been obtained (and it being understood and agreed that no Group Company shall have any obligation to procure any such consent, approval, license or authorization)) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code;

(e)            (i) Margin Stock and (ii) minority interests or Equity Interests in joint ventures and non-wholly-owned Subsidiaries, in any such case of this subclause (ii), to the extent the grant of a Lien on such interest would require a consent, approval, license or authorization from any Governmental Authority or any other Person (other than an Obligor or Restricted Subsidiary);

(f)            (i) any Obligor’s right, title or interest in any lease, charter, license, contract, or agreement to which such Obligor is a party or any of its right, title or interest thereunder and (ii) any property subject to a Lien securing Financial Indebtedness incurred pursuant to clause (i) of the definition of “Permitted Indebtedness” or any other permitted purchase money Lien, Finance Lease Obligation or similar arrangement, in each case to the extent, but only to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, charter, license, contract, or agreement or purchase money or similar arrangement (including as a result of any requirement to obtain the consent, approval, license or authorization of any third party unless such consent has been obtained (and it being understood and agreed that no Obligor shall have any obligation to procure any such consent, approval, license or authorization)) or create a right of termination in favor of any other party thereto (other than the Borrower or a Restricted Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition;

(g)            any assets (other than any Collateral Vessel and assets and proceeds related thereto) to the extent the grant of a security interest in such assets would reasonably be expected to result in material adverse Tax consequences to the Borrower or any Restricted Subsidiary as reasonably determined by the Borrower in good faith (with written notice to the Facility Agent);

(h)            any United States trademark or service mark application filed on the basis of an Obligor’s “intent-to-use” such trademark or service mark pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, et seq., unless and until evidence of use of such trademark or service mark has been filed with, and accepted by, the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the Lanham Act (15 U.S.C. §1051, et seq.), in each case, to the extent (and solely during the period in which) the inclusion in the Collateral of, or granting a security interest in, any such application prior to such filing would impair the enforceability or validity, or invalidate, any such application or any resulting registration;

(i)            any assets as to which any Agent and the Creditors shall reasonably agree in writing that the cost of obtaining a security interest therein is excessive in relation to the practical benefit to the Secured Creditors afforded thereby;

(j)            any after-acquired property (including property acquired through acquisition or merger of another entity) if at the time such acquisition is consummated the granting of a security interest therein or the pledge thereof is prohibited by any enforceable contract or other agreement (in each case, binding on the assets at the time of such consummation and not created or entered into in contemplation thereof), solely to the extent and for so long as such contract or other agreement (or a permitted refinancing or replacement thereof) prohibits such security interest or pledge;

(k)            the Equity Interests of Unrestricted Subsidiaries;

(m)            the Excluded Accounts and all funds and other property held in or maintained in any Excluded Account; and

(n)            any other asset that is otherwise excluded from the requirement to become Collateral pursuant to the Agreed Security Principles.

(a)            any Subsidiary (including a Subsidiary acquired with pre-existing Financial Indebtedness (to the extent not created in contemplation of such acquisition)) with respect to which the provision of a Guaranty of the Obligations by such Subsidiary: (i) would be prohibited or restricted by any Governmental Authority with authority over such Subsidiary, applicable law or regulation or analogous restriction or contract (including (1) any requirement to obtain the consent, approval, license or authorization of any Governmental Authority or third party, unless such consent, approval, license or authorization has been received and (2) any restriction or requirement contained in any organizational documents to comply with local jurisdictional requirements or customs (subject to inclusion of any local law-required limitations and such other changes as any Agent may reasonably agree), but excluding any other restriction in any organizational documents of such Subsidiary for purposes of this clause (a)(i)) so long as (x) in the case of Subsidiaries of any Borrower existing on the Effective Date, such contractual obligation is in existence on the Effective Date and (y) in the case of Subsidiaries of the Borrower acquired (or formed) after the Effective Date, such contractual obligation is in existence at the time of such acquisition or formation and was not created or entered into in contemplation thereof; (ii) would result in material adverse tax consequences as reasonably determined by the Borrower; or (iii) would result in a risk to the officers or directors (or equivalent) of such Subsidiary of personal, civil or criminal liability;

(b)            (i) any non-wholly owned Subsidiary, provided that no Restricted Subsidiary that is wholly owned and a Guarantor as of the Effective Date shall be or be deemed to be an “Excluded Subsidiary” pursuant to this clause (b)(i) solely because a portion (but not all) of the Equity Interests in such Subsidiary are sold or otherwise transferred to any Person that is not a an Obligor, and, notwithstanding such sale or other transfer of a portion (but not all) of the Equity Interests in such Subsidiary, such Subsidiary shall remain a Guarantor to the extent it does not otherwise constitute an Excluded Subsidiary); (ii) any Unrestricted Subsidiary; and (iii) any Immaterial Subsidiary;

(c)            any Subsidiary to the extent that the burden or cost of providing a Guaranty of the Obligations outweighs the benefit afforded thereby as reasonably determined by the Borrower and any Agent;

(d)            any Subsidiary which is incorporated or organized in a jurisdiction outside the United States, unless such Subsidiary owns a Collateral Vessel;

(e)            any Subsidiary that is otherwise excluded from the requirement to provide a Guaranty of the Obligations pursuant to the Agreed Security Principles; and

(f)            TDW International Vessels (Unrestricted) II, LLC, a Delaware limited liability company, and each of its Subsidiaries.

“Excluded Swap Obligations” means, with respect to any Guarantor, (a) as it relates to all or a portion of any Guaranty of such Guarantor, any Specified Swap Agreement Obligation if, and to the extent that, such Specified Swap Agreement Obligation (or any Guaranty in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor becomes effective with respect to such Specified Swap Agreement Obligation or (b) as it relates to all or a portion of the grant by such Guarantor of a Lien, any Specified Swap Agreement Obligation if, and to the extent that, such Specified Swap Agreement Obligation (or such Lien in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Lien of such Guarantor becomes effective with respect to such Specified Swap Agreement Obligation. If a Specified Swap Agreement Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Agreement Obligation that is attributable to swaps for which such Guaranty or Lien is or becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Creditor or required to be withheld or deducted from a payment to a Creditor, (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 Creditor being organized under the Laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in such Advance or Commitment or (ii) such Lender changes its lending office, (c) Taxes attributable to such Creditor’s failure to comply with Section 7.1(c) and (d) any withholding Taxes imposed under FATCA.

“Excluded Vessels” means Vessels which are flagged, whether as a primary flag jurisdiction or a bareboat flag jurisdiction, in Mexico or Brazil, or which are being considered by the Borrower for tenders in Mexico or Brazil; provided that any such Vessel, may, at the Borrower’s option no longer be designated as an “Excluded Vessel” for purposes of this Agreement.

“Facility” means the Commitments, the Advances, and the Letters of Credit, as the context may require.

“Fair Market Value” means, with respect to a Collateral Vessel, the fair market value of such Collateral Vessel determined as follows:

(a)            the valuation of such Vessel obtained from an Approved Broker selected by the Borrower, made on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing seller and willing buyer, on an “as is where is” basis, free of any existing charters or other contracts for employment. For the avoidance of doubt, such valuation may be a “desk appraisal”;

(b)            at the expense of the Borrower except as otherwise set forth in Section 9.1(e); and

(c)            as at a date not more than thirty (30) days prior to the as-of date of such appraisal required to be delivered pursuant to Section 9.1(e), provided, that in the case of a Total Loss where such a valuation is not available, the valuation of such Collateral Vessel shall be based on the most recent available valuation;

“FASB ASC 815” means Financial Accounting Standards Board Accounting Standards Codification Topic 815, Derivatives and Hedging.

“FASB ASC 842” means Financial Accounting Standards Board Accounting Standards Codification Topic 842, Leases.

“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the Code and (c) any applicable treaty, Law, regulation or other official guidance enacted in any other jurisdiction, or relating to an applicable intergovernmental agreement between the U.S. and any other jurisdiction which (in either case) facilitates the implementation of the preceding clauses (a) and (b).

“Federal Funds Rate” means, for any day, the greater of (a) the rate calculated by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Banking Day by the Federal Reserve Bank of New York as the Federal funds effective rate and (b) the Floor.

“Fee Letter” means any letter or letters between any of the Secured Creditors (or any of its Affiliates) and any Obligor setting out any of the fees payable by such Obligor in connection with the Facility contemplated by this Agreement.

“Final Availability Date” means the date that is one (1) month prior to the Maturity Date.

“Finance Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a finance lease that would at such time be required to be recorded on the balance sheet as a liability in accordance with GAAP, provided that amounts required to be recorded as liabilities, with respect to operating leases on the balance sheet in accordance with FASB ASC 842 shall not constitute “Finance Lease Obligations”.

“Financial Covenants” means the financial covenants set forth in Section 9.3.

“Financial Indebtedness” means, for any Person, the following obligations of such Person, without duplication, for:

(a)            moneys borrowed and debit balances at banks or other financial institutions;

(b)            any amount raised by acceptance under any acceptance credit facility or dematerialized equivalent;

(c)            any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(e)            receivables sold or discounted (other than any receivables to the extent they are disposed of in a true sale provided that the requirements for true sale treatment under GAAP are met);

(f)            any derivative transaction entered into and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount shall be taken into account) after giving effect to any netting arrangements;

(g)            all obligations of such Person arising, whether absolute or contingent, out of drawn letters of credit issued for such Person’s account or pursuant to such Person’s application securing Financial Indebtedness;

(h)            any amount raised by the issue of redeemable Equity Interests which are redeemable (other than at the option of the Borrower or if required upon the occurrence of a change of control or an asset sale) before the Maturity Date or are otherwise classified as borrowings under GAAP;

(i)            any amount of any liability under an advance or deferred purchase agreement, if (a) the primary reason behind entering into the agreement is to raise finance and such agreement does not pertain to ordinary course of business trade payables due within less than 180 days after the date of supply, or (b) the agreement is in respect of the supply of assets or services and payment is due more than 180 calendar days after the date of supply and, in each case, excluding amounts which are being contested in good faith and for which reserves in conformity with GAAP have been provided; and

(j)            without double counting, the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (i);

provided that the definition of “Financial Indebtedness” shall not include (i) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty, indemnity or other unperformed obligations of the seller of such asset, (ii) customary cash pooling and cash management practices and other intercompany indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extension of terms) incurred in the ordinary course of business; (iii) trade payables and accrued expenses arising in the ordinary course of business, deferred taxes, obligations assumed or liabilities incurred under vessel time charters or other forms of service agreement in the ordinary course of business (e.g., bid bonds, performance guaranties, and pre-paid hire under vessel time charters or similar contracts which have not yet been earned), or obligations in respect of Equity Interests that do not constitute Disqualified Equity Interests; (iv) liabilities resulting from endorsements of instruments for collection in the ordinary course of business; (v) any indebtedness with respect to which cash or Cash Equivalents in an amount sufficient to repay in full the principal and accrued interest on such indebtedness has been escrowed with the trustee or other depository for the benefit of the note holders in respect of such indebtedness but only to the extent the foregoing constitutes a complete defeasance of such indebtedness pursuant to the applicable agreement governing such indebtedness; (vi) liabilities resulting from warrants issued as a portion of the purchase price of an acquisition; and (vii) any lease obligations which are not Finance Lease Obligations. For purposes of this Agreement and the Loan Documents, the Financial Indebtedness of any Person shall include the Financial Indebtedness of any partnership or joint venture to the extent such Financial Indebtedness is recourse to such Person.

“Financial Officer” means, for any Person, the chief financial officer, principal accounting officer, treasurer or controller of such Person or any other officer or director of such Person who is primarily responsible for matters relating to such Person’s financial affairs. Unless otherwise specified, all references herein to a Financial Officer means a Financial Officer of the Borrower.

“First-Tier Foreign Subsidiary” means those Subsidiaries of the Borrower listed in Schedule 1.1(e) hereto, and any other Foreign Subsidiary with respect to which the Borrower or any other Obligor owns or controls more than 50% of such Foreign Subsidiary’s issued and outstanding Equity Interests;

“Foreign Plan” means an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is excluded from coverage under ERISA by Section 4(b)(4) thereof and is maintained or contributed to by the Borrower, any Guarantor or any of their Subsidiaries or for which the Borrower, any Guarantor or any of their Subsidiaries has any liability.

“Foreign Subsidiary” means a Subsidiary of the Borrower (direct or indirect) formed under the laws of a jurisdiction other than a state in the United States of America or the District of Columbia.

“Foreign Subsidiary Share Pledge” means a first priority share pledge or charge by the relevant Obligor of 66% of the shares of any First-Tier Foreign Subsidiary, in a form agreed between the Security Trustee and the Borrower.

“Foreign Termination Event” means the occurrence of an event with respect to the funding or maintenance of a Foreign Plan, that could reasonably be expected to result in an impairment of the Collateral.

“Foreign Underfunding” means the excess, if any, of the accrued benefit obligations of a Foreign Plan (based on those assumptions used to fund that Foreign Plan or, if that Foreign Plan is unfunded, based on those assumptions used for financial accounting statement purposes or, if accrued benefit obligations are not calculated for financial accounting purposes, based on such reasonable assumptions as may be approved by the Borrower’s independent auditors for these purposes) over the assets of such Foreign Plan.

“Free Cash Flow” means, as of the last day of any Relevant Period, an amount equal to:

(a)            Consolidated EBITDA for such Relevant Period (and will include, to the extent not already included in Consolidated EBITDA, Net Cash Proceeds that are not required to be applied to any mandatory prepayments of the Advances during the Relevant Period but shall be reduced by such Net Cash Proceeds if such amounts are later required to be prepaid pursuant to the mandatory prepayment provisions herein); minus

(b)            the sum, in each case without duplication, of the following amounts paid during such Relevant Period: (i) voluntary and scheduled cash prepayments and repayments of Financial Indebtedness (other than the Facility) which cannot be reborrowed pursuant to the terms of such Financial Indebtedness; provided that any voluntary cash prepayment of Financial Indebtedness shall not reduce Free Cash Flow pursuant to this clause (b)(i) for the applicable period to the extent that the Total Net Leverage Ratio after giving effect to such prepayment and any other borrowings of the Facility during such Relevant Period does not exceed the Total Net Leverage Ratio immediately prior to such prepayment; (ii) unfinanced capital expenditures (other than maintenance capital expenditures) paid in cash; (iii) maintenance capital expenditures paid in cash; (iv) Cash Interest Expense; (v) taxes paid in cash; (vi) (A) unfinanced Permitted Investments made in cash (other than to any Obligor or Restricted Subsidiary thereof, including any entity that becomes a Restricted Subsidiary (or any Person not previously a Restricted Subsidiary that is merged, consolidated or amalgamated with or into an Obligor or a Restricted Subsidiary) substantially contemporaneously with such Permitted Investment) during such Relevant Period (other than those made in reliance on clause (b) of the definition of “Permitted Investment”) and (B) Restricted Payments made in cash (other than to any Obligor or Restricted Subsidiary thereof) during such period (other than those made in reliance on Section 9.2(c)(i)(J)) and (vii) to the extent not included in the foregoing and added back in the calculation of Consolidated EBITDA, any other cash charge that reduces the earnings of the Borrower and its Restricted Subsidiaries; plus

(c)            the sum, in each case without duplication, of any non-cash amounts that were deducted from or otherwise served to decrease Consolidated EBITDA for such Relevant Period; minus

(d)            the sum, in each case without duplication, any non-cash amounts that were added to or otherwise served to increase Consolidated EBITDA for such Relevant Period;

“Free Cash Flow Utilizations” means, for any period, the aggregate amount of each of the following transactions during such period: (a) Restricted Payments made pursuant to Section 9.2(c)(i)(J); (b) Redemptions of Junior Indebtedness made pursuant to 9.2(c)(ii)(E); and (c) Permitted Investments made pursuant to clause (b) of the definition of “Permitted Investment”.

“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the Issuing Banks, such Defaulting Lender’s Pro Rata Share of the outstanding Letters of Credit Obligations other than such obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof (or as to which other arrangements reasonably satisfactory to the applicable Issuing Bank have been made).

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

“Group” or “Group Company(ies)” means the Borrower and its Subsidiaries from time to time.

“Guaranty” or “Guaranties” by any Person means all contractual obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business) of such Person guaranteeing any Financial Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, all obligations incurred through an agreement, contingent or otherwise, by such Person: (a) to purchase such Financial Indebtedness or to purchase any property or assets constituting security therefor, primarily for the purpose of assuring the owner of such Financial Indebtedness of the ability of the primary obligor to make payment of such Financial Indebtedness; (b) to advance or supply funds (i) for the purchase or payment of such Financial Indebtedness or (ii) to maintain working capital or other balance sheet condition, or otherwise to advance or make available funds for the purchase or payment of such Financial Indebtedness, in each case primarily for the purpose of assuring the owner of such Financial Indebtedness of the ability of the primary obligor to make payment of such Financial Indebtedness; (c) to lease property, or to purchase securities or other property or services, of the primary obligor, primarily for the purpose of assuring the owner of such Financial Indebtedness of the ability of the primary obligor to make payment of such Financial Indebtedness; or (d) otherwise to assure the owner of such Financial Indebtedness of the primary obligor against loss in respect thereof. For the purpose of all computations made under this Agreement, the amount of a Guaranty in respect of any Financial Indebtedness shall be deemed to be equal to the amount that would apply if such Financial Indebtedness was the direct obligation of such Person rather than the primary obligor or, if less, the maximum aggregate potential liability of such Person under the terms of the Guaranty.

“IAPPC” means a valid international air pollution prevention certificate for a vessel issued under Annex VI.

“Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Borrower that (i) has not guaranteed any other Financial Indebtedness of the Borrower and (ii) has total assets and revenues, in each case, of less than 5.0% of total assets and revenues of the Borrower and its consolidated Subsidiaries taken as a whole and, together with all other Immaterial Subsidiaries, has total assets and revenues of less than 5.0% of total assets and revenues of the Borrower and its consolidated Subsidiaries taken as a whole, in each case, measured (1) at the end of the most recent fiscal period for which consolidated financial statements are available (which may, at the Borrower’s election, be internal consolidated financial statements) on a pro forma basis giving effect to any acquisitions or dispositions of assets, Vessels, companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and (2) as of the date of acquisition of any such Restricted Subsidiary.

“Increase Effective Date” shall have the meaning ascribed thereto in Section 3.9.

“Indebtedness for Borrowed Money” means, with respect to a Person, Financial Indebtedness of such Person under clauses (a), (c), (g) or (j) (to the extent relating to the foregoing clauses) of the definition of “Financial Indebtedness”.

“Indemnified Taxes” means (a) 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 this Agreement, the Notes and the Security Documents and (b) to the extent not otherwise described in (a), Other Taxes.

“Information” means all information received from or on behalf of the Obligors relating to any of them or any of their and their Affiliates’ respective businesses that was not otherwise available to the Facility Agent or any Lender on a non-confidential basis prior to such disclosure by or on behalf of the Obligors; provided, that, in the case of information received from the Obligors after the Effective Date, such information is clearly identified at the time of delivery as confidential.

“Insurances” means, with respect to a Collateral Vessel, all policies and contracts of insurance, including under all entries in any Protection and Indemnity Association or Club, which are from time to time taken out in respect of the Collateral Vessel, the Collateral Vessel’s hull and machinery, and all the benefits thereof including, without limitation, all claims of whatsoever nature, as well as return premiums.

“Insurance Subordination Undertaking” a subordination undertaking from each Collateral Vessel’s manager subordinating its interest in each Collateral Vessel’s Insurances, in form and substance reasonably satisfactory to the Facility Agent (acting with the consent of the Majority Lenders, such consent not to be unreasonably withheld, conditioned or delayed).

“Interest Period” means each one (1), three (3) or six (6) month period commencing on the relevant Drawdown Date or the last day of the preceding Interest Period, as applicable; provided, however, in each case, (x) if such Interest Period commences on the last Banking Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month), such Interest Period shall end on the last Banking Day of the appropriate subsequent calendar month and (y) if any Interest Period would otherwise expire on a day that is not a Banking Day, the period shall expire on the next Banking Day.

“Inventory of Hazardous Materials” shall have the meaning ascribed thereto in Resolution MEPC.269(68) of the International Maritime Organization.

“Investment” means, for any Person: (a) the acquisition (whether for cash, property, services or securities or otherwise) of Equity Interests of any other Person; (b) the making of any loan or capital contribution to, assumption of Financial Indebtedness of, purchase or other acquisition of any other Financial Indebtedness or equity participation or interest in any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person); or (c)(i) the entering into of (A) any Guaranty of, or other contingent payment or credit support obligation (including the deposit of any Equity Interests to be sold) with respect to, Financial Indebtedness of any other Person, or(B) any other contingent obligation with respect to Indebtedness for Borrowed Money of any other Person that directly or indirectly has the economic effect of guaranteeing or providing any payment or credit support with respect such Indebtedness for Borrowed Money or otherwise is for the purpose of assuring the owner of such Indebtedness for Borrowed Money of the payment thereof or (ii) the entering into or issuance of a Letter of Credit to support the general corporate purposes of Unrestricted Subsidiaries. For purposes of covenant compliance, the amount of any Investment by any Person outstanding at any time shall be the amount actually invested (measured at the time invested), net of any returns or distributions of capital or repayment of principal actually received in cash by such Person with respect thereto from time to time).

“ISM Code” means the International Safety Management Code for the Safe Operating of Ships and for Pollution Prevention constituted pursuant to Resolution A.741(18) of the International Maritime Organization and incorporated into the Safety of Life at Sea Convention and includes any amendments or extensions thereto and any regulation issued pursuant thereto.

“ISPS Code” means the International Ship and Port Facility Code adopted by the International Maritime Organization at a conference in December 2002, and amending the Safety of Life at Sea Convention and includes any amendments or extensions thereto and any regulation issued pursuant thereto.

“ISSC” means the International Ship Security Certificate issued pursuant to the ISPS Code.

“Issuance Notice” means an Issuance Notice in respect of letters of credit substantially in the form of Exhibit G, or such other form reasonably acceptable to the Facility Agent and the Issuing Banks.

“Issuing Bank” means DNB Capital LLC (or one of its Affiliates (on its behalf) and any other Lender that consents to being an issuing bank of one or more Letters of Credit. Any Issuing Bank may cause Letters of Credit to be issued by an Affiliate of such Issuing Bank or by another financial institution designated by such Issuing Bank, and all Letters of Credit issued by any such Affiliate or any such designated financial institution shall be treated as being issued by such Issuing Bank for all purposes under the Loan Documents.

“Junior Indebtedness” means any Financial Indebtedness that is incurred or issued by the Borrower or any Restricted Subsidiary and is either (a) unsecured or (b) secured by the Collateral on a junior lien basis to the Liens pursuant to the Loan Documents, with such priority being on terms and pursuant to an intercreditor agreement and such other documentation reasonably satisfactory to the Facility Agent (including Guaranties of the foregoing that are unsecured or secured by Collateral on a junior lien basis to the Liens pursuant to the Loan Documents securing the Secured Obligations in accordance with the foregoing clause (b)).

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“Letter of Credit” means a letter of credit issued or to be issued by any Issuing Bank pursuant to this Agreement, which letter of credit shall be (a) a standby letter of credit or (b) solely to the extent agreed by the applicable Issuing Bank in its sole discretion, documentary or “trade” letter of credit.

“Letter of Credit Advance” means, as to any Lender, such Lender’s funding of its participation in any Letter of Credit Borrowing in accordance with its Pro Rata Share.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable Issuing Bank, together with an Issuance Notice.

“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed by the Borrower on the date when made or refinanced as an ABR Advance. For the avoidance of doubt, the amount of any Letter of Credit Borrowing in respect of a Letter of Credit denominated in a currency other than Dollars shall be the Dollar Amount of the related Reimbursement Obligation as of the date the ABR Advance is made or deemed made.

“Letter of Credit Documents” means, as to any Letter of Credit, each Letter of Credit Application and any other document, agreement and instrument entered into by the applicable Issuing Bank and the Borrower or in favor of such Issuing Bank and relating to such Letter of Credit.

“Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or the extension of the expiry date thereof, or the renewal or increase of the amount thereof.

“Letter of Credit Fees” shall have the meaning ascribed thereto in Section 13.1(b).

“Letter of Credit Obligations” means, at any time, the Dollar Amount of the aggregate of all liabilities at such time of any Obligor to each Issuing Bank with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations at such time and (b) the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding.

“Letter of Credit Percentage” means, with respect DNB Capital LLC, 100%, and with respect to any other Issuing Bank, a percentage to be agreed between the Borrower and such Issuing Bank, which shall not exceed such Issuing Bank’s Commitment.

“Letter of Credit Usage” means, as of any date of determination, the sum of (a) the aggregate Dollar Amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding and (b) the aggregate Dollar Amount of all Reimbursement Obligations outstanding at such time.

“Letter of Quiet Enjoyment” means, to the extent required under a charter contract or similar contract, as determined in the reasonable judgment of the Borrower, with respect to any Collateral Vessel, a quiet enjoyment agreement entered into by the counterparty to the applicable charter contract or similar contract, the applicable Collateral Vessel Owner and the applicable Agent in form and substance reasonably satisfactory to the applicable counterparty and the applicable Agent (at the direction of the Majority Lenders).

“Lien” means any mortgage, charge, deed of trust, pledge, lien, security assignment or other security interest securing any obligation of any Person or any other agreement or arrangement having a similar effect.

“Limited Condition Transaction” means mean any acquisition of the Equity Interests, assets and/or line of business of any other Person or any other investment, in any such case, the consummation of which is not conditioned on availability of any funds, financing or other Financial Indebtedness.

“Liquidity” means, as of the date of any determination, the aggregate amount of (a) Consolidated Cash of the Borrower and its Restricted Subsidiaries, excluding cash that is not held in an Account unless (i) such cash is held in a deposit account that is not required to be subject to a DACA under this Agreement or (ii) such cash is on deposit in a deposit account outside the United States and may be repatriated to an account in the United States without restriction, (b) the Available Commitments and (c) amounts available for borrowing by the Borrower and its Restricted Subsidiaries under any other revolving credit facilities.

“Loan Document(s)” means this Agreement, the Notes, Letters of Credit, Drawdown Notices, the Security Documents, any Subordination Agreement, each Insurance Subordination Undertaking, any Fee Letter and any other document designated as such by the Facility Agent and the Borrower.

“Majority Lenders” means the Lenders, at the time of determination, holding an aggregate of more than 50% of the Commitments; provided that, if any Lender (or Affiliate of a Lender) is a Defaulting Lender, its Commitments shall not be included in the calculation of “Majority Lenders”.

“Mandated Lead Arrangers” means Deutsche Bank AG, DNB Markets, Inc. and JPMorgan Chase Bank, N.A., each in its capacity as a mandated lead arranger.

“Margin” means, for any day, a rate per annum based on the current Total Net Leverage Ratio, as of the immediately preceding fiscal quarter as follows:

Any increase or decrease in the Margin under the grid set forth above with respect to ABR Advances, Term SOFR Advances, or Letter of Credit Fees, as the case may be, resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Banking Day immediately following the date a Compliance Certificate is delivered in respect of the preceding fiscal quarter pursuant to Section 9.1; provided, however, that if a Compliance Certificate is not delivered when due in accordance with Section 9.1, then Level V shall apply as of the first Banking Day after the date on which such Compliance Certificate was required to have been delivered until such Compliance Certificate is delivered to the Facility Agent. From the Effective Date until such time as a Compliance Certificate is delivered to the Facility Agent in accordance with Section 9.1, the Margin shall be determined based on the Compliance Certificate delivered pursuant to Section 4.2.

Within one Banking Day of receipt of the applicable information under Section 9.1, the Facility Agent shall give each Lender electronic (including e-mail and Internet or intranet websites, including the Platform) notice of the Margin in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 9.1 is determined to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Margin for any period, than the Margin applied for such period, then (a) the Borrower shall promptly (and in any event within five (5) Banking Days) following such determination deliver to the Facility Agent correct financial statements and certificates required by Section 9.1 for such period, (b) the Margin for such period shall be determined as if the Total Net Leverage Ratio were determined based on the amounts set forth in such correct financial statements and certificates and (c) the Borrower shall promptly (and in any event within ten (10) Banking Days) following delivery of such corrected financial statements and certificates pay to the Facility Agent the accrued additional interest owing as a result of such increased Margin for such period.

“Margin Stock” means “margin stock” or “margin securities” as defined in Regulation T, Regulation U and Regulation X.

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, results of operations or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the Obligors’ ability (taken as a whole) to perform and comply with their payment obligations under the Loan Documents; or (c) the validity or enforceability of any of the Loan Documents or the rights and remedies of the Agents and Lenders thereunder.

“Material Indebtedness” means Indebtedness for Borrowed Money in excess of Fifty Million ($50,000,000).

“Materials of Environmental Concern” shall have the meaning ascribed thereto in Section 2.1(q).

“Maturity Date” means the date that is the earliest of (a) the fifth (5th) anniversary of the Effective Date, (b) the date that is ninety one (91) days prior to the final maturity date of the 2023 Senior Notes or any refinancing thereof, (c) the date that is ninety one (91) days prior to the final maturity date of the 2025 Senior Notes or any refinancing thereof, and (d) the date that is ninety one (91) days prior to the final maturity date of any Material Indebtedness (excluding Purchase Money Debt or Acquired Debt permitted as part of a Permitted Acquisition, but not refinancing Financial Indebtedness in respect of either of the foregoing) in excess of Fifty Million Dollars ($50,000,000).

“Minimum L/C Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at such time, and (b) otherwise, an amount determined by the Facility Agent and the Issuing Banks in their sole discretion.

“Mortgage” means the first preferred or first priority ship mortgage (including a declaration of covenants, deed of covenants or security agreement collateral thereto, if applicable) on a Collateral Vessel, executed by the applicable Collateral Vessel Owner in favor of the Security Trustee, substantially in the form set out in Exhibits D-1 and D-2 in respect of any Collateral Vessel flagged in Liberia and the United States, or such other first preferred or first priority ship mortgage (including a declaration of covenants, deed of covenants or security agreement collateral thereto, if applicable) agreed between the Security Trustee and the Borrower and given in compliance with any other Approved Flag Jurisdiction.

“MTSA” means the Maritime & Transportation Security Act, 2002, as amended, inter alia, by Public Law 107-295.

“Multiemployer Plan” means, at any time, a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) to which the Borrower or any of its Subsidiaries or any ERISA Affiliate has any liability or obligation to contribute or has within any of the six preceding plan years had any liability or obligation to contribute.

“Net Cash Proceeds” means, with respect to any Disposal or Total Loss of a Collateral Vessel, the aggregate amount of cash and the fair market value of any non-cash consideration actually received from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of the relevant Collateral Vessel Owner, in connection therewith after deducting therefrom only (a) the direct costs relating to such transaction and the sale or disposition of such non-cash consideration, including, without limitation, legal, accounting and investment banking fees, and sales commissions, transactional fees, brokers’ fees and other professional fees, severance costs and any relocation expenses incurred as a result of such transaction, in each case as are due to a Person that is not an Affiliate of the Borrower, (b) amounts actually paid or payable or distributed or required to be distributed in cash in respect of, or for the purpose of, total federal, state, local and foreign income, value added and similar taxes as a result of such transaction, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements,(c) amounts required to be applied to the repayment of Financial Indebtedness (other than the Obligations) secured by a Lien on the properties or assets that were the subject of such transaction, or which must by its terms, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid out of the proceeds from such transaction, (d) payments (or arrangements for payments made) of unassumed liabilities (not constituting Financial Indebtedness) relating to any of the assets so disposed of at the time of, or within thirty (30) days after the date of, such transaction, and (e) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such properties or assets, for indemnification obligations of the Borrower or any of its Restricted Subsidiaries in connection with such transaction or for other liabilities associated with such transaction and retained by the Borrower or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Cash Proceeds shall include only the amount of the reserve so reversed or the amount of cash actually returned to the Borrower or its Restricted Subsidiaries from such escrow arrangement, as the case may be.

“Net Interest-Bearing Debt” means at the relevant time, (a) the aggregate amount of interest-bearing Financial Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated basis, minus (b) (i) if the Total Utilization of Commitments is less than $50,000,000, Consolidated Cash; or (ii) if the Total Utilization of Commitments is Fifty Million Dollars ($50,000,000) or more, the lesser of (A) Consolidated Cash; and (B) One Hundred Million Dollars ($100,000,000) (provided such amount shall be reduced pro rata for any reduction in the Commitments below Two Hundred Fifty Million Dollars ($250,000,000); provided, however, that (x) for purposes of this definition, Total Utilization of Commitments shall exclude any Letter of Credit that is Cash Collateralized), and (y) for purposes of the Total Net Leverage Ratio, clause (b) above shall not include Consolidated Cash of the West Africa Subsidiaries.

“Non-Defaulting Lenders” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Note” means any promissory note evidencing the Borrower’s obligation to repay the Facility, substantially in the applicable form attached as Exhibit A or such other form agreed between the Facility Agent and the Borrower.

“Notified Event of Default” means an Event of Default that has occurred and is continuing in respect of which (a) notice has been delivered to the Borrower in accordance with this Agreement or (b) the Obligations are automatically accelerated pursuant to Section 8.1.

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower or any Restricted Subsidiary arising under any Loan Document, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower or any Obligor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed or allowable claims in such proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, indemnities and other amounts payable by the Borrower or any Restricted Subsidiary under any Loan Document and (b) the obligation of the Borrower or any Restricted Subsidiary to reimburse any amount in respect of any of the foregoing that any Agent or any Lender, in each case if authorized pursuant hereto and in its sole discretion, may elect to pay or advance on behalf of the Borrower or such Restricted Subsidiary.

“Officer’s Certificate” means for any Person a certificate of a Responsible Officer of such Person.

“Original Guarantors” shall have the meaning ascribed thereto in the preamble.

“Other Connection Taxes” means with respect to any Creditor, Taxes imposed as a result of a present or former connection between such Creditor and the jurisdiction imposing such Tax (other than connections arising from such Creditor 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 this Agreement and the other Loan Documents, or sold or assigned an interest in the Facility or this Agreement and the other Loan Documents).

“Other Taxes” means 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 this Agreement and the other Loan Documents except any such Taxes that are Other Connection Taxes.

“PBGC” means the Pension Benefit Guaranty Corporation or any successor entity thereto.

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

“Permitted Acquisition” means any acquisition of the Equity Interests, assets and/or line of business of one or more other Persons in a single transaction, multiple transactions that are consummated substantially concurrently with each other, or a series of related transactions, which transaction(s) may be in an unlimited amount so long as:

(a)            no Change of Control will result therefrom;

(b)            the requirements set forth in any of the following clauses (i), (ii) or (iii) below are satisfied with respect thereto (it being understood and agreed that (x) only the requirements in one such clause shall be required to be satisfied for any such transaction(s), (y) in the case of substantially concurrent transactions or a series of related transactions, such satisfaction may be determined with respect to each such transaction on an individual basis or, at the Borrower’s option, with respect to such substantially concurrent transactions or series of related transactions, as the case may be, on an aggregate basis, and (z) in the event any such transaction(s) would satisfy the requirements in more than one such clause, the Borrower shall have the option to determine which clause is being relied upon for such transaction(s)):

(i)            immediately after giving pro forma effect to such transaction(s), the Total Net Leverage Ratio is less than or equal to 2.00 to 1.00; or

(ii)            immediately after giving pro forma effect to such transaction(s), Liquidity is greater than or equal to Two Hundred Fifty Million Dollars ($250,000,000); or

(iii)            such transaction(s) is consummated with cash constituting Collateral that is being reinvested pursuant to Section 9.6(a);

(c)            subject to the Agreed Security Principles, the assets, including Equity Interests, acquired pursuant to such transaction(s) will become Collateral and subject to Additional Security and each newly acquired or created Subsidiary (including each Subsidiary thereof) shall become a Guarantor (unless such Subsidiary is designated as an Unrestricted Subsidiary pursuant to Section 9.5 or is an Excluded Subsidiary); and

(d)            immediately before and immediately after the consummation of any such acquisition, no Default or Event of Default shall have occurred and be continuing or would result therefrom (or, if such acquisition is a Limited Condition Transaction, (i) as of the date on which the definitive agreement for such acquisition is entered into, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) immediately before and immediately after the consummation of such acquisition, no Specified Event of Default shall have occurred and be continuing or would result therefrom).

“Permitted Disposal” means any Disposal constituting less than all or substantially all assets of the Borrower and its Restricted Subsidiaries, taken as a whole, that is:

(A)            the Collateral Maintenance Ratio immediately prior to such Disposal is at least 5.00 to 1.00, and the Collateral Maintenance Ratio shall be at least 5.00 to 1.00 after giving effect to such Disposal, or

(B) the Collateral Maintenance Ratio immediately prior to such Disposal is less than 5.00 to 1.00, then the Borrower may nonetheless effect such Disposal so long as (x) the Commitments are temporarily reduced in an amount necessary to ensure the Collateral Maintenance Ratio is equal to or greater than 5.0:1.0 until the first to occur of (I) 60 days after the date of such Disposal and (II) the date on which the Collateral Maintenance Ratio is equal to or greater than 5.0:1.0 (provided that if a Collateral Maintenance Ratio of at least 5.0:1.0 is not met after 60 days, the Commitment shall be permanently reduced by an amount such that the Collateral Maintenance Ratio would be at least 5.0:1.0), or (y) each of the following is satisfied:

(1)            the purchase price for the Collateral Vessel that is the subject of such Disposal is at least 75% of the most recently appraised value therefor (after giving effect to the then most recent appraisal thereof provided by Borrower (at its option) to the Agent);

(2)            the Lenders receive, substantially concurrently with such Disposal, additional replacement Collateral having an appraised value at least equal to the then most recent appraisal of the Collateral Vessel subject to such Disposal (after giving effect to the then most recent appraisal thereof provided by Borrower (at its option) to the Agent);

(3)            the net cash proceeds from such Disposal are promptly applied following receipt by an Obligor toward repayment of the Advances (if there is any outstanding unpaid balance), provided that such application shall not constitute a permanent reduction of the Commitments hereunder;

(4)            the aggregate fair market value of all Collateral Vessels subject to Disposal pursuant to this clause (a)(iii)(B) has not exceeded $100,000,000;

(5)            the Disposal, if to an Affiliate, shall be part of a transaction or arrangement or series of related transactions or arrangements, taken as a whole, that are no less favorable to the Borrower or such Restricted Subsidiary than would be obtained in an arms’ length transaction with a Person that is not an Affiliate; and

(6)            unless the Disposal is to an Obligor or a Restricted Subsidiary (in which event this clause (6) shall not apply), at least 75% of the consideration for any such Disposal will be cash or Cash Equivalents; provided that (aa) the assumption of any obligations outstanding pursuant to Section 9.2(d) shall be deemed to constitute cash for purposes of this clause (a)(iii)(B)(6) to the extent that the Borrower or the relevant Restricted Subsidiary is released from further liability with respect to the obligations so assumed; and (bb) Designated Non-Cash Consideration in an aggregate amount not to exceed Forty Million Dollars ($40,000,000) in respect of all Disposals shall be deemed to constitute cash for purposes of this clause (a)(iii)(B)(6);

(b)            a Disposal of assets other than a Collateral Vessel of up to Five Million Dollars ($5,000,000) in any transaction or series or related transactions;

(c)            a Disposal (i) between or among one or more Obligors, (ii) between or among Restricted Subsidiaries that are not Obligors, or (iii) between or among Subsidiaries if the Disposal is to an Obligor;

(d)            a Disposal of equipment or other personal property (other than Collateral Vessels) and fixtures that are either (i) obsolete, worn-out or no longer used or useable for their intended purposes and disposed of in the ordinary course of business or (ii) replaced by equipment, personal property or fixtures of comparable suitability within 270 days of such Disposal (or for which a binding written agreement has been executed for the delivery thereof), including but not limited to the Disposal of any boilers, engines, machinery, masts, spars, anchors, cables, chains, rigging, tackle, capstans, outfit, tools, pumps, pumping equipment, apparel, furniture, fittings, equipment, spare parts or any other appurtenances of any Vessel that are no longer useful, necessary, profitable or advantageous in the operation of such Vessel, replaced by new boilers, engines, machinery, masts, spars, anchors, cables, chains, rigging, tackle, capstans, outfit, tools, pumps, pumping equipment, apparel, furniture, fittings, equipment, spare parts or any appurtenances of comparable suitability;

(e)            a Disposal constituting the demise, bareboat, time, voyage, other charter, lease or right to use of any Vessel in the ordinary course of business (and for the avoidance of doubt, any such Disposal constituting the demise, bareboat, time, voyage, other charter, lease or right to use of any such Vessel, with or to a Subsidiary of Borrower, also constitutes an ordinary course of business transaction) or for which a binding written agreement has been executed for the delivery thereof;

(f)            (i) a Disposal of a Collateral Vessel constituting a Total Loss (together with any such Collateral Vessel’s Related Assets), in compliance with Section 9.6, or (ii) a Disposal of a Vessel that is not a Collateral Vessel, constituting a Total Loss (together with any such Vessel’s Related Assets), if the Borrower complies with Section 9.6 as if a Collateral Vessel had been subject to such Total Loss;

(g)            to the extent constituting a Disposal, any Permitted Investment and any Restricted Payment not restricted by Section 9.2(c);

(h)            to the extent constituting a Disposal, transactions required to comply with local content and/or cabotage rules, regulations or laws in any jurisdiction in which a Vessel is flagged or operates.

(i)            a Disposal of inventory that is sold in the ordinary course of business;

(j)            (i) sales or grants of licenses or sublicenses of (or other grants of rights to use or exploit) intellectual property rights (x) existing as of the Effective Date, or (y) between or among the Borrower and its Restricted Subsidiaries or between or among any of the Restricted Subsidiaries or (ii) non-exclusive licenses or sublicenses of (or other non-exclusive grants of rights to use or exploit) intellectual property rights entered into in the ordinary course of business and not interfering, individually or in the aggregate, in any material respect with the conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;

(k)            a Disposal (i) constituting the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable and similar obligations arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction), or (ii) of any claim, cause of action or other chose in action;

(m)            a Disposal constituting an issuance of Equity Interests of any Restricted Subsidiary to any Obligor or any other Restricted Subsidiary; provided that in the case of such an issuance by a non-wholly-owned Restricted Subsidiary, such issuance may also be made to any other owner of Equity Interests of such non-wholly-owned Restricted Subsidiary based on such owner’s relative ownership interests (or lesser share) of the relevant class of Equity Interests;

(n)            to the extent constituting a Disposal, the creation of any Permitted Lien;

(o)            a Disposal of property (i) subject to casualty or condemnation proceedings (or similar events) or (ii) as a result of any Total Loss or the occurrence of any event referred to in clauses (b) or (c) of the definition of “Total Loss” which would, with the passage of time, constitute a Total Loss;

(q)            abandoning, failing to maintain, allowing to lapse and other similar Disposals of intellectual property rights that are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole;

(r)            any issuance of, or other Disposals of, Equity Interests of any Unrestricted Subsidiary; or

(s)            to the extent constituting Disposals, leases and subleases of real or personal property in the ordinary course of business and not interfering in any material respect with the business of the Borrower and its Restricted Subsidiaries, taken as a whole.

(a)            Financial Indebtedness incurred under the Loan Documents;

(b)            Financial Indebtedness existing on the Effective Date which is set forth on Schedule 1.1(f) and Permitted Refinancing Debt thereof;

(d)            (i) unsecured Financial Indebtedness and (ii) Financial Indebtedness secured by assets or property that do not constitute Collateral, in each case provided that (A) the Borrower is in pro forma compliance with the Financial Covenants after giving effect to such Financial Indebtedness, and (B) no Default or Event of Default has occurred and is continuing or would occur as a result thereof;

(e)            Financial Indebtedness described in clause (b) of the definition of Junior Indebtedness, provided that (i) the Borrower is in pro forma compliance with the Financial Covenants after giving effect to such Financial Indebtedness, (ii) no Default or Event of Default has occurred and is continuing or would occur as a result thereof, and (iii) the aggregate principal amount of Financial Indebtedness that is outstanding in reliance on this paragraph (e) at any time shall not exceed greater of Two Hundred Million Dollars ($200,000,000) and 35% of Consolidated EBITDA;

(f)            Financial Indebtedness consisting of (i) Specified Bilateral LC Obligations, and (ii) other reimbursement obligations on letters of credit not issued under the Facility, not to exceed in aggregate Fifty Million Dollars ($50,000,000) and which may be secured by a Lien on assets other than the Collateral (other than cash and Cash Equivalents);

(g)            Financial Indebtedness in respect of bids, trade contracts, performance guarantees, leases, letters of credit, statutory obligations, performance bonds, bid bonds, appeal bonds, surety bonds, customs bonds, importation bonds and similar obligations, in each case provided in the ordinary course of business;

(h)            Financial Indebtedness arising under any Swap Agreement entered into in the ordinary course of business and not for speculative purposes;

(i)            (i) Purchase Money Debt and (ii) other Financial Indebtedness incurred to (A) make a Permitted Acquisition, (B) renovate, repair, improve, install or upgrade any Vessel or any other fixed or capital property, equipment or other assets of the Borrower or any Restricted Subsidiary or (C) acquire, lease, construct or otherwise finance the purchase price of any fixed or capital property, equipment or other assets (including Vessels) of the Borrower or any Restricted Subsidiary, in each case, and any Permitted Refinancing Debt in respect thereof, provided that (other than with respect to any Permitted Refinancing Debt thereof), in each case, (1) the Borrower is in pro forma compliance with the Financial Covenants after giving effect to such Financial Indebtedness, (2) no Default or Event of Default has occurred and is continuing or would occur as a result thereof, (3) such Financial Indebtedness is incurred prior to or within 365 days after such acquisition or the later of the completion of such construction, renovation, upgrade or such other activity described above or the date of commercial operation of the relevant assets referred to above, (3) such Financial Indebtedness does not exceed the cost of acquiring, constructing, renovating or upgrading such Vessel or other asset (plus fees and expenses related thereto), (4) in the case of any such Purchase Money Debt constituting seller financing with respect to any such Vessel or other asset, (A) the applicable seller financing contract shall, at the time such Indebtedness is incurred, have an estimated contract start date (as determined in good faith by the Borrower at such time) that is no later than the three-month anniversary of the date of such acquisition or the completion of such construction and (B) such Purchase Money Debt shall not (x) have any financial maintenance covenant that is more restrictive with respect to the Obligors than those set forth herein (unless such financial maintenance covenant is added to this Agreement for so long as it applies to such Financial Indebtedness) or (y) have a scheduled maturity date prior to the date that is ninety-one (91) days after the Maturity Date;

(j)            intercompany Financial Indebtedness made by the Borrower to any Restricted Subsidiary or by any Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided that such Financial Indebtedness shall be (x) subject to the terms of a Subordination Agreement, (y) such liabilities shall be unsecured or secured by Liens on assets which do not constitute Collateral, and (z) so long as an Event of Default has occurred and is continuing, prohibited from being incurred or repaid by any Obligor in favor of a Restricted Subsidiary that is not an Obligor;

(k)            Financial Indebtedness consisting of the financing of insurance premiums;

(l)            Acquired Debt of any Person that becomes a Restricted Subsidiary (or any Person not previously a Restricted Subsidiary that is merged, consolidated or amalgamated with or into any of the Restricted Subsidiaries) assumed after the Effective Date, which may be secured by assets acquired in connection therewith (including improvements on and the proceeds or products thereof) and Permitted Refinancing Debt thereof provided that (other than with respect to any Permitted Refinancing Debt thereof) (i) the Borrower is in pro forma compliance with the Financial Covenants after giving effect to such Financial Indebtedness, (ii) no Default or Event of Default has occurred and is continuing or would occur as a result thereof and (iii) such indebtedness is not secured by a Lien on any Collateral;

(m)            (i) Specified Cash Management Obligations and (ii) other similar obligations created or incurred in the ordinary course of business in respect of any agreement with a bank, financial institution or other Person that is not a Specified Cash Management Provider providing for treasury, depositary, purchasing card, credit cards or cash management services, including in connection with any automated clearing house transfers of funds or any similar transactions, in the case of this subclause (ii), in an aggregate principal amount not exceeding $25,000,000 at any time outstanding for any period of five (5) consecutive Banking Days (or such longer period as may be approved from time to time by the Facility Agent);

(n)            Financial Indebtedness arising under operating leases (including liabilities for operating leases required to be accrued under FASB ASC 842) or licenses of property or assets leased or licensed to a Person in the ordinary course of business;

(o)            Financial Indebtedness arising pursuant to receivables purchase and sale agreements, including true sale arrangements, in the ordinary course of business;

(p)            Guaranties or other similar obligations in an aggregate amount not to exceed Fifteen Million Dollars ($15,000,000) at any time outstanding;

(q)            Financial Indebtedness incurred in respect of any liabilities for pensions, deferred employee compensation or Taxes;

(r)            Financial Indebtedness required to comply with local content and/or cabotage rules, regulations or laws in any jurisdiction where a Vessel (whether or not a Collateral Vessel) is flagged or operates, but excluding Indebtedness for Borrowed Money; and

(s)            additional Financial Indebtedness in an aggregate principal amount not to exceed Fifty Million Dollars ($50,000,000) at any time outstanding.

(a)            Investments in the Borrower or its Restricted Subsidiaries;

(b)            Investments in an amount not to exceed 100% of Distributable Free Cash Flow as of the time such Investment is made, so long as (i) immediately after giving pro forma effect thereto and any concurrent incurrence of Financial Indebtedness, (x) the Total Net Leverage Ratio is less than or equal to 2.00 to 1.00 and (y) Liquidity is greater than or equal to Three Hundred Fifty Million Dollars ($350,000,000) and (ii) immediately before and immediately after giving effect thereto, no Default or Event of Default has occurred and is continuing;

(c)            Investments in an aggregate amount not to exceed One Hundred Million Dollars ($100,000,000) at any time outstanding;

(e)            Investments in cash and Cash Equivalents;

(f)            Guaranties by the Borrower or any of its Restricted Subsidiaries of operating leases (other than Finance Lease Obligations) or of other obligations that do not constitute Financial Indebtedness, in each case entered into by the Borrower or any Restricted Subsidiary of the Borrower in the ordinary course of business;

(g)            Investments received or acquired as consideration for any Disposal not prohibited by Section 9.2(e);

(h)            Guaranties in connection with Vessel construction contracts of the Restricted Subsidiaries or the Borrower;

(i)            Guaranties to the extent that, if the obligation were incurred as Financial Indebtedness, such Financial Indebtedness would be otherwise permitted hereunder; and

(j)            Investments to the extent such amounts would be available for Restricted Payments (and such Permitted Investment shall constitute a Restricted Payment and reduce the applicable Restricted Payment basket set forth in Section 9.2 by a corresponding amount);

(k)            any Investments received (i) from trade creditors or customers in the ordinary course of business, in the form of accounts receivable or notes receivable, if payable or dischargeable in accordance with customary trade terms of the Borrower or the applicable Restricted Subsidiary, (ii) in compromise, settlement or resolution of (including upon satisfaction of judgments with respect to) (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (B) litigation, arbitration or other disputes; or (iii) as a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries with respect to any secured Investment in default;

(l)            Investments represented by any Swap Agreement to the extent such Swap Agreement is permitted pursuant to Section 9.2(d);

(m)            Investments in any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries;

(n)            any Investment existing on, or made pursuant to binding commitments existing on, the Effective Date, in each case as listed on Schedule 1.1(g), and any modifications, renewals or extensions that do not increase the amount of the Investment being modified, renewed or extended (as determined as of such date of modification, renewal or extension) unless the incremental increase in such Investment is otherwise permitted hereunder;

(o)            to the extent constituting an Investment, any transaction permitted by Section 9.2(i) and any Financial Indebtedness permitted by Section 9.2(d); and

(p)            any Investment of cash or Cash Equivalents made by (i) the Borrower in any Restricted Subsidiary, (ii) any Restricted Subsidiary in the Borrower and (iii) any Restricted Subsidiary in another Restricted Subsidiary.

(b)            existing on the Effective Date which are set forth on Schedule 1.1(h);

(c)            in favor of a banking or other financial institution or entity arising in the ordinary course of banking arrangements (including, for the avoidance of doubt, consolidated cash management arrangements);

(d)            for Taxes, assessments, government charges or claims not yet delinquent, or which are being contested in good faith by appropriate proceedings and if a reserve or other appropriate provisions, if any, as shall be required in conformity with GAAP, shall have been made therefor;

(e)            which constitutes a Permitted Maritime Lien;

(f)            securing Financial Indebtedness incurred pursuant to paragraphs (d)(ii), (e), (f), (j) and (l) of the definition of “Permitted Indebtedness”, subject to the restrictions contained therein;

(g)            securing Financial Indebtedness incurred pursuant to paragraph (i) of the definition of “Permitted Indebtedness”, provided such Liens are limited as set forth in the definitions of “Purchase Money Debt” and “Permitted Acquisition”, as applicable;

(h)            constituting minor defects, irregularities and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within areas covered by easements, leases, licenses and other rights in real property in favor of the Borrower or any Restricted Subsidiary, in each case which do not interfere with the ordinary conduct of business and which do not materially detract from the value of the property which they affect;

(i)            constituting, created to secure or otherwise evidencing any rental deposits or other Liens in respect of any lease agreement including in relation to real property entered into by an Obligor in the ordinary course of business and on customary commercial terms;

(j)            constituting, created to secure or otherwise evidencing any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to an Obligor in the ordinary course of business;

(k)            required to comply with local content and/or cabotage rules, regulations or laws in any jurisdiction where a Collateral Vessel is flagged or operates;

(l)            (i) arising in the ordinary course of business by operation of law, deposits, pledges or other Liens in connection with workers’ compensation, unemployment insurance, old age benefits, social security obligations, other forms of governmental insurance, taxes, assessments, public or statutory obligations, general liability or property insurance or other insurance required to be maintained pursuant to any Loan Document or other similar charges; (ii) good faith deposits, pledges or other Liens in connection with (or to obtain letters of credit or bank guarantees in connection with) (A) bids, contracts or leases to which such Obligor or its Subsidiaries are parties, (B) any supersedeas bonds, appeal bonds, performance bonds, return-of-money or payment bonds, and similar obligations or (C) liabilities in respect of reimbursement or indemnification obligations of insurance carriers providing property, casualty or liability insurance or any other insurance required to be maintained pursuant to any Loan Document to the Borrower or any Restricted Subsidiary; (iii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; (iv) other deposits required to be made in the ordinary course of business; provided that in each case the obligation secured is not for Indebtedness for Borrowed Money and is not overdue or, if overdue, is being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor; or (v) Liens (A) of a collection bank (including those arising under Section 4-210 of the Uniform Commercial Code) on the items in the course of collection, (B) in favor of a banking or other financial institution or entity, or electronic payment service providers, arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and which are within the general parameters customary in the banking industry, (C) attaching to pooling or commodity trading accounts, or other commodity brokerage accounts incurred in the ordinary course of business, (D) arising solely by virtue of any statutory or common law provision or customary business provision relating to banker’s liens, rights of set off or similar rights and (E) encumbering reasonable customary initial deposits and margin deposits in the ordinary course of business and not for speculative purposes;

(m)            constituting, created to secure or otherwise evidencing mechanics’, workmen’s, materialmen’s, landlords’, carriers’, maritime or other similar Liens arising in the ordinary course of business (or deposits to obtain the release of such Liens) related to obligations not overdue for more than thirty (30) days if such Liens arise with respect to domestic assets and for more than ninety (90) days if such Liens arise with respect to foreign assets, or, if so overdue, (i) that are being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor, or (ii) if such Liens otherwise could not reasonably be expected to have a Material Adverse Effect;

(n)            imposed by ERISA (or comparable foreign laws) which are being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor, or if such Liens otherwise could not reasonably be expected to have a Material Adverse Effect;

(o)            arising out of judgments or awards against any Obligor or any Subsidiary which do not result in an Event of Default under Section 8.1(k);

(p)            securing Financial Indebtedness (or other obligations) in an aggregate amount not to exceed $50,000,000 at any time outstanding and that is not otherwise permitted by another clause of this definition; provided that such Lien shall not attach to any property or assets constituting Collateral;

(q)            constituting, created to secure or otherwise evidencing rights reserved to or vested in any municipality or governmental, statutory or public authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to terminate such right, power, franchise, grant, license or permit or to purchase, condemn, expropriate or recapture or to designate a purchaser of any of the property of a Person or encumbrances (other than to secure the payment of Financial Indebtedness), easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations in any property or rights-of-way of a Person for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines, removal of gas, oil, coal, metals, steam, minerals, timber or other natural resources, and other like purposes, or for the joint or common use of real property, rights-of-way, facilities or equipment, or defects, irregularity and deficiencies in title of any property or rights-of-way;

(r)            constituting, created to secure or otherwise evidencing rights reserved to or vested in any municipality or governmental, statutory or public authority to control, regulate or use any property of a Person;

(s)            constituting, created to secure or otherwise evidencing rights of a common owner of any interest in property held by a Person and such common owner as tenants in common or through other common ownership;

(t)            created or evidenced by or resulting from financing statements filed by lessors of property (but only with respect to the property so leased);

(u)            (i) sales or grants of licenses or sublicenses of (or other grants of rights to use or exploit) intellectual property rights (x) existing as of the Effective Date, or (y) between or among the Borrower and its Restricted Subsidiaries or between or among any of the Restricted Subsidiaries, or (ii) non-exclusive licenses or sublicenses of (or other non-exclusive grants of rights to use or exploit) intellectual property rights entered into in the ordinary course of business and not interfering, individually or in the aggregate, in any material respect with the conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;

(v)            created to secure permitted Financial Indebtedness recorded as capital leases in accordance with GAAP;

(w)            encumbering inventory, work-in-process and related property in favor of customers or suppliers securing obligations and other liabilities to such customers or suppliers to the extent such Liens are granted in the ordinary course of business and are consistent with past business practices; provided that, at the time of incurrence thereof and after giving pro forma effect thereto, the aggregate amount of obligations and other liabilities secured thereby does not exceed $500,000;

(x)            which constitutes a legal or equitable Lien deemed to exist by reason of negative pledge covenants and other covenants or undertakings of a like nature not prohibited by this Agreement;

(y)            granted by any Restricted Subsidiary that is not an Obligor in favor of or for the benefit of any Obligor to secure obligations owed by such Restricted Subsidiary to such Obligor and provided such Lien does not exist over any Collateral; and

(z)            Liens on cash or Cash Equivalents securing Financial Indebtedness permitted under clause (f) of the definition of “Financial Indebtedness”.

(a)            Liens for unpaid master’s, officer’s and crew’s wages in accordance with usual maritime practice;

(b)            Liens for salvage (including contract salvage), collision or general average, and Liens for wages of stevedores;

(d)            Liens arising by operation of law for not more than two (2) months’ prepaid hire under any charter or other contract of employment in relation to a vessel;

(e)            Liens for damages arising from maritime torts which are unclaimed, or are covered by insurance and any deductible applicable thereto, or in respect of which a bond or other security has been posted on behalf of the relevant Collateral Vessel Owner with the appropriate court or other tribunal to prevent the arrest or secure the release of such Vessel from arrest;

(f)            Liens that, as indicated by written admission of liability therefor by an insurance company, are covered by insurance (subject to reasonable deductibles);

(g)            Liens arising in the ordinary course of business from chartering, drydocking, maintenance, repair, refurbishment or the furnishing of supplies or bunkers to Vessels;

(h)            any other maritime Liens arising by operation of law in the ordinary course of the operation, repair or maintenance of any vessel;

(i)             any other Lien arising by operation of law or in the ordinary course of trading of a Collateral Vessel which does not secure obligations, in either case not more than 45 days overdue; and

(j)            any other Lien being contested in good faith and by appropriate proceedings or other acts where the Collateral Vessel Owner shall have set aside on its books adequate reserves with respect to such Lien and so long as such deferment in payment shall not subject a Collateral Vessel to forfeiture or loss).

“Permitted Refinancing Debt” means Financial Indebtedness other than Financial Indebtedness set forth under clauses (e), (f), (m), (p) and (s) of the definition of “Permitted Indebtedness” (for purposes of this definition, “new Debt”) incurred in exchange for, or proceeds of which are used to purchase or refinance, other Financial Indebtedness (the “Refinanced Debt”); to the extent that: (a) such new Debt is in an aggregate principal amount not in excess of the sum of (i) the aggregate principal amount then outstanding of the Refinanced Debt (or, if the Refinanced Debt is exchanged or acquired for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, such lesser amount but in any event plus an amount equal to any existing commitments unutilized thereunder) and (ii) accrued and unpaid interest, cash fees and expenses (including make-whole payments and premiums) on the Refinanced Debt and amounts to pay fees and expenses reasonably incurred, in each case, in connection with such extension, refinancing, repayment and reborrowing, renewal or replacement; (b) such new Debt has a stated maturity no earlier than the stated maturity of the Refinanced Debt; (c) such new Debt has a weighted average life to maturity that is equal to or longer than the remaining weighted average life to maturity of the Refinanced Debt; (d) if applicable, such new Debt is subordinated in right of payment or security to the Obligations to the same extent as the Refinanced Debt; and (e) the obligors with respect to such new Debt do not include any Persons that were not obligors (or would not have been (i) required to become obligors or (ii) permitted to become obligors) with respect to such Refinanced Debt, except that any Obligor may be added as an additional obligor.

“Permitted Tax Distribution” means, with respect to a Person, Distributions made by such Person (or by such Person’s direct or indirect owners) to enable the direct and indirect owners of such Person to meet their respective Tax liabilities in connection with the direct or indirect ownership of such Person.

“Person” means any individual, sole proprietorship, corporation, company (including, without limitation, an exempted company) partnership (general or limited), limited liability company, business trust, bank, trust company, joint venture, association, joint stock company, trust or other unincorporated organization, whether or not a legal entity, or any government or agency or political subdivision thereof.

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

“Pledge Agreements” means one or more pledge agreements in favor of the Security Trustee granted by the holders of any Equity Interests of a Guarantor in a form agreed between the Security Trustee and the Borrower.

“Platform” means the electronic system selected by the Facility Agent for making materials and/or information provided by or on behalf of the Borrower available to the Lenders.

“Prime Rate” means the greater of: (a) 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 Facility Agent) or any similar release by the Federal Reserve Board (as determined by the Facility Agent) and (b) the Floor. 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 Rata Share” means (a) with respect to all payments, computations and other matters relating to the Commitment of any Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the unused Commitment of that Lender and the denominator of which is the aggregate unused Commitments of all Lenders at such time and (b) with respect to all payments, computations and other matters relating to the Advances of any Lender and any Letters of Credit issued or participations purchased therein by any Lender (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Exposure of that Lender and the denominator of which is the aggregate Revolving Exposure of all Lenders at such time.

“Purchase Money Debt” means Financial Indebtedness incurred by a Person in connection with the purchase of property (real or personal), equipment, or fixed or capital assets (or the acquisition of Equity Interests of another Person owning such property or assets) by such Person, provided that (x) if the seller or financier thereof has taken or retained a Lien in such assets, any such Lien attaches concurrently with or within 120 days after the purchase thereof by such Person and (y) at the time of incurrence of such Financial Indebtedness, the aggregate principal amount of such Financial Indebtedness shall not exceed the costs of the assets so purchased plus fees and expenses reasonably related thereto.

“Quarter Date” means each March 31, June 30, September 30 and December 31 in any calendar year.

“Redemption” means, with respect to any Junior Indebtedness, the repurchase, redemption, prepayment, repayment, defeasance or any other acquisition or retirement for value of such Junior Indebtedness prior to its stated maturity. “Redeem” has the correlative meaning thereto.

“Reflag Collateral Vessels” the Collateral Vessels listed on Schedule 1.1(d).

“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Reimbursement Obligations” shall have the meaning ascribed thereto in Section 3.10(c).

“Related Assets” means, with respect to any vessel, all charters, management agreements, operating agreements, equipment and other assets of any type which are required for, or incidental to, the ownership and operation of such Vessel.

“Related Business Assets” means any asset related to a Collateral Vessel that is useful in the business of the Borrower and its Restricted Subsidiaries are engaged on at the date of this Agreement or permitted to engage in hereunder and which becomes part of the Collateral upon its acquisition.

“Related Party” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

“Released Vessels” shall have the meaning ascribed thereto in Section 9.6(b).

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

“Relevant Period” means each period of four financial quarters ending on the preceding Quarter Date.

“Relevant Person” means the (a) the Obligors and each of their Subsidiaries, and (b) each of their directors, officers and employees.

“Rescindable Amount” shall have the meaning ascribed thereto in Section 14.17.

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

“Responsible Officer” means, for any Person, the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer, other Financial Officer, director, secretary or assistant secretary, or other similar officer of such Person. Any document delivered hereunder that is signed by a Responsible Officer of an Obligor shall be conclusively presumed to have been authorized by all necessary organizational action on the part of such Obligor and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Obligor. Unless otherwise specified, all references herein to a Responsible Officer means a Responsible Officer of the Borrower.

“Restricted” means, when referring to cash or Cash Equivalents of the Borrower or any of the Restricted Subsidiaries, that such cash or Cash Equivalents appear (or would be required by GAAP to appear) as “restricted” on a consolidated balance sheet of such Borrower or such Restricted Subsidiary (unless such appearance is related to a restriction in favor of the Facility Agent or Security Trustee).

(a)            listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of Person); or

(b)            located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions; or

(c)            directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a Person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above.

“Restricted Payments” shall have the meaning ascribed thereto in Section 9.2.

“Restricted Subsidiary” means all Subsidiaries of the Borrower other than Unrestricted Subsidiaries.

“Revolving Exposure” means with respect to any Lender as of any date of determination, (a) prior to the termination of the Commitments, that Lender’s Commitment; and (b) after the termination of the Commitments, the sum of (i) the aggregate outstanding principal amount of the Advances by that Lender, (ii) in the case of each Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations by other Lenders in such Letters of Credit and any Cash Collateralization of such Letters of Credit by the Borrower or its Subsidiaries) and (iii) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit.

“Sanctions” means any applicable (to any Relevant Person and/or Secured Creditor as the context provides) laws, regulations or orders concerning any trade, economic or financial sanctions or embargoes.

“Sanctions Authority” means the Norwegian State, the United Nations, the European Union, the Member States of the European Union, the United Kingdom, United States of America, and any of their respective legislative, executive, enforcement and/or regulatory authorities or bodies acting in connection with Sanctions.

“Sanctions List” means (a) the lists of Sanctions designations and/or targets maintained by any Sanctions Authority and/or (b) any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, as amended, supplemented or replaced from time to time.

“Secured Creditors” means the Facility Agent, the Security Trustee, the Lenders, the Issuing Banks, the Specified Swap Agreement Providers, the holders of any Specified Cash Management Obligations, the holders of any Specified Bilateral LC Obligations and any other holder of any Secured Obligation.

“Secured Obligations” means, collectively, (a) the Obligations, (b) all Specified Swap Agreement Obligations (other than Excluded Swap Obligations), (c) all Specified Cash Management Obligations, and (d) Specified Bilateral LC Obligations in an aggregate amount not to exceed $5,000,000.

“Securities Account” has the meaning given to such term in the Security Agreement.

“Security Agreement” means each security agreement in favor of the Security Trustee substantially in the form attached hereto as Exhibit E or such other form agreed between the Security Trustee and the Borrower.

“Security Document(s)” means the Mortgages, the Foreign Subsidiary Share Pledge, the Security Agreements, the Pledge Agreements, and any other documents that may be executed as security for the Facility and the Obligations.

“Similar Law” means any law, regulation, rule, policy or order substantially similar to ERISA and/or Section 4975 of the Code.

“SMC” means the safety management certificate issued in respect of the Collateral Vessels in accordance with rule 13 of the ISM Code.

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

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

“Specified Bilateral LC Documents” means (a) any Bilateral LC Documents in effect on the Closing Date between or among any Obligor and a counterparty that is (i) a Lender, (ii) the Facility Agent, or (iii) an Affiliate of a Lender or the Facility Agent, in each case as determined as of the Closing Date or (b) any Bilateral LC Documents entered into after the Closing Date between or among any Obligor and a counterparty that is (i) a Lender, (ii) the Facility Agent, or (iii) an Affiliate of a Lender or the Facility Agent, in each case as determined at the time such Bilateral LC Documents are entered into.

“Specified Bilateral LC Obligations” means all existing or future payment and other obligations owing by any Obligor under any Specified Bilateral LC Documents.

“Specified Cash Management Obligations” means obligations in respect of any agreement providing for treasury, depositary, purchasing card, credit card or other cash management services, including in connection with any automated clearing house transfers of funds or any similar transactions between (a) the Borrower and/or any Restricted Subsidiary, on the one hand, and (b) any Person that is a Lender or an Affiliate of a Lender, on the other hand, at the time such Person enters into such agreement or transaction or with respect to which such agreement existed at the time such Person became a Lender or an Affiliate of a Lender (in any such case, regardless of whether such Person subsequently ceases to be a Lender or an Affiliate of a Lender but only with respect to any such obligations incurred at such time as such person was a Lender or an Affiliate of a Lender) (any Person referred to in this clause (b), a “Specified Cash Management Provider”).

“Specified Cash Management Provider”      has the meaning assigned to such term in the definition of “Specified Cash Management Obligations”.

“Specified Event of Default” means any Event of Default occurring pursuant to Section 8.1(a), 8.1(b), 8.1(g) or 8.1(n).

“Specified Swap Agreement” means any Swap Agreement that is entered into between (a) the Borrower and/or any Restricted Subsidiary and (b) any Specified Swap Agreement Provider.

“Specified Swap Agreement Obligations” means any and all obligations of any Obligor or Restricted Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Specified Swap Agreements, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any of the foregoing.

“Specified Swap Agreement Provider” means, with respect to a Swap Agreement, any Person that is a Lender or an Affiliate of a Lender at the time such Person enters into such Swap Agreement or with respect to which such Swap Agreement existed at the time such Person became a Lender or an Affiliate of a Lender (in any such case, regardless of whether such Person subsequently ceases to be a Lender or an Affiliate of a Lender).

“Stated Amount” means, with respect to any Letter of Credit at any time, the aggregate amount available to be drawn thereunder at such time (regardless of whether any conditions for drawing could then be met).

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

“Subordination Agreement” means a subordination agreement made by each Obligor or a Restricted Subsidiary that is owed Financial Indebtedness incurred under paragraph (j) of the definition of “Permitted Indebtedness”, and the Security Trustee, in a form reasonably acceptable to the Facility Agent.

“Subsidiary(ies)” means, for any Person (the “parent”), any corporation, limited liability company, exempted company, partnership, exempted limited partnership, association or other entity (a) 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, (b) of which more than fifty percent (50%) of the outstanding stock or comparable Equity Interests having ordinary voting power for the election of the board of directors, managers or similar governing body of such entity, is at the time directly or indirectly owned by the parent or by one or more of its other Subsidiaries or (c) that is, as of such date, otherwise Controlled, by the parent or one or more of its other Subsidiaries. Unless the context expressly provides otherwise, references to a Subsidiary mean a Subsidiary of the Borrower.

“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions entered into in the ordinary course of business and not for speculative purposes; provided that no phantom stock or shares or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Obligors shall be a Swap Agreement.

“Taxes” means any present or future income or other taxes, levies, duties, charges, fees, deductions or withholdings of any nature now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority whatsoever.

“Term SOFR” means 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 Banking 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 Banking 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 Banking Day is not more than three (3) U.S. Government Securities Banking Days prior to such Periodic Term SOFR Determination Day; provided that if Term SOFR as so determined shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.

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

“Term SOFR Advance” means an Advance that bears interest based on Term SOFR.

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

(a)            actual, constructive or compromised or arranged total loss of the Collateral Vessel;

(b)            requisition for title or other compulsory acquisition of the Collateral Vessel (otherwise than by requisition for hire) unless the Collateral Vessel is redelivered to the full control of the relevant Collateral Vessel Owner within one hundred eighty (180) days; or

(c)            capture, seizure, arrest, detention or confiscation of the Collateral Vessel by any government or by persons acting or purporting to act on behalf of any government unless the Collateral Vessel be released and restored to the relevant Collateral Vessel Owner from such capture, seizure, arrest, detention or confiscation within one hundred eighty (180) days after the occurrence thereof.

“Total Net Leverage Ratio” means, as of any date of determination, the ratio of Net Interest-Bearing Debt as of such date to Consolidated EBITDA for the Relevant Period most recently ended.

“Total Utilization of Commitments” means, as of any date of determination, the sum of (i) the aggregate principal amount of all outstanding Advances as of such date, and (ii) the Letter of Credit Usage as of such date.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

“Unrestricted Subsidiary” means, beginning after the Effective Date, those Subsidiaries of the Borrower, if any, designated by the Borrower in writing to the Facility Agent as such in accordance with Section 9.5 (unless and until such Subsidiary is thereafter designated as a Restricted Subsidiary pursuant to Section 9.5) and (b) each of such entity’s Subsidiaries.

“U.S. Government Securities Banking Day” means 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.

“US Person” means any Person that is a “United States person” as defined in Code Section 7701(a)(30).

“U.S. Tax Compliance Certificate” shall have the meaning ascribed thereto in Section 7.1(c).

“West Africa” means Gabon, Senegal, Mauritania, Cameroon, Equatorial Guinea, Ivory Coast, Republic of Congo (Brazzaville) and Ghana.

“West Africa Subsidiary” means each Restricted Subsidiary which is not an Obligor and which is incorporated or formed in, or doing business in, a jurisdiction within West Africa.

“Write-down and Conversion Powers” means, (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 under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a Person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a Person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers.

1.2            Computation of Time Periods; Other Definitional Provisions. In this Agreement and the other Loan Documents, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”; words importing either gender include the other gender; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules are to this Agreement, the Notes or such Security Document, as applicable; references to agreements and other contractual instruments (including this Agreement and the other Loan Documents) shall be deemed to include all subsequent amendments, amendments and restatements, supplements, extensions, replacements and other modifications to such instruments (without, however, limiting any prohibition on any such amendments, extensions and other modifications by the terms of this Agreement, the Notes or any Security Document); references to any matter that is “approved” or requires “approval” of a party shall mean approval given in the sole and absolute discretion of such party unless otherwise specified. For purposes of determining compliance with any covenant herein, in the event that any item or transaction meets the criteria of more than one of the categories of items or transactions permitted in any such covenant or any related definition, the Borrower will be permitted, in its sole discretion, to divide and classify such item or transaction, or later reclassify all or a portion of such item or transaction (provided that at the time of reclassification it meets the criteria in such category or categories), in any manner that complies with such covenant or related definition; provided however that (x) reclassification shall not be permitted with respect to the covenants set forth in Sections 9.2(b) (Investments) and 9.2(c) (Restricted Payments) and (y) Financial Indebtedness incurred under clauses (e), (f), (m), (p) and (s) of the definition of “Permitted Indebtedness” shall not be permitted to be reclassified as Permitted Refinancing Debt.

1.3            Accounting Terms. Unless otherwise specified herein, all accounting terms used in this Agreement, the Notes and in the Security Documents shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Facility Agent under this Agreement shall be prepared, in accordance with generally accepted accounting principles, practices and standards for the United States of America (“GAAP”) as from time to time in effect; provided, however, that if the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change in accounting principles or change as a result of the adoption or modification of accounting policies occurring after the Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

1.4            Certain Matters Regarding Materiality. To the extent that any representation, warranty, covenant or other undertaking of any of the Obligors in this Agreement is qualified by reference to those which are not reasonably expected to result in a “Material Adverse Effect” or language of similar import, no inference shall be drawn therefrom that the Creditors have knowledge or approve of any noncompliance by the Obligors with any governmental rule.

1.5            Forms of Documents. Except as otherwise expressly provided in this Agreement, references to documents or certificates “substantially in the form” of Exhibits to another document shall mean that such documents or certificates are duly completed in the form of the related Exhibits with substantive changes subject to the provisions of Section 17.6 of this Agreement, as the case may be, or the correlative provisions of the Security Documents, and non-substantive changes subject to the agreement of the Agents and the Borrower.

1.6            Rates. The Facility 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 ABR, 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, ABR, 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 Facility Agent and its affiliates or other related entities may engage in transactions that affect the calculation of ABR, 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 Facility 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.

2.1            Representations and Warranties. In order to induce the Creditors to enter into this Agreement and to induce the Lenders to make the Facility available to the Borrower and the Issuing Banks to execute Letters of Credit for the benefit of the Obligors, each of the Obligors represents and warrants, as to itself, to the Creditors on the Effective Date, on each Drawdown Date, on the date of each Letter of Credit Extension (which representations and warranties shall survive the execution and delivery of this Agreement and the Notes and any drawdown of the Facility hereunder until the repayment in full of the Obligations (other than contingent indemnification obligations for which no claim or demand has been made)) that:

(a)            Due Organization and Power. each Obligor is duly established or formed and is validly existing in good standing under the laws of its jurisdiction of formation to the extent such concept is recognized under the laws of its jurisdiction of formation, has full power to carry on its business as now being conducted and to enter into and perform its obligations under this Agreement and the other Loan Documents;

(b)            Authorization and Consents. all necessary corporate, limited liability company or similar action has been taken to authorize, and all necessary consents and authorities have been obtained and remain in full force and effect to permit, each Obligor to enter into and perform its respective obligations under this Agreement and the other Loan Documents and to borrow, service and repay the Facility and, as of the date of this Agreement, no further corporate, limited liability company or similar consents or authorities are necessary for the service and repayment of the Facility or any part thereof;

(c)            Binding Obligations. this Agreement, the Notes and the other Loan Documents constitute or will, when executed and delivered and, as applicable, filed or recorded, constitute the legal, valid and binding obligations of each of the Obligors and are enforceable thereagainst in accordance with their respective terms, except to the extent that such enforcement may be limited by equitable principles, principles of public policy or applicable debtor relief, bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors' rights and subject to the Agreed Security Principles;

(d)            No Violation. the execution and delivery of, and the performance of the provisions of, this Agreement and the other Loan Documents by each of the Obligors do not violate in any material respect any applicable law or regulation existing at the Effective Date material to the conduct of the Obligors’ business or any material contractual restriction binding on the Obligors or the certificate of formation or limited liability company operating agreement (or equivalent instruments) thereof, and that the proceeds of the Facility shall be used by the Borrower exclusively for its and its Subsidiaries’ own account;

(e)            Filings; Stamp Taxes. other than the recording of the Mortgages with the relevant body of each Collateral Vessel’s Approved Flag Jurisdiction, and the filing of the Uniform Commercial Code financing statements, and the payment of filing or recording fees consequent thereto, it is not necessary for the legality, validity, enforceability or admissibility into evidence of this Agreement or the other Loan Documents that any of them or any document relating thereto be registered, filed, recorded or enrolled with any court or authority in any relevant jurisdiction or that any Other Taxes be paid on or in relation to this Agreement or any of the other Loan Documents;

(f)            Approvals; Consents. all consents, licenses, approvals and authorizations required, whether by statute or otherwise, in connection with the entry into and performance by each of the Obligors, and the validity and enforceability against each of the Obligors, of this Agreement and the other Loan Documents have been obtained and are in full force and effect;

(g)            Litigation. no action, suit or proceeding is pending or, to the knowledge of any Obligor, threatened in writing against any Obligor or any Subsidiary thereof before any court, board of arbitration or Governmental Authority which could reasonably be expected to result in a Material Adverse Effect;

(h)            No Subordination. there is no agreement, indenture, contract or instrument to which any Obligor is a party, or by which any Obligor may be bound, that requires the subordination in right of payment of any Obligor’s obligations under this Agreement to any other obligation thereof;

(i)            each Collateral Vessel is in the sole and absolute ownership of the relevant Collateral Vessel Owner set out opposite its name on Schedule 1.1(c) and Schedule 1.1(d) (unless otherwise disclosed on Schedule 1.1(c) or Schedule 1.1(d)) and duly registered in its name under the laws of the jurisdiction set out opposite its name on Schedule 1.1(c) and Schedule 1.1(d), unencumbered, save and except for any Permitted Liens;

(ii)            Collateral Vessels initially constituting at least 90% of the Fair Market Value of all the Collateral Vessels are in class at minimum at the same standard of classification as is applicable for Vessels of comparable age and type with its Classification Society free of overdue recommendations, which required percentage shall be subject to adjustment after the Effective Date pursuant to Section 9.1(g)(ii);

(iii)            each Collateral Vessel is operationally seaworthy and in every way fit for its intended service;

(iv)            each Collateral Vessel is insured in accordance with the provisions of this Agreement and the other Loan Documents and the requirements thereof in respect of such Insurances shall have been complied with;

(v)            each Collateral Vessel is in compliance with all relevant laws, regulations and requirements (including Environmental Laws, regulations, and requirements), statutory or otherwise, as are applicable to (A) Vessels documented under the laws of the relevant Approved Flag Jurisdiction and (B) Vessels engaged in a trade similar to that performed by such Collateral Vessel, except where the failure to so comply would not have a Material Adverse Effect; and

(vi)            no Collateral Vessel is employed in territorial waters of any country in which there is a reasonable degree of likelihood her safety would be imperiled by exposure to piracy, terrorism, arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize;

(l)            Financial Information. on or prior to the Effective Date, all financial statements, information and other data furnished in writing by the Borrower to the Facility Agent in connection with the Facility are, taken as a whole, complete and correct in all material respects in accordance with GAAP, such financial statements have been prepared in accordance with GAAP and accurately and fairly present, in accordance with GAAP, the financial condition of the parties covered thereby in all material respects, as of the date such information was furnished (or, if such information expressly relates to a specific date or dates, as of such specific date or dates), and, since the date of the Borrower’s financial statements most recently delivered to the Facility Agent, there has been no Material Adverse Effect;

(m)            Tax Returns. each Obligor and each Subsidiary thereof have filed all material tax returns required to be filed by them and have paid all material Taxes payable by them which have become due, other than those not yet delinquent and except for those Taxes being contested in good faith and by appropriate proceedings or other acts and for which reserves shall have been set aside on its books to the extent required by GAAP and for which the failure to pay or delay in filing could not reasonably be expected to result in a Material Adverse Effect;

(n)            ERISA. (i) assuming that either (x) no portion of the Facility will be funded with “plan assets,” (as defined under Section 3(42) of ERISA and subject to ERISA, Section 4975 of the Code or such applicable Similar Law) or (y) a prohibited transaction exemption is applicable so as to exempt from the prohibitions of Section 406 of ERISA, Section 4975 of the Code or the prohibited transaction provisions of such Similar Law, as applicable, the funding of an Advance by any Lender which has funded its portion of the Facility with such “plan assets” and such Lender’s funding does not otherwise violate ERISA or any applicable Similar Law in respect of the “plan assets” used therein by such Lender, the execution and delivery of this Agreement and the consummation of the transactions hereunder will not involve any non-exempt “prohibited transaction” for purposes of ERISA, Section 4975 of the Code or any Similar Law or otherwise violate ERISA or any Similar Law, (ii) none of the Obligors or any of their Subsidiaries is a “benefit plan investor” (as defined in Section 3(42) of ERISA) or is otherwise using “plan assets” (as defined under Section 3(42) of ERISA and subject to ERISA, Section 4975 of the Code or such applicable Similar Law), (iii) no ERISA Termination Event or Foreign Termination Event has occurred and (iv) no (A) ERISA Funding Event or (B) Foreign Underfunding exists or has occurred, except to the extent that any such event(s) or underfunding(s) referenced under subsections (iii) and (iv) above, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect;

(o)            Chief Executive Offices. as of the Effective Date, each Obligor’s chief executive office and chief place of business and the office in which the records relating to the earnings and other receivables of the Borrower are kept is located at 842 West Sam Houston Pkwy North, Suite 400 Houston, Texas 77024;

(ii)           in breach of Sanctions in any material respect; or

(iii)          to its knowledge subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action asserted or threatened in writing by any regulatory or enforcement authority or third party concerning any Sanctions.

(q)            Environmental Matters and Claims. (a) except as heretofore disclosed in writing to the Creditors (i) each of the Obligors and each of their Environmental Affiliates will, when required under applicable law to operate their business as then being conducted, be in compliance with all applicable United States federal and state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or protection of human health, to the extent related to exposure to Materials of Environmental Concern, or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, waters of the contiguous zone, ocean waters and international waters), including, without limitation, laws, regulations, conventions and agreements to which any is a party relating to (1) emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil, hazardous substances, petroleum and petroleum products and by-products (“Materials of Environmental Concern”), or (2) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern (“Environmental Laws”) in each case as to all of the foregoing such that there will not be a Material Adverse Effect; (ii) each of the Obligors and each of their Environmental Affiliates will, when required under applicable law, have all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other authorizations required under applicable Environmental Laws (“Environmental Approvals”) and will, when required under applicable law, be in compliance with all Environmental Approvals required to operate their business as then being conducted, in each case as to all of the foregoing such that there will not be a Material Adverse Effect; (iii) no Obligor nor any Environmental Affiliate thereof has received any written notice of any claim, action, cause of action, investigation or demand by any Person, entity, enterprise or Governmental Authority, alleging potential liability for, or a requirement to incur, material investigator costs, cleanup costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorneys’ fees and expenses, or fines or penalties, in each case arising out of, based on or resulting from (1) the presence, or release or threat of release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by such Person, or (2) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Environmental Approval (“Environmental Claim”) (other than, as to each of the immediately preceding clauses (1) and (2), Environmental Claims that could not reasonably be expected to result in a Material Adverse Effect or that have been fully and finally adjudicated or otherwise determined and all fines, penalties and other costs, if any, payable by the Borrower or any Environmental Affiliate in respect thereof have been paid in full or which the Borrower reasonably expects to be, or are, fully covered by insurance (including permitted deductibles)); and (iv) there are no circumstances that may prevent or interfere with such full compliance (other than as would not be a Material Adverse Effect) in the future; and (b) except as heretofore disclosed in writing to the Creditors there is no Environmental Claim pending or, to the knowledge of any Obligor, threatened in writing against any Obligor or, to the knowledge of any Obligor, any Environmental Affiliate thereof and there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge or disposal of any Materials of Environmental Concern, in each case, that could form the basis of any Environmental Claim against such Persons which would reasonably result in a Material Adverse Effect;

(r)            Compliance with ISM Code, ISPS Code, MTSA and Annex VI. the Collateral Vessels are in compliance with, and the Obligors have cause each of the managers to comply with, the requirements of the ISM Code, the ISPS Code, the MTSA (if applicable) and Annex VI, including (but not limited to) applicable maintenance and renewal of valid certificate requirements imposed pursuant thereto, in each case, such that there will not be a material impact to the Collateral Vessels’ continued operation;

(s)            No Threatened Withdrawal of DOC, ISSC, SMC or IAPPC. there has been no actual or, to the best of the Borrower’s knowledge, threatened in writing, withdrawal of any manager’s DOC (if applicable) or any Collateral Vessel’s ISSC, SMC or IAPPC or other certification or documentation related to the ISM Code, the ISPS Code, the MTSA (if applicable) and Annex VI, as applicable, required for the operation of each Collateral Vessel;

(t)            Liens. other than Permitted Liens, there are no Liens of any kind on any property owned by the Borrower or the Restricted Subsidiaries;

(u)            Financial Indebtedness. other than Permitted Indebtedness, the Borrower and the Restricted Subsidiaries do not have outstanding Financial Indebtedness;

(v)            Use of Proceeds. subject to Section 3.1, the Borrower requires the Facility for use in connection with its and its Subsidiaries’ lawful organizational purpose and for no other purposes and the Borrower’s use of the Facility does not violate, any law, official requirement or other regulatory measure or procedure implemented to combat “money laundering”, including without limitation (i) any program, legislation, resolutions or Directives issued by the United Nations or the European Union that is binding on Borrower or a Creditor (or any Subsidiary thereof), including without limitation, the Global Programme against Money-Laundering, Proceeds of Crime and the Financing of Terrorism, Council Directive 2005/60/EC, and Directive 91/308/EEC; or (ii) United States Federal and state laws, statutes, regulations, or orders, including but not limited to the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Money Laundering Control Act, the Bank Secrecy Act and the USA PATRIOT Act; and the operations of the Borrower are and have been, to the knowledge of any Obligor, conducted at all times in material compliance in all material respects with all applicable financial recordkeeping and reporting requirements thereunder;

(w)            Foreign Corrupt Practices Act; Anti-Money Laundering.

(i)            The Obligors have not taken any action directly or, to the knowledge of any Obligor, indirectly, that would result in a violation of the FCPA in any material respect, including, without limitation, to the extent constituting a material violation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any non-U.S. political party or official thereof or any candidate for non-U.S. political office, in violation of the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith provided however that this representation shall not fail to be true and correct due to any failure or failures to comply with the FCPA that are isolated and are not the direct result of actions taken by a senior executive officer of an Obligor and do not evidence a pervasive or systemic pattern of violation of the FCPA or a significant deficiency in the implementation of such policies and procedures; and

(ii)            Each Obligor confirms that it is acting as principal for its own account and not as agent or trustee in any capacity on behalf of any party in relation to the Loan Documents. Each Obligor undertakes to notify the Facility Agent promptly in writing if after the date of this Agreement an Obligor acts under this Agreementfor the account of another economic beneficiary or any other Person (other than another Obligor);

(x)            No Proceedings to Dissolve. there are no proceedings or actions pending or contemplated by any of the Obligors to dissolve or terminate any of the Obligors, in each case, other than as permitted hereunder;

(y)            Solvency. with respect to the Borrower and each of its Restricted Subsidiaries, on a consolidated basis, (a) the sum of their assets, at a fair valuation, does and will exceed their liabilities, including, to the extent they are reportable as such in accordance with GAAP, their contingent liabilities, (b) the present fair market salable value of their assets is not and shall not be less than the amount that will be required to pay their probable liability on their existing debts, including, to the extent they are reportable as such in accordance with GAAP, contingent liabilities, as they mature, (c) they do not and will not have unreasonably small working capital with which to continue their business and (d) they have not incurred, do not intend to incur and do not believe they will incur, debts beyond their collective ability to pay such debts as they mature. For purposes of this Section 2.1(y), the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability;

(z)            Compliance with Laws. the Borrower and each of its Restricted Subsidiaries are (i) in compliance with all applicable laws except where the failure to comply would not alone or in the aggregate result in a Material Adverse Effect, and (ii) in compliance with Sanctions in all material respects;

(aa)         Margin Stock. the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock and no proceeds of the Facility will be used to buy or carry any Margin Stock or to extend credit to others for the purpose of buying or carrying any Margin Stock in violation of any of the regulations of the Federal Reserve Board.

(bb)        Survival. all representations warranties made herein and in any other Loan Document shall survive the making of the Facility and the issuance of the Notes.

3.1            Purpose. The Lenders shall make the Facility available to the Borrower for general corporate purposes including working capital and asset acquisitions.

3.2            Making of the Facility. During the Availability Period, each of the Lenders hereby severally and not jointly agrees to, on each Drawdown Date, make its portion of the relevant Advance available through the Facility Agent to the Borrower if, immediately after giving effect to such Advance, (i) the amount of such Advance to be funded by such Lender does not exceed such Lender’s Pro Rata Share of Available Commitments and (ii) the Total Utilization of Commitments does not exceed the Commitments then in effect. The Facility may be made available in multiple Advances. Any Advance shall be in a minimum amount of One Million Dollars ($1,000,000) and in integral multiples thereof. Any Commitments that are not drawn on the Final Availability Date shall be terminated. Advances may be repaid, in whole or in part, and all or any portion of the principal amounts thereof reborrowed, from time to time during the Availability Period, subject to the terms and conditions hereof.

3.3            Drawdown Notice. The Borrower shall deliver notice (a “Drawdown Notice”), substantially in the form of Exhibit C, on the Facility Agent (x) by 2:00 p.m. (New York City time) at least three (3) Banking Days prior to the making of any Term SOFR Advance and (y) by 12:00 p.m. (New York City time) at least one (1) Banking Day prior to the making of any ABR Advance. Such Drawdown Notice shall (a) be in writing addressed to the Facility Agent and executed by any two of the following officers of the Borrower – chief executive officer, chief financial officer, chief accounting officer, treasurer or general counsel, (b) be effective on receipt by the Facility Agent, (c) specify the Banking Day on which the Advance is to be drawn, (d) specify the principal amount of the Advance and the type of Advance to be made available by the Lenders on that date, (e) specify the Interest Period requested by the Borrower, which period may end no later than the Maturity Date, (f) be disbursed to the bank account of the Borrower previously identified in writing by any two of the officers specified in the preceding clause (a) for purposes of disbursements, and (g) be irrevocable. Promptly following receipt of a Drawdown Notice, the Facility Agent shall advise each applicable Lender of the details thereof and such Lender’s portion of the Advance.

3.4            Effect of Drawdown Notice. Each Drawdown Notice shall be deemed to constitute a warranty by the Borrower (a) that the representations and warranties stated in Section 2 (updated mutatis mutandis) are true and correct in all material respects (unless qualified by materiality or Material Adverse Effect, in which case such representation shall be true and correct in all respects) on and as of the relevant Drawdown Date as if made on such date (except to the extent that any such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects (unless qualified by materiality or Material Adverse Effect, in which case such representation shall be true and correct in all respects) as of such earlier date), and (b) that no Default or Event of Default has occurred and is continuing.

3.5            Funding by Lenders. Each Lender shall make the amount of each Advance to be made by it hereunder available to the Facility Agent in immediately available funds not later than 11:00 a.m. (New York City time) on the proposed Drawdown Date. The Facility Agent will make all such funds so received available to the Borrower in like funds, by wire transfer of such funds in accordance with Section 3.3(f).

3.6            Number of Advances Outstanding. At no time shall the number of Advances for outstanding Term SOFR Advances exceed ten (10) (it being understood for such purposes that multiple Advances having an Interest Period commencing on the same date and of the same duration shall be counted as one Advance).

3.7            Notation of Advance. Each Advance made by the Lenders to the Borrower may be evidenced by a notation of the same made by the Facility Agent on the grid attached to the applicable Note, which notation, absent manifest error, shall be prima facie evidence of the amount of such Advance.

3.8            Presumption by the Facility Agent. Unless the Facility Agent shall have received notice from a Lender, prior to the proposed Drawdown Date that such Lender will not make available to the Facility Agent such Lender’s share of an Advance, the Facility Agent may, but is not required to, assume that such Lender has made such share available on such date in accordance with Section 3.5 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount as directed in the Drawdown Notice. In such event, if a Lender has not in fact made its share of an Advance available to the Facility Agent, then the applicable Lender and the Borrower severally agree to pay to the Facility Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Facility Agent, at in the case of a payment to be made by such Lender, the Federal Funds Rate. If the Borrower and such Lender shall pay such interest to the Facility Agent for the same or an overlapping period, the Facility Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of an Advance to the Facility Agent, then the amount so paid shall constitute such Lender’s portion included in such Advance. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Facility Agent.

(a)            Request for Increase. Provided no Default or Event of Default has occurred and is continuing, upon (i) notice to the Facility Agent (which shall promptly notify the Lenders, such notice to be received by the Facility Agent not less than ten (10) Banking Days before the date on which the Commitment increase is to take effect) and (ii) substantially contemporaneous notice (with copy thereof to the Facility Agent) to Eligible Assignees not then Lenders (each such Eligible Assignee, a “Proposed Lender”), the Borrower shall have the right promptly to effectuate from time to time in accordance with the terms hereof, an increase (the “Additional Commitments”) in the aggregate amount of the then Commitments; provided that (i) the increased Commitments shall be requested solely in connection with a Permitted Acquisition provided the assets so acquired will, subject to the Agreed Security Principles, be pledged as additional Collateral, (ii) the aggregate amount of the Commitments as so increased by the Additional Commitments shall not at any time exceed $350,000,000, and (iii) each such increase shall be in a minimum amount of $25,000,000. At the time of sending such notices, Borrower shall specify the time period within which each Lender and Proposed Lender is requested to respond (which shall in no event be less than five (5) Banking Days from the date of delivery of such notice, and which may be extended upon agreement by the Borrower and the Facility Agent).

(b)            Lender Elections to Increase. Each Lender shall promptly notify the Facility Agent and the Borrower within such time period whether or not it agrees to increase the amount of its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share (as it existed immediately prior to such proposed increase) and the amount of such proposed increase. Each Proposed Lender shall promptly notify the Facility Agent and the Borrower within such time period whether or not it agrees to participate in such increased amount of the Commitments, and at what amount it proposes to participate in such increased amount. Any Lender or Proposed Lender not responding within such time period shall be deemed to have declined to increase its Commitment, or deemed to have declined to participate in the increase in the aggregate amount of the Commitments, as the case may be.

(c)            Effective Date and Allocations. If the aggregate amount of Commitments are increased in accordance with this Section 3.9, the Facility Agent and the Borrower shall promptly thereafter determine the effective date thereof (the “Increase Effective Date”) and the final allocation of such increase, and the Facility Agent shall promptly notify the Borrower and the Lenders (including Proposed Lenders that have agreed to participate in such increase) of the final allocation of such increase and the Increase Effective Date.

(d)            Additional Commitment Amendments; Conditions to Effectiveness of Increase.

(i)            Additional Commitments will become effective pursuant to an amendment (each, an “Additional Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Person providing such Additional Commitments and the Facility Agent. The Facility Agent will promptly notify each Lender as to the effectiveness of each Additional Commitment Amendment. Additional Commitment Amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Facility Agent, to effect the provisions of this Section 3.9. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Commitment Amendment, this Agreement and the other Loan Documents, as applicable, will be amended to the extent necessary to reflect the existence and terms of the Additional Commitments. This Section 3.9 shall supersede any provisions in Section 17.6 to the contrary.

(ii)            As conditions precedent to the effectiveness of each Additional Commitment Amendment:

(A)            the Borrower shall deliver to the Facility Agent a certificate of the Borrower dated as of the applicable Increase Effective Date, signed by a Responsible Officer of the Borrower, (x) certifying and attaching the resolutions adopted by the Borrower and the relevant Obligors authorizing or consenting to such increase, as the case may be, and (y) certifying that, immediately before and after giving effect to such increase, (1) the representations and warranties of the Obligors contained in Section 2 of this Agreement are true and correct in all material respects on and as of such applicable Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (2) the Borrower is in pro-forma compliance with Section 9.3 and 9.4 after giving effect to such Additional Commitments and (3) no Default or Event of Default has occurred and is continuing,

(B)            upon the reasonable request of any Lender made at least three Banking Days prior to the Increase Effective Date, the Borrower shall have provided to such Lender such information and documentation reasonably requested by it in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act,

(C)            each Proposed Lender that is becoming a Lender shall be subject to the reasonable approval (which approval shall not be unreasonably withheld, delayed or conditioned) of the Facility Agent and satisfaction of “know your customer” requirements of the Facility Agent,

(D)            the Facility Agent, the Borrower and such Persons making the Additional Commitments available shall execute and deliver to the Lenders an Additional Commitment Amendment and any documents required to be executed and delivered thereunder,

(E)            the Borrower shall cause to be executed and delivered, as applicable, all such Security Documents or amendments or supplements thereto to ensure that the Additional Commitments are subject to the same Liens over the Collateral securing the Secured Obligations then in effect, and that the assets so acquired with such Additional Commitments become, subject to the Agreed Security Principles, additional Collateral, and

(F)            the Facility Agent shall have received all such corporate authorizations and legal opinions (i) required relating to the Additional Commitment Amendment and such other documents described in this sub-section (ii), or (ii) required by the relevant Lenders and agreed to by the Borrower under the Additional Commitment Amendment.

(e)            Reallocation of Outstanding Loans. The Borrower shall prepay any Loans outstanding on such applicable Increase Effective Date to the extent necessary to keep the outstanding Loans ratable with the Pro Rata Share resulting from any non-ratable increase in the amount of the Commitments under this Section 3.9 and in effect after giving effect thereto.

(f)            Conflicting Provisions. This Section shall supersede any provisions in Section 7.5 or 14.8 to the contrary.

(i)            Subject to the terms and conditions set forth herein, (A) each Issuing Bank agrees, in reliance upon the agreements of the Lenders set forth in this Section 3.10, (1) from time to time on any Banking Day on or prior to the Final Availability Date, to issue Letters of Credit for the account of the Borrower, or a Restricted Subsidiary (provided that any Letter of Credit issued for the benefit of any Restricted Subsidiary shall be issued for the account of the Borrower but such Letter of Credit shall indicate that it is being issued for the benefit of such Restricted Subsidiary, as applicable) subject to satisfactory receipt of such information and documentation reasonably requested by the Facility Agent or any Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and to amend, renew or extend Letters of Credit previously issued by it, in accordance with Section 3.10(b) and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in such Letters of Credit and any drawings thereunder; provided that the Issuing Banks shall not be obligated to make any Letter of Credit Extension if, as of the date of such Letter of Credit Extension, (1) the Total Utilization of Commitments would exceed the Commitments, (2) the Pro Rata Share of Total Utilization of Commitments of any Lender would exceed such Lender’s Commitment, (3) the Letter of Credit Usage would exceed the Letter of Credit Sublimit, (4) the Letter of Credit Usage with respect to Letters of Credit issued by such Issuing Bank would exceed the amount of such Issuing Bank’s Letter of Credit Percentage of the Letter of Credit Sublimit, or (5) the Borrower has not on such date satisfied the conditions precedent set forth in Section 4.3. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the Availability Period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

(ii)            An Issuing Bank shall not be under any obligation to issue any Letter of Credit if:

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

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

(C)            except as otherwise agreed by the Facility Agent and such Issuing Bank, such Letter of Credit is in an initial stated Dollar Amount less than $100,000;

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

(E)            such Letter of Credit is issued for the account of a Person which is not an Obligor or in favor of a beneficiary, in each case which does not satisfy the Issuing Bank’s “know your customer” requirements; and

(F)            any Lender is at such time a Defaulting Lender, unless, after giving effect to Sections 7.4(d) and 7.4(e), such Issuing Bank has entered into arrangements satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure with respect to such Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other Letter of Credit Obligations as to which such Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion.

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

(iv)            Unless otherwise agreed by an applicable Issuing Bank in its sole discretion, each Letter of Credit shall expire at or prior to the close of business on the earlier of (A) the date the date specified in such Letter of Credit and (B) the Maturity Date (unless arrangements satisfactory to the applicable Issuing Banks have been entered into).

(b)            Procedures for Issuance and Amendment of Letters of Credit; Auto Renewal Letters of Credit.

(i)            Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable Issuing Bank (with a copy to the Facility Agent) in the form of a Letter of Credit Application, appropriately completed and signed by an officer of the Borrower. Such Letter of Credit Application must be received by the applicable Issuing Bank and the Facility Agent not later than 1:00 p.m. at least five (5) Banking Days (or such shorter period as the applicable Issuing Bank and the Facility Agent may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (A) the proposed issuance date of the requested Letter of Credit (which shall be a Banking Day); (B) the Dollar Amount thereof as of the date of such Letter of Credit Application; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the currency in which the requested Letter of Credit will be denominated (which must be Dollars or any other currency with a liquid foreign exchange trading market agreed to by the Borrower and the applicable Issuing Bank in its sole discretion) and (H) such other matters as the applicable Issuing Bank may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, the Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Banking Day); and (3) the nature of the proposed amendment. Additionally, the Borrower shall furnish to the applicable Issuing Bank and the Facility Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Letter of Credit Documents, as the applicable Issuing Bank or the Facility Agent may reasonably require.

(ii)            Promptly after receipt of any Letter of Credit Application, the applicable Issuing Bank will confirm with the Facility Agent that the Facility Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the applicable Issuing Bank will provide the Facility Agent with a copy thereof. Upon receipt by the applicable Issuing Bank of confirmation from the Facility Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions set forth herein, such Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Bank a participation in such Letter of Credit in an amount equal to such Lender’s Pro Rata Share of the amount of such Letter of Credit.

(iii)            Promptly, but in any event within five (5) Banking Days, after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to the Borrower and the Facility Agent a true and complete copy of such Letter of Credit or amendment.

(i)            Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Bank shall notify the Borrower and the Facility Agent thereof, and such Issuing Bank shall, within a reasonable time following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. If an Issuing Bank notifies the Borrower of any payment by such Issuing Bank under a Letter of Credit, then the Borrower shall reimburse such Issuing Bank in an amount equal to the amount of such drawing not later than 3:00 p.m. on the next succeeding Banking Day. If the Borrower fails to so reimburse such Issuing Bank by such time, such Issuing Bank shall promptly notify the Facility Agent of such failure and the Facility Agent shall promptly thereafter notify each Lender of such payment date, the amount of the unreimbursed drawing (the “Reimbursement Obligations”) and the amount of such Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested an ABR Advance to be disbursed on such date in an amount equal to such Reimbursement Obligation, without regard to the minimum and multiples specified in Section 3.2 for the principal amount of the ABR Advance to be disbursed on such date in an amount equal to the Dollar Amount of such Reimbursement Obligation. Any notice given by an Issuing Bank or the Facility Agent pursuant to this clause (i) shall be given in writing.

(ii)            Each Lender (including each Lender acting as an Issuing Bank) shall upon receipt of any notice pursuant to Section 3.10(c)(i) make funds available (and the Facility Agent may apply Cash Collateral provided for this purpose) for the account of the applicable Issuing Bank, in Dollars at the Facility Agent’s office in an amount equal to its Pro Rata Share of the relevant Reimbursement Obligation not later than 3:00 p.m. on the Banking Day specified in such notice by the Facility Agent, whereupon, subject to the provisions of Section 3.10(c)(iii), each Lender that so makes funds available shall be deemed to have made an ABR Advance in the Dollar Amount of such Reimbursement Obligation. The Facility Agent shall remit the funds so received to the applicable Issuing Bank in accordance with the instructions provided to the Facility Agent by such Issuing Bank (which instructions may include standing payment instructions, which may be updated from time to time by such Issuing Bank, provided that, unless the Facility Agent shall otherwise agree, any such update shall not take effect until the Banking Day immediately following the date on which such update is provided to the Facility Agent).

(iii)            With respect to any Reimbursement Obligation that is not fully refinanced by an ABR Advance, the Borrower shall be deemed to have incurred from the applicable Issuing Bank a Letter of Credit Borrowing in the Dollar Amount of the Reimbursement Obligation that is not so refinanced. In such event, each Lender’s payment to the Facility Agent for the account of such Issuing Bank pursuant to Section 3.10(c)(i) shall be deemed payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a Letter of Credit Advance from such Lender in satisfaction of its participation obligation under this Section.

(iv)            Until each Lender funds its ABR Advance or Letter of Credit Advance to reimburse the applicable Issuing Bank for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of such Issuing Bank.

(v)            Each Lender’s obligations to make ABR Advances or Letter of Credit Advances to reimburse an Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Section 3.10(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such Issuing Bank, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or an Event of Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Lender’s obligation to make ABR Advances pursuant to this paragraph (c) is subject to the conditions set forth in Section 4.3. No such funding of a participation in any Letter of Credit shall relieve or otherwise impair the obligation of the Borrower to reimburse an Issuing Bank for the amount of any payment made by such Issuing Bank under such Letter of Credit, together with interest as provided herein.

(vi)            If any Lender fails to make available to the Facility Agent for the account of the applicable Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing provisions of this paragraph (c) by the time specified in Section 3.10(c)(ii), then, without limiting the other provisions of this Agreement, such Issuing Bank shall be entitled to recover from such Lender (acting through the Facility Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Rate from time to time in effect and a rate determined by such Issuing Bank in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by such Issuing Bank in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s ABR Advance included in the relevant Letter of Credit Advance in respect of the relevant Letter of Credit Borrowing. A certificate of the applicable Issuing Bank submitted to any Lender (through the Facility Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(i)            If, at any time after the applicable Issuing Bank has made payment in respect of any drawing under any Letter of Credit issued by it and has received from any Lender its Letter of Credit Advance in respect of such payment in accordance with Section 3.10(c), the Facility Agent receives for the account of such Issuing Bank any payment in respect of the related Reimbursement Obligation, the Facility Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Letter of Credit Advance was outstanding) in like funds as received by the Facility Agent.

(ii)            If any payment received by the Facility Agent for the account of the applicable Issuing Bank pursuant to Section 3.10(c)(i) is required to be returned (including pursuant to any settlement entered into by such Issuing Bank in its discretion), each Lender shall pay to the Facility Agent for the account of such Issuing Bank its Pro Rata Share thereof on demand of the Facility Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause (ii) shall survive the payment in full of the Secured Obligations and the termination of this Agreement.

(e)            Obligations Absolute. The obligation of the Borrower to reimburse the Issuing Banks for each drawing under each Letter of Credit and to repay each Letter of Credit Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i)            any lack of validity or enforceability of such Letter of Credit or any term or provision thereof, any Loan Document, or any other agreement or instrument relating thereto;

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

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

(iv)            any payment by an Issuing Bank under such Letter of Credit against presentation of documents that do not comply strictly with the terms of such Letter of Credit; or any payment made by an Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including arising in connection with any proceeding under any Debtor Relief Law;

(v)            any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Secured Obligations of the Borrower in respect of such Letter of Credit; or

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

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

(f)            Role of Issuing Banks. Each Lender and the Borrower agrees that, in paying any drawing under a Letter of Credit, the Issuing Banks shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any document or the authority of the Person executing or delivering any document. None of any Issuing Bank, any Affiliate nor any of the respective correspondents, participants or assignees of any Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the requisite Lenders; (ii) any action taken or omitted in the absence of bad faith, gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts of omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Banks, any Affiliate nor any of the respective correspondents, participants or assignees of the Issuing Banks shall be liable or responsible for any of the matters described in Section 3.10(e); provided that, notwithstanding anything herein or in such clauses to the contrary, the Borrower may have a claim against an Issuing Bank, and an Issuing Bank may be liable to the Borrower, to the extent, but only to the extent, of any direct (as opposed to indirect, special, punitive, consequential or exemplary) damages suffered by the Borrower which a court of competent jurisdiction determines in a final non-appealable judgment were caused by such Issuing Bank’s gross negligence, bad faith or willful misconduct or such Issuing Bank’s willful, bad faith or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a document(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the applicable Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, unless such Issuing Bank has received information to the contrary, and the Issuing Banks shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The Issuing Banks may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (SWIFT) message or overnight courier, or any other commercially reasonable means of communication with a beneficiary.

(g)            Applicability of ISP. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a standby Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to such standby Letter of Credit.

(h)            Conflict with Letter of Credit Application. In the event of any conflict between the terms of this Agreement and the terms of any Letter of Credit Application, the terms hereof shall control.

(i)            Reporting. No later than the third Banking Day following the last day of each month, (or at such other intervals as the Facility Agent and the applicable Issuing Bank shall agree), the applicable Issuing Bank shall provide to the Facility Agent a schedule of the Letters of Credit issued by it, in form and substance reasonably satisfactory to the Facility Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), the expiration date, and the reference number of any Letter of Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable by the Borrower to such Issuing Bank during such month.

(j)            Resignation and Removal of an Issuing Bank. Any Issuing Bank may resign as an Issuing Bank upon sixty (60) days’ prior written notice to the Facility Agent, the Lenders and the Borrower. Any Issuing Bank may be replaced at any time by written agreement among the Borrower, the Facility Agent, the Issuing Bank being replaced (provided that no consent will be required if the Issuing Bank being replaced has no Letters of Credit or Reimbursement Obligations with respect thereto outstanding) and the successor Issuing Bank. The Facility Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement or resignation shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank. From and after the effective date of any such replacement or resignation, (i) any successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement or resignation of an Issuing Bank hereunder, the replaced or resigning Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement or resignation, but shall not be required to issue additional Letters of Credit.

(k)            Cash Collateral Account. At any time and from time to time (i) after the occurrence and during the continuance of an Event of Default, the Facility Agent may (and shall at the direction of the Majority Lenders) require the Borrower to deliver to the Facility Agent such amount of cash as is equal to 105% of the aggregate Stated Amount of all Letters of Credit at any time outstanding (whether or not any beneficiary under any Letter of Credit shall have drawn or be entitled at such time to draw thereunder) at such time and (ii) in the event of a prepayment under Section 5.2 or Section 5.4, the Facility Agent will first apply such prepayment amount to prepay the outstanding amount of the Facility, then pay any outstanding Reimbursement Obligations, and thereafter retain such amount as may then be required to be retained, such amounts in each case under clauses (i) and (ii) above to be held by the Facility Agent in a Cash Collateral Account. The Borrower hereby grants (or, if registration thereof is required in any applicable jurisdiction, shall grant) to the Facility Agent, for the benefit of the Issuing Banks and the Lenders, a Lien upon and security interest in the Cash Collateral Account and all amounts held therein from time to time as security for Letter of Credit Usage, and for application to the Borrower’s Letter of Credit Obligations as and when the same shall arise. The Facility Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest on the investment of such amounts in Cash Equivalents, which investments shall be made at the direction of the Borrower (unless an Event of Default shall have occurred and be continuing, in which case the determination as to investments shall be made at the option and in the discretion of the Facility Agent), amounts in the Cash Collateral Account shall not bear interest. Interest and profits, if any, on such investments shall accumulate in such account. In the event of a drawing, and subsequent payment by the applicable Issuing Bank, under any Letter of Credit at any time during which any amounts are held in the Cash Collateral Account, the Facility Agent will deliver to such Issuing Bank an amount equal to the Reimbursement Obligation created as a result of such payment (or, if the amounts so held are less than such Reimbursement Obligation, all of such amounts) to reimburse such Issuing Bank therefor. Any amounts remaining in the Cash Collateral Account after the expiration of all Letters of Credit and reimbursement in full of each Issuing Bank for all of its obligations thereunder shall be refunded to the Borrower on demand, provided that after giving effect to such return (A) the sum of (1) the aggregate principal amount of all Advances outstanding at such time and (2) the aggregate Letter of Credit Usage at such time would not exceed the aggregate Commitments at such time and (B) no Event of Default shall have occurred and be continuing at such time. If the Borrower is required to provide Cash Collateral as a result of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Banking Days after all Events of Default cease to be continuing.

3.11            Addition of an Issuing Bank. One or more Lenders (other than a Defaulting Lender) selected by the Borrower that agrees to act in such capacity and reasonably acceptable to the Facility Agent may become an additional Issuing Bank hereunder pursuant to a written agreement in form and substance reasonably satisfactory to the Facility Agent among the Borrower, the Facility Agent and such Lender. The Facility Agent shall notify the Lenders of any such additional Issuing Bank.

3.12            Breakage Fees. If any Lender incurs any loss, cost or expense (excluding loss of anticipated profits and other indirect or consequential damages) by reason of the liquidation or re-employment of deposits or other funds acquired by such Lender to fund or maintain any Term SOFR Advance as a result of any of the following events:

(a)            any payment, prepayment or conversion of any such Loan on a date other than the last day of its Interest Period (whether by acceleration, mandatory prepayment or otherwise);

(b)            any failure to make a principal payment of any such Loan on the due date therefor; or

(c)            any failure by the Borrower to borrow, continue or prepay, or convert to, any such Loan on the date specified in a notice given pursuant to Section 3.3 or Section 5.2 (other than by reason of a default of such Lender),

then the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for compensation, it shall provide to the Borrower a certificate executed by an officer of such Lender setting forth the amount of such loss, cost or expense in reasonable detail (including an explanation of the basis for and the computation of such loss, cost or expense) no later than ninety (90) days after the event giving rise to the claim for compensation, and the amounts shown on such certificate shall be prima facie evidence of such Lender’s entitlement thereto. Within ten (10) days of receipt of such certificate, the Borrower shall pay directly to such Lender such amount as will compensate such Lender for such loss, cost or expense as provided herein, unless such Lender has failed to timely give notice to the Borrower of such claim for compensation as provided herein, in which event the Borrower shall have no obligation to pay such claim.

4.1            Conditions Precedent to the Effective Date . The obligations of each Lender and Issuing Bank to execute this Agreement are expressly subject to the satisfaction of the following conditions precedent being satisfied or waived on or before the Effective Date:

(a)            This Agreement. Each of the Obligors shall have duly executed and delivered to the Facility Agent this Agreement;

(b)            Corporate Authority. The Facility Agent shall have received the following documents in form and substance reasonably satisfactory to the Facility Agent:

(i)            copies, certified as true and complete by a director, manager or officer (or equivalent) of each of the Obligors, of the resolutions of the board of directors thereof (or equivalent governing body), evidencing approval of this Agreement and the other Loan Documents to which it is a party and authorizing an appropriate officer or officers or attorney-in-fact or attorneys-in-fact to execute the same on its behalf, or other evidence of such approvals and authorizations;

(ii)            copies, certified as true and complete by a director, manager or officer (or equivalent) of each of the Obligors, of all documents evidencing any other necessary action (including actions by such parties thereto other than the Obligors as may be required by the Facility Agent), approvals or consents with respect to this Agreement and the other Loan Documents;

(iii)            copies, certified as true and complete by a director, manager or officer (or equivalent) of each of the Obligors, of the certificate of incorporation and bylaws, or equivalent instruments thereof;

(iv)            the names, titles and signatures of each of the directors, officers and managers (or equivalent) of each of the Obligors that are authorized to execute the Loan Documents;

(v)            certificate of an authorized director, manager or officer (or equivalent) of each of the Obligors (other than the Borrower) certifying as to the record ownership of all of its Equity Interests;

(vi)            a good standing certificate or equivalent, if such jurisdiction makes such certificates available, of each Obligor dated as of a recent date; and

(vii)            a copy of the up-to-date organizational structure of the Group, certified as true and complete by an officer of the Borrower;

(c)            Fees and Expenses. The Facility Agent shall have received payment in full of all fees and expenses due under Section 13 (which, for the avoidance of doubt, shall include the payment of all fees and expenses of Lenders’ legal counsel to the extent invoiced at least two (2) Banking Days prior to the Effective Date) and any and all other fees agreed to under any Fee Letter.

4.2            Conditions Precedent to the Obligations of the Lenders and Issuing Banks under this Agreement. The obligations of each Lender and Issuing Bank to make the initial Advance or Letter of Credit Extension under this Agreement are expressly subject to the satisfaction of the following conditions precedent being satisfied or waived no later than thirty (30) Banking Days after the Effective Date (or such longer period agreed to by the Facility Agent) (the date of such satisfaction or waiver, the “Closing Date”):

(a)            The Note. The Borrower shall have duly executed and delivered to the Facility Agent, each Note;

(b)            Loan Documents. Subject to the Agreed Security Principles, the applicable Obligors shall have duly executed and delivered to the Security Trustee each of the Security Agreement, each Pledge Agreement, each Foreign Subsidiary Share Pledge and each Mortgage relating to a Closing Date Collateral Vessel, together with all notices, acknowledgments, and other ancillary documents required to be delivered thereunder;

(i)            The Facility Agent shall have received copies, dated as of a recent date, of tax, lien, judgment, intellectual property, bankruptcy and pending suit searches, in all jurisdictions as the Facility Agent shall reasonably request relating to the Obligors, in each case accompanied by evidence (including any UCC termination statements) that the Liens indicated in any such search results constitute Permitted Liens; and

(ii)            The Facility Agent shall have received evidence that Uniform Commercial Code financing statements and all other filings necessary to establish, protect and perfect the Liens in the Collateral granted on the Closing Date, have been filed in such jurisdictions as the Facility Agent may reasonably require;

(d)            Environmental Claims. The Facility Agent shall be satisfied that none of the Obligors nor any of their Environmental Affiliates is subject to any Environmental Claim which would have a Material Adverse Effect on the business, assets or results of operations of any thereof;

(e)            Fees and Expenses. The Facility Agent shall have received payment in full of all fees and expenses due under Section 13 (which, for the avoidance of doubt, shall include the payment of all fees and expenses of Lenders’ legal counsel to the extent invoiced at least two (2) Banking Days prior to the Effective Date) and any and all other fees agreed to under any Fee Letter;

(f)            Know Your Customer Requirements. The Facility Agent shall have received, with respect to each of the Obligors, documentation, and other evidence as is reasonably requested by the Facility Agent in order for each of the Creditors to satisfy all necessary “know your client” and anti-money laundering rules and regulations in connection with the transactions contemplated by this Agreement and the other Loan Documents;

(g)            Vessel Documentation. The Security Trustee shall have received (in form and substance reasonably acceptable to the Security Trustee) in respect of each Collateral Vessel:

(i)            Evidence of Ownership, Classification, Mortgages, Insurances, and Trading Documentation. Documentary evidence that:

(A)            each Collateral Vessel is definitively registered in the name of the relevant Collateral Vessel Owner under an Approved Flag Jurisdiction, unencumbered save by Permitted Liens and, if such Collateral Vessel is a Closing Date Collateral Vessel, its Mortgage;

(B)            each Mortgage has been duly recorded against the relevant Closing Date Collateral Vessel as a valid first preferred or priority ship mortgage in accordance with the laws of the Approved Flag Jurisdiction in which such Closing Date Collateral Vessel is registered; and

(C)            the Obligors are in compliance with Section 9.1(g)(ii) regarding classification of the Collateral Vessels;

(D)            each Collateral Vessel is insured in accordance with the requirements of Section 9.1(p), possesses all required trading certificates and ISM documentation, including an ISSC, SMC and IAPPC, maintains an Inventory of Hazardous Materials or shall, from the next dry dock, maintain an Inventory of Hazardous Materials;

(ii)            Valuations. A copy of the most recent valuation from an Approved Broker for each of the Collateral Vessels evidencing compliance with the Collateral Maintenance Ratio under Section 9.3(c) as of the Effective Date;

(iii)            Class Confirmations. A copy of a certificate issued the Classification Society of each Collateral Vessel, confirming as of a date reasonably near the Effective Date that the Collateral Vessels are in compliance with Section 2.1(k)(ii);

(iv)            Surveys. A copy of a recent survey report of a third-party independent survey company in respect of each Collateral Vessel (or an excerpt thereof);

(h)            Insurance Report. If requested by any Lender, a report from a firm of independent marine insurance consultant in respect of the insurances on the Collateral Vessels, in form and substance reasonably satisfactory to the Facility Agent, with the cost of such report to be reimbursed by the Borrower;

(i)            Legal Opinions. The Facility Agent shall have received legal opinions addressed to it from (x) Norton Rose Fulbright US LLP, New York counsel to the Borrower, and (y) such other legal opinions addressed to the Facility Agent or the Security Trustee, as applicable, as the Facility Agent shall have required as to all or any matters under the laws of the State of New York and any other jurisdiction in which an Obligor is organized or a Collateral Vessel is flagged, or which serves as the governing law of a Security Document, in each case as are usual and customary and in such form as the Facility Agent may reasonably require;

(j)            Joint Venture Agreements, Etc. The Facility Agent shall have received copies of any material silent partnership, joint venture or shareholders agreements to which any Obligor is party to, or confirmation that there are none;

(k)            Compliance Certificate. The financial statements described in Section 9.1(a)(i) for the fiscal quarter ended March 31, 2025 (which it acknowledges it has received), together with a Compliance Certificate for such period;

(l)            Solvency Certificate. A certificate from the chief financial officer or other officer with equivalent duties of the Borrower as to the solvency of the Borrower and its Subsidiaries, taken as a whole, substantially in the form of Exhibit B-2;

(m)            Repayment of Indebtedness. The Facility Agent shall have received evidence of the repayment and termination of the 2023 Term Loan and the 2021 Revolving Credit Facility and the 2021 Senior Notes and the 2023 Senior Notes; and

(n)            No Material Adverse Effect. Since December 31, 2024, no event has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

4.3            Further Conditions Precedent. The obligation of the Lenders to make any portion of the Facility available to or for the account of the Borrower and of each Issuing Bank to issue Letters of Credit hereunder shall be expressly and separately subject to the following further conditions precedent on each Drawdown Date and each date of Letter of Credit Extension:

(a)            Mortgagee’s Interest Insurance. With respect to the first Letter of Credit Extension or the first Drawdown Date, the Borrower shall have provided all documents, if any, reasonably requested by the Facility Agent to obtain the insurances provided for in Schedule 9.1(p)(i)(d);

(b)            Drawdown Notice. The Facility Agent having received a Drawdown Notice in accordance with the terms of Section 3.3;

(c)            Representations and Warranties. The representations stated in Section 2 being true and correct in all material respects (unless qualified by materiality or Material Adverse Effect, in which case such representation shall be true and correct in all respects) on and as of such date as if made on such date (except to the extent that any such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects (unless qualified by materiality or Material Adverse Effect, in which case such representation shall be true and correct in all respects) as of such earlier date);

(d)            No Event of Default. No Default or Event of Default having occurred and being continuing; and

(e)            Compliance with Financial Covenants. The Borrower is in pro forma compliance with all the Financial Covenants.

(f)            No Cash Hoarding. The sum of cash and Cash Equivalents held by the Consolidated Cash Group, in each case on such Drawdown Date and after giving pro forma effect to such Advance or Letter of Credit Extension and any transactions anticipated to occur within five (5) Banking Days thereafter, shall not exceed One Hundred Seventy-Five Million Dollars (US$175,000,000).

4.4            Satisfaction after Drawdown. For purposes of determining compliance with the conditions specified in this Section 4, each Lender shall be deemed to have consented to, approved and accepted and to be satisfied with each document or other matter required under this Section 4 to be consented to or approved by or reasonably acceptable or reasonably satisfactory to any Lender or other Creditor, unless (i) an officer of the Facility Agent responsible for the transactions contemplated by this Agreement shall have received written notice from such Lender specifying its objection thereto prior to an Advance being made or such Letter of Credit being issued, extended or increased after the Effective Date and (ii) in the case of such Advance being made after the Effective Date, such Lender shall not have made available to the Facility Agent any portion of such Loan.

4.5            Conditions Subsequent. No later than the relevant date indicated below (or such later date reasonably agreed by the Facility Agent), the Facility Agent shall have received:

(a)            no later than thirty (30) days after the Closing Date, evidence that Mortgages over at least 33% of the Reflag Collateral Vessels have been duly recorded as valid first preferred or priority ship mortgages in accordance with the laws of the Approved Flag Jurisdiction in which each such Collateral Vessel is registered), together with legal opinions addressed to the Facility Agent on matters of the laws of such Collateral Vessel’s Approved Flag Jurisdiction, the laws of the State of New York, and the jurisdiction of incorporation or organization of such Collateral Vessel Owner in such form as the Facility Agent may require;

(b)            no later than sixty (60) days after the Closing Date, evidence that Mortgages over at least 67% of the Reflag Collateral Vessels have been duly recorded as valid first preferred or priority ship mortgages in accordance with the laws of the Approved Flag Jurisdiction in which each such Collateral Vessel is registered), together with legal opinions addressed to the Facility Agent on matters of the laws of such Collateral Vessel’s Approved Flag Jurisdiction, the laws of the State of New York, and the jurisdiction of incorporation or organization of such Collateral Vessel Owner in such form as the Facility Agent may require;

(c)            no later than ninety (90) days after the Closing Date, evidence that Mortgages over each of the Reflag Collateral Vessels have been duly recorded as valid first preferred or priority ship mortgages in accordance with the laws of the Approved Flag Jurisdiction in which each such Collateral Vessel is registered), together with legal opinions addressed to the Facility Agent on matters of the laws of such Collateral Vessel’s Approved Flag Jurisdiction, the laws of the State of New York, and the jurisdiction of incorporation or organization of such Collateral Vessel Owner in such form as the Facility Agent may require;

5.1            Repayment. The Borrower shall repay the principal amount of any outstanding Advances under the Facility, together with accrued but unpaid interest thereon and any fees and other amounts owing to any Creditor under this Agreement, on the Maturity Date.

5.2            Voluntary Prepayment. Subject to delivery of the notices required by this Section 5.2 and the application of prepayments described in Section 5.5, the Borrower may, at its option, on any Banking Day, prepay all or any portion of an Advance under the Facility. The Borrower shall compensate the Lenders for any loss, cost or expense (but excluding any loss of anticipated profit or other direct or consequential damages) incurred by them as a result of a prepayment of Term SOFR Advances made on any day other than the last day of the applicable Interest Period in accordance with the provisions of this Agreement. The Borrower shall have the right to prepay ABR Advances without premium or penalty at any time and from time to time, in whole or in part. Prepayments made on the last day of the applicable Interest Period shall be without penalty or premium. Any prepayment (other than a prepayment in full) shall be in an integral multiple of One Million Dollars ($1,000,000) with a minimum amount of One Million Dollars ($1,000,000) or such other amount as the Facility Agent, in its sole discretion, may agree. In addition, on the date of any prepayment hereunder, all interest accrued through the date of such prepayment must be paid in full with respect to the Advances or portion thereof being prepaid. The Borrower shall deliver to the Facility Agent notice of such prepayment not less than three (3) Banking Days (with respect to a prepayment of a Term SOFR Advance) or one (1) Banking Day (with respect to a prepayment of an ABR Advance) prior to the date on which the Borrower intends to make such prepayment, and such notice shall specify the date and amount of such prepayment and must be received by the Facility Agent by noon (New York time).

5.3            Borrower’s Obligations Absolute. The Borrower’s obligations to pay the Lenders hereunder and under the Notes shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms hereof and thereof, under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Lenders.

(a)            Commitments. The Borrower shall from time to time prepay any outstanding Advances to the extent necessary so that the Total Utilization of Commitments shall not at any time exceed the Commitments then in effect; provided that, to the extent such excess amount is greater than the aggregate principal amount of the Advances outstanding immediately prior to the application of such prepayment, the amount so prepaid shall be retained by the Facility Agent and held in the Cash Collateral Account as cover for Letter of Credit Usage, as more particularly described in Section 3.10(k), and thereupon such cash shall be deemed to reduce the aggregate Letter of Credit Usage by an equivalent amount.

(b)            Anti-Cash Hoarding. If, on the last Banking Day of any calendar month, any part of the Facility is drawn or any Letters of Credit are issued (and not otherwise Cash Collateralized) and the sum of cash and Cash Equivalents held by the Consolidated Cash Group exceeds One Hundred Seventy-Five Million Dollars (US$175,000,000), the Borrower shall, within five (5) Banking Days, apply an amount equal to the amount by which Consolidated Cash exceeds One Hundred Seventy Five Million Dollars ($175,000,000) to the extent necessary to, first, reduce outstanding Advances to zero and, second, Cash Collateralize any outstanding Letters of Credit.

5.5            Interest and Costs with Prepayments/Application of Prepayments. Any prepayment of the Facility (including, without limitation, those made pursuant to this Section 5) shall be subject to the condition that on the date of prepayment all interest accrued through the date of such prepayment shall be paid in full with respect to the Advances or the portion thereof being prepaid, together with any and all costs or expenses incurred by the applicable Lenders in connection with any breaking of funding for prepayments other than on the last day of the applicable Interest Period (as certified by the Facility Agent, which certification shall, absent any manifest error, be conclusive and binding on the Borrower) and shall be applied in accordance with Section 3.10(k)(ii).

5.6            Cancellation. The Borrower may permanently cancel or reduce the undrawn Facility, in whole or in part, on five (5) Banking Days’ notice to the Facility Agent. Any partial cancellation or reduction must be in a minimum amount of One Million Dollars ($1,000,000) and in integral multiples thereof. Any cancellation shall be subject to payment of any accrued interest, fees and costs, including the Commitment Fee. Any amount of the Facility that is cancelled or reduced may not be redrawn.

6.1            Applicable Rate. Each Advance shall bear interest at the rate per annum (the “Applicable Rate”) which is equal to (i) for Term SOFR Advances, the aggregate of (a) the Benchmark for the relevant Interest Period, plus (b) the Margin, or (ii) for ABR Advances, the aggregate of (a) the ABR, plus (b) the Margin. The Applicable Rate shall be determined by the Facility Agent prior to the first (1^st) day of each Interest Period, and the Facility Agent shall promptly notify the Borrower in writing of the Applicable Rate as and when determined. Each such determination, absent manifest error, shall be conclusive and binding upon the Borrower.

6.2            Default Rate. Any amounts due under this Agreement, if not paid when due, whether by acceleration or otherwise, shall bear interest thereafter from the due date thereof until the date of payment at a rate per annum equal to the Applicable Rate plus two percent (2%) (the “Default Rate”). If any Event of Default has occurred and is continuing and notice thereof has been sent from the Facility Agent to the Borrower, all outstanding amounts shall be deemed overdue and interest will be calculated on all such amounts at the Default Rate, payable forthwith upon demand by the Facility Agent, provided no notice or demand is required in connection with a Specified Event of Default.

6.3            Interest Payments. Accrued interest on any Term SOFR Advance shall be payable in arrears on the last day of the Interest Period, except that if the Borrower shall select an Interest Period in excess of three (3) months, accrued interest on such Advance shall be payable during such Interest Period on each three (3) month anniversary of the commencement of such Interest Period and upon the end of such Interest Period. Accrued interest on any ABR Advance shall be payable in arrears on the last Banking Day of each March, June, September and December and the Maturity Date.

(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 (5th) Banking Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrower 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 Facility Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.

(ii)            No Swap Agreement shall be deemed to be a “Loan Document” for purposes of this Section 6.4.

(b)            Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Facility Agent, in consultation with the Borrower, will have the right 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 Facility 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 Facility Agent will, to the extent reasonably practicable, provide prior written notice to the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 6.4(d). Any determination, decision or election that may be made by the Facility Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 6.4, 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 6.4.

(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 Facility Agent in its reasonable discretion or (B) the administrator of such Benchmark or 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 or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Facility 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, non-representative, non-compliant or non-aligned 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 or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Facility Agent may, upon provision to the Borrower of prior written notice thereof, 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 Benchmark during such period shall be the ABR.

(a)            All payments to be made hereunder by the Borrower shall be made to the Facility Agent, not later than noon New York time (any payment received after noon New York time shall be deemed to have been paid on the next Banking Day) on the due date of such payment, at its office located at 30 Hudson Yards, 81^st Floor, New York, New York 10001, USA or to such other office of the Facility Agent as the Facility Agent may direct, without set-off or counterclaim and free from, clear of, and without deduction or withholding for, any Taxes except as required by applicable Law. If the Borrower or the Facility Agent shall at any time (as determined in the good faith discretion of the Borrower or the Facility Agent) be compelled by Law to withhold or deduct any Taxes from any amounts payable hereunder, then (i) if the withholding or deduction is attributable to an Indemnified Tax, the sum payable by the Borrower hereunder shall include such additional amount as is necessary so that after making all required deductions (including deductions attributable to Indemnified Taxes applicable to the additional amount payable under this Section 7.1(a)) such Person receives an amount equal to the sum it would have received had no such deduction been made, (ii) the Borrower or the Facility Agent shall make such deductions, (iii) the Borrower or the Facility Agent shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law and (iv) in the event any withholding or deduction is (A) made by the Borrower, whether for Taxes or otherwise, the Borrower shall promptly send to the Facility Agent such documentary evidence with respect to such withholding or deduction required by Law and (B) made by the Facility Agent, whether for Taxes or otherwise, the Facility Agent shall promptly send to the Borrower such documentary evidence with respect to such withholding or deduction as the Borrower reasonably requests.

(b)            The Borrower (subject to each Creditor satisfying its certification obligations set forth in Section 7.1(c) below) shall pay, and shall indemnify each Creditor for and hold each of them harmless from and against, within fifteen (15) days after written demand therefor, any and all Indemnified Taxes paid or incurred by, or asserted against, such Creditor 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 any such Indemnified Taxes or liabilities delivered to the Borrower by a Creditor (on its own behalf or on behalf of another Creditor) shall be conclusive absent manifest error. For purposes of clarification no such payment shall be required with respect to any Tax that is not an Indemnified Tax or to the extent the applicable payment was increased to take into account a Tax deduction or withholding as set forth in Section 7.1(a) above.

(c)            Any Creditor that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement or other Loan Documents shall deliver to the Facility Agent and the Borrower, on or before the date on which such Creditor becomes a Creditor hereunder, makes its portion of an Advance (or, in the case of a Lender that acquires its interest in an Advance by assignment from another Lender, on or before the effective date of such assignment), or otherwise becomes a party to any Loan Document, and thereafter upon the request of the Borrower or the Facility Agent, such properly completed and executed documentation as will permit such payments to be made without any Tax withholding or deduction (or at a reduced rate of withholding or deduction). In addition, any Creditor, if reasonably requested by the Borrower or the Facility Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Facility Agent as will enable the Borrower or the Facility Agent to determine whether or not such Creditor is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing: (A) any Creditor that is a US Person shall deliver to the Borrower and the Facility Agent on or prior to the date on which such Creditor becomes a party to any Loan Document (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), executed copies of IRS Form W-9 (or any successor form) certifying that such Creditor is exempt from U.S. federal backup withholding, (B) any Creditor that is not a US Person shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Facility Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Person becomes a Creditor under any Loan Document (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), whichever of the following is applicable: (1) IRS Forms W-8BEN or W-8BEN-E (which, if the Lender claims exemption under Section 881(c) of the Code or applicable successor provision, shall be accompanied by a declaration that (i) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (ii) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iii) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (such declaration, a “U.S. Tax Compliance Certificate”), (2) IRS Form W-8ECI, or (3) IRS Form W-8IMY, (accompanied by IRS Forms W-9, W-8ECI, W-8BEN or W-8BEN-E (or any successor form), a U.S. Tax Compliance Certificate, and/or other certification documents requested by the Borrower from the beneficial owners of the debt) as applicable (or applicable successor form), (C) any Creditor that is not a US Person shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Facility Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Creditor becomes a Creditor under any Loan Document (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in any applicable withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Facility Agent to determine the withholding or deduction required to be made. The Facility Agent shall deliver to the Borrower, on or prior to the execution date of this Agreement (and such other times as reasonably requested by the Borrower), a properly completed and executed (i) IRS Form W-9 or (ii) IRS Form W-8ECI (with respect to any amounts payable to the Facility Agent for its own account) and IRS Form W-8IMY evidencing its agreement with the Borrower to be treated as a US Person as described in United States Treasury Regulation Section 1.1441-1(b)(2)(iv) (with respect to amounts received on account of any Lender), and (D) if a payment made to a Creditor or the Facility Agent under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Creditor or the Facility Agent 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 Creditor or the Facility Agent shall deliver to the Borrower at the time or times prescribed by law and at such time or times reasonably requested by the Borrower such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower as may be necessary for the Borrower to comply with its obligations under FATCA and to determine that such Creditor or the Facility Agent has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments made to FATCA after the date of this Agreement. Each Creditor and the Facility Agent agree that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such form or certification and deliver it to the Borrower (and, if a Lender, also to the Facility Agent).

(d)            If any Person 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 7.1 (including by the payment of additional amounts pursuant to this Section 7.1), 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 7.1 with respect to the 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 (d) (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 (d), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (d) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(e)            Each party’s obligations under this Section 7.1 shall survive the resignation or replacement of the Facility Agent or any assignment of rights by, or the replacement of, a Creditor, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

7.2            Tax Credits. If the Lenders obtain the benefit of a credit against the liability thereof for Taxes for all or part of the Indemnified Taxes as to which the Borrower (or the Facility Agent, on the Borrower’s behalf) has paid additional amounts as aforesaid, then the Lenders shall pay an amount to the Borrower which the Lenders determine will leave it (after such payment) in the same position as it would have been had the Indemnified Tax payment not been made by the Borrower (or the Facility Agent, on the Borrower’s behalf). Each of the Lenders agree that in the event that Indemnified Taxes are imposed on account of the situs of its loans hereunder, each of the Lenders, upon acquiring knowledge of such event, shall, if commercially reasonable and if, in the opinion of the Lenders, it is not prejudicial to it, shift such loans on its books to another office so as to avoid the imposition of such Indemnified Taxes. Nothing contained in this clause shall in any way prejudice the right of the Lenders to arrange its tax affairs in such a way as they, in their sole discretion, deem appropriate. In particular, the Lenders shall not be required to obtain such tax credit, if this interferes with the way the Lenders normally deal with their tax affairs.

(a)            All computations of interest and fees shall be made by the Facility Agent on the basis of a 360-day year (or in the case of interest computed by reference to the ABR at time when the ABR is based on the ABR, such interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year)), and in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which interest or fees are payable. All interest hereunder on any Advance shall be computed on a daily basis based upon the outstanding principal amount of such Advance as of the applicable date of determination. Each determination by the Facility Agent of an interest rate or fee hereunder shall be conclusive and binding, absent manifest error or willful misconduct;

(b)            Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Banking Day, such payment shall be due and payable on the next succeeding Banking Day unless the next succeeding Banking Day falls in the following calendar month, in which case it shall be payable on the immediately preceding Banking Day.

7.4            Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement and the other Loan Documents, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(a)            Such Defaulting Lender (i) shall not have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents (other than as set forth in Section 14.8(iv)) and (ii) any Commitments held by such Person for purposes hereof shall be automatically deemed to be voted pro rata according to the Commitments of all other Lenders in the aggregate (other than such Defaulting Lender).

(b)            Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Facility Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity or otherwise) or received by the Facility Agent from a Defaulting Lender shall be applied at such time or times as may be determined by the Facility Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Facility Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Bank hereunder; third, to Cash Collateralize each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender with respect to outstanding Letters of Credit (in an amount equal to 105% of the maximum face amount of all outstanding Letters of Credit) in accordance with Section 7.4(e); fourth, as the Borrower may request (so long as no Event of Default shall have occurred and be continuing), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Facility Agent; fifth, if so determined by the Facility Agent and the Borrower, to be held in a Cash Collateral Account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to the Facility under this Agreement and (B) Cash Collateralize each Issuing Bank (in an amount equal to 105% of the maximum face amount of all outstanding Letters of Credit) with respect to future Letters of Credit issued under this Agreement, in accordance with Section 7.4(e); sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Advances or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.3 were satisfied or waived, such payment shall be applied solely to pay the Advances by, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances by, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Advances and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 7.4(d). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 7.4 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(A)            No Defaulting Lender shall be entitled to receive any fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided such Defaulting Lender shall be entitled to receive fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the Stated Amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 3.10.

(B)            With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit that has been reallocated to such Non-Defaulting Lender pursuant to Section 7.4(d) below, (2) pay to each Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.

(d)            Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (A) the conditions set forth in Section 4.3 are satisfied at the time of such reallocation, and (B) such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. Subject to Section 14.8, no reallocation or Cash Collateralization pursuant to Section 7.4(e) hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(e)            Cash Collateral. If the reallocation described in Section 7.4(d) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize Issuing Bank’s Fronting Exposure (in an amount equal to 103% of the maximum face amount of all outstanding Letters of Credit) in accordance with the procedures set forth in Section 3.10.

(f)            Any failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrower to replace the Defaulting Lender with one or more substitute Lenders (including new Lenders) or prepay such Defaulting Lender (without any premium), and the Defaulting Lender shall have no right to refuse to be replaced hereunder or apply such prepayment. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than one (1) Banking Day after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Assumption Agreement, subject only to the Defaulting Lender being repaid its share of the outstanding Facility without any premium or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Assumption Agreement prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Assumption Agreement. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 10.

(g)            The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by the Borrower of its duties and obligations hereunder to the Facility Agent or to the Lenders other than such Defaulting Lender.

(h)            New Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend or amend any Letter of Credit unless it is reasonably satisfied that it will have no Fronting Exposure after giving effect thereto.

(i)            Cash Collateral. At any time that there shall exist a Defaulting Lender and Section 7.4(e) is applicable, within four (4) Banking Days following the written request of the Facility Agent or any Issuing Bank (with a copy to the Facility Agent), the Borrower shall Cash Collateralize the applicable Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 3.10 and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum L/C Collateral Amount.

(i)            Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Facility Agent, for the benefit of the Issuing Banks and the Lenders, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (ii) below. If at any time the Facility Agent determines that the Cash Collateral is subject to any right or claim of any Person other than the Facility Agent, the Issuing Banks or the Lenders as herein provided, or that the total amount of such Cash Collateral is less than the Minimum L/C Collateral Amount if at such time, the reallocation described in Section 7.4(d) cannot, or can only partially, be effected, the Borrower will, within four (4) Banking Days following the written request of the Facility Agent, pay or provide to the Facility Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(ii)            Application. Notwithstanding anything to the contrary contained in this Agreement, Collateral provided under this Section 7.4 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(iii)            Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 7.4 following (A) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender) or (B) subsequent reallocation pursuant to Section 7.4(d) or (C) the reasonable determination by the Facility Agent or the applicable Issuing Bank that there exists excess Cash Collateral at least equal to the Minimum L/C Collateral Amount; provided that, subject to the other provisions of this Section 7.4, the Person providing Cash Collateral and the applicable Issuing Bank may agree that the Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

(j)            This Section shall remain effective with respect to such Lender until either (i) the obligations under this Agreement shall have been declared or shall have become immediately due and payable or (ii) the non-Defaulting Lenders, the Facility Agent, and the Borrower shall have waived such Defaulting Lender's default in writing, and the Defaulting Lender makes its respective Commitment of the applicable Advance and pays to the Facility Agent all amounts owing by such Defaulting Lender in respect thereof; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender, and no replacement of a Defaulting Lender pursuant to clause (c) above, will constitute a waiver or release of any claim of any party hereunder arising from such Lender's having been a Defaulting Lender.

7.5            Sharing of Payments, Etc. If, other than as expressly provided elsewhere herein, any Lender shall obtain payment in respect of any principal of or interest on account of the Advance made by it (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Facility Agent of such fact, and (b) purchase from the other Lenders such participations in the Advance made by them and/or such sub-participations in the participations in Letter of Credit Obligations held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 17.16 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each relevant Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The provisions of this paragraph 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 as in effect from time to time, (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any Advance to any assignee or participant permitted hereunder or (C) any payment received by such Lender not in its capacity as a Lender. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 17.16) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Facility Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 7.5 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 7.5 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

8.1            Events of Default. The occurrence of any of the following events shall be an Event of Default:

(a)            Non-payment. Any Obligor fails to pay any amount payable by it under the Loan Documents when such amount is due for payment, unless its failure to pay is caused by administrative or technical error in payment systems and payment is made within three (3) Banking Days following the original due date;

(b)            Representations. Any representation or warranty (including representations and warranties in Compliance Certificates) made by any Obligor in any Loan Document is or proves to have been incorrect, inaccurate or misleading in any material respect when made;

(c)            Unlawfulness. It is or becomes unlawful (x) to make or maintain the Facility provided herein, or (y) for any Obligor to perform or comply with any of its obligations under the Loan Documents to the extent this may materially impair:

(d)            Certain Covenants. Any Obligor or any Restricted Subsidiary defaults in the performance or observance of any covenant applicable to it contained in Sections 4.5 (Conditions Subsequent), 9.1 (Financial Information), 9.1(p) (Insurance), 9.2 (Negative Covenants), or 9.3 (Financial Covenants) of this Agreement;

(e)            Breach of Other Obligations. Any Obligor or any Restricted Subsidiary does not comply with any provision of the Loan Documents applicable to it other than those set forth in paragraphs (a) (Non-payment) and (d) (Certain Covenants) above, unless such failure is capable of being remedied and is remedied within twenty (20) Banking Days after the earlier of the Borrower's obtaining actual knowledge thereof, or written notice thereof is given to the Borrower by the Facility Agent, provided that the twenty (20) Banking Day cure period provided above shall run concurrently, and not consecutively, with any applicable cure period provided in the relevant provision violated;

(f)            Cross Default. (i) There is Financial Indebtedness of an Obligor or Restricted Subsidiary, and any default occurs resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of such Financial Indebtedness; (ii) if Financial Indebtedness of any Obligor or Restricted Subsidiary is not paid when due nor within any applicable grace period; or (iii) any Financial Indebtedness of any Obligor or Restricted Subsidiary is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described); provided however that the foregoing clauses (i) through (iii) above shall only apply if the aggregate amount of such Financial Indebtedness or commitments exceeds Twenty-Five Million Dollars ($25,000,000) (or its equivalent in any other currency or currencies);

(i)            Cessation of Business. Any cessation of business by the Borrower and its Restricted Subsidiaries taken as a whole;

(j)            Change of Control. Any Change of Control occurs;

(k)            Judgments. There is entered against any Obligor or Restricted Subsidiary a final, non-appealable judgment by a court of competent jurisdiction that is in a Dollar Amount in excess of Twenty-Five Million Dollars ($25,000,000) (to the extent not paid or not covered by insurance (subject to customary deductibles)) and such judgment shall not have been satisfied or paid when due, vacated, discharged or stayed, bonded pending an appeal or are not otherwise being appropriately contested in good faith in a manner that stays execution, in any such case, for a period of (i) with respect to any judgments or orders that are rendered in the United States, thirty (30) consecutive days after the entry thereof and (ii) with respect to any other judgments or orders, sixty (60) consecutive days after the entry thereof;

(l)            Delisting. The common stock of the Borrower is no longer listed on the New York Stock Exchange (or any successor of the New York Stock Exchange) or NASDAQ (or any successor of NASDAQ);

(m)         Invalidity of Loan Documents; Security Documents and Guarantee.

(n)            Arrest. Any arrest or seizure of any Collateral Vessel which is not released within thirty (30) days, provided, that, no Event of Default shall occur if (i) within such thirty (30) days, the Borrower or any Obligor provides one or more Additional Vessels as Collateral Vessels with a combined Fair Market Value equal to or greater than the Fair Market Value of the arrested Collateral Vessel, or (ii) the Borrower remains in compliance with the Collateral Maintenance Ratio set forth in Section 9.3 after excluding the arrested Collateral Vessel therefrom (and after including any other Additional Vessel as a Collateral Vessel). For the avoidance of doubt, the return of a Collateral Vessel to the Obligors shall permit re-inclusion of such Collateral Vessel in the calculation of the Collateral Maintenance Ratio;

(o)            Sanctions. Any Obligor or Subsidiary fails to comply with applicable Sanctions in any material respect;

(p)            Certain ERISA Transactions. (i) an ERISA Termination Event, Foreign Termination Event, ERISA Funding Event or Foreign Underfunding has occurred or exists that, in the reasonable option of the Majority Lenders, when taken together with all other ERISA Termination Events, Foreign Termination Events, ERISA Funding Events and Foreign Underfunding that have occurred or exist, are reasonably expected to result in a Material Adverse Effect; (ii) any instances of non-compliance with ERISA, the Code or any other applicable requirement of law shall have occurred with respect to any Benefit Plan, Foreign Plan, Multiemployer Plan or Plan that, in the reasonable opinion of the Majority Lenders, when taken together with all other such instances of non-compliance with ERISA, the Code or any other applicable requirement of law that shall have occurred with respect to any Benefit Plan, Foreign Plan, Multiemployer Plan or Plan, are reasonably expected to result in a Material Adverse Effect; (iii) the execution and/or delivery of this Agreement and/or the consummation of the transactions hereunder involves a non-exempt prohibited transaction for purposes of ERISA, Section 4975 of the Code or any Similar Law, unless such result is a result of the Lender’s funding an Advance with “plan assets” (as defined under Section 3(42) of ERISA and subject to ERISA, Section 4975 of the Code or such applicable Similar Law); or (iv) any of the Obligors or any of their Subsidiaries becomes a “benefit plan investor” (as defined in Section 3(42) of ERISA) or is otherwise using “plan assets” (as defined under Section 3(42) of ERISA and subject to ERISA, Section 4975 of the Code or such applicable Similar Law).

Upon and during the continuance of any Event of Default, the Lenders’ obligation to make the Facility available shall cease and the Facility Agent may, by notice to the Borrower, declare the entire unpaid balance of the then outstanding amount of the Facility, accrued interest and any other sums payable by the Borrower hereunder or under the Notes due and payable, whereupon the same shall forthwith be due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; provided that upon the happening of an event specified in subsection (g) of this Section 8.1 with respect to any Obligor, the Facility and the Notes shall be immediately due and payable without declaration or other notice to any Obligor. In such event, the Facility Agent (for itself and the other Creditors) and the Security Trustee (for itself and the other Secured Creditors) may proceed to protect and enforce their respective rights by action at law, suit in equity or in admiralty or other appropriate proceeding, whether for specific performance of any covenant contained in this Agreement, in the Notes or in any Security Document, or in aid of the exercise of any power granted herein or therein, or the Facility Agent may proceed to enforce the payment of the Notes or to enforce any other legal or equitable right of any of the Creditors, or proceed to take any action authorized or permitted under the terms of any Security Document or by applicable law for the collection of all sums due, or so declared due, on the Note.

8.2            Application of Moneys. After the occurrence of and during the continuance of an Event of Default, any payment to the Facility Agent, the Security Trustee, the Issuing Banks and the Lenders hereunder or from the proceeds of the Collateral or otherwise shall be paid to the Facility Agent to be distributed and applied as follows (unless otherwise agreed by the Borrower, the Facility Agent, all Issuing Banks and all Lenders):

(a)            first, to the payment of that portion of the Secured Obligations constituting any and all reasonable out-of-pocket costs and expenses of the Agents, including without limitation, reasonable attorneys’ fees and out-of-pocket costs and expenses, as provided by this Agreement or by any other Loan Document, incurred in connection with the collection of such payment or in respect of the enforcement of any rights of the Agents, the Issuing Banks or the Lenders under this Agreement or any other Loan Document;

(b)            second, to the payment of that portion of the Secured Obligations constituting any and all reasonable out-of-pocket costs and expenses of the Issuing Banks and the Lenders, including, without limitation, reasonable attorneys’ fees and out-of-pocket costs and expenses (subject to the limitations set forth in Section 13.2), as provided by this Agreement or by any other Loan Document, incurred in connection with the collection of such payment or in respect of the enforcement of any rights of the Lenders or the Issuing Banks under this Agreement or any other Loan Document, pro rata in the proportion in which the amount of such costs and expenses unpaid to each Lender or each Issuing Bank bears to the aggregate amount of the costs and expenses unpaid to all Lenders and all Issuing Banks collectively, until all such fees, costs and expenses have been paid in full;

(c)            third, to the payment of that portion of the Secured Obligations constituting any due and unpaid fees to any Agent, any Lender or any Issuing Bank as provided by this Agreement or any other Loan Document, pro rata in the proportion in which the amount of such fees due and unpaid to each Agent, each Lender, and each Issuing Bank bears to the aggregate amount of the fees due and unpaid to the Agents, all Lenders and all Issuing Banks collectively, until all such fees have been paid in full;

(d)            fourth, to the payment of that portion of the Secured Obligations constituting accrued and unpaid interest on the Loans or the Reimbursement Obligations to the date of such application, pro rata in the proportion in which the amount of such interest, accrued and unpaid to each Lender or each Issuing Bank bears to the aggregate amount of such interest accrued and unpaid to all Lenders and all Issuing Banks collectively, until all such accrued and unpaid interest has been paid in full;

(e)            fifth, to the payment of that portion of the Secured Obligations constituting the outstanding due and payable principal amount of each of the Advances and the amount of the outstanding Reimbursement Obligations (reserving Cash Collateral for all undrawn face amounts of any outstanding Letters of Credit (if Section 3.10(c) has not been complied with)), the amount of the outstanding Specified Swap Agreement Obligations and the amount of the Specified Bilateral LC Obligations and Specified Cash Management Obligations, pro rata in the proportion in which the outstanding principal amount of such Advances and Obligations and the amount of such outstanding Reimbursement Obligations owing to each Lender and each Issuing Bank, together (with respect to Letters of Credit, if not Cash Collateralized in accordance with this Agreement) with the undrawn face amounts of such outstanding Letters of Credit, the amount of such outstanding Specified Swap Agreement Obligation, the amount of such Specified Bilateral LC Obligations and the amount of such outstanding Specified Cash Management Obligations, bears to the aggregate amount of all outstanding Loans, outstanding Reimbursement Obligations and (with respect to Letters of Credit, if not Cash Collateralized in accordance with this Agreement) the undrawn face amounts of all outstanding Letters of Credit, outstanding Specified Swap Agreement Obligation, outstanding Specified Bilateral LC Obligations and outstanding Specified Cash Management Obligations. In the event that any such Letters of Credit, or any portions thereof, terminate or expire without any pending drawing thereon, any Cash Collateral therefor shall be distributed by the Facility Agent until the principal amount of all Loans and Reimbursement Obligations shall have been paid in full;

(f)            sixth, to the payment of that portion of the Secured Obligations constituting any other outstanding Secured Obligations then due and payable until all such Secured Obligations have been paid in full; and

(g)            seventh, any excess, after all of the Secured Obligations shall have been indefeasibly paid in full in cash (other than contingent indemnification or similar obligations for which no claim or demand has been made and Letters of Credit that have been Cash Collateralized), to the Borrower or as the Borrower may direct unless otherwise directed by a court of competent jurisdiction.

Notwithstanding the foregoing, amounts received from any Obligor pursuant to this Section 8.2 shall not be applied to any Excluded Swap Obligation of such Obligor.

9.1            Affirmative Covenants. Each of the Obligors hereby covenants and undertakes, as to itself, with the Lenders that, from the Effective Date and so long as any principal, interest or other moneys are owing in respect of this Agreement, under the Notes or under any of the Security Documents, as follows:

(a)            Financial Information. The Borrower shall deliver to the Facility Agent:

(i)            within sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income and equity and of cash flows for such fiscal quarter and for the portion of the fiscal year ended with the last day of such fiscal quarter, all of which shall be in reasonable detail or in the form filed with the SEC, and certified by a Financial Officer of the Borrower, that they fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the dates indicated and the results of their operations and changes in their cash flows for the periods indicated and that they have been prepared in accordance with GAAP, in each case, subject to normal year-end audit adjustments and the omission of any footnotes as permitted by the SEC;

(ii)            within one hundred twenty (120) days after the end of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income and equity and of cash flows for such fiscal year and setting forth consolidated comparative figures as of the end of and for the preceding fiscal year, audited by an independent nationally-recognized accounting firm and in the form filed with the SEC;

(iii)            as soon as available but not later than February 15^th of each fiscal year of the Borrower, the consolidated budget and cash flow projections for such fiscal year of the Borrower;

(iv)            within ten (10) days of the Borrower’s receipt thereof, copies of all audit letters or other material correspondence from any external auditors including material financial information in respect of each Obligor;

(v)            promptly upon any such dispatch, copies of all documents dispatched by an Obligor to its creditors or its shareholders generally; and

(vi)            such other statements (including, without limitation, monthly consolidated statements of operating revenues and expenses), lists of assets and accounts, budgets, forecasts, reports and other financial, business and operational information with respect to its business as the Facility Agent may from time to time reasonably request, certified (other than with regards to forecasts and projections) to be complete and correct in all material respects in accordance with GAAP, as of the date such statements or information was furnished (or, if such statements or information expressly relates to a specific date or dates, as of such specific date or dates) copies thereof by the Chief Financial Officer (or other equivalent Person) of the Borrower; and

(vii)            within the time periods set forth in Section 9.1(a)(i) and (ii) above, respectively, for furnishing financial statements, (i) additional information setting forth calculations if consolidated financial statements of the Borrower and its Subsidiaries are delivered pursuant to Section 9.1(a)(i) or (ii), excluding the effects of any Subsidiaries (including Unrestricted Subsidiaries) that are not Obligors or Restricted Subsidiaries, and (ii) (A) a written certificate signed by a Responsible Officer, in such Person’s capacity as such, to the effect that no Default or Event of Default then exists or, if any such Default or Event of Default exists as of the date of such certificate, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower to remedy the same and (B) a Compliance Certificate showing the Borrower’s compliance with the Financial Covenants, setting forth the Collateral Maintenance Ratio;

provided that, with respect to information in items (i), (ii) and (v) above, the Borrower will be deemed to have delivered such information to the Facility Agent upon publicly filing such information with the SEC; provided any deemed delivery of such information shall not relieve the Borrower of its obligation to deliver any related Compliance Certificates to the Facility Agent as provided herein.

(b)            Performance of Agreements. each Obligor shall duly perform and observe, the terms of this Agreement and the other Loan Documents to the extent it is a party thereto and bound thereunder;

(c)            Notice of Default, etc. the Borrower shall, promptly upon, and in any event no later than five (5) Banking Days after obtaining knowledge thereof, inform the Facility Agent of the occurrence of (i) any Default or Event of Default, (ii) any litigation, arbitration or governmental proceeding pending or threatened in writing against any Obligor or against any of their respective Subsidiaries, including but not limited to, in respect of any Environmental Claim, that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect, (iii) the withdrawal of a Collateral Vessel’s rating by its Classification Society or the issuance by the Classification Society of any material recommendation affecting class, except as otherwise provided in Section 9.1(g), and (iv) any other event or condition which is reasonably likely to have a Material Adverse Effect; provided that delivery of a notice of Default or Event of Default shall automatically cure any Default or Event of Default then existing solely as a result of any failure to deliver such notice;

(d)            Obtain Consents. without prejudice to Section 2.1 and this Section 9.1, each Obligor shall obtain every consent of another Person which may from time to time be necessary or advisable to avoid a breach of an agreement with such Person as a result of the continued due performance of all its obligations under this Agreement, under the Notes and under the Security Documents;

(e)            Vessel Valuations. the Borrower shall obtain (at its cost) and deliver to the Facility Agent on June 30 and December 31 of each year (or, if the Total Utilization of Commitments (with any Letter of Credit Usage to be deemed to be zero with respect to any Letter of Credit that is Cash Collateralized) is $0 on both June 30 and December 31 of a given year, only on December 31 of such year), a written appraisal from an Approved Broker in respect of each Collateral Vessel. The written appraisals shall not be older than 30 days or, if such a written appraisal is not available in the case of a total loss, based on the most recently available valuation. Any additional appraisals requested by the Facility Agent shall be obtained at the Lenders’ ratable expense, provided, that following and during the continuance of any Event of Default, all such additional appraisals are to be at the Borrower's expense;

(f)            Corporate Existence. ensure that, except as expressly permitted under Section 9.2, (i) each Obligor continues to exist as a limited liability company, corporation, limited partnership, or other entity (as applicable), except to the extent otherwise permitted hereunder, (ii) the Borrower shall not change its corporate form or jurisdiction of incorporation; and (iii) no Guarantor shall change its jurisdiction of incorporation or formation without (A) fifteen (15) days (or such shorter period as the Facility Agent may elect in its discretion) prior written notice to the Facility Agent and (B) taking all actions necessary to ensure the Security Trustee’s Lien in the Collateral remains a first priority perfected Lien after such change in jurisdiction, subject to the Agreed Security Principles;

(g)            Vessel Covenants. Each Collateral Vessel Owner shall as and from the Effective Date:

(i)            Registration and Name. keep the Collateral Vessel owned by it registered in its name under the law of an Approved Flag Jurisdiction free of Liens other than Permitted Liens; except for each change of flag set forth in Schedule 1.1(d) (which change of flag shall occur within 30, 60, or 90 days after the Effective Date pursuant to Section 4.5), not change the flag of a Collateral Vessel to another Approved Flag Jurisdiction without the Facility Agent’s prior written consent, which (x) shall be given upon delivering a new first preferred Mortgage (and any amendments to existing Security Documents required to maintain the Liens granted thereunder and legal opinions required by the Facility Agent) with respect to such Vessel in form and substance reasonably acceptable to the Facility Agent, and (y) shall not be unreasonably conditioned, delayed or withheld (and response is promptly provided); not do, omit to do or allow to be done anything as a result of which such registration might be cancelled;

(ii)            Repair and Classification. keep each Collateral Vessel owned by it in a good and safe condition and state of repair (ordinary wear and tear and loss by casualty or condemnation excepted), and in any event in such condition as will entitle each such Collateral Vessel to (x) maintain its present classification free of overdue recommendations and (y) comply with all laws and regulations applicable to Vessels registered under the law of such Collateral Vessel’s Approved Flag Jurisdiction or to Vessels trading to any jurisdiction to which that Vessel may trade from time to time, including but not limited to the ISM Code and the ISPS Code, but except in the case of this clause (y) where the failure to so comply would not have a Material Adverse Effect; provided, however, that with respect to clause (x) above, so long as the Obligors remain in compliance with the Collateral Maintenance Ratio in Section 9.3 after excluding therefrom any Collateral Vessels that fail to satisfy the classification requirements herein, (A) the Borrower can reduce the percentage of Collateral Vessels that are required to be in class from the Collateral Vessels constituting 90% of the Fair Market Value of all the Collateral Vessels to a percentage no less than the percentage of the fair market value of vessels owned by the Group Companies which are not Collateral Vessels that are in class at such time, (B) such failure to be in class shall not constitute a Default or an Event of Default, (C) such Collateral Vessels that are not in class shall be excluded for purposes of calculating the Collateral Maintenance Ratio, and (D) the Borrower shall notify the Facility Agent quarterly of any such failures to remain in class. Restoration of prior class status shall permit re-inclusion of such Collateral Vessel in the Collateral Maintenance Ratio calculation;

(iii)            Modification. not make any permanent modification to any Collateral Vessel owned by it or equipment installed on that Collateral Vessel, which in any case would (A) materially alter the structure, type or performance characteristics of such Collateral Vessel and (B) reduce the Fair Market Value of such Vessel such that following such modification, the Fair Market Value of such Collateral Vessel would cause a breach of Section 9.4; provided that the foregoing shall not apply to modifications that are (x) made in good faith in connection with the employment of such Collateral Vessel, (y) required by any applicable law, rule or regulation, or order, ruling or directive of a Governmental Authority or (z) determined in good faith by such Obligor to be required for the safe and prudent operation of such Collateral Vessel;

(iv)            Surveys. at its sole expense, shall submit the Collateral Vessel owned by it regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Majority Lenders, provide the Security Trustee, at the Borrower’s sole expense, with copies of all survey reports (including all internally generated inspection or survey reports on each Collateral Vessel) in respect of any Collateral Vessel;

(v)            Collateral Vessel Inspection. permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) (i) at all reasonable times but not more than one time per year with reasonable prior notice to the Borrower, at Lenders’ expense, so long as no Event of Default has occurred and is continuing and (ii) at any time at the Borrower’s cost while an Event of Default has occurred and is continuing, to board the Collateral Vessel owned by it to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections; provided that any such visits, surveys and inspections shall be made in compliance in all material respects with Borrower’s, charterer’s and any other operator’s customary health and safety protocols, and will not unreasonably interfere with the conduct of business of the Borrower, any charterer, any Collateral Vessel Owner or operator with respect to such Collateral Vessel, and all such visits, surveys and inspections shall be held at reasonable times, which shall be during ordinary business hours of the Borrower, any charterer or the Collateral Vessel Owner or operator of such Collateral Vessel, as applicable. The Security Trustee shall cooperate with the Borrower, Collateral Vessel Owner, operator and charterer in respect of the timing for and the place where such surveys take place in order to minimize disruption to the activities of such Collateral Vessel;

(vi)            Prevention and Release from Arrest. promptly discharge:

(vii)            Notice of Mortgage. carry on board each Collateral Vessel a certified copy of the applicable Mortgage and place and maintain in a conspicuous place in the navigation room and the Master’s cabin of that Collateral Vessel a framed printed notice stating that such Collateral Vessel is mortgaged by that Collateral Vessel Owner to the Security Trustee;

(viii)            Inventory of Hazardous Materials. maintain an Inventory of Hazardous Materials on board each Collateral Vessel and, upon Facility Agent’s reasonable request, provide a copy to the Facility Agent, unless no such list is required to be maintained under applicable law;

(ix)            Green Scrapping. in the event that an Obligor undertakes to dismantle any vessel owned by it (including a Collateral Vessel) (or to sell such vessel with the intention of it being dismantled), it shall (A) ensure, prior to any dismantling contract being entered into by the relevant Obligor, that the Facility Agent receives a statement from an independent third party expert reasonably acceptable to the Facility Agent confirming that the relevant shipyard/dismantling yard complies in all material respects with the requirements for such yards as set out in the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 and/or the EU Ship Recycling Regulation, 2013, and (B) otherwise comply in all material respects with the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 and the EU Ship Recycling Regulation, 2013;

(h)            Books and Records. at all times keep, and cause each Subsidiary of the Borrower to keep, proper books of record and account into which full and correct entries shall be made in accordance with GAAP in all material respects;

(i)            Taxes and Assessments. pay and discharge, and cause each Restricted Subsidiary of the Borrower to pay and discharge, all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or property prior to the date upon which penalties attach thereto; provided, however, that it shall not be required to pay and discharge, or cause to be paid and discharged, any such Tax, assessment, charge or levy so long as it is being contested in good faith and by appropriate proceedings and it has set aside on its books reserves with respect thereto to the extent required by GAAP, or to the extent that the failure to pay and discharge such Taxes, assessments or governmental charges or levies could not reasonably be expected to result in a Material Adverse Effect;

(j)            Inspection at Properties Other than Vessels. allow, and cause each Restricted Subsidiary thereof to allow, no more than once in the aggregate for the Facility Agent and the Lenders, as the case may be, in any calendar year (unless an Event of Default has occurred and is continuing, in which case there shall be no limit on the number or frequency of visits and inspections) upon fourteen (14) calendar days’ notice from the Facility Agent, any representative or representatives designated by the Facility Agent, subject to applicable laws, health and safety protocols, and regulations, to visit and inspect during normal business hours, at the Lenders’ expense (unless an Event of Default shall have occurred and be continuing, in which event at the Borrower’s expense), any of the properties (other than Collateral Vessels inspections of which are governed by Section 9.1(g)(v)), other than Vessels, of the Borrower or any Restricted Subsidiary thereof and, on request, subject to confidentiality restrictions with third parties, to examine its books of account, records, reports, agreements and other papers and to discuss its affairs, finances and accounts with its officers, all at such times and as often as the Facility Agent requests; provided that the foregoing rights of the Facility Agent shall not unreasonably interfere with the conduct of the business of the applicable Obligor or any such Subsidiary;

(k)            Compliance with Statutes, Agreements, etc. except where failure to comply would not alone or in the aggregate result in a Material Adverse Effect, do or cause to be done, and cause each Restricted Subsidiary thereof to do and cause to be done, (i) all things necessary to preserve and maintain all material licenses, permits, governmental approvals, rights, privileges and franchises necessary for the conduct of its business; and (ii) all things necessary to comply with (A) all contracts or agreements to which it, or any Restricted Subsidiary is a party; and (B) all laws, rules and regulations applicable to any Obligor or such Restricted Subsidiary, including, without limitation, those laws, rules and regulations relating to employee benefit plans and environmental matters;

(l)            Environmental Matters. promptly upon the occurrence of any of the following conditions, provide to the Facility Agent a certificate of a chief executive officer thereof, specifying in detail the nature of such condition and its proposed response or the response of its Environmental Affiliates: (a) its receipt, or the Borrower’s gaining knowledge of receipt by any Environmental Affiliate of the Borrower, of any written communication that alleges that such Person is not in compliance with any applicable Environmental Law or Environmental Approval, if such noncompliance could reasonably be expected to have a Material Adverse Effect, (b) knowledge that there exists any Environmental Claim pending or threatened in writing against any Obligor, which could reasonably be expected to have a Material Adverse Effect, or (c) any release, emission, discharge or disposal of any material that could form the basis of any Environmental Claim against it, if such Environmental Claim could reasonably be expected to have a Material Adverse Effect. Upon the written request by the Facility Agent, it will submit to the Facility Agent at reasonable intervals, a report providing an update of the status of any issue or claim identified in any notice or certificate required pursuant to this subsection;

(m)            ERISA. forthwith upon (i) becoming aware that the execution and/or delivery of this Agreement and/or the consummation of the transactions hereunder involves a non-exempt “prohibited transaction” for purposes of ERISA, Section 4975 of the Code or any Similar Law or otherwise violates ERISA or any Similar Law, unless such result is a result of the Lender’s funding an Advance with “plan assets,” (as defined under Section 3(42) of ERISA and subject to ERISA, Section 4975 of the Code or such applicable Similar Law), (ii) any of the Obligors or any of their Subsidiaries becoming a “benefit plan investor” (as defined in Section 3(42) of ERISA) or otherwise using “plan assets” (as defined under Section 3(42) of ERISA and subject to ERISA, Section 4975 of the Code or such applicable Similar Law), (iii) the occurrence of any ERISA Termination Event or Foreign Termination Event or (iv) the occurrence or existence of any (A) ERISA Funding Event or (B) Foreign Underfunding, furnish or cause to be furnished to the Lenders written notice thereof, provided, in respect of subsections (iii) and (iv) above, such notice need be provided only to the extent that any such event(s) or underfunding(s) referenced in subsections (iii) and (iv) above, individually or in the aggregate, is reasonably expected to result in a Material Adverse Effect;

(n)          Brokerage Commissions, etc. indemnify and hold the Creditors harmless from any claim for any brokerage commission, fee, or compensation from any broker or third party hired by the Borrower resulting from the transactions contemplated hereby;

(o)          Facilities. keep all tangible properties useful or necessary to the Borrower's business in good repair and condition (ordinary wear and tear and loss by casualty or condemnation excepted), and from time to time make necessary repairs, renewals and replacements thereto, so that such properties shall be reasonably preserved and maintained, in each case with such exceptions as could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; provided however, that nothing contained in this clause (o) shall prevent the Borrower or its Restricted Subsidiaries from (a) discontinuing the operation or maintenance of any such properties or equipment if such discontinuation is, in the judgment of Borrower, desirable in the conduct of business of Borrower and its Restricted Subsidiaries or (b) entering into or consummating any transaction permitted by Section 9.2 hereof;

(p)          Insurance. maintain with financially sound and reputable insurance companies, insurance on all its properties and against all such risks and in at least such amounts as are usually insured against by companies of established reputation engaged in the same or similar business from time to time, and maintain the Insurances over the Collateral Vessels in accordance with and as described in Schedule 9.1(p);

(q)          Covenant to Guarantee Obligations and Give Collateral. Subject to any applicable limitations, exceptions or exclusions set forth in this Agreement (including the Agreed Security Principles) or any other Loan Document:

(i)             cause each Restricted Subsidiary (other than an Excluded Subsidiary), and each future owner of a Collateral Vessel, to execute and deliver (or cause the applicable Obligor owning such Restricted Subsidiary to deliver) to the Security Trustee on its date of formation or acquisition (or, in each case, such longer period as the Facility Agent may agree), (A) a joinder to this Agreement as an additional Guarantor, in substantially the form of Exhibit H, (B) all Security Documents required to be delivered by such Restricted Subsidiary or Collateral Vessel Owner if in existence on the Effective Date (including all ancillary documents required to be delivered thereunder), including but not limited to a Mortgage over each Additional Vessel, a joinder to the Security Agreement in the form attached thereto and if applicable, a Pledge Agreement (collectively with such other Loan Documents required, “Additional Security”), (C) such opinions of counsel (limited to one (1) per applicable jurisdiction and one (1) maritime counsel) as the Facility Agent may reasonably request, (D) with respect to any Additional Vessel subject to a Collateral Exchange, each of the documents required to be delivered with respect to each Closing Date Collateral Vessel under Section 4.2(g) and (h), and (E) such other agreements, instruments, approvals or other documents reasonably requested by the Facility Agent in order to create, perfect, establish the first priority (subject to Permitted Liens) of or otherwise protect any Lien purported to be covered by any such Security Document or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents that are applicable to the Guarantors and that all property and assets of such Restricted Subsidiary (subject to any exclusions from Collateral herein and as provided in the Security Documents) shall become Collateral;

(ii)           ensure that cash and Cash Equivalents of the Borrower and any Guarantor formed under the laws of a state in the United States of America that are held in an Account are held with a financial institution that has entered into a DACA in respect of such Account no later than (x) with respect to such Accounts existing on the Effective Date, within 30 days of the Effective Date (or such longer period in the reasonable discretion of the Facility Agent), or (y) with regards to any other such Account, sixty (60) days after the date that is the last to occur of opening such Account, acquiring such Account or the date upon which such Account becomes subject to the provisions of this Section 9.1(q) (or such longer period in the reasonable discretion of the Facility Agent); and

(iii)          for the avoidance of doubt, if any vessel is acquired by an Obligor that is also a pledgor of Collateral Vessels after the Effective Date, such Collateral Vessel Owner shall not be required to (but may in its sole discretion) cause the relevant Collateral Vessel Owner to satisfy any of the requirements set forth in clauses (B)-(D) of Section (q)(i) above with respect to such Additional Vessel;

(r)           Ownership. The Borrower shall remain the 100% direct or indirect owner of the Equity Interests of each Guarantor, and, except as set forth in the organizational structure chart of the Group delivered pursuant to Section 4.1(b)(vii), the Equity Interests of each Guarantor shall remain 100% directly owned by either the Borrower or another Guarantor; and

(s)           Collateral Priority. The Obligors shall at all times maintain in favor of the Secured Creditors a first priority perfected security interest in the Collateral, subject only to Permitted Liens, the Agreed Security Principles and the provisions of this Agreement regarding Permitted Disposals and Collateral Exchange.

(t)           Pari Passu Obligations. ensure that the Financial Indebtedness of the Borrower and the other Obligors under this Agreement and the other Loan Documents shall at least rank pari passu with any other present or future unsecured Financial Indebtedness thereof.

9.2          Negative Covenants. Each of the Obligors hereby covenants and undertakes, as to itself, with the Lenders that, from the Effective Date, without the prior written consent of the Facility Agent (or the Majority Lenders or all of the Lenders if required by Section 14.8), in each case, which consent shall not be unreasonably withheld, conditioned or delayed:

(a)           Liens. No Borrower or Restricted Subsidiary shall create or permit to exist any Lien over any of its assets or property other than Permitted Liens;

(b)          Investments. The Borrower and each Restricted Subsidiary shall not make any Investments to or for the benefit of any Person, other than Permitted Investments;

(c)           Restricted Payments. (i) The Borrower and each Restricted Subsidiary shall not make any Distributions, repurchase any Equity Interests or make any Investments other than Permitted Investments (“Restricted Payments”) other than, so long as no Default or Event of Default has occurred and is continuing or would result from such payment, the following:

(A)          Distributions payable in Equity Interests (other than Disqualified Equity Interests) of the Borrower;

(B)           Distributions payable to the Borrower or a Restricted Subsidiary;

(C)           offsets against and acquisitions of Equity Interests of Borrower or any Restricted Subsidiary thereof in satisfaction of customary indemnification and purchase price adjustment obligations owed to Borrower or its Restricted Subsidiaries under acquisition arrangements in which Equity Interests of Borrower were issued as consideration for the acquisition;

(D)           the purchase, redemption or other acquisition of its Equity Interests with the proceeds received from an issuance of new Equity Interests of Borrower which are issued no more than ninety (90) days prior to such purchase, redemption or acquisition;

(E)           obligations to purchase, repurchase, retire or otherwise acquire for value Equity Interests of the Borrower or any Restricted Subsidiary (1) held by any present or former director, officer, member of management or employee of the Borrower or any Restricted Subsidiary, in accordance with repurchase rights or obligations established in connection with such Equity Interests, and (2) pursuant to the terms of any option plan or other employee benefit or equity based compensation plan established by Borrower or any Restricted Subsidiary;

(F)           the cashless exercise of options and warrants;

(G)           any deemed distribution on account of an issuance of securities constituting an unsecured capped call convertible debt obligation (and the repurchase obligations that arise in connection therewith);

(I)            unlimited Restricted Payments provided that, immediately after giving pro forma effect thereto and any concurrent incurrence of Financial Indebtedness, (x) the Total Net Leverage Ratio is less than or equal to 1.00 to 1.00, and (y) Liquidity is greater than or equal to Three Hundred Fifty Million Dollars ($350,000,000);

(J)            Restricted Payments in an aggregate amount not to exceed 100% of Distributable Free Cash Flow as of the time such Restricted Payment is made, net of all Restricted Payments made under clause (i)(I) above and Redemptions of Junior Indebtedness under clause (ii)(D) below; provided that, immediately after giving pro forma effect thereto and any concurrent incurrence of Financial Indebtedness, (x) the Total Net Leverage Ratio is less than or equal to 2.00 to 1.00 and (y) Liquidity would be greater than or equal to Three Hundred Fifty Million Dollars ($350,000,000);

(K)          Restricted Payments in an aggregate amount not to exceed Fifty Million Dollars ($50,000,000), so long as immediately after giving pro forma effect thereto and any concurrent incurrence of Financial Indebtedness, Liquidity is greater than or equal to Three Hundred Fifty Million Dollars ($350,000,000);

(M)          Restricted Payments in an aggregate amount not to exceed the sum of (1) the net proceeds of cash contributions to the common Equity Interests of any Obligor or any Restricted Subsidiary from the Borrower and (2) the fair market value (as determined at the time such Restricted Payment is made) of any other assets received as a capital contribution to any Obligor or any Restricted Subsidiary from the Borrower; and

(N)          Restricted Payments by any Restricted Subsidiary to any Obligor and other Restricted Subsidiary (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests); provided that, in the case of Restricted Payments by a non-wholly-owned Restricted Subsidiary, a Restricted Payment may also be made to any other owner of Equity Interests of such non-wholly-owned Restricted Subsidiary based on such owner’s relative ownership interests (or lesser share) of the relevant class of Equity Interests.

(ii)           The Borrower and each Restricted Subsidiary shall not optionally or voluntarily Redeem (whether in whole or in part) any Junior Indebtedness, provided that so long as no Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:

(A)          the Borrower or its Restricted Subsidiaries may Redeem any such Junior Indebtedness by converting or exchanging any such Financial Indebtedness into Equity Interests (other than Equity Interests constituting Disqualified Equity Interests) of the Borrower;

(B)           the Borrower and its Restricted Subsidiaries shall be permitted to make customary “AHYDO catchup” payments;

(C)           the Borrower or any of its Restricted Subsidiaries may Redeem any such Junior Indebtedness with the net cash proceeds of any Permitted Refinancing Debt in respect of such Junior Indebtedness within ninety (90) days of the incurrence of such Permitted Refinancing Debt;

(D)           the Borrower or any of its Restricted Subsidiaries may Redeem any such Junior Indebtedness provided that, immediately after giving pro forma effect thereto and any concurrent incurrence of Financial Indebtedness, (x) the Total Net Leverage Ratio is less than or equal to 1.0 to 1.0, and (y) Liquidity is greater than or equal to Three Hundred Fifty Million Dollars ($350,000,000); and

(E)           the Borrower or any of its Restricted Subsidiaries may Redeem any such Junior Indebtedness in an aggregate amount not to exceed 100% of Distributable Free Cash Flow as of the time such Restricted Payment is made, net of all Restricted Payments made under clause (i)(J) above and Redemptions of Junior Indebtedness under clause (ii)(D) above; provided that, immediately after giving pro forma effect thereto and any concurrent incurrence of Financial Indebtedness, (x) the Total Net Leverage Ratio is less than or equal to 2.0 to 1.00 and (y) Liquidity would be greater than or equal to Three Hundred Fifty Million Dollars ($350,000,000);

(d)          Financial Indebtedness. The Borrower and each Restricted Subsidiary shall not incur any Financial Indebtedness other than Permitted Indebtedness. For the avoidance of doubt, the Borrower and the Restricted Subsidiaries shall be permitted to incur Permitted Indebtedness that is scheduled to mature prior to the Maturity Date, subject to acceleration of the Maturity Date to the extent described in the definition thereof;

(e)           Disposals. The Borrower and each Restricted Subsidiary shall not make any Disposal other than a Permitted Disposal;

(f)           Change in Corporate Structure or Business. (i) The Borrower and its Restricted Subsidiaries shall not materially change the corporate structure of the Obligors without prior written consent of the Majority Lenders (such consent not to be unreasonably conditioned, delayed or withheld and response promptly provided), or (ii) materially change the general nature of the business of the Borrower and its Restricted Subsidiaries taken as a whole, excluding reasonable extensions (and such extensions including, for the avoidance of doubt, services related to the generation of electricity offshore) of the business carried on at the date hereof;

(g)           Transactions with Affiliates. Except as otherwise specifically permitted herein, the Borrower and its Restricted Subsidiaries shall not (except pursuant to contracts outstanding as of (a) with respect to the Borrower, the Effective Date or (b) with respect to any Restricted Subsidiary of the Borrower, the Effective Date or, if later, the date such Restricted Subsidiary first became a Restricted Subsidiary of the Borrower) enter into or engage in any material transaction or arrangement or series of related transactions or arrangements which in the aggregate would be material with any Affiliate, including without limitation, the purchase from, sale to or exchange of property with, any merger or consolidation with or into, or the rendering of any service by or for, any Affiliate, unless such transaction or arrangement or series of related transactions or arrangements, taken as a whole, are no less favorable to the Borrower or such Restricted Subsidiary than would be obtained in an arms’ length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, this Section 9.2 shall not prohibit: (i) arrangements entered in the ordinary course of business with any officer, director or employee of any Obligor or Restricted Subsidiary; (ii) customary fees paid to members of the board of directors or similar governing body of any Obligor or Restricted Subsidiary; (iii) any transaction not otherwise prohibited by this Agreement between or among the Borrower and/or any of its Subsidiaries; and (iv) any transactions and arrangements permitted by, and complying with the applicable terms of, Sections 9.2 (a), (c), (d), (e) or (i);

(h)           Changes in Offices or Names. Neither the Borrower nor the Guarantors will change the location of its chief executive office or its name unless the Facility Agent shall have received fifteen (15) days (or such shorter period as the Facility Agent may elect in its discretion) prior written notice of any such change;

(i)            Consolidation and Merger; Sale of All Assets. The Borrower will not and will ensure that no Restricted Subsidiary shall merge, de-merge, or enter into any amalgamation, consolidation or corporate reorganization of any of the Obligors, or sell all or substantially all of the assets of the Borrower and its Restricted Subsidiaries, except for:

(i)            a merger of a Guarantor with the Borrower, another Guarantor, a Restricted Subsidiary or a third party as long as either (a) the Borrower or the Guarantor is the surviving entity, or (b) the surviving entity (if not the original Guarantor) becomes a wholly owned Subsidiary and a Guarantor;

(ii)           a merger of the Borrower (A) with the prior written consent of the Majority Lenders, such consent not to be unreasonably conditioned, delayed or withheld, and provided that the surviving entity assumes all obligations of the Borrower under this Agreement, or (B) the Borrower is the surviving entity;

(iii)          a merger of any of the Guarantors with another Guarantor, or an affiliate of such Guarantor except the Borrower, provided that the surviving entity shall be a Guarantor;

(iv)          a merger of a Guarantor with any third party if the Guarantor is not the survivor but the survivor assumes and agrees to pay or guarantee the obligations under this Agreement in form reasonably satisfactory to the Facility Agent;

(v)           with the prior written consent of the Majority Lenders, such consent not to be unreasonably conditioned, delayed or withheld (and response promptly provided); and

(vi)          any Restricted Subsidiary may (A) merge with and into, or be dissolved or liquidated into, the Borrower, any Guarantor or any other Restricted Subsidiary, so long as the Borrower or a Guarantor is the survivor, or (B) sell all or substantially all of the assets of any Restricted Subsidiary to the Borrower, any Guarantor, or any other Restricted Subsidiary (provided that a sale of all of the assets of the Borrower or any Guarantor shall be made to a Restricted Subsidiary that is the Borrower or a Guarantor unless otherwise permitted under this Agreement);

(j)            No Money Laundering; Sanctions. The Obligors will (a) ensure that no proceeds from any Advance or Letter of Credit are used directly or indirectly for any purpose which would breach any applicable acts, regulations or laws on bribery, corruption or similar; and (b) conduct its businesses and maintain policies and procedures in compliance with applicable anti-corruption laws. The Borrower shall adopt and maintain policies intended to ensure that it and none of its Subsidiaries will, engage in any conduct prohibited by any applicable Sanctions. The Borrower will not directly or indirectly use the proceeds to fund or facilitate any investment or loan in or connected with Russia (including ownership interests in land located in Russia, ownership interests and control over a Person being resident in, located in, domiciled in or incorporated or constituted under the laws of Russia), in each case to the extent constituting a violation of Sanctions;

(k)           Use of Proceeds. The Borrower will not use the proceeds of any Advance in violation of Regulation T, Regulation U or Regulation X, or for any purpose not permitted by Section 3.1;

(i)            No Obligor shall (and each Obligor shall ensure that no other Relevant Person will) take any action, make any omission or use (directly or indirectly) any proceeds of any Advance, in a manner that:

(ii)            No Obligor shall (and each Obligor shall ensure that no other Relevant Person will) take any action or make any omission that results, or is reasonably likely to result, in it or any Secured Creditor becoming a Restricted Party.

(m)          West Africa Subsidiaries. No Obligor or Restricted Subsidiary shall make any Investment in, or otherwise make any advance of cash or Cash Equivalents to, a West Africa Subsidiary, to the extent such action is taken for the purpose of minimizing the amount of Consolidated Cash held by the Consolidated Cash Group for purposes of Sections 4.3(f) and 5.4(b).

9.3          Financial Covenants. The Borrower hereby covenants and undertakes with the Lenders that, from the date hereof:

(a)           Minimum Liquidity. As of the last day of each fiscal quarter, beginning with the fiscal quarter ending March 31, 2025, the sum of Consolidated Cash of the Obligors and the Available Commitments shall be not less than the greater of (i) Twenty Million Dollars ($20,000,000) and (ii) an amount equal to 10% of Net Interest-Bearing Debt; and

(b)          Total Net Leverage Ratio. As of the end of each fiscal quarter, beginning with the fiscal quarter ending March 31, 2025, the Total Net Leverage Ratio shall be equal to or less than 3.00:1.00.

(c)           Collateral Maintenance Ratio. Subject to Section 9.4, at all times after the Effective Date, the Collateral Maintenance Ratio shall be at least 2.50:1.00.

9.4          Collateral Maintenance Ratio. If the ratio of Aggregate Collateral Vessel Value to total Commitments is less than 2.50:1.00, the Borrower shall, within thirty (30) days of the Facility Agent’s receipt of appraisals evidencing the Fair Market Value of the Collateral Vessels, which period may be extended by the Facility Agent in its reasonable discretion, take one of the following actions: (i) pledge or cause to be pledged to the Security Trustee in a blocked account cash Collateral, (ii) cause Additional Vessels to become Collateral Vessels; and/or (iii) permanently cancel the Commitments and, if applicable, prepay a principal amount of any outstanding Advances (together with interest thereon and any other monies payable in respect of such prepayment pursuant to Section 5.5), in each case in such amounts necessary to cause the ratio of the Aggregate Collateral Vessel Value to the total Commitments to be equal to or exceed 2.50:1.00.

9.5          Designation and Conversion of Restricted and Unrestricted Subsidiaries; Debt of Unrestricted Subsidiaries.

(a)           Unless designated as an Unrestricted Subsidiary after the Effective Date, subject to Section 9.5(b), any Person that becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary.

(b)           The Borrower may designate by written notification thereof to the Facility Agent, any Restricted Subsidiary, including a newly formed or newly acquired Subsidiary, as an Unrestricted Subsidiary if (i) immediately prior, and upon giving effect, to such designation, neither a Default nor an Event of Default would exist and (ii) such designation is deemed to be an Investment in an Unrestricted Subsidiary in an amount equal to the fair market value as of the date of such designation of the Borrower’s direct and indirect ownership interest in such Subsidiary and such Investment would be permitted to be made at the time of such designation under this Agreement. Except as provided in this clause (b), no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary. None of the Borrower, any Obligor or any Subsidiary that owns Equity Interests of the Borrower or any Obligor, nor any Collateral Vessel Owner, may be designated as an Unrestricted Subsidiary except if, immediately after giving pro forma effect to such designation, (A) the Collateral Maintenance Ratio is equal to or greater than 5.00 to 1.00 at such time, and (B) no Default or Event of Default shall have occurred and is continuing or would result therefrom. No Subsidiary of the Borrower may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” (or equivalent term) for the purpose of the 2025 Senior Notes or any other Material Indebtedness of the Borrower or a Restricted Subsidiary.

(c)           The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if, immediately after giving effect to such designation, (i) no Default or Event of Default exists or would result therefrom and (ii) such designation is deemed to be the incurrence at such time of designation of any Investment, Indebtedness and Liens of such Subsidiary existing at such time and such Investment, Indebtedness and Liens would be permitted to be made or incurred at the time of such designation under this Agreement.

(d)           No Unrestricted Subsidiary shall have any Financial Indebtedness with recourse obligations to an Obligor, a Restricted Subsidiary or a Collateral Vessel.

(e)           The Borrower will not permit any Unrestricted Subsidiary to hold any Equity Interests in, or any Financial Indebtedness of, any Obligor.

9.6          Total Loss of a Collateral Vessel; Collateral Exchange.

(a)           Total Loss of a Collateral Vessel. The Borrower hereby covenants and undertakes with the Lenders that, from the date hereof, in the event of a Disposal constituting a Total Loss of a Collateral Vessel that would cause the Collateral Maintenance Ratio to fall below 5.0:1.0, the Borrower shall no later than twenty five (25) Banking Days following the date Net Cash Proceeds in respect of such Total Loss are received by the relevant Collateral Vessel Owner or the Security Trustee as assignee thereof:

(i)            so long as no Event of Default has occurred and is continuing, reinvest such proceeds through an acquisition of one or more Collateral Vessels or Related Business Assets or a Permitted Acquisition during the relevant Designated Reinvestment Period, provided such Net Cash Proceeds are held in a blocked Account on terms acceptable to the Facility Agent until a Binding Commitment has been entered into;

(ii)           permanently reduce the Commitments in an amount necessary to ensure the Collateral Maintenance Ratio is restored to at least 5.0:1.0;

(iii)          temporarily reduce the Commitments in an amount necessary to ensure the Collateral Maintenance Ratio is equal to or greater than 5.0:1.0 until the earlier of (x) 60 days and (y) the date on which the Collateral Maintenance Ratio is equal to or greater than 5.0:1.0 by causing Additional Vessels to become Collateral Vessels in accordance with a Collateral Exchange or by causing Additional Vessels to become Collateral Vessels pursuant to Section 9.1(q) (provided that if a Collateral Maintenance Ratio of at least 5.0:1.0 is not met after 60 days, the Commitment shall be permanently reduced by an amount such that the Collateral Maintenance Ratio would be at least 5.0:1.0);

(iv)          cause sufficient Additional Vessels to become Collateral Vessels to ensure that Collateral Maintenance Ratio shall be equal to or greater than 5.0:1.0 by satisfying the requirements of Section 9.1(q); or

(v)           utilize any combination of the foregoing sufficient to restore the Collateral Maintenance Ratio to at least 5.0:1.0.

(b)          Collateral Exchange. The Borrower shall have the option from time to time in its sole discretion to (i) cause Additional Vessels to become Collateral Vessels by satisfying the requirements of Section 9.1(q); and (ii) provided no Default or Event of Default has occurred and is continuing or would result therefrom, on or about the date of such Additional Vessel becoming a Collateral Vessel, cause the exchange (the “Collateral Exchange”) of any such Additional Vessel or Additional Vessels for a release of an existing Collateral Vessel or Collateral Vessels (the “Released Vessels”), provided that: (A) the relevant Additional Vessel or Additional Vessels have an aggregate Fair Market Value equal to or greater than that of the Released Vessels, (B) after such exchange, the Collateral Maintenance Ratio shall be at least 5.00 to 1.00 and the Borrower shall be in compliance with all Financial Covenants as of the most recent test date provided therefor in Section 9.3, and (C) the relevant Obligor satisfies all the requirements set forth in Section 9.1(q) above with respect to each Additional Vessel.

(a)           This Agreement shall be binding upon, and inure to the benefit of, each of the Obligors and each of the Creditors and their respective successors and permitted assigns, except that the Obligors may not assign any of their respective rights or obligations hereunder without the written consent of the Lenders.

(b)          Subject to the terms of this Article 10, each Lender shall be entitled to assign its rights and obligations under this Agreement to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets, with the consent of the Borrower (such consent not to be unreasonably withheld or delayed and deemed to have been given if no express refusal is provided by the Borrower consistent with the terms of this Agreement within five (5) Banking Days after the Borrower receives written notice of the proposed assignment) and the Facility Agent; provided, no such consent of the Borrower shall be necessary in the case of the assignment to (i) another Lender, (ii) an Affiliate, another office or branch of any Lender, (iii) to an Approved Fund, (iv) to a Mandated Lead Arranger or an Affiliate of a Mandated Lead Arranger and made in connection with the facilitation of primary syndication or first utilization, (iv) any Person during the continuance of any Event of Default, and (v) to any Person on the Approved Lender List; and, in any case, such Lender shall forthwith give notice of any such assignment to the Borrower and the Facility Agent and, provided no Event of Default has occurred and is continuing, pay the Facility Agent an assignment fee of Seven Thousand Five Hundred Dollars ($7,500) for each such assignment; provided, however, that any such assignment must be made pursuant to an Assignment and Assumption Agreement. Each of the Obligors will take all reasonable actions requested by the Facility Agent or any Lender to effect an assignment that does not violate the terms of this Section 10(b). Notwithstanding the foregoing, no Lender shall assign its rights and obligations under this Agreement to any natural Person, the Borrower or any of the Borrower’s Affiliates, or to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender. Except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(a)           Any Lender may at any time, without the consent of, or notice to, the Borrower, any Issuing Bank or the Facility Agent, sell participations to any Person (other than a natural person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights or obligations under this Agreement (including all or a portion of its Commitment or the Facility); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Facility Agent, the Issuing Banks and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 18 with respect to any payments made by such Lender to its Participant(s). Any Lender that sells a participation shall reserve to itself all rights to vote hereunder with respect to consents and waivers hereof and amendments hereto, and such Lender shall not agree with any participation purchaser that Lender may not agree to any such consent, waiver or amendment, except that a Lender may agree with such participation purchaser that such Lender will not, absent such participation purchaser’s consent, agree or consent to any of those matters for which the consent of all Lenders would be required under Section 14.8.

(b)           Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant to which it sells a participation and the principal amounts and interest amounts of each such Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. Without limitation of the requirements of this Section 10.2(b), no Lender shall have any obligation to disclose all or any portion of a Participant Register to any person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitment, the Facility or other Obligations under any Loan Document), except to the extent that such disclosure is necessary to establish that such Commitment, the Facility or other Loan Obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. For the avoidance of doubt, the Facility Agent (in its capacity as Facility Agent) shall have no responsibility for maintaining a Participant Register.

(c)           Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

11.           ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.

11.1         Illegality. In the event that, by reason of a Change in Law, under the laws of any jurisdiction, the making, maintaining or continuation of its participation in any Advance or the Facility, performing its obligations under the Loan Documents or determining or charging interest rates based upon Term SOFR applicable to its participation in the Facility (A) has become unlawful as a result of compliance by a Lender or its applicable lending office in good faith with any Law (or would conflict with any treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), (B) has become unlawful as a result of any illegality due to Sanctions applicable to a Lender or a Lender is advised in writing by a Sanctions Authority that penalties will be imposed by such Sanctions Authority as a result of such Lender’s participation in the Loan Documents or any other business or financial relationship with the Borrower or a Guarantor, or (C) has been asserted to be unlawful by any Governmental Authority, then, and in any such event, such Lender shall on that day give notice (by e-mail or by telephone confirmed in writing) to the Borrower of such determination, and thereafter (1) the obligation of such Lender to fund any Advance or issue any Letter of Credit shall be suspended, (2) the Lender’s obligations to maintain its outstanding Advance shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Loan or when required by Law (provided that any illegality as a result of Sanctions under clause (B) above shall, for the avoidance of doubt, result in such Lender’s portion of the Advance being immediately due and payable), upon which (x) the portion of the Advance made by such Lender shall convert to an ABR Advance, or (y) solely to the extent that the conversion in clause (x) does not cure or otherwise address any such impracticability or illegality, the Borrower shall repay the affected portion of the Advance upon written demand by the affected Lender within five (5) Banking Days of such demand and (3) the Commitment of such Lender shall immediately be terminated and such Lender shall not thereafter be obliged to participate in the making of any Advance solely to the extent that such Advance cannot otherwise be an ABR Advance. In any of the foregoing events, but without prejudice to the aforesaid obligations of the Borrower to repay the Facility, the Borrower and the relevant Lender, to the extent possible and reasonably practicable, shall negotiate in good faith with a view to agreeing on terms for making the Facility available from another jurisdiction or otherwise restructuring the Facility on a basis which is not unlawful.

(a)           Increased Costs Generally. If any Change in Law shall:

(i)            impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

(ii)           subject any Lender 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, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)          impose on any Lender any other condition, cost or expense (in each case, other than Taxes) affecting this Agreement or any Advance made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making an Advance or maintaining the Facility, or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender, such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b)           Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Advances 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)           Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

(d)           Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months 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 or Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

11.3         Market Disruption. The following provisions of Sections 11.4 and 11.5 apply if:

(a)           if, on the Periodic Term SOFR Determination Day for the relevant Interest Period, the Facility Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or;

(b)           before close of business in New York on the Periodic Term SOFR Determination Day for the relevant Interest Period, the Facility Agent receives notice from the Majority Lenders that Term SOFR does not adequately and fairly reflect the cost to such Lenders of funding an Advance or maintaining such Facility.

11.4         Notification of market disruption. The Facility Agent shall promptly notify the Borrower and each of the Lenders, stating the circumstances falling within Section 11.3 which have caused its notice to be given; provided, however, that such notice itself shall, absent manifest error, be final, conclusive and binding on all parties hereto.

11.5         Alternative rate of interest during market disruption. For so long as the circumstances falling within Section 11.3 are continuing, the rate of interest on each Lender’s share of the Facility for the Interest Period shall be the percentage rate per annum which is the aggregate of (i) the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the Facility from whatever source it may reasonably select, and (ii) the Margin, if any.

11.6         Lender's Certificate Conclusive. A reasonably detailed certificate or determination notice of any Lender as to any of the matters referred to in this Section 11 shall, absent manifest error, be conclusive and binding on the Borrower.

11.7         Compensation for Losses. Where the Facility or any portion thereof is to be repaid by the Borrower pursuant to this Section 11, the Borrower agrees simultaneously with such repayment to pay to the Lenders all accrued interest to the date of actual payment on the amount repaid and all other sums then payable by the Borrower to the Lenders pursuant to this Agreement, together with such amounts as may be certified in the manner set forth herein by the Lenders to be necessary to compensate the Lenders for any actual loss (but not loss of anticipated profit or other indirect or consequential damages), premium or penalties incurred or to be incurred thereby on account of funds borrowed to make, fund or maintain the Facility or such portion thereof for the remainder (if any) of the then current Interest Period or Interest Periods, if any, but otherwise without penalty or premium.

11.8         Replacement of or Repayment and Cancellation in Relation to a Single Lender.

(i)            any sum payable to any Lender by an Obligor is required to be increased under Section 7.1 or under that clause as incorporated by reference or in full in any other Loan Document; or

(ii)           any Lender claims indemnification from the Borrower under Section 7.1 or Section 11.2; or

(iii)          the Facility Agent receives notification from an affected Lender under Section 11.3,

the Borrower may, during the period which commences on the date the Borrower is notified of the circumstances described in sub-paragraphs (i), (ii) or (iii) above and ending 120 days thereafter, give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Facility or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

(b)           On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.

(c)           On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in the Facility.

(d)           The Borrower may, in the circumstances set out in paragraph (a) above, on ten Banking Days’ prior notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall and shall grant the Facility Agent an irrevocable power of attorney coupled with an interest to execute on behalf of such Lender an Assignment and Assumption) transfer pursuant to Section 10 all (and not part only) of its rights and obligations under this Agreement to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets, for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the Facility and all accrued interest, break costs and other amounts payable in relation thereto under the Loan Documents.

(e)           The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

(i)            neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender;

(ii)           in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Loan Documents; and

(iii)          the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has completed all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

(f)            A Lender shall perform the checks described in sub-paragraph (iii) of paragraph (e) above as soon as reasonably practicable following delivery to it of a notice referred to in paragraph (d) above and shall notify the Facility Agent and the Borrower when it is satisfied that it has completed those checks.

12.1         Currency Conversion. If, for the purpose of obtaining or enforcing a judgment in any court in any country, it becomes necessary to convert into any other currency (the “judgment currency”) an amount due in Dollars under this Agreement, the Notes or any of the Security Documents, then the conversion shall be made, in the discretion of the Facility Agent, at the Exchange Rate prevailing either on the date of default or on the day before the day on which the judgment is given or the order for enforcement is made, as the case may be (the “conversion date”), provided that the Secured Creditors shall not be entitled to recover under this Section any amount in the judgment currency which exceeds at the conversion date the amount in Dollars due under this Agreement, the Note, and/or any of the Security Documents.

12.2         Change in Exchange Rate. If there is a change in the Exchange Rate prevailing between the conversion date and the date of actual payment of the amount due, the Borrower shall pay such additional amounts (if any, but, in any event, not a lesser amount) as may be necessary to ensure that the amount paid in the judgment currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount then due under this Agreement, the Notes and/or any of the Security Documents in Dollars; any excess over the amount due received or collected by the Lenders shall be remitted to the Borrower.

12.3         Additional Debt Due. Any amount due from the Borrower under this Section 12 shall be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of this Agreement, the Notes and/or any of the Security Documents.

(a)           Commitment Fee. The Borrower shall pay to the Facility Agent for the ratable account of the Lenders, a commitment fee (the “Commitment Fee”) equal to (i) 0.50% multiplied by (ii) the aggregate daily unused Commitment of all Lenders, payable quarterly in arrears on the last Banking Day of each March, June, September and December from the Effective Date until the final date of the Availability Period (or if earlier, the date of cancellation of the Commitments in full), with any remaining accrued and unpaid Commitment Fees payable on the final date of the Availability Period.

(b)           Letter of Credit Fees. With respect to each Letter of Credit, the Borrower shall pay (a) a fronting fee to the applicable Issuing Bank equal to a percentage of the amount available for drawing equal to 0.25% per annum, and (b) a letter of credit fee to the Facility Agent (which shall be shared by the Lenders, including the Issuing Banks, ratably) at a rate per annum equal to the Margin, in each case computed on the basis of a year of 360 days for the actual number of days elapsed, on the maximum face amount of such Letter of Credit, from the date of issuance of such Letter of Credit until the expiration date for such Letter of Credit, payable quarterly in arrears on the last Banking Day of each March, June, September and December and on such expiration date and, if applicable, on the Maturity Date. Additionally, the Borrower will pay all customary administrative and issuance fees, amendment, payment and negotiation charges and reasonable costs and expenses of the applicable Issuing Bank (solely for such Issuing Bank’s account) in connection with each Letter of Credit (collectively, the “Letter of Credit Fees”).

(c)           Other Fees. The Borrower shall pay all such other fees under any Fee Letter on the due date specified therein.

13.2         Expenses. The Borrower agrees, whether or not the transactions hereby contemplated are consummated, on demand to pay, or reimburse each of the Creditors for its payment of, the reasonable expenses of the Creditors incident to said transactions (and in connection with any supplements, amendments, waivers or consents relating thereto or incurred in connection with the enforcement or defense of any of the Creditors’ rights or remedies with respect thereto or in the preservation of the Creditors’ priorities under the documentation executed and delivered in connection therewith) including, without limitation, all reasonable and documented out of pocket costs and expenses of preparation, negotiation, printing, execution, syndication, perfection and administration of this Agreement and the documents referred to herein, the reasonable and documented out of pocket fees and disbursements (including VAT) of the Creditors’ counsel in connection therewith (limited to one legal counsel in each applicable jurisdiction for the Creditors, taken as a whole), the collateral fees and costs related to operating a secured website for communicating with the Creditors, as well as the reasonable and documented out of pocket fees and expenses of any independent appraisers, surveyors, engineers and other consultants retained by the Facility Agent or Security Trustee in connection with this transaction, all reasonable and documented out of pocket costs and expenses, if any, in connection with the enforcement of any Loan Document and Other Taxes, if any, incident to the execution and delivery of the documents herein contemplated.

14.1         Appointment of Facility Agent. Each of the Lenders irrevocably appoints and authorizes the Facility Agent, which for the purposes of this Section 14 shall be deemed to include the Facility Agent acting in its capacity as Security Trustee pursuant to Section 14.2 to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as is delegated to the Facility Agent by the terms of this Agreement and the other Loan Documents. Neither the Facility Agent nor any of its directors, officers, employees or agents shall be liable for any action taken or omitted to be taken by it or them under this Agreement, the Notes or the Security Documents or in connection therewith, except for its or their own bad faith, gross negligence or willful misconduct.

14.2         Appointment of Security Trustee. Each of the Secured Creditors party hereto irrevocably appoints the Security Trustee as security trustee on its behalf with regard to (a) the security, powers, rights, titles, benefits and interests (both present and future) constituted by and conferred on the Secured Creditors or any of them or for the benefit thereof under or pursuant to this Agreement and the other Loan Documents (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to any Secured Creditor in this Agreement, the Notes or the Security Documents), (b) all moneys, property and other assets paid or transferred to or vested in any Secured Creditor or any agent of any Secured Creditor or received or recovered by any Secured Creditor or any agent of any Secured Creditor pursuant to, or in connection with, this Agreement, the Notes or the Security Documents whether from the Borrower 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 any Secured Creditor or any agent of any Secured Creditor in respect of the same (or any part thereof). The Security Trustee hereby accepts such appointment and declares that it holds all such property on trust for the Secured Creditors on the terms contained in this Agreement and the other Loan Documents (but shall have no obligations under this Agreement or the other Loan Documents except those expressly set forth herein and therein). Neither the Security Trustee nor any of its directors, officers, employees or agents shall be liable for any action taken or omitted to be taken by it or them under this Agreement, the Notes or the other Loan Documents or in connection therewith, except for its or their own gross negligence or willful misconduct.

14.3         Distribution of Payments. Whenever any payment is received by the Facility Agent from the Borrower for the account of the Creditors, or any of them, whether of principal or interest on the Note, commissions, fees under Section 13 or otherwise, it shall thereafter cause to be distributed on the same Banking Day if received before 9:30 a.m. New York time, or on the next Banking Day if received thereafter, like funds relating to such payment ratably to the Creditors according to their respective Commitments, in each case to be applied according to the terms of this Agreement.

14.4         Holder of Interest in Note. The Facility Agent may treat each Creditor as the holder of all of the interest of such Creditor in the Note.

14.5         No Duty to Examine, Etc. Neither the Facility Agent nor the Security Trustee shall be under any duty to examine or pass upon the validity, effectiveness or genuineness of any of this Agreement, the Notes or the Security Documents or any instrument, document or communication furnished pursuant to this Agreement, the Notes or the Security Documents, and each of the Facility Agent and the Security Trustee shall be entitled to assume that the same are valid, effective and genuine, have been signed or sent by the proper parties and are what they purport to be; provided, however, that neither the Facility Agent nor the Security Trustee makes any assumptions with respect to the enforceability of any Loan Document against itself.

14.6         Facility Agent and Security Trustee as Lender . To the extent any portion of the Facility is made available by the Facility Agent, it shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not the Facility Agent, and the term “Lender” or “Lenders” shall include the Facility Agent, in its capacity as a Lender. Both the Facility Agent and its respective affiliates may accept deposits from, lend money to and generally engage in any kind of business with, the Borrower as if it were not the Facility Agent.

14.7         Acts of the Facility Agent and Security Trustee. The Facility Agent and the Security Trustee shall have duties and discretion, and shall act as follows:

(a)           Obligations of the Facility Agent and Security Trustee. the obligations of the Facility Agent or the Security Trustee, as the case may be, under each of this Agreement and the other Loan Documents are only those expressly set forth in each of this Agreement and the other Loan Documents;

(b)           No Duty to Investigate. neither Facility Agent nor the Security Trustee, as the case may be, shall at any time, unless requested to do so by a Lender or Lenders, be under any duty to investigate whether an Event of Default or a Default has occurred or to investigate the performance of the Borrower under or pursuant to this Agreement and the other Loan Documents;

(c)           Discretion of the Facility Agent and Security Trustee. the Facility Agent and the Security Trustee, as the case may be, shall each be entitled to use its discretion with respect to exercising or refraining from exercising any rights which may be vested in it by, and with respect to taking or refraining from taking any action or actions which it may be able to take under or in respect of, this Agreement and the other Loan Documents, unless the Facility Agent or the Security Trustee, as the case may be, shall have been instructed by the Majority Lenders to exercise such rights or to take or refrain from taking such action; provided, however, that neither the Facility Agent nor the Security Trustee, as the case may be, shall be required to take any action which exposes the Facility Agent or the Security Trustee, as the case may be, to personal liability or which is contrary to this Agreement, the Notes or the Security Documents or applicable law;

(d)           Instructions of Majority Lenders. the Facility Agent or the Security Trustee, as the case may be, shall in all cases be fully protected in acting or refraining from acting under this Agreement and the other Loan Documents in accordance with the instructions of the Majority Lenders (or when applicable, all the Lenders), and any action taken or failure to act pursuant to such instructions shall be binding on all of the Lenders;

(e)           Delivery of Documents and Information. to the extent an Obligor delivers any documents or information to the Facility Agent with instructions to provide such information to the Lenders, the Facility Agent shall promptly provide such documents or information to the Lenders;

(f)           Release of Collateral and Guarantors; Certain Other Collateral and Guaranty Matters.

(i)            Any Lien on any Collateral granted to or held by the Security Trustee under any Loan Document shall automatically be released, terminated and discharged (as used in this Section 14.7(f), “released”) without the need for any further action by any Person: (i) upon the termination of the Facility; (ii) in the event that any asset constituting Collateral is, or is to be, Disposed of as part of, or in connection with, any transaction permitted hereunder; or (iii) to the extent approved, authorized or ratified in writing in accordance with Section 14.8, and the Security Trustee is authorized and directed to execute such other instruments evidencing release of Liens as may be reasonably necessary to effectuate the foregoing;

(ii)           All Guaranties of the Secured Obligations by the Guarantors under any Loan Document shall automatically be released without the need for any further action by any Person upon the termination of the Facility. Any Guaranty of the Secured Obligations by a Guarantor under any Loan Document shall automatically be released without the need for any further action by any Person: (i) so long as no Default or Event of Default would result from such release, (x) if all or substantially all of the assets of such Guarantor or all of the Equity Interests of such Guarantor owned by the Obligors are sold or otherwise Disposed of in a transaction or series of transactions permitted under this Agreement or a portion of the Equity Interests of such Guarantor owned by the Borrower or any Obligor are sold or otherwise Disposed of in a bona fide transaction or series of transactions permitted under this agreement not for the purposes of evading any Guaranty requirements under Section 9.1(q); (y) if such Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 9.5 or (z) such Guarantor becomes an Excluded Subsidiary; or (ii) to the extent approved, authorized or ratified in writing in accordance with Section 14.8;

(iv)          The Facility Agent and the Security Trustee is irrevocably authorized to execute and deliver for itself and on behalf of the Secured Creditors Letters of Quiet Enjoyment;

(v)           Notwithstanding anything to the contrary in any Loan Document:

(1)            the Collateral requirements under Section 9.1(q), the Guaranty requirements under Section 9.1(q) and each other provision of each Loan Document describing the credit support required by this Agreement and each other Loan Document shall, in each case, be subject to the Agreed Security Principles in all respects;

(2)            in determining whether or not (x) any Guaranty of the Obligations shall be required to be provided, (y) any Lien shall be required to be granted and/or perfected on any asset and/or (z) any other action shall be required to be taken, or caused to be taken, by any Obligor or Subsidiary with respect to Collateral and/or Guaranty matters, the parties hereto agree that (A) the Security Documents shall reflect, and are deemed to incorporate, the Agreed Security Principles and (B) in the event any provision of any Loan Document or any request by the Facility Agent or the Security Trustee or other Secured Creditor conflicts with any Agreed Security Principle, the Agreed Security Principles shall govern and control with respect thereto;

provided however that a failure to meet the Collateral Maintenance Ratio requirements or any financial covenant set forth herein as a result of the Agreed Security Principles shall not be deemed to be a waiver or cure of any Default or Event of Default resulting therefrom.

(f)            Further Assurances. each of the Facility Agent, the Security Trustee and each Lender agrees (and each of the Facility Agent and Security Trustee are hereby irrevocably authorized and directed) to execute or cause to be executed such assurances and documents as may be required in order to accomplish the purposes of the foregoing clause (f).

14.8         Certain Amendments. Subject to Section 14.7(f), any provision of the Loan Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (a) in the case of this Agreement, the Borrower, the Majority Lenders, and acknowledged by the Facility Agent, and if the rights or duties of any Agent or any Issuing Bank are affected thereby, such Agent and/or such Issuing Bank, as the case may be and (b) in the case of any other Loan Document, each party thereto and the Facility Agent or other applicable Agent (with the consent of the Majority Lenders), provided that:

(i)            no amendment or waiver shall (A) increase or extend any Commitment of any Lender without the consent of such Lender, (B) reduce the amount of or postpone the date for any scheduled payment of any principal of or interest (including, without limitation, any reduction in the rate of interest unless such reduction is otherwise provided herein) on any Loan or Reimbursement Obligation or of any fee payable hereunder, without the consent of each Lender owed any such Obligation, (C) release any Cash Collateral for any Cash Collateralized Obligations (other than as provided in accordance with Section 3.10 ) without the consent of all Lenders, (D) release all or substantially all of the Collateral (or all or substantially all of the value of the Collateral) or release all or substantially all of the Guarantors from their Guaranties of the Obligations without the consent of all Lenders, (E) change the provisions of Article 4 hereof without the consent of all Lenders, (F) change any provision requiring ratable (x) reduction of Commitments or (y) funding or sharing of payments without the consent of all Lenders or (G) without the consent of all Lenders, amend or otherwise modify this Agreement to (x) subordinate the Lien on any material portion of the Collateral securing the Obligations to any Lien securing other Indebtedness, (y) provide for payment subordination of the Obligations or (z) otherwise permit the incurrence of any Indebtedness or Liens which are senior in priority to the Obligations or the Liens on the Collateral, unless (1) in connection with a debtor-in-possession financing that does not provide a “roll up” of any existing obligations or use of cash collateral in any proceeding under any Debtor Relief Law and (2) each adversely affected Lender has been offered a reasonable bona fide opportunity to fund or otherwise provide its pro rata share (based on the amount of Obligations that are adversely affected thereby held by each Lender and calculated immediately prior to any applicable amendment or incurrence of senior Indebtedness) as offered to all other Lenders (or their Affiliates) and to the extent such adversely affected Lender decides to participate in the senior Indebtedness, receive its pro rata share of the fees and any other similar benefit (other than ancillary fees) of the senior Indebtedness afforded to the providers of the senior Indebtedness (or any of their Affiliates) in connection with providing the senior Indebtedness pursuant to a written offer made to each such adversely affected Lender describing the material terms of the arrangements pursuant to which the senior Indebtedness is to be provided, which offer shall remain open to each adversely affected Lender for a period of not less than five (5) Banking Days;

(ii)           no amendment or waiver shall, unless signed by each Lender, change the provisions of this Section 14.8 or the definition of “Majority Lenders” or the number of Lenders required to take any action under any other provision of the Loan Documents;

(iii)          notwithstanding anything to the contrary herein, (A) any Drawdown Notice may be amended with the consent of only the Borrower and the Facility Agent, (B) any Letter of Credit Application may be amended with the consent of only the Borrower and the applicable Issuing Bank, (C) any Letter of Credit shall be amended in accordance with Section 3.10 and (D) this Agreement may be amended pursuant to Section 3.9 and Section 6.4 in accordance with the terms thereof;

(iv)          notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender; and

(v)           notwithstanding anything to the contrary herein or in any other Loan Document, without any further action or consent of any other party to this Agreement or other applicable Loan Document:

(A) if any Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error, inconsistency or other defect in any provision of this Agreement or any other Loan Document, then the Facility Agent (or other applicable Agent) and the Borrower (and/or other applicable Obligor, in the case of any Security Document) shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error, inconsistency or other defect;

(C) the Facility Agent (or other applicable Agent) and the Borrower (and/or other applicable Obligor, in the case of any Security Document) shall be permitted to amend, restate, modify, waive or supplement this Agreement or any other Loan Document, to enter into any new agreement or instrument and/or to replace any Security Document (and, at the request of the Borrower, the applicable Agent shall enter into any such amendment, restatement, modification, waiver, supplement, new agreement, new instrument or replacement), in any such case, in order to (I) comply with local law or advice of local counsel, (II) cause any Guaranty or Security Document to be consistent with this Agreement and the other Loan Documents, (III) add Guarantors or Collateral, (IV) otherwise give effect to, or otherwise grant, perfect, protect, expand or enhance, any Lien on any property for the benefit of the Secured Parties, (V) [Reserved], (VI) provide for the assumption of a Obligor’s obligations under the applicable Loan Documents in the case of a consolidation, amalgamation, merger or sale of all or substantially all of such Person’s assets in accordance with Article IX, and/or (VII) otherwise enhance the rights of any Agent or the rights or benefits generally applicable to the Secured Parties under any Loan Document with respect to Collateral or Guaranty matters.

For the avoidance of doubt, any amendment, consents or waiver which amends, waives or otherwise modifies any term or provision that directly affects the rights or duties of an Issuing Bank, and does not directly affect the rights or duties of the other Lenders shall be permitted with the consent of the relevant Issuing Bank, in lieu of the written consent of the Majority Lenders.

14.9         Assumption re Event of Default. Except as otherwise provided in Section 14.15, the Facility Agent and the Security Trustee, as the case may be, shall each be entitled to assume that no Event of Default or Default has occurred and is continuing, unless the Facility Agent or the Security Trustee, as the case may be, has been notified by the Borrower of such fact, or has been notified by a Creditor that such Creditor considers that an Event of Default or Default (specifying in detail the nature thereof) has occurred and is continuing. In the event that the Facility Agent or the Security Trustee, as the case may be, shall have been notified by the Borrower or any other Creditor in the manner set forth in the preceding sentence of any Event of Default or Default, the Facility Agent or the Security Trustee, as the case may be, shall notify the other Creditors and shall take action and assert such rights under this Agreement and the other Loan Documents as the Majority Lenders shall request in writing.

14.10       Limitations of Liability. No Creditor shall be under any liability or responsibility whatsoever:

(a)           to the Borrower or any other Person as a consequence of any failure or delay in performance by, or any breach by, any other Creditor or any other Person of any of its or their obligations under this Agreement, the Notes or the Security Documents;

(b)           to any other Creditor as a consequence of any failure or delay in performance by, or any breach by, the Borrower of any of its obligations under this Agreement, the Notes or the Security Documents; or

(c)           to any other Creditor for any statements, representations or warranties contained in this Agreement, the Notes or the Security Documents or in any document or instrument delivered in connection with the transactions contemplated by this Agreement, the Notes or the Security Documents; or for the validity, effectiveness, enforceability or sufficiency of this Agreement, the Notes or the Security Documents or any document or instrument delivered in connection with the transactions contemplated by this Agreement, the Notes or the Security Documents.

14.11       Indemnification of the Facility Agent and Security Trustee. The Lenders agree to indemnify each of the Facility Agent and the Security Trustee (to the extent not reimbursed by the Borrower), pro rata according to the respective amounts of their Commitments, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including legal fees and expenses incurred in investigating claims and defending itself against such liabilities) which may be imposed on, incurred by or asserted against, the Facility Agent or the Security Trustee or both, as the case may be, in any way relating to or arising out of this Agreement, the Notes or the Security Documents, any action taken or omitted by the Facility Agent or the Security Trustee, as the case may be, thereunder or the preparation, administration, amendment or enforcement of, or waiver of any provision of, this Agreement, the Notes or the Security Documents, except that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Facility Agent's or the Security Trustee’s, as the case may be, gross negligence or willful misconduct.

14.12       Consultation with Counsel. The Facility Agent and the Security Trustee may each consult with legal counsel selected by the Facility Agent or the Security Trustee, as the case may be, and shall not be liable to one another for any action taken, permitted or omitted by it in good faith in accordance with the advice or opinion of such counsel.

14.13       Resignation. The Facility Agent or the Security Trustee, as the case may be, may resign at any time by giving sixty (60) days' written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Majority Lenders shall have the right, in consultation with the Borrower provided no Event of Default has occurred and is continuing, to appoint a successor Facility Agent or the Security Trustee, as the case may be. If no successor Facility Agent or the Security Trustee, as the case may be, shall have been so appointed by the Lenders and shall have accepted such appointment within sixty (60) days after the retiring Facility Agent's or the Security Trustee’s, as the case may be, giving notice of resignation, then the retiring Facility Agent or the Security Trustee, as the case may be, may, on behalf of the Lenders, appoint a successor Facility Agent or the Security Trustee, as the case may be, which shall be a bank or trust company of recognized standing. The appointment of any successor Facility Agent or the Security Trustee, as the case may be, shall be subject to the prior written consent of the Borrower, such consent not to be unreasonably withheld. After any retiring Facility Agent's or the Security Trustee’s, as the case may be, resignation as Facility Agent or the Security Trustee, as the case may be, hereunder, the provisions of this Section 14 shall continue in effect for its benefit with respect to any actions taken or omitted by it while acting as Facility Agent or the Security Trustee, as the case may be.

14.14       Representations of Lenders. Each Lender represents and warrants to each other Secured Creditor that:

(a)           in making its decision to enter into this Agreement and to make its Commitment available hereunder, it has independently taken whatever steps it considers necessary to evaluate the financial condition and affairs of the Borrower, that it has made an independent credit judgment and that it has not relied upon any statement, representation or warranty by any other Secured Creditor; and

(b)           so long as any portion of its Commitment remains outstanding, it shall continue to make its own independent evaluation of the financial condition and affairs of the Borrower.

14.15       Notification of Event of Default. Each Creditor hereby undertakes to promptly notify the other Creditors of the existence of any Event of Default which shall have occurred and be continuing of which such Creditor has actual knowledge.

14.16       No Other Duties. Anything herein to the contrary notwithstanding, none of the Mandated Lead Arrangers, the Bookrunners or the Coordinator listed on the cover page hereof shall have any duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Facility Agent, the Security Trustee or a Lender hereunder.

(a)           With respect to any payment that the Facility Agent makes to any Lender or other Creditor as to which the Facility Agent determines that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made the corresponding payment to the Facility Agent; (2) the Facility Agent has made a payment in excess of the amount(s) received by it from the Borrower either individually or in the aggregate (whether or not then owed); or (3) the Facility Agent has for any reason otherwise erroneously made such payment; then each of the Creditors severally agrees to repay to the Facility Agent forthwith on demand the Rescindable Amount so distributed to such Creditor, in immediately available funds 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 Facility Agent, at the Federal Funds Rate. A notice of the Facility Agent to any Person under this clause (a) shall be conclusive, absent manifest error.

(b)           Notwithstanding anything to the contrary in this Agreement, if at any time the Facility Agent determines (in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or other Creditor, whether or not in respect of a Secured Obligation due and owing by a Creditor at such time, where such payment is a Rescindable Amount, then in any such event, each such Person receiving a Rescindable Amount severally agrees to repay to the Facility Agent forthwith on demand the Rescindable Amount received by such Person in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount was received by it to but excluding the date of payment to the Facility Agent, at the Federal Funds Rate. A notice of the Facility Agent to any Person under this clause (b) shall be conclusive, absent manifest error. To the extent permitted by law, each Lender and each other Creditor irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. The Facility Agent shall inform each Lender or other Creditor that received a Rescindable Amount promptly upon determining that any payment made to such Person comprised, in whole or in part, a Rescindable Amount. Each Person’s obligations, agreements and waivers under this Section 14.17 shall survive the resignation or replacement of the Facility Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Document.

(c)           Each Lender or Creditor hereby authorizes the Facility Agent to set off, net and apply any and all amounts at any time owing to such Lender or Creditor under any Loan Document against any amount due to the Facility Agent under immediately preceding clauses (a) or (b) under the indemnification provisions of this Agreement.

(d)           The parties hereto agree that payment of a Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Obligor, except, in each case, to the extent such Rescindable Amount is, and solely with respect to the amount of such Rescindable Amount that is, comprised of funds received by the Facility Agent from the Borrower or any other Obligor for the purpose of making such Rescindable Amount. For the avoidance of doubt, no provision in this Section 14.17 shall be interpreted to increase (or accelerate the due date for) or have the effect of increasing (or accelerating the due date for), the Secured Obligations of the Borrower or other Obligor relative to the amount (and/or timing for payment) of the Secured Obligations that would have been payable had the erroneous Rescindable Amount not been paid by the Facility Agent.

(a)           Each Lender (1) represents and warrants, as of the date such Person became a Lender party hereto, to, and (2) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Facility Agent and the Security Trustee, the Coordinator and each of the Bookrunners and Mandated Lead Arrangers and their respective Affiliates and not, for the avoidance of doubt, to or for the benefit of any of the Obligors, that at least one of the following is and will be true:

(i)            such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more “benefit plan investors” (as defined in Section 3(42) of ERISA) in connection with this Agreement or the Facility;

(ii)           the prohibited transaction exemption set forth in one or more prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Facility and this Agreement;

(iii)          (A) such Lender is an investment fund managed by a “qualified professional asset manager” (within the meaning of Part VI of PTE 84-14), (B) such “qualified professional asset manager” made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Facility and this Agreement, (C) such Lender’s entrance into, participation in, administration of and performance of the Facility and this Agreement satisfies all applicable requirements of PTE 84-14; or

(iv)          such other representation, warranty and covenant as may be agreed in writing between the Facility Agent and the Security Trustee, the Coordinator and each of the Bookrunners and Mandated Lead Arrangers, on the one hand, in their sole discretion, and such Lender.

(b)          In addition, unless either (x) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (y) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (A) represents and warrants, as of the date such Person became a Lender party hereto, to and (B) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Facility Agent and the Security Trustee, the Coordinator and each of the Bookrunners and Mandated Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Obligor, that none of the Facility Agent or the Security Trustee, the Coordinator or any of the Bookrunners and Mandated Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Facility and this Agreement (including in connection with the reservation or exercise of any rights by the Facility Agent or the Security Trustee under this Agreement, any Loan Document or any documents related hereto or thereto).

15.1         Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK.

15.2         Jurisdiction. IN THE EVENT THE BORROWER COMMENCES ANY ACTION, SUIT, PROCEEDING OR CLAIM IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT DELIVERED HEREUNDER OR IN CONNECTION HEREWITH, SUCH ACTION, SUIT, PROCEEDING OR CLAIM SHALL BE BROUGHT ONLY IN EITHER THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY, LOCATED IN THE BOROUGH OF MANHATTAN. BY EXECUTING AND DELIVERING THIS AGREEMENT, THE BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS GENERALLY AND UNCONDITIONALLY TO THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS, (II) WAIVES JURISDICTION AND VENUE OF COURTS IN ANY OTHER JURISDICTION IN WHICH IT MAY BE ENTITLED TO BRING SUIT BY REASON OF ITS PRESENT AND FUTURE DOMICILE OR OTHERWISE AND ANY DEFENSE OF FORUM NON CONVENIENS, (III) AGREES THAT SERVICE DELIVERED TO THE ADDRESSES PROVIDED IN SECTION 16 HEREOF AND IN ACCORDANCE WITH SECTION 16 HEREOF IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER IT IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND (IV) AGREES THAT SUCH SERVICE IS AND WOULD BE EFFECTIVE AND BINDING IN EVERY RESPECT UNDER THE FEDERAL RULES OF CIVIL PROCEDURE AND THE NEW YORK PRACTICE LAW AND RULES, AND THE BORROWER WAIVES ANY DEFENSE OR OBJECTION OF INSUFFICIENT SERVICE OR SERVICE OF PROCESS OR OF LACK OF PERSONAL JURISDICTION. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE CREDITORS MAY BRING ANY LEGAL ACTION OR PROCEEDING IN ANY OTHER APPROPRIATE JURISDICTION.

15.3         WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BY AND BETWEEN THE BORROWER AND THE CREDITORS THAT ALL OF THEM HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE SECURITY DOCUMENTS. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 15.3 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

All notices, requests, demands and other communications to any party hereunder shall be in writing (including prepaid overnight courier, email or similar writing) and shall be given to the Borrower and/or the Creditors at its respective address or email address set forth below or at such other address as such party may hereafter specify for the purpose by notice to the other party hereto. Each such notice, request or other communication shall be effective (i) if given by email, when such email is transmitted to the email address specified in this Section 16 on a Banking Day (if transmitted after 5:00 p.m. on a Banking Day or on a day that is not a Banking Day, such notice shall be deemed to have been transmitted on the following Banking Day) and telephonic confirmation of receipt thereof is obtained or (ii) if given by mail, prepaid overnight courier or any other means, when received at the address specified in this Section or when delivery at such address is refused.

DNB BANK ASA, NEW YORK BRANCH
30 Hudson Yards, 81^st Floor
New York, New York 10001
Telephone No.: (212) 681-3800
Attention: Credit Middle Office / Loan Services Department / Samantha Stone
Email: nyloanscsd@dnb.no; AgencyNY@dnb.no; Samantha.Stone@dnb.no

If to the Lenders: to the address notified in writing to the Facility Agent prior to the Effective Date.

17.1         Time of Essence. Time is of the essence with respect to this Agreement but no failure or delay on the part of the Creditors to exercise any power or right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by the Creditors of any power or right hereunder preclude any other or further exercise thereof or the exercise of any other power or right. The remedies provided herein are cumulative and are not exclusive of any remedies provided by law.

17.2         Unenforceable, etc., Provisions–Effect. In case any one or more of the provisions contained in this Agreement, the Notes or in any Loan Document would, if given effect, be invalid, illegal or unenforceable in any respect under any law applicable in any relevant jurisdiction, said provision shall not be enforceable against the Borrower, but the validity, legality and enforceability of the remaining provisions herein or therein contained shall not in any way be affected or impaired thereby.

17.3         References. References herein to Sections, Exhibits and Schedules are to be construed as references to sections of, exhibits to, and schedules to, this Agreement, unless the context otherwise requires.

17.4         Further Assurances. (a) The Borrower at its sole expense shall, and shall cause each Obligor to, subject to the Agreed Security Principles, promptly execute and deliver to the Facility Agent or other applicable Agent all such other documents, agreements and instruments reasonably requested by such Agent to comply with, cure any defects (in regards to errors and mistakes) or accomplish the conditions precedent, covenants and agreements of the Obligors hereunder, or (subject in all respects to the Agreed Security Principles) further evidence and more fully describe the Collateral intended as security for the Secured Obligations or perfect (to the extent perfection is not inconsistent with the Agreed Security Principles), protect or preserve any Liens created pursuant to this Agreement or any of the Security Documents or the priority thereof, or to make any related recordings, file any notices or obtain any consents, all of the foregoing as may be reasonably necessary or appropriate in connection therewith.

(b) The Borrower hereby authorizes (but does not oblige) the Security Trustee or other applicable Agent to file one or more financing or continuation statements, and amendments thereto, relative to all or any part of the Collateral or the Collateral Vessels without the signature of the Borrower or any Guarantor where permitted by law. A carbon, photographic or other reproduction of the Security Documents or any financing statement covering the Collateral or the Collateral Vessels or any part thereof shall be sufficient as a financing statement where permitted by law.

17.5         Prior Agreements, Merger. Any and all prior understandings and agreements heretofore entered into between the Borrower on the one part, and the Creditors, on the other part, with respect to the transactions contemplated herein whether written or oral are superseded by and merged into this Agreement and the other agreements (the forms of which are exhibited hereto) to be executed and delivered in connection herewith to which the Borrower and the Creditors are parties, which alone fully and completely express the agreements between the Borrower and the Creditors.

17.6         Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties hereto. Any provision of this Agreement, the Notes or any Security Document may be amended or waived in accordance with Section 14.8. This Agreement may be executed in any number of counterparts or in electronic (e.g., “pdf” or “tif”) format, each of which shall be deemed effective as delivery of a manually executed counterpart of this Agreement.

17.7         Facility Agent to Maintain Register. The Facility Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, the principal amount (and stated interest) of the Facility owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the processing and recordation fee referred to above and any written consent to such assignment required, the Facility Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to this Agreement, the Facility Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

17.8         Assumption re Event of Default. The Creditors shall be entitled to assume that no Event of Default, or event which with the giving of notice or lapse of time, or both, would constitute an Event of Default, has occurred and is continuing, unless the Creditors have been notified by the Borrower of such fact. In the event that the Creditors shall have been notified, in the manner set forth in the preceding sentence, by the Borrower of any Event of Default or of an event which with the giving of notice or lapse of time, or both, would constitute an Event of Default, the Creditors representing the Majority Lenders may take action and assert such rights under this Agreement, under the Notes and under Security Documents as it determines are appropriate.

17.9         Indemnification. The Borrower agrees to indemnify each of the Creditors, its respective successors and assigns, and their respective officers, directors, employees, representatives and agents (each an “Indemnitee”) from, and hold each of them harmless against, any and all losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursements of any kind or nature whatsoever (including, without limitation, the fees and disbursements of one counsel in each relevant jurisdiction for such Indemnitee in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may at any time (including, without limitation, at any time following the payment of the obligations of the Borrower hereunder) be imposed on, asserted against or incurred by, any Indemnitee as a result of, or arising out of or in any way related to or by reason of, (a) any violation by the Borrower (or any charterer or other operator of a Collateral Vessel prior to foreclosure or other control of a Collateral Vessel being transferred to the Security Trustee or its designee) of any applicable Environmental Law, (b) any Environmental Claim arising out of the management, use, control, ownership or operation of property or assets by the Borrower (or, after foreclosure to the extent the Environmental Claim arose before the foreclosure, by the Security Trustee or any of its successors or assigns), (c) the breach of any representation, warranty or covenant set forth in Sections 2.1(p) or 9.1(k), (d) the execution, delivery, performance or non-performance by the Borrower or any Affiliate of this Agreement, the Note, any Security Document, or any other Loan Documents or (e) any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory authority or enforcement authority or third party concerning any actual or alleged breach of Sanctions by any Creditor in connection with (directly or indirectly) the Facility; provided however, that Borrower shall not be liable for any such losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursements of any kind or nature whatsoever resulting from (x) Facility Agent’s, Security Trustee’s or any other Lender’s bad faith, gross negligence, willful misconduct or intentional breach of this Agreement or (y) disputes solely among Indemnitees and not from any act or omission of any Obligor. If and to the extent that the obligations of the Borrower under this Section are unenforceable for any reason, the Borrower agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. The obligations of the Borrower under this Section 17.9 shall survive the termination of this Agreement and the repayment to the Creditors of all amounts owing thereto under or in connection herewith. This section shall not apply with respect to Taxes, which shall be governed solely by Section 7.2 and Section 11.2.

17.10       USA Patriot Act Notice; OFAC and Bank Secrecy Act. The Facility Agent hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Patriot Act”), and the policies and practices of the Facility Agent, each of the Creditors is required to obtain, verify and record certain information and documentation that identifies the Borrower, which information includes the name and address of the Borrower and such other information that will allow the Creditors to identify the Borrower in accordance with the Patriot Act. In addition, the Borrower shall: (a) ensure that no Person who owns a controlling interest in or otherwise controls the Borrower or any subsidiary of any thereof is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders; (b) not use or permit the use of the proceeds of any Advance to violate any of the foreign asset control regulations of (i) any Sanctions Authority or (ii) OFAC or any enabling statute or Executive Order relating thereto; and (c) comply, and cause any of its subsidiaries to comply, with all applicable Bank Secrecy Act laws and regulations, as amended.

17.11       Headings. In this Agreement, section headings are inserted for convenience of reference only and shall not be taken into account in the interpretation of this Agreement.

17.12       WAIVER OF IMMUNITY. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM SUIT, JURISDICTION OF ANY COURT OR ANY LEGAL PROCESS (WHETHER THROUGH ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OF A JUDGMENT, OR FROM ANY OTHER LEGAL PROCESS OR REMEDY) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT, THE NOTES AND THE SECURITY DOCUMENTS.

17.13       Acknowledgement and Consent to Bail-In of Affected Financial Institutions.

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)           the application of any Write-down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

(b)           the effects of any Bail-In Action on any such liability, including, if applicable:

(i)            a reduction in full or in part or cancellation of any such liability;

(ii)           a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; and

(iii)          the variation of the terms of such liability in connection with the exercise of the Write-down and Conversion Powers of the applicable Resolution Authority.

17.14       Publication. Subject to Section 17.15 and the consent of the Borrower, not to be unreasonably conditioned, delayed or withheld (and response promptly provided), the Facility Agent or any Mandated Lead Arranger have the right, at its option and sole expense, to publish information about its participation (including its arranger and agent role) in the Facility and for such purpose only, use the logo and trademark of the Borrower or each Guarantor.

17.15       Confidentiality. Each of the Facility Agent, Security Trustee and the other Creditors agree to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority or government agency purporting to have jurisdiction and/or supervision over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party hereto; (e) to the extent pertinent, in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section 17.15, to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights and obligations under this Agreement (whether directly or indirectly), (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder or (iii) to any credit insurance provider of a Lender; (g) with the prior written consent of the Borrower; or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 17.15 (it being understood that Information provided to creditors or potential creditors of the Creditors and their Affiliates, or to another Person subject to a confidentiality or non-disclosure agreement, is not public disclosure), or (y) becomes available to the Facility Agent, Security Trustee, any Creditor or any of their respective Affiliates on a non-confidential basis from a source other than an Obligor.

17.16       Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, without prior notice to the Facility Agent, any Obligor or to any other Person, any such notice being hereby expressly waived, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or such Issuing Bank or any such Affiliate to or for the credit or the account of the Borrower or any other Obligor against any and all of the obligations of the Borrower or such Obligor now or hereafter existing under this Agreement or any other Loan Document to such Lender or such Issuing Bank, the Letters of Credit and participations therein, irrespective of whether or not (a) such Lender or such Issuing Bank shall have made any demand under this Agreement or any other Loan Document and (b) the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have become due and payable pursuant to Article II and although such obligations of such Borrower or such Obligor may be contingent or unmatured or are owed to a branch or office of such Lender or such Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Facility Agent for further application in accordance with the provisions of Section 8.2 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Facility Agent, the Issuing Banks, and the Lenders, and (ii) the Defaulting Lender shall provide promptly to the Facility Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and each Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank or Affiliates may have. Each Lender agrees to notify the Borrower and the Facility Agent promptly after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application.

17.17       Marshaling; Payments Set Aside. None of the Facility Agent, any Lender, the Security Trustee or any Issuing Bank shall be under any obligation to marshal any assets in favor of the Obligors or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of the Borrower is made to any Agent, any Lender or any Issuing Bank (or to the Facility Agent, on behalf of any Lender or any Issuing Bank), or any Agent or any Lender enforces any security interests or exercises its right of setoff, and such payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred and (b) each Lender and each Issuing Bank severally agrees to pay to the Facility Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Facility Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

17.18       Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York or of the United States or any other state of the United States):

(a)           In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.

(b)           As used in this Section 17.18, the following terms have the following meanings:

(i)            “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

(ii)           “Covered Entity” means any of the following:

(iii)          “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

(iv)          “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

(a)           The representations, undertakings and Events of Default relating to Sanctions shall not apply in favor of or for the benefit of any Lender that informs the Facility Agent that it is subject to the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz), the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung – including Section 7 thereof), Council Regulation (EC) No 2271/96 (as amended and/or changed from time to time) and any similar successor EU law or similar applicable anti-boycott law or regulation of any applicable jurisdiction from time to time (the “Anti-Boycott Regulations”), to the extent that compliance with those provisions would violate some or all of the Anti-Boycott Regulations

(b)           In connection with any amendment, waiver, determination or direction relating to any part of the representations, undertakings or Events of Default relating to Sanctions of which a Lender does not have the benefit because such benefit would result in a violation by the Lender of any Anti-Boycott Regulations (for the purpose of this paragraph (a), each a “Restricted Lender”), that Restricted Lender will, subject to paragraph (b) below, be excluded for the purpose of determining whether the consent of all Lenders or the Majority Lenders (whichever is required) has been obtained or whether the amendment, waiver, determination or direction by all the Lenders or the Majority Lenders (whichever is required) has been made or given.

(c)           The Facility Agent is only permitted to exclude the relevant Lender pursuant to paragraph (a), above for the purpose of determining whether the consent of all the Lenders or the Majority Lenders (whichever is required) has been obtained or whether the amendment, waiver, determination or direction by all the Lenders or the Majority Lenders (whichever is required) has been made or given, if following the Facility Agent's request for such consent, amendment, waiver, determination or direction by all the Lenders or the Majority Lenders (whichever is required) the respective Lender notifies the Facility Agent that it is a Restricted Lender for such purpose.

17.20       Electronic Execution of Loan Documents. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Loan Documents including any Assignment and Assumption Agreement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

18.1         Guarantee and Indemnity. In order to induce the Lenders to make the Facility available to the Borrower, each Guarantor irrevocably and unconditionally jointly and severally:

(a)           guarantees to each Secured Creditor, as a primary obligor and not merely as a surety, punctual payment and performance by the Borrower and each other Obligor of all the Secured Obligations;

(b)           undertakes with each Secured Creditor that whenever the Borrower or any other Obligor does not pay any amount (whether for principal, interest, fees, expenses or otherwise) when due (whether at stated maturity, by acceleration or otherwise and giving effect to all applicable grace periods) under or in connection with any Loan Document, such Guarantor shall immediately on demand pay that amount as if it were the primary obligor; and

(c)           agrees with each Secured Creditor that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Secured Creditor immediately on demand against any cost, loss or liability it incurs as a result of the Borrower or any other Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Loan Document on the date when it would have been due. The amount payable by such Guarantor under this indemnity will not exceed the amount it would have had to pay under this Section 18 if the amount claimed had been recoverable on the basis of a guarantee;

18.2        Continuing Guarantee. This guarantee is a continuing guarantee that shall remain in full force and effect until the irrevocable payment of the Obligations (other than contingent indemnification obligations for which no claim or demand has been made) and termination of the Commitments, regardless of any intermediate payment or discharge in whole or in part. This guarantee shall automatically terminate when the principal of and interest and premium (if any) on the Facility, all fees and all other expenses or amounts payable under this Agreement shall have been paid in full (other than contingent indemnification obligations for which no claim or demand has been made), in accordance with the terms of this Agreement and the other Loan Documents. This guarantee constitutes a guarantee of punctual performance and payment and not merely of collection. Notwithstanding the foregoing, any Specified Swap Agreement Obligations guaranteed by the Guarantors under this Section 18 shall not include any Excluded Swap Obligations.

18.3         Reinstatement. If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Secured Creditor in whole or in part on the basis of any payment, security or other disposition which is rescinded, discharged, avoided or reduced, or must be restored or returned, upon insolvency, bankruptcy, reorganization, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Section 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

18.4         Waiver of Defenses. Except as otherwise set forth herein, the obligations of each Guarantor under this Section 18 and in respect of any security provided by or pursuant to the Security Documents are irrevocable, absolute and unconditional and shall not be affected or discharged by an act, omission, matter or thing which, but for this Section 18.4, would reduce, release or prejudice any of its obligations under this Section 18 or in respect of any security provided by or pursuant to the Security Documents (without limitation and whether or not known to it or any Secured Creditor) including (and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to):

(a)           any time, waiver or consent granted to, or composition with, any Obligor or other Person;

(b)           the release of any other Obligor or any other Person under the terms of any composition or arrangement with any creditor of any Obligor;

(c)           the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other Person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any collateral;

(d)          any incapacity or lack of power, authority or legal personality of or dissolution or change in the corporate or company structure, shareholders, members or status of an Obligor or any other Person (including without limitation any change in the holding of such Obligor’s or other Person’s Equity Interests);

(e)           any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Loan Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Loan Document or other document or security;

(f)           any unenforceability, illegality or invalidity of any obligation of any Person under any Loan Document or any other document or security;

(g)          any bankruptcy, insolvency or similar proceedings;

(h)          any election of remedies by a Secured Creditor that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any Obligor or any other Person or entity or any collateral;

(i)            any right of set-off or counterclaim against or in respect of the obligations of such Guarantor hereunder; or

(j)            any other circumstance whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any Obligor other than the payment in full of the Obligors’ obligations under the Loan Documents.

18.5         Other Waivers. Each Guarantor hereby unconditionally and irrevocably waives:

(a)           promptness, diligence, notice of acceptance, presentment, demand for performance, notice of non-performance, default, acceleration, protest or dishonor and any other notice and this guarantee and any requirement that a Secured Creditor protect, secure, perfect or insure any security, Lien or any property subject thereto or exhaust any right or take any action against an Obligor, any other guarantor or any other Person or entity or any collateral;

(c)           any duty on the part of an Obligor to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of that Obligor or any of their respective Subsidiaries now or hereafter known by any Secured Creditor.

18.6         Acknowledgment of Benefits. Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in this Section 18 are knowingly made in contemplation of such benefits.

18.7         Immediate Recourse. Each Guarantor waives any right it may have of first requiring any Secured Creditor (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any Person (including without limitation to commence any proceedings under any Loan Document or to enforce any security provided by or pursuant to the Security Documents) before claiming or commencing proceedings under this Section 18. This waiver applies irrespective of any law or any provision of a Loan Document to the contrary.

18.8         Appropriations. Until Secured Obligations (other than contingent indemnification obligations for which no claim or demand has been made) have been paid in full, each Secured Creditor (or any trustee or agent on its behalf) may:

(a)           refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Creditor (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

(b)           hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of a Guarantor’s liability under this Section 18.

18.9         Deferral of Guarantors’ Rights. All rights which a Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against the Borrower, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Creditors under the Loan Documents and until Secured Obligations (other than contingent indemnification obligations for which no claim or demand has been made) are paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise its rights which it may have (whether in respect of any Loan Document to which it is a party or any other transaction) by reason of performance by it of its obligations under the Loan Documents or by reason of any amount being payable, or liability arising, under this Section 18:

(b)           to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor’s obligations under the Loan Documents;

(c)           to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Creditors under the Loan Documents or of any other guarantee or security taken pursuant to, or in connection with, the Loan Documents by any Secured Creditor;

(d)           to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which a Guarantor has given a guarantee, undertaking or indemnity under Section 18.1;

(e)           to exercise any right of set-off against any Obligor; and/or

(f)           to claim or prove as a creditor of any Obligor in competition with any Secured Creditor.

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Obligors by another Obligor under or in connection with the Loan Documents to be repaid in full on trust for the Obligors and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with the terms of this Agreement.

18.10       Additional Security. This guarantee and any other security or Lien given by each Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice, any other guarantee or security or any other right of recourse now or subsequently held by any Secured Creditor or any right of set-off or netting or right to combine accounts in connection with the Loan Documents.

18.11       Independent Obligations. The obligations of each Guarantor under or in respect of this guarantee are independent of any other obligations of any other Obligor under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this guarantee irrespective of whether any action is brought against any other Obligor or whether any other Obligor is joined in any such action or actions.

18.12       Limitation of Liability. Each of the Guarantors hereby confirms that it is its intention that the obligations under this guarantee not constitute a fraudulent transfer or conveyance for purposes of the U.S. Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar law. To effectuate the foregoing intention, each of the Guarantors hereby irrevocably agrees that the obligations guaranteed by each Guarantor under this guarantee shall be limited to such amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such Guarantor that are relevant under such laws, result in the obligations of such Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance.

IN WITNESS whereof, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives as of the day and year first above written.

	TIDEWATER INC.,
	as Borrower


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President & CEO


	TDW INTERNATIONAL VESSELS (UNRESTRICTED), LLC,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	GULFMARK AMERICAS, INC.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	GULF FLEET SUPPLY VESSELS, L.L.C.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	TIDE STATES VESSELS, L.L.C.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President

Tidewater Announces Closing of $650 Million Offering of 9.125% Senior Unsecured Notes due 2030 and Entering into $250 Million Revolving Credit Facility

HOUSTON — Tidewater Inc. (NYSE: TDW) (“Tidewater” or “the Company”) today announced the closing of its previously announced private offering (the “Offering”) under Rule 144A and Regulation S of the Securities Act of 1933, as amended (the “Securities Act”), of $650 million in aggregate principal amount of 9.125% senior unsecured notes due 2030 (the “2030 Notes”). The Company used the net proceeds from the Offering, together with cash on hand to: (i) repay in full the Company’s existing senior secured term loan; (ii) fund the redemption (the “Redemption”) of the Company’s outstanding 8.50% Senior Secured Bonds due 2026 (the “2026 Bonds”) and its outstanding 10.375% Senior Unsecured Bonds due 2028 (the “2028 Bonds”); and (iii) pay the premiums, accrued interest, fees and expenses related to the term loan payoff, Redemption of the 2026 Bonds and 2028 Bonds and the issuance of the 2030 Notes. The closing of the Offering satisfied the conditions associated with the Company’s exercise of its option to call for redemption all outstanding 2026 Bonds and 2028 Bonds.

In addition, effective today the Company entered into a senior secured five-year credit agreement (the “Credit Agreement”) providing for a new $250 million revolving credit facility. Borrowing availability under the Credit Agreement is subject to customary conditions precedent.

Tidewater owns and operates the largest fleet of offshore support vessels in the industry, with 65 years of experience supporting offshore energy exploration, production and offshore wind activities worldwide.

Statements contained in this press release that are not historical facts are forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements include words or phrases such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “likely,” “plan,” “project,” “could,” “may,” “might,” “should,” “will” and similar words and specifically include statements regarding the Credit Agreement. The forward-looking statements contained in this press release are subject to numerous risks, uncertainties and assumptions that may cause actual results to vary materially from those indicated. Additional risks and uncertainties are detailed in the Company’s most recent filings with the SEC, including under the captions “Forward-Looking Statements” and “Risk Factors” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2024. Statements in this news release are made as of the date hereof, and the Company disclaims any intention or obligation to update publicly or revise such statements, whether as a result of new information, future events or otherwise.

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common stock, $0.001 par value per share	TDW	New York Stock Exchange
Warrants to purchase shares of common stock	TDW.WS	NYSE American

Year	Redemption Price
2027		104.563	%
2028		102.281	%
2029 and thereafter		100.000	%

Exhibit Number		Description

4.1		Indenture, dated as of July 7, 2025, among Tidewater Inc., the guarantors named therein, and Wilmington Trust, National Association, as trustee.

4.2		Form of 9.125% Senior Notes due 2030 (included as Exhibit A in Exhibit 4.1).

10.1		Credit Agreement, dated July 7, 2025, by and among Tidewater Inc., as borrower, the guarantors party thereto, the lenders party thereto, and DNB Bank ASA, New York Branch, as facility agent and security trustee.

99.1		Press Release, dated July 7, 2025

104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

Term	Defined in Section
“acceleration declaration”	6.2
“Act”	11.13
“Affiliate Transaction”	4.11(a)
“Alternate Offer”	4.13(b)
“Applicable Premium Deficit”	8.8
“Authorized Agent”	11.7
“Change of Control Offer”	4.13(b)
“Change of Control Payment Date”	4.13(b)
“Change of Control Purchase Price”	4.13(a)
“Covenant Defeasance”	8.3
“Coverage Ratio Exception”	4.9(a)
“Designation”	4.16(a)
“Designation Amount”	4.16(a)
“Directing Holder”	6.12(a)

Term	Defined in Section
“EDGAR”	4.3(a)
“Event of Default”	6.1
“Excess Proceeds”	4.10(b)
“Initial Lien”	4.12(a)
“Initial Notes”	Preamble
“LCT Election”	1.3(c)
“LCT Test Date”	1.3(c)
“Legal Defeasance”	8.2
“Net Proceeds Offer”	4.10(c)
“Net Proceeds Offer Amount”	4.10(d)
“Net Proceeds Offer Period”	4.10(d)
“Net Proceeds Purchase Date”	4.10(d)
“Noteholder Direction”	6.12(a)
“Permitted Indebtedness”	4.9(b)
“Position Representation”	6.12(a)
“QIBs”	2.1(b)
“Redesignation”	4.16(c)
“Registrar”	2.3
“Regulation S”	2.1(b)
“Regulation S Global Note”	2.1(b)
“Restricted Payments Builder Basket”	4.7(a)
“Rule 144A”	2.1(b)
“Rule 144A Global Note”	2.1(b)
“Successor”	5.1(a)
“Trustee”	Preamble
“Verification Covenant”	6.12(a)

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

		TIDEWATER INC.

Date:	July 7, 2025	By:	/s/ Samuel R. Rubio
			Samuel R. Rubio
			Executive Vice President and Chief Financial Officer

Article I Definitions And Incorporation By Reference

Section 1.1.	Definitions	1
Section 1.2.	Other Definitions	32
Section 1.3.	Rules of Construction	33
Section 1.4.	Limited Condition Transaction	34

Article II The Notes

Section 2.1.	Form and Dating	35
Section 2.2.	Execution and Authentication	36
Section 2.3.	Registrar; Paying Agent	37
Section 2.4.	Paying Agent to Hold Money in Trust	37
Section 2.5.	Holder Lists	37
Section 2.6.	Book-Entry Provisions for Global Notes	37
Section 2.7.	Replacement Notes	40
Section 2.8.	Outstanding Notes	40
Section 2.9.	Treasury Notes	41
Section 2.10.	Reserved	41
Section 2.11.	Cancellation	41
Section 2.12.	Defaulted Interest	41
Section 2.13.	Computation of Interest	41
Section 2.14.	CUSIP Number	41
Section 2.15.	Special Transfer Provisions	42
Section 2.16.	Issuance of Additional Notes	44

Article III Redemption And Prepayment

Section 3.1.	Notices to Trustee	44
Section 3.2.	Selection of Notes to Be Redeemed	44
Section 3.3.	Notice of Optional Redemption	45
Section 3.4.	Effect of Notice of Redemption	46
Section 3.5.	Deposit of Redemption Price	46
Section 3.6.	Notes Redeemed in Part	46
Section 3.7.	Optional Redemption	47

Article IV Covenants

Section 4.1.	Payment of Notes	48
Section 4.2.	Maintenance of Office or Agency	48

Section 4.3.	Provision of Financial Information	49
Section 4.4.	Compliance Certificate	51
Section 4.5.	[Reserved]	51
Section 4.6.	Stay, Extension and Usury Laws	51
Section 4.7.	Limitation on Restricted Payments	51
Section 4.8.	Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries	55
Section 4.9.	Limitation on Additional Indebtedness	57
Section 4.10.	Limitation on Asset Sales	61
Section 4.11.	Limitation on Transactions with Affiliates	65
Section 4.12.	Limitation on Liens	67
Section 4.13.	Offer to Purchase upon Change of Control Triggering Event	68
Section 4.14.	Corporate Existence	70
Section 4.15.	Additional Guarantees	70
Section 4.16.	Limitation on Designation of Unrestricted Subsidiaries	70
Section 4.17.	Effectiveness of Covenants	71

Article V Successors

Section 5.1.	Consolidation, Merger, Conveyance, Transfer or Lease	72

Article VI Defaults And Remedies

Section 6.1.	Events of Default	74
Section 6.2.	Acceleration	76
Section 6.3.	Other Remedies	76
Section 6.4.	Waiver of Past Defaults	77
Section 6.5.	Control by Majority	77
Section 6.6.	Limitation on Suits	77
Section 6.7.	Rights of Holders of Notes to Receive Payment	78
Section 6.8.	Collection Suit by Trustee	78
Section 6.9.	Trustee May File Proofs of Claim	78
Section 6.10.	Priorities	78
Section 6.11.	Undertaking for Costs	79
Section 6.12.	Noteholder Direction	79

Article VII Trustee

Section 7.1.	Duties of Trustee	81
Section 7.2.	Rights of Trustee	82
Section 7.3.	Individual Rights of the Trustee	83
Section 7.4.	Trustee’s Disclaimer	84
Section 7.5.	Notice of Defaults	84
Section 7.6.	Compensation and Indemnity	84

Section 7.7.	Replacement of Trustee	85
Section 7.8.	Successor Trustee by Merger, Etc.	86
Section 7.9.	Eligibility; Disqualification	86

Article VIII Defeasance; Discharge Of This Indenture

Section 8.1.	Option to Effect Legal Defeasance or Covenant Defeasance	86
Section 8.2.	Legal Defeasance	86
Section 8.3.	Covenant Defeasance	87
Section 8.4.	Conditions to Legal or Covenant Defeasance	87
Section 8.5.	Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	88
Section 8.6.	Repayment to Issuer	89
Section 8.7.	Reinstatement	89
Section 8.8.	Discharge	89

Article IX Amendment, Supplement And Waiver

Section 9.1.	Without Consent of Holders of the Notes	91
Section 9.2.	With Consent of Holders of Notes	92
Section 9.3.	Revocation and Effect of Consents	93
Section 9.4.	Notation on or Exchange of Notes	93
Section 9.5.	Trustee to Sign Amendments, Etc.	93

Article X Guarantees

Section 10.1.	Guarantees	93
Section 10.2.	Execution and Delivery of Guarantee	95
Section 10.3.	Severability	95
Section 10.4.	Limitation of Guarantors’ Liability	95
Section 10.5.	Releases	95
Section 10.6.	Benefits Acknowledged	96

Article XI Miscellaneous

Section 11.1.	Concerning the Trust Indenture Act	97
Section 11.2.	Notices	97
Section 11.3.	Certificate and Opinion as to Conditions Precedent	98
Section 11.4.	Statements Required in Certificate or Opinion	98
Section 11.5.	Rules by Trustee and Agents	98
Section 11.6.	No Personal Liability of Directors, Officers, Employees and Stockholders	98
Section 11.7.	Governing Law; Consent to Jurisdiction	99
Section 11.8.	No Adverse Interpretation of Other Agreements	99
Section 11.9.	Successors	99

Section 11.10.	Severability	99
Section 11.11.	Execution in Counterparts	99
Section 11.12.	Table of Contents, Headings, Etc.	99
Section 11.13.	Acts of Holders	100
Section 11.14.	Force Majeure	101
Section 11.15.	Legal Holidays	101
Section 11.16.	USA PATRIOT Act	101
Section 11.17.	Waiver of Jury Trial	101

Exhibit A	Form of Note

Exhibit B	Form of Supplemental Indenture to be Delivered by Subsequent Guarantors

Exhibit C	Form of Certificate to be Delivered in Connection with Transfers Pursuant to Rule 144A

Exhibit D	Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S

Year	Optional Redemption Price
2027		104.563	%
2028		102.281	%
2029 and thereafter		100.000	%

	COMPANY

	Tidewater Inc.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Executive Vice President, General Counsel, and Secretary

	GUARANTORS

	TDW International Vessels (Unrestricted), LLC

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	GulfMark Americas, Inc.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Gulf Fleet Supply Vessels, L.L.C.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Tide States Vessels, L.L.C.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Tidewater Marine Fleet, L.L.C.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Tidewater Marine Vessels, L.L.C.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Tidewater Marine Ships, L.L.C.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Tidewater Marine Hulls, L.L.C.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	Tidewater GOM, Inc.

	By:	/s/ Daniel A. Hudson
		Name: Daniel A. Hudson
		Title: Vice President and Secretary

	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee, Registrar and Paying Agent

	By:	/s/ Karleen R. Bratland
		Name: Karleen R. Bratland
		Title: Assistant Vice President


	Signature

Signature Guarantee:
	(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)

	TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

			[NAME OF TRANSFEREE]


			NOTICE: To be executed by an executive officer, if an entity

Dated:


	Signature

Signature Guarantee:
	(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)

	TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

	TIDEWATER INC.

	By:
	Name:
	Title:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee

By:

Authorized Signatory

Date:

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)

Signature guarantee:

Date of Transfer, Exchange or Redemption	Amount of Decrease in Principal Amount of this Global Note	Amount of Increase in Principal Amount of this Global Note	Principal Amount of this Global Note Following Such Decrease (or Increase)	Signature of Trustee or Note Custodian

	[NEW GUARANTOR], as a New Guarantor

	By:
	Name:
	Title:

	TIDEWATER INC., as Issuer

	By:
	Name:
	Title:

	[EXISTING GUARANTORS], as an Existing Guarantor

	By:
	Name:
	Title:

	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee

	By:
	Name:
	Title:

	Very truly yours,

	[NAME OF TRANSFEROR]

	By:
	Name:
	Title: Authorized Signature

1.	DEFINITIONS		1
	1.1	Specific Definitions	1
	1.2	Computation of Time Periods; Other Definitional Provisions	52
	1.3	Accounting Terms	52
	1.4	Certain Matters Regarding Materiality	52
	1.5	Forms of Documents	52
	1.6	Rates	53
2.	REPRESENTATIONS AND WARRANTIES		53
	2.1	Representations and Warranties	53
3.	THE FACILITY		58
	3.1	Purpose	58
	3.2	Making of the Facility	58
	3.3	Drawdown Notice	59
	3.4	Effect of Drawdown Notice	59
	3.5	Funding by Lenders	59
	3.6	Number of Advances Outstanding	59
	3.7	Notation of Advance	59
	3.8	Presumption by the Facility Agent	59
	3.9	Increase in Commitments	60
	3.10	Letters of Credit	62
	3.11	Addition of an Issuing Bank	69
	3.12	Breakage Fees	69
4.	CONDITIONS		69
	4.1	Conditions Precedent to the Effective Date	69
	4.2	Conditions Precedent to the Obligations of the Lenders and Issuing Banks under this Agreement	70
	4.3	Further Conditions Precedent	72
	4.4	Satisfaction after Drawdown	73
	4.5	Conditions Subsequent	73
5.	REPAYMENT AND PREPAYMENT		74
	5.1	Repayment	74
	5.2	Voluntary Prepayment	74

	5.3	Borrower’s Obligations Absolute	74
	5.4	Mandatory Prepayment	74
	5.5	Interest and Costs with Prepayments/Application of Prepayments	75
	5.6	Cancellation	75
6.	INTEREST AND RATE		75
	6.1	Applicable Rate	75
	6.2	Default Rate	75
	6.3	Interest Payments	75
	6.4	Benchmark Replacement Setting	75
7.	PAYMENTS		77
	7.1	Place of Payments, No Set Off	77
	7.2	Tax Credits	79
	7.3	Computations; Banking Day	79
	7.4	Defaulting Lenders	80
	7.5	Sharing of Payments, Etc.	83
8.	EVENTS OF DEFAULT		84
	8.1	Events of Default	84
	8.2	Application of Moneys	88
9.	COVENANTS		89
	9.1	Affirmative Covenants	89
	9.2	Negative Covenants	96
	9.3	Financial Covenants	100
	9.4	Collateral Maintenance Ratio	101
	9.5	Designation and Conversion of Restricted and Unrestricted Subsidiaries; Debt of Unrestricted Subsidiaries	101
	9.6	Total Loss of a Collateral Vessel; Collateral Exchange	102
10.	ASSIGNMENT		102
	10.1	Successors and Assigns	102
	10.2	Participations; Pledges	103
11.	ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.		104
	11.1	Illegality	104
	11.2	Increased Costs	104
	11.3	Market Disruption	105
	11.4	Notification of market disruption	106
	11.5	Alternative rate of interest during market disruption	106

	11.6	Lender's Certificate Conclusive	106
	11.7	Compensation for Losses	106
	11.8	Replacement of or Repayment and Cancellation in Relation to a Single Lender	106
12.	CURRENCY INDEMNITY		107
	12.1	Currency Conversion	107
	12.2	Change in Exchange Rate	107
	12.3	Additional Debt Due	108
13.	FEES AND EXPENSES		108
	13.1	Fees	108
	13.2	Expenses	108
14.	THE FACILITY AGENT AND SECURITY TRUSTEE		109
	14.1	Appointment of Facility Agent	109
	14.2	Appointment of Security Trustee	109
	14.3	Distribution of Payments	109
	14.4	Holder of Interest in Note	109
	14.5	No Duty to Examine, Etc.	109
	14.6	Facility Agent and Security Trustee as Lender	110
	14.7	Acts of the Facility Agent and Security Trustee	110
	14.8	Certain Amendments	112
	14.9	Assumption re Event of Default	113
	14.10	Limitations of Liability	114
	14.11	Indemnification of the Facility Agent and Security Trustee	114
	14.12	Consultation with Counsel	114
	14.13	Resignation	114
	14.14	Representations of Lenders	115
	14.15	Notification of Event of Default	115
	14.16	No Other Duties	115
	14.17	Erroneous Payments	115
	14.18	Certain ERISA Matters	116
15.	APPLICABLE LAW, JURISDICTION AND WAIVER		117
	15.1	Applicable Law	117
	15.2	Jurisdiction	117
	15.3	WAIVER OF JURY TRIAL	118
16.	NOTICES AND DEMANDS		118

17.	MISCELLANEOUS		119
	17.1	Time of Essence	119
	17.2	Unenforceable, etc., Provisions–Effect	119
	17.3	References	119
	17.4	Further Assurances	119
	17.5	Prior Agreements, Merger	119
	17.6	Entire Agreement; Amendments	120
	17.7	Facility Agent to Maintain Register	120
	17.8	Assumption re Event of Default	120
	17.9	Indemnification	120
	17.10	USA Patriot Act Notice; OFAC and Bank Secrecy Act	121
	17.11	Headings	121
	17.12	WAIVER OF IMMUNITY	121
	17.13	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	121
	17.14	Publication	122
	17.15	Confidentiality	122
	17.16	Setoff	123
	17.17	Marshaling; Payments Set Aside	123
	17.18	Acknowledgement Regarding Any Supported QFCs	124
	17.19	Anti-Boycott Regulations (Lender); Restricted Lender	124
	17.20	Electronic Execution of Loan Documents	125
18.	GUARANTY AND INDEMNITY		125
	18.1	Guarantee and Indemnity	125
	18.2	Continuing Guarantee	125
	18.3	Reinstatement	126
	18.4	Waiver of Defenses	126
	18.5	Other Waivers	127
	18.6	Acknowledgment of Benefits	127
	18.7	Immediate Recourse	127
	18.8	Appropriations	127
	18.9	Deferral of Guarantors’ Rights	128
	18.10	Additional Security	128
	18.11	Independent Obligations	128
	18.12	Limitation of Liability	129

A	Form of Note
B-1	Form of Compliance Certificate
B-2	Form of Solvency Certificate
C	Form of Drawdown Notice
D-1	Form of Liberian Mortgage
D-2	Form of United States Mortgage
E	Form of Security Agreement
F	Form of Assignment and Assumption Agreement
G	Form of Issuance Notice
H	Form of Joinder

1.1(a)	Lenders and Commitments
1.1(b)	Obligors and Collateral Vessel Owners
1.1(c)	Closing Date Collateral Vessels
1.1(d)	Reflag Collateral Vessels
1.1(e)	First-Tier Foreign Subsidiaries
1.1(f)	Existing Permitted Indebtedness
1.1(g)	Existing Permitted Investments
1.1(h)	Existing Permitted Liens
9.1(p)	Required Insurances

Level	Total Net Leverage Ratio	Margin
I	Less than or equal to 0.50:1.00		2.50	%
II	Greater than 0.50:1.00 but less than or equal to 1.50:1.00		2.75	%
III	Greater than 1.50:1.00 but less than or equal to 2.00:1.00		3.00	%
IV	Greater than 2.00:1.00 but less than or equal to 2.50:1.00		3.25	%
V	Greater than 2.50:1.00		3.50	%

	TIDEWATER MARINE FLEET, L.L.C.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	TIDEWATER MARINE VESSELS, L.L.C.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	TIDEWATER MARINE SHIPS, L.L.C.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	TIDEWATER MARINE HULLS, L.L.C.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President


	TIDEWATER GOM, INC.,
	as Original Guarantor


	By:	/s/ Quintin V. Kneen
	Name: Quintin V. Kneen
	Title:   President

DNB BANK ASA, NEW YORK BRANCH as Facility Agent and Security Trustee


By:	/s/ Samantha Stone
	Name:	Samantha Stone
	Title:	First Vice President


By:	/s/ Mita Zalavadia
	Name:	Mita Zalavadia
	Title:	Vice President


DNB CAPITAL LLC, as Lender


By:	/s/ Andrew J. Shohet
	Name:	Andrew J. Shohet
	Title:	SVP & Head of Ocean Industries, North America


By:	/s/ Jason Fitzpatrick
	Name:	Jason Fitzpatrick
	Title:	First Vice President

ARAB BANKING CORPORATION (B.S.C.), NEW YORK BRANCH as Lender


By:	/s/ Harry Cosgrave
	Name:	Harry Cosgrave
	Title:	Senior Relationship Manager


By:	/s/ Rebecca Yu
	Name:	Rebecca Yu
	Title:	Head of Credit & Risk

BANCO SANTANDER, S.A., NEW YORK BRANCH, as Lender


By:	/s/ D. Andrew Maletta
	Name:	D. Andrew Maletta
	Title:	Executive Director


By:	/s/ Ryan Peters
	Name:	Ryan Peters
	Title:	Executive Director

Citibank, N.A., as Lender


By:	/s/ Susan Manuelle
	Name:	Susan Manuelle
	Title:	Authorized Signatory


By:
	Name:
	Title:

DEUTSCHE BANK AG, as Lender


By:	/s/ Ross Duncan
	Name:	Ross Duncan
	Title:	Managing Director


By:	/s/ Sneha Kedia
	Name:	Sneha Kedia
	Title:	Authorized Signatory

First Financial Bank, as Lender


By:	/s/ Jim Esinduy
	Name:	Jim Esinduy
	Title:	Managing Director