8-K
false 0001690334 0001690334 2022-09-29 2022-09-29

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 29, 2022

 

 

SEACOR Marine Holdings Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   001-37966   47-2564547

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

12121 Wickchester Lane, Suite 500, Houston, TX   77079
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code (346) 980-1700

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

 

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))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading
Symbol(s)

 

Name of each exchange

on which registered

Common stock, par value $0.01 per share   SMHI   New York Stock Exchange (“NYSE”)

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  

 

 

 


Item 1.01

Entry into a Material Definitive Agreement.

Framework Agreement Transactions

On September 29, 2022, SEACOR Marine Holdings Inc. (the “Company”), SEACOR Marine LLC, a wholly-owned subsidiary of the Company (“SEACOR Marine LLC”), SEACOR Offshore LLC, a wholly-owned subsidiary of the Company (“SEACOR Offshore”), and SEACOR Marine Capital Inc., a wholly-owned subsidiary of the Company (“SEACOR Marine Capital”), on the one hand, and Operadora de Transportes Maritimos, S.A. de C.V. (“OTM”), CME Drillship Holdings DAC (“CME Ireland”), and Offshore Vessels Holding, S.A.P.I. de C.V. (“OVH”), on the other hand, entered into a certain Framework Agreement (the “Framework Agreement”). OTM and CME Ireland are affiliates of Proyectos Globales de Energía y Servicios CME, S.A. de C.V. (“CME”). Prior to the closing of the Framework Agreement Transactions (defined below), the Company indirectly owned 49% of each of Mantenimiento Express Maritimo, S.A.P.I. de C.V. (“MexMar”) and OVH through SEACOR Marine International LLC, a wholly-owned subsidiary of SEACOR Marine LLC (“SEACOR Marine International”) and the remaining 51% ownership interests were held by OTM. The Company also indirectly owned a minority interest in SEACOR Marlin LLC (“SEACOR Marlin LLC”), the owner of the SEACOR Marlin platform supply vessel, and the remaining ownership interests of SEACOR Marlin LLC were held by MexMar.

The Framework Agreement provided for, among other things, (i) the sale by SEACOR Marine LLC of all of the outstanding equity interests of SEACOR Marine International to OTM for a purchase price of $66 million, (ii) the sale by SEACOR Offshore of the SEACOR DAVIS anchor handling towing supply vessel to CME Ireland in exchange for the remaining equity interests in SEACOR Marlin LLC, such that SEACOR Marlin LLC would become a wholly-owned subsidiary of SEACOR Offshore, (iii) the transfer of a hybrid battery system from OVH to SEACOR Marine Capital as repayment in full of a certain vessel loan agreement between SEACOR Marine Capital, as lender, and OVH, as borrower, and (iv) a certain bareboat charter agreement entered into between SEACOR Marlin LLC and MexMar (collectively, the “Framework Agreement Transactions”).

Each of the Framework Agreement Transactions were consummated on September 29, 2022. As a result of the consummation of each of the Framework Agreement Transactions, the Company no longer owns any direct or indirect equity interest in MexMar and OVH, and the Company indirectly owns all of the equity interests in SEACOR Marlin LLC.

The foregoing description of the Framework Agreement and the Framework Agreement Transactions does not purport to be complete and is qualified in its entirety by reference to the full text of the Framework Agreement, a copy of which is filed as Exhibit 10.1 hereto and the terms of which are incorporated herein by reference.

MexMar Third Amended and Restated Facility Agreement

In connection with the closing of the Framework Agreement Transactions, on September 29, 2022, SEACOR Marine Capital separately purchased all of the lender participations under the Second Amended and Restated Term Loan Credit Facility Agreement, made as of December 16, 2016, by and among MexMar, as the borrower, DNB Capital LLC and The Governor and Company of the Bank of Ireland, each as lenders, and DNB Bank ASA, New York Branch, as facility agent (as amended from time to time, the “MexMar Original Facility Agreement”) for an aggregate amount of $28,831,148.32, representing par value of the loan using proceeds received from the Framework Agreement Transactions. Also on September 29, 2022, SEACOR Marine Capital, as lender, MexMar, as borrower, and DNB Bank ASA, New York Branch, as facility agent, entered into a Third Amended and Restated Facility Agreement (“MexMar Third A&R Facility Agreement”) to, among other things, (i) provide for the prepayment by MexMar of approximately $8.8 million of the outstanding loan amount, to reduce the outstanding principal on the loan to $20.0 million, (ii) modify the definition of “Change of Control”, (iii) modify the maturity date from January 23, 2025 to September 30, 2023, (iv) decrease the minimum cash requirement from $10 million to $2.5 million, (v) modify the interest margin from 4.7% to 5.0% and (vi) modify the principal repayment profile to reflect four quarterly installments of $5 million to repay the loan by the maturity date. All collateral and security arrangements remain in place from the MexMar Original Facility Agreement. As a result, the Company is the sole lender to MexMar under the MexMar Third A&R Facility Agreement.

 


The foregoing description of the MexMar Third A&R Facility Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the MexMar Third A&R Facility Agreement, a copy of which is filed as Exhibit 10.2 hereto and the terms of which are incorporated herein by reference.

Each of the Framework Agreement Transactions and the transactions entered into in connection with the MexMar Third A&R Facility Agreement (the “MexMar Facility Agreement Transactions”) were subject to the oversight of, and received advance approval from, the Audit Committee as related party transactions subject to the Company’s Related Party Transaction Policy. The President and Chief Executive Officer of CME is Alfredo Miguel Bejos, and Mr. Miguel also serves a member of the board of the directors of the Company (the “Board”). Mr. Miguel recused himself from the Board deliberations with respect to the Framework Agreement Transactions and the Mexmar Facility Agreement Transactions.

Amendment to SEACOR Marine Foreign Holdings Credit Facility

On September 29, 2022, the Company, SEACOR Marine Foreign Holdings Inc., a wholly-owned subsidiary of the Company, and certain vessel-owning subsidiaries of the Company, entered into Amendment No. 5 (“Amendment No. 5”) to that certain senior secured loan facility with a syndicate of lenders administered by DNB Bank ASA, New York Branch, dated as of September 26, 2018 and as amended from time to time (the “Credit Facility”), and in connection therewith the Company entered into the Second Amended and Restated Guaranty, dated as of September 29, 2022, by the Company in favor of DNB Bank ASA, New York Branch, as security trustee (the “Second A&R Guaranty”).

Amendment No. 5 and the Second A&R Guaranty provide for, among other things, (i) a $5.3 million prepayment of the Credit Facility thereby reducing the amount outstanding thereunder to approximately $74.7 million and (ii) the establishment of Tranche A and Tranche B loans under the Credit Facility (each as defined in the Credit Facility). Tranche A is comprised of approximately $19.8 million of the principal amount of the loan and will maintain the same Margin (as defined in the Credit Facility) of 4.75% per annum through December 31, 2022, thereafter decreasing to 3.75% per annum and the same maturity date of September 30, 2023. Tranche B is comprised of approximately $54.9 million of the principal amount of the loan and permanently maintains the Margin at 4.75% per annum, and extends the maturity date to March 31, 2026.

The foregoing description of Amendment No. 5 and the Second A&R Guaranty do not purport to be complete and is qualified in its entirety by reference to the full text of Amendment No. 5, a copy of which is filed as Exhibit 10.3 hereto, and the full text of the Second A&R Guaranty, a copy of which is filed as Exhibit 10.4 hereto, and the terms of each of which are incorporated herein by reference.

Carlyle Exchange Transactions

On October 5, 2022, the Company and certain funds affiliated with The Carlyle Group Inc. (the “Carlyle Investors”) entered into two agreements pursuant to which the Company issued the Carlyle Investors (i) $90.0 million in aggregate principal amount of the Company’s 8.0% / 9.5% Senior PIK Toggle Notes due 2026 (the “Guaranteed Notes”) and (ii) $35.0 million aggregate principal amount of the Company’s 4.25% Convertible Senior Notes due 2026 (the “New Convertible Notes”) in exchange for $125 million in aggregate principal amount of the Company’s outstanding 4.25% Senior Convertible Notes due 2023.

The Guaranteed Notes were issued pursuant to the Exchange Agreement (Guaranteed Notes) among the Company, as issuer, Falcon Global Robert LLC, as the guarantor, and the Carlyle Investors (the “Guaranteed Notes Exchange Agreement”). Pursuant to the Guaranteed Notes Exchange Agreement, the Company has the right to pay interest on the Guaranteed Notes (i) in cash at a rate of 8.0% per annum (“Cash Interest”) or (ii) partly in cash and partly in-kind by increasing the principal amount of the Guaranteed Notes or issuing additional Guaranteed Notes at a rate of 9.5% per annum (“Hybrid Interest”) with the cash portion of the Hybrid Interest bearing interest at a rate of 4.25% per annum and in the in-kind portion of the Hybrid Interest bearing interest at a rate of 5.25% per annum. The Company must elect whether it will pay Cash Interest or Hybrid Interest for any interest payment period prior to beginning of such interest payment period. The Guaranteed Notes mature on July 1, 2026. The Guaranteed Notes are guaranteed on a senior unsecured basis by Falcon Global Robert LLC, the owner of the LB Robert liftboat.

The Company may redeem some or all of the Guaranteed Notes at any time in minimum denominations of $10.0 million, upon not less than 30 nor more than 60 calendar days’ notice, at a price equal to (a) 102% of the principal amount of the Guaranteed Notes redeemed, if redeemed prior to October 1, 2023, (b) 101% of the principal amount of the Guaranteed Notes redeemed, if redeemed on or after October 1, 2023, but prior to October 1, 2024


and (c) 100% of the principal amount of the Guaranteed Notes redeemed, if redeemed on or after October 1, 2024, in each case plus accrued and unpaid interest, if any, to, but not including, the redemption date, provided, the Company may not redeem the Guaranteed Notes if the principal amount of Guaranteed Notes and New Convertible Notes outstanding will be equal to or less than $50.0 million in the aggregate, unless the Company redeems all of the Guaranteed Notes in whole.

The Guaranteed Notes Exchange Agreement contains certain customary covenants that among others, limit the ability of (i) the Company and the Guarantor to incur indebtedness, (ii) the Guarantor to create or incur liens, (iii) the Company to create liens on the ownership interest of the Guarantor, (iv) the Guarantor to sell assets, and (v) the Company to sell the ownership interest of the Guarantor, as well as customary representations and warranties made by the Company and the Carlyle Investors and customary events of default.

The New Convertible Notes were issued pursuant to the Exchange Agreement (Convertible Notes) among the Company, as issuer, and the Carlyle Investors (the “Convertible Notes Exchange Agreement”). The New Convertible Notes bear interest at a rate of 4.25% per annum payable semi-annually in arrears and mature on July 1, 2026. The New Convertible Notes are convertible into shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”) at the option of the holders at a conversion rate of 85.1064 shares per $1,000 in principal amount of New Convertible Notes (equivalent to a “Conversion Price” of $11.75) or into warrants to purchase an equal number of shares of Common Stock at an exercise price of $0.01 per share in order to facilitate the Company’s compliance with the provisions of the Jones Act. In addition, the Company has the right to cause the mandatory conversion of the New Convertibles Notes into Common Stock if the daily VWAP of the Common Stock equals or exceeds (A) in the case of New Convertible Notes held by affiliates of Carlyle, 150% of the Conversion Price and (B) in the case of New Convertible Notes held by any Person other than Carlyle, 115% of the Conversion Price, in each case for each of the 20 consecutive trading days.

If the Company undergoes a Company Fundamental Change (as defined in the Convertible Notes Exchange Agreement), the holders of the New Convertible Notes may require the Company to purchase for cash all or part of the New Convertible Notes at a price equal to 100% of the principal amount the New Convertible Notes to be purchased, plus accrued and unpaid interest to the date of purchase. The New Convertible Notes may be redeemed, in whole but not in part and only if certain conditions are met, as more fully described in the Convertible Notes Exchange Agreement, at a price equal to 100% of the principal amount of the New Convertible Notes to be redeemed, plus accrued and unpaid interest to the date of redemption.

Under the Convertibles Notes Exchange Agreement, the Carlyle Investors have the ability to nominate one director to the Board.

The Convertible Notes Exchange Agreement contains customary representations and warranties made by the Company and the Carlyle Investors and contains customary events of default and covenants.

In connection with the issuance of the New Convertible Notes, The Company and the Carlyle Investors entered into a registration rights agreement, dated October 5, 2022 (the “Registration Rights Agreement”). The New Convertible Notes, the New Guaranteed Notes and the Common Stock and warrants underlying the New Convertible Notes, will be entitled to customary shelf, demand and piggyback registration rights pursuant to the Registration Rights Agreement. To the extent that the Company does not fulfill certain of its obligations under the Registration Rights Agreement, additional interest will accrue on the New Convertible Notes initially at a rate of 0.25% per annum and may increase to a rate not to exceed 0.50% per annum.

In connection with the registrations described above, the Company will indemnify any selling stockholders, or contribute to payments the selling stockholders may be required to make, and the Company will bear all fees, costs and expenses (except underwriting commissions and discounts and fees and expenses of financial advisors of the selling stockholders and their internal and similar costs).

The foregoing descriptions of the Guaranteed Notes Exchange Agreement, the Convertible Notes Exchange Agreement and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Guaranteed Notes Exchange Agreement, the Convertible Notes Exchange Agreement and the Registration Rights Agreement, a copy of each of which is filed as Exhibit 10.5, 10.6 and 4.1 hereto, respectively, each of which is incorporated herein by reference.

 


Item 1.02

Termination of a Material Definitive Agreement.

In connection with the entry into the Guaranteed Notes Exchange Agreement, the Convertibles Notes Exchange Agreement and the Registration Rights Agreement, the Company and the Carlyle Investors terminated the existing registration rights agreement, dated November 30, 2015, among the Company and the Carlyle Investors.

 

Item 2.01

Completion of Acquisition or Disposition of Assets.

The information set forth in Item 1.01 of this Current Report on Form 8-K related to the Framework Agreement Transactions is incorporated herein by reference.

The unaudited pro forma financial information of the Company giving effect to the Framework Agreement Transactions, and the related notes thereto, are attached hereto as Exhibit 99.2.

 

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 of this Current Report on Form 8-K related to the Amendment to SEACOR Marine Foreign Holdings Credit Facility and the issuance of the New Convertible Notes and the Guarantees Notes is incorporated herein by reference.

 

Item 3.02

Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 of this Current Report on Form 8-K related to the issuance of the New Convertible Notes is incorporated herein by reference.

The Company issued the New Convertible Notes in reliance on the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) provided by Section 4(a)(2) of the Securities Act and/or Section 3(a)(9) of the Securities Act. To the extent that any shares of Common Stock are issued upon conversion of the New Convertible Notes, they will be issued in transactions anticipated to be exempt from the registration requirements of the Securities Act by Section 3(a)(9) thereof.

 

Item 7.01

Regulation FD Disclosure.

On October 5, 2022, the Company issued a press release announcing the Framework Agreement Transactions, MexMar Facility Agreement Transactions and transactions entered into with the Carlyle Investors. The press release is attached as Exhibit 99.1 hereto and is incorporated in this Item 7.01 by reference.

 

Item 9.01

Financial Statements and Exhibits.

(b)    Pro Forma Financial Information.

Unaudited pro forma condensed combined financial statements of the Company required by Article 11 of Regulation S-X is attached hereto as Exhibit 99.2 and is incorporated by reference herein.

(d) Exhibits

 

Exhibit
No.

  

Description

  4.1    Registration Rights Agreement dated October 5, 2022, by and among SEACOR Marine Holdings Inc. and the holders of the New Convertible Notes from time-to-time party thereto.
10.1    Framework Agreement, dated September 29, 2022, by and among, SEACOR Marine Holdings Inc., SEACOR Marine LLC, SEACOR Offshore LLC, SEACOR Marine Capital Inc., Operadora de Transportes Maritimos, S.A. de C.V., CME Drillship Holdings DAC, and Offshore Vessels Holding, S.A.P.I. de C.V.
10.2    Third Amended and Restated Senior Secured Term Loan Credit Facility Agreement, dated as of September 29, 2022, by and among Mantenimiento Express Maritimo, S.A.P.I. de C.V., SEACOR Marine Capital Inc., and DNB Bank ASA, New York Branch.


10.3    Amendment No. 5 to Credit Agreement, dated as of September 29, 2022, by and among SEACOR Marine Foreign Holdings Inc., SEACOR Marine Holdings Inc., DNB Bank ASA, New York Branch, and the other entities identified on the signature pages thereto.
10.4    Second Amended and Restated Guaranty, dated as of September 29, 2022, by SEACOR Marine Holdings Inc. in favor of DNB Bank ASA, New York Branch, as security trustee.
10.5    Exchange Agreement (Guaranteed Notes), dated as of October 5, 2022, by and among SEACOR Marine Holdings Inc., Falcon Global Robert LLC and CEOF II DE I AIV, L.P., CEOF II Coinvestment (DE), L.P. and CEOF II Coinvestment B (DE), L.P.
10.6    Exchange Agreement (New Convertible Notes), dated as of October 5, 2022, by and among SEACOR Marine Holdings Inc., and CEOF II DE I AIV, L.P., CEOF II Coinvestment (DE), L.P. and CEOF II Coinvestment B (DE), L.P.
99.1    Press Release of SEACOR Marine Holdings Inc. dated October 5, 2022.
99.2    Unaudited Pro Forma Financial Information.
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)

 


SIGNATURES

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.

 

    SEACOR Marine Holdings Inc.
October 5, 2022     By:  

/s/ John Gellert

    Name:   John Gellert
    Title:   President and Chief Executive Officer
EX-4.1

Exhibit 4.1

EXECUTION VERSION

 

 

 

REGISTRATION RIGHTS AGREEMENT

BY AND AMONG

SEACOR MARINE HOLDINGS INC.

AND

THE OTHER PARTIES LISTED

ON SCHEDULE I HERETO

Dated as of October 5, 2022

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I   
DEFINITIONS   

SECTION 1.01.

  Defined Terms      1  

SECTION 1.02.

  Other Interpretive Provisions      7  
ARTICLE II   
REGISTRATION RIGHTS   

SECTION 2.01.

  Demand Registration      7  

SECTION 2.02.

  Shelf Registration      11  

SECTION 2.03.

  Piggyback Registration.      17  

SECTION 2.04.

  Black-out Periods      18  

SECTION 2.05.

  Registration Procedures      20  

SECTION 2.06.

  Underwritten Offerings      25  

SECTION 2.07.

  No Inconsistent Agreements; Additional Rights      27  

SECTION 2.08.

  Registration Expenses      27  

SECTION 2.09.

  Indemnification      28  

SECTION 2.10.

  Registration Defaults      32  

SECTION 2.11.

  Rule 144      33  

SECTION 2.12.

  Limitation on Registrations and Underwritten Offerings      33  
ARTICLE III   
MISCELLANEOUS   

SECTION 3.01.

  Term      33  

SECTION 3.02.

  Injunctive Relief      33  

SECTION 3.03.

  Notices      34  

SECTION 3.04.

  Recapitalization      34  

SECTION 3.05.

  Amendment      34  

SECTION 3.06.

  Successors, Assigns and Transferees      35  

SECTION 3.07.

  Binding Effect      35  

SECTION 3.08.

  Third Party Beneficiaries      35  

SECTION 3.09.

  Governing Law      35  

SECTION 3.10.

  Submission to Jurisdiction; Waiver of Service and Venue      35  

SECTION 3.11.

  Waiver of Jury Trial      36  

SECTION 3.12.

  Immunity Waiver      36  

SECTION 3.13.

  Existing RRA Waiver      37  

SECTION 3.14.

  Entire Agreement      37  

SECTION 3.15.

  Severability      37  

SECTION 3.16.

  Counterparts      37  

SECTION 3.17.

  Headings      37  

 

 

i


REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”), dated as October 5, 2022, is by and among SEACOR Marine Holdings Inc., a Delaware corporation (including any of its successors by merger, acquisition, reorganization, conversion or otherwise, the “Company”), and the Persons set forth on Schedule I hereto. Unless otherwise indicated, capitalized terms used herein shall have the meanings ascribed to such terms in Section 1.01.

WITNESSETH:

WHEREAS, the parties hereto desire to provide for, among other things, the grant of registration rights with respect to the Registrable Securities (as defined below).

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements of the parties hereto, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and subject to the satisfaction or waiver of the conditions hereof, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

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

Additional Interest” means all amounts, if any, payable on the New Convertible Notes pursuant to Section 2.11.

Adverse Disclosure” means public disclosure of material non-public information that, in the Board of Directors’ good faith judgment, after consultation with independent outside counsel to the Company, would be required to be made in any Registration Statement filed with the Commission by the Company so that such Registration Statement would not contain a material misstatement of fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, would not be required to be publicly disclosed at such time but for the filing of such Registration Statement, and which information the Company has a bona fide business purpose for not disclosing publicly at such time.

Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Agreement” has the meaning set forth in the preamble.

 

1


Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.

Board of Directors” means the board of directors of the Company.

Business Day” means any day other than a Saturday, Sunday or a day on which commercial banks located in New York, New York are required or authorized by law or executive order to be closed.

Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity but excluding any debt securities convertible into such equity.

Commission” means the United States Securities and Exchange Commission.

Common Stock” means shares of the Company’s common stock, par value $0.01 per share.

Company” has the meaning set forth in the preamble.

Company Public Sale” has the meaning set forth in Section 2.03(a).

Company Share Equivalents” means the New Convertible Notes, the Warrants and any other securities exercisable, exchangeable or convertible into Company Shares and any options, warrants or other rights to acquire Company Shares.

Company Shares” means shares of Common Stock (including any Common Stock issuable upon conversion of the New Convertible Notes or exercise of the Warrants), any securities into which such shares of Common Stock shall have been changed, or any securities resulting from any reclassification, recapitalization or similar transactions with respect to such shares of Common Stock.

Daily VWAP” has the meaning ascribed to such term in the Exchange Agreement (New Convertible Notes).

Demand Registration” has the meaning set forth in Section 2.01(a).

Determination Date” has the meaning set forth in Section 2.02(g).

Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

Exchange Agreement (Guaranteed Notes)” means the Exchange Agreement (Guaranteed Notes), dated as of the date hereof, by and among the Company and the Investors.

 

2


Exchange Agreement (New Convertible Notes)” means the Exchange Agreement (New Convertible Notes), dated as of the date hereof, by and among the Company and the Investors.

Existing RRA” means the Company Registration Rights Agreement, dated as of November 30, 2015, by and among the Company and the holders of the Prior Convertible Notes and Existing Warrants.

Existing Warrants” means the warrants outstanding on the date hereof to purchase 1,439,483 shares of Common Stock held by the Investors.

FINRA” means the Financial Industry Regulatory Authority, Inc.

Form S-1” means a registration statement on Form S-1 under the Securities Act.

Form S-3” means a registration statement on Form S-3 under the Securities Act.

Form S-4” means a registration statement on Form S-4 under the Securities Act.

Form S-8” means a registration statement on Form S-8 under the Securities Act.

Governmental Authority” means any United States federal, state, local (including county or municipal) or foreign governmental, regulatory or administrative authority, agency, division, instrumentality, commission, court, judicial or arbitral body or any securities exchange or similar self-regulatory organization.

Guaranteed Notes” means the 8.0% / 9.5% Senior PIK toggle notes due 2026 issued pursuant to the Exchange Agreement (Guaranteed Notes).

Holder” means any holder of Registrable Securities that is set forth on Schedule I hereto or that succeeds to rights hereunder pursuant to Section 3.05.

Interest Payment Date” means each interest payment date as set forth in the Exchange Agreement (New Convertible Notes).

Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating to an offer of Registrable Securities.

Loss” or “Losses” has the meaning set forth in Section 2.09(a).

Market Price” means, on any date of determination, the average of the Daily VWAP of the Registrable Securities for the immediately preceding thirty (30) days on which the national securities exchanges are open for trading.

Marketed Underwritten Shelf Take-Down” has the meaning set forth in Section 2.02(f)(iii).

Marketed Underwritten Shelf Take-Down Notice” has the meaning set forth in Section 2.02(f)(iii).

 

3


Maximum Offering Size” means, with respect to any offering that is underwritten, the number of securities that, in the good faith opinion of the managing underwriter or underwriters in such offering (as evidenced by a written notice to the relevant Holders and the Company), can be sold in such offering without being likely to have a significant adverse effect on the price, timing or the distribution of the securities offered or the market for the securities offered.

New Convertible Notes” means the 4.25% convertible senior notes due 2026 issued pursuant to the Exchange Agreement (New Convertible Notes).

Non-Complying Holder” has the meaning set forth in Section 2.02(b).

Note Holder” means any holder of the New Convertible Notes.

Participating Holder” means, with respect to any Registration, including a Demand Registration, Piggyback Registration or Shelf Take-Down, any Holder of Registrable Securities participating as a selling Holder in such Registration.

Person” means any individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a Governmental Authority or political subdivision thereof or any other entity.

Piggyback Registration” has the meaning set forth in Section 2.03(a).

Postponing Officer’s Certificate” has the meaning set forth in Section 2.01(b).

Prior Convertible Notes” means the Company’s 4.25% Convertible Notes due 2023.

Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre- and post-effective amendments to such Registration Statement, and all information incorporated by reference in such prospectus.

Record Date” means, with respect to the New Convertible Notes, Common Stock or Warrants, the date fixed for determination of holders of the New Convertible Notes, Common Stock or Warrants entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).

Registrable Securities” means any Company Shares (including shares of Common Stock issuable upon exercise of the Warrants or conversion of the New Convertible Notes), any Warrants, the New Convertible Notes and the Guaranteed Notes or any other securities that may be issued or distributed or be issuable or distributable in respect of, or in substitution for, any Company Shares by way of conversion, exercise, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction, in each case whether now owned or hereafter acquired by a Holder; provided, however, that any such Registrable Securities shall cease to be Registrable Securities to the extent (i) a Registration Statement with respect to the sale of such Registrable Securities has been declared effective under the Securities Act and such Registrable Securities have been

 

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disposed of in accordance with the plan of distribution set forth in such Registration Statement, (ii) such Registrable Securities then owned by a Holder and its Affiliates (in each case, assuming the conversion of all New Convertible Notes and the exercise of all Warrants held by them without giving effect to any restriction on conversion or exercise) could be sold in their entirety in any ninety (90) day period pursuant to Rule 144 without restriction as to volume or manner of sale and such Holders and its Affiliates beneficially own less than 5% of the outstanding shares of Common Stock, (iii) such Registrable Securities are otherwise transferred, the Company has delivered a new certificate or other evidence of ownership for such securities not bearing a restrictive legend and such Registrable Securities may be resold without limitation or subsequent registration under the Securities Act; or (iv) the Registrable Securities have ceased to be outstanding.

Registration” means a registration with the Commission of the offer and sale of the Company’s securities to the public under a Registration Statement. The term “Register” shall have a correlative meaning.

Registration Default” has the meaning set forth in Section 2.10.

Registration Expenses” has the meaning set forth in Section 2.08.

Registration Statement” means any registration statement of the Company that covers the offer and sale of Registrable Securities pursuant to the provisions of this Agreement filed with, or to be filed with, the Commission under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all information incorporated by reference in such registration statement.

Representatives” means, with respect to any Person, any of such Person’s officers, directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing partners or financial advisors or other Person associated with, or acting on behalf of, such Person.

Requesting Holder(s)” means, with respect to a Demand Registration or Shelf Take-Down, as applicable, a Holder (or Holders, as the case may be) that initiated such Registration or Shelf Take-Down, as the case may be, in accordance with the terms and conditions of this Agreement.

Required Filing Date” means the relevant date by which the Company is required to file its Registration Statement or Shelf Registration Statement in accordance with this Agreement.

Rule 144” means Rule 144 (or any successor provisions) under the Securities Act.

SEC Guidance” means (i) any publicly available written or oral questions and answers, guidance, forms, comments, requirements or requests of the Commission or its staff, (ii) the Securities Act and (iii) any other rules and regulations of the Commission.

 

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Securities Act” means the Securities Act of 1933, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

Shelf Registration” has the meaning set forth in Section 2.02(a).

Shelf Registration Notice” has the meaning set forth in Section 2.02(a).

Shelf Registration Statement” means a Registration Statement filed with the Commission on either (i) Form S-3 or (ii) solely if the Company is not permitted to file a Registration Statement on Form S-3 or register all Registrable Securities on such form, an evergreen Registration Statement on Form S-1 (which, in the case the Company is not permitted to register all Registrable Securities on Form S-3, shall register any such shares not registered on Form S-3), in each case for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (or any successor provision) covering the offer and sale of all or any portion of the Registrable Securities, as applicable.

Shelf Suspension” has the meaning set forth in Section 2.02(e).

Shelf Take-Down” has the meaning set forth in Section 2.02(f)(i).

Shelf Trigger Date” has the meaning set forth in Section 2.02(a).

Stockholder Party” has the meaning set forth in Section 2.09(a).

Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.

Suspending Officer’s Certificate” has the meaning set forth in Section 2.02(e).

Underwritten Offering” means a Registration in which securities of the Company are sold to an underwriter or underwriters (or other counterparty) for reoffering to the public.

Underwritten Shelf Take-Down Notice” has the meaning set forth in Section 2.02(f)(ii).

Valid Business Reason” has the meaning set forth in Section 2.01(b).

Warrants” means the warrants, exercisable for shares of Common Stock, issued by the Company upon conversion of New Convertible Notes pursuant to Section 9.12 of the Exchange Agreement (New Convertible Notes) and the Existing Warrants.

 

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Well-Known Seasoned Issuer” means a “well-known seasoned issuer” as defined in Rule 405 promulgated under the Securities Act and which (a) (i) is a “well-known seasoned issuer” under paragraph (1)(i)(A) of such definition or (ii) is a “well-known seasoned issuer” under paragraph (1)(i)(B) of such definition and is also eligible to Register a primary offering of its securities relying on General Instruction I.B.1 of Form S-3 under the Securities Act and (b) is not an “ineligible issuer” as defined in Rule 405 promulgated under the Securities Act.

SECTION 1.02. Other Interpretive Provisions. (a) In this Agreement, except as otherwise provided:

(i) A reference to an Article, Section, Schedule or Exhibit is a reference to an Article or Section of, or Schedule or Exhibit to, this Agreement, and references to this Agreement include any recital in or Schedule or Exhibit to this Agreement.

(ii) The Schedules and Exhibits form an integral part of and are hereby incorporated by reference into this Agreement.

(iii) Headings and the Table of Contents are inserted for convenience only and shall not affect the construction or interpretation of this Agreement.

(iv) Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing the masculine include the feminine and vice versa, and words importing persons include corporations, associations, partnerships, joint ventures and limited liability companies and vice versa.

(v) Unless the context otherwise requires, the words “hereof” and “herein,” and words of similar meaning refer to this Agreement as a whole and not to any particular Article, Section or clause. The words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.”

(vi) A reference to any legislation or to any provision of or form or rule promulgated under any legislation shall include any amendment, modification, substitution or re-enactment thereof.

ARTICLE II

REGISTRATION RIGHTS

SECTION 2.01. Demand Registration.

(a) Request for Demand Registration. Subject to Section 2.12, at any time and from time to time beginning on the earlier of (x) 45 days after the date hereof and (y) 5 days after the initial Shelf Registration contemplated by Section 2.02 is declared effective by the Commission, a Requesting Holder (or Requesting Holders, as the case may be) may make a written request (a “Demand Registration Notice”) to the Company to register, and the Company shall register, under the Securities Act (other than pursuant to a Registration Statement on Form S-4 or S-8), in accordance with the terms of this Agreement, the number of Registrable Securities stated in such request (a “Demand Registration”); provided, however, and subject to

 

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the provisions of Section 2.12, that the Company shall not be obligated to effect (i) more than two such Demand Registrations in the aggregate on behalf of all Holders or (ii) any Demand Registration (A) with respect to which the Requesting Holder (or Requesting Holders, as the case may be) proposes to sell Registrable Securities in such Demand Registration, at an anticipated aggregate offering price (calculated based upon the Market Price of the Registrable Securities on the date on which the Company receives the written request for such Demand Registration) to the public of less than $20 million (after giving effect to any withdrawals pursuant to Section 2.01(e)) unless such Demand Registration includes all of the then outstanding Registrable Securities; provided, however, that such Demand Registration under this Section 2.01(a)(ii)(A) shall not be considered a Demand Registration for the purposes of Section 2.01(a)(i) if, after a Demand Registration becomes effective, (1) such Demand Registration is interfered with by any stop order or other order of the Commission or Governmental Authority, or (2) if the Maximum Offering Size determined in accordance with Section 2.01(f) is less than fifty percent (50%) of the number of Registrable Securities of the Requesting Holder(s) sought to be included in such Demand Registration, or (B) if the Registrable Securities that the Requesting Holder (or Requesting Holders, as the case may be) proposes to sell in such Demand Registration are already covered by an existing and effective Shelf Registration Statement which may be utilized for the offering and sale of the Registrable Securities requested to be registered. Each request for a Demand Registration by a Requesting Holder (or Requesting Holders, as the case may be) shall state the amount of the Registrable Securities proposed to be sold and the intended method of disposition thereof. Subject to this Section 2.01, the Company shall effect such Demand Registration using a non-shelf Registration Statement on Form S-1 unless it is otherwise then eligible to effect such Registration on Form S-3 pursuant to Section 2.02.

(b) Limitations on Demand Registrations. If the Board of Directors, in its good faith judgment, determines that the registration of Registrable Securities pursuant to a Demand Registration, or the amendment or supplement of a Registration Statement filed pursuant to a Demand Registration, would materially interfere with any financing, acquisition, corporate reorganization or merger or other transaction involving the Company or would require the Company to make an Adverse Disclosure (a “Valid Business Reason”), and the Company furnishes to the Requesting Holder (or Requesting Holders, as the case may be) a certificate signed by the Chief Executive Officer and/or the Chief Financial Officer of the Company (or persons in substantially equivalent positions) stating that a Valid Business Reason exists (the “Postponing Officer’s Certificate”), (i) the Company may postpone the filing or effectiveness of the Registration Statement (but not the preparation of the Registration Statement) relating to such Demand Registration and (ii) in the case of a Registration Statement that has been filed with respect to a Demand Registration, the Company may postpone amending or supplementing such Registration Statement or causing such Registration Statement to be declared effective, in the case of clauses (i) and (ii) above until such Valid Business Reason ceases to exist (a “Demand Suspension”), but in no event shall any such postponement be for more than ninety (90) days after the date of the Demand Registration Notice or, if earlier, the occurrence of the Valid Business Reason. In the event of any such postponement, the Requesting Holder (or requesting Holders, as the case may be) initiating such Demand Registration shall be entitled to withdraw the Demand Registration request by written notice to the Company and, if such request is withdrawn, it shall not count as a Demand Registration hereunder. In addition to the Postponing Officer’s Certificate discussed above, the Company shall promptly give written notice to the Requesting Holder (or Requesting Holders, as the case may be) once the Valid Business Reason

 

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for such postponement no longer exists. Notwithstanding anything to the contrary contained herein, the Company may not postpone a filing, amendment, supplement or declaration of effectiveness under this Section 2.01(b) due to a Valid Business Reason more than two (2) times, or for more than an aggregate of one hundred and twenty (120) days, in each case, during any 12-month period. Each Holder shall keep confidential the fact that a Demand Suspension is in effect, the Postponing Officer’s Certificate and its contents unless and until otherwise notified by the Company, except (A) for disclosure to such Holder’s employees, agents and professional advisers who reasonably need to know such information for purposes of assisting the Holder with respect to its investment in the Company Shares and agree to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners or other direct or indirect investors who have agreed to keep such information confidential, (C) if and to the extent such matters are publicly disclosed by the Company or any of its Subsidiaries or any other Person that, to the actual knowledge of such Holder, was not subject to an obligation or duty of confidentiality to the Company and its Subsidiaries, (D) as required by law, rule or regulation, provided that the Holder gives prior written notice to the Company of such requirement and the contents of the proposed disclosure to the extent it is permitted to do so under applicable law, and (E) for disclosure to any other Holder.

(c) Incidental or “Piggy-Back” Rights with Respect to a Demand Registration. Each of the Holders (other than the Requesting Holder(s) that requested the relevant Demand Registration under Section 2.01(a)) may offer such Holder’s Registrable Securities under any such Demand Registration pursuant to this Section 2.01(c). The Company shall (i) as promptly as practicable, but in no event later than three (3) Business Days after the receipt of a request for a Demand Registration from any Requesting Holder(s), give written notice thereof to all of the Holders (other than such Requesting Holder(s)), which notice shall specify the number of Registrable Securities subject to the request for Demand Registration, the name of the Requesting Holder(s) and the intended method of disposition of such Registrable Securities and (ii) subject to Section 2.01(f), include in the Registration Statement filed pursuant to such Demand Registration all of the Registrable Securities requested by such Holders for inclusion in such Registration Statement from whom the Company has received a written request for inclusion therein within ten (10) days after the receipt by such Holders of such written notice referred to in clause (i) above. Each such request by such Holders shall specify the number of Registrable Securities proposed to be registered. Any Holder may waive its rights under this Section 2.01(c) prior to the expiration of such ten (10) day period by giving written notice to the Company.

(d) Effective Demand Registration. Subject to Sections 2.01(a) and (b), the Company shall use its reasonable best efforts to file a Registration Statement relating to the Demand Registration as promptly as practicable (but in no event later than sixty (60) days after it receives a Demand Registration Notice under Section 2.01(a) hereof), and shall use its reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable thereafter (but in no event later than sixty (60) days after it shall have filed such Registration Statement, unless it is not practicable to do so due to circumstances directly relating to outstanding comments of the Commission relating to such Registration Statement; provided that the Company is using its reasonable best efforts to address any such comments as promptly as possible). Except as provided herein, the Company shall use its reasonable best efforts to keep any Demand Registration filed pursuant to Section 2.01(a) continuously effective under the Securities Act until the earliest of (i) one hundred eighty (180) days after the date it first becomes effective, (ii) the date on which this Agreement terminates under Section 3.01 with respect to all Participating Holders and (iii) the date on which all Registrable Securities included in such Shelf Registration Statement have been sold pursuant to the Registration Statement or the Registrable Securities registered hereunder cease to be Registrable Securities.

 

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(e) Expenses and Withdrawal. Each Participating Holder (including the Requesting Holder(s)) shall be permitted to withdraw all or part of its Registrable Securities from a Demand Registration at any time prior to the execution of the underwriting agreement in connection with such Demand Registration by giving written notice to the Company of its request to withdraw. The Company shall pay all Registration Expenses in connection with a Demand Registration; provided however that if a Requesting Holder or its Affiliates withdraw all or part of their Registrable Securities from a Demand Registration it shall nevertheless be counted as a Demand Registration unless either (i) such Requesting Holder and its affiliates reimburse the Company for all Registration Expenses incurred related to the Demand Registration up to the date of withdrawal, (ii) the withdrawal is requested within 15 days of receipt of a Postponing Officer’s Certificate, (iii) if the Maximum Offering Size determined in accordance with Section 2.01(f) is less than fifty percent (50%) of the number of Registrable Securities of the Requesting Holder(s) sought to be included in such Demand Registration, or (iv) if the Registration Statement is withdrawn without becoming effective for reasons other than the withdrawal by the Requesting Holder. Except as provided herein, each Participating Holder shall be responsible for its own fees and expenses of counsel and financial advisors and their internal administrative and similar costs, as well as their respective pro rata shares of underwriters’ commissions and discounts, which shall not constitute Registration Expenses.

(f) Underwriting Procedures. If the Requesting Holder(s) making a Demand Registration request under Section 2.01(a) so elect in the Demand Registration Notice, the Company shall use its reasonable best efforts to cause the offering made pursuant to such Demand Registration pursuant to this Section 2.01 to be in the form of a firm commitment underwritten offering. In connection with any Demand Registration under this Section 2.01 involving an underwritten offering, none of the Registrable Securities held by any Holder making a request for inclusion of such Registrable Securities pursuant to Sections 2.01(a) and (c) shall be included in such underwritten offering unless, at the request of the underwriters for such Demand Registration, such Holder enters into an underwriting agreement pursuant to the terms of Section 2.06(a) hereof and then only in such quantity as set forth below. If the managing underwriter or underwriters of any proposed Demand Registration informs the Holders that have requested to participate in such Demand Registration that, in its or their good faith opinion, the number of securities which such Holders, intend to include in such offering exceeds the Maximum Offering Size, then the Company shall include in such registration: (i) first, Registrable Securities that are requested to be included in such registration pursuant to Sections 2.01(a) and 2.01(c), pro rata on the basis of the relative number of Registrable Securities owned at such time by each Holder seeking to participate in the Demand Registration; and (ii) second, after all of the Registrable Securities requested to be included in clause (i) are included, the Company Shares or other securities to be issued by the Company or held by any holder thereof with a contractual right to include such Company Shares or other securities in such registration that can be sold without having the adverse effect referred to above, pro rata on a basis based on the number of Company Shares or other securities proposed to be registered by each such Person. The Holders of a majority of the Registrable Securities to be included in any Demand Registration shall have the right to select, subject to the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), the managing underwriter or underwriters to administer such offering.

 

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(g) Certain Undertakings. Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause (i) each Demand Registration Statement (as of the effective date thereof), any amendment thereof (as of the effective date thereof) or supplement thereto (as of its date), (A) to comply in all material respects with applicable SEC Guidance and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and (ii) any related Prospectus (including any preliminary Prospectus) or Issuer Free Writing Prospectus and any amendment thereof or supplement thereto, as of its date, (A) to comply in all material respects with applicable SEC Guidance and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, the Company shall have no such obligations or liabilities with respect to any written information pertaining to any Holder and furnished in writing to the Company by or on behalf of such Holder specifically for inclusion therein.

SECTION 2.02. Shelf Registration.

(a) Initial Shelf Registration. Within 30 days of the date hereof, the Company shall prepare and file with the Commission a Shelf Registration Statement on Form S-3 covering the resale of all Registrable Securities, and shall use its reasonable best efforts to cause such Shelf Registration Statement to become effective as promptly as practicable (but in no event later than sixty (60) days after it shall have filed such Shelf Registration Statement, unless it is not practicable to do so due to circumstances directly relating to outstanding comments of the Commission relating to such Shelf Registration Statement; provided that the Company is using its reasonable best efforts to address any such comments as promptly as possible). If at the time of filing of such Shelf Registration Statement the Company is eligible for use of an Automatic Shelf Registration Statement, then such Shelf Registration Statement shall be filed as an Automatic Shelf Registration Statement in accordance with Section 2.02(g). The Shelf Registration Statement described in this Section 2.02(a) shall relate to the offer and sale of the Registrable Securities by the Holders thereof from time to time in accordance with the methods of distribution set forth in the applicable Shelf Registration Statement (hereinafter the “Shelf Registration”). The Company shall use its reasonable best efforts to address any comments from the Commission regarding such Shelf Registration Statement and to advocate with the Commission for the Registration of all Registrable Securities in accordance with SEC Guidance. Notwithstanding the foregoing, if the Commission prevents the Company from including any or all of the Registrable Securities on any Shelf Registration Statement, such Shelf Registration Statement shall include the resale of a number of Registrable Securities which is equal to the maximum amount permitted by the Commission. In such event, the number of Registrable Securities to be included for each Holder in the applicable Shelf Registration Statement shall be reduced pro rata among all Holders. Prior to the effectiveness of this Shelf Registration Statement, the Company shall maintain the effectiveness of the shelf registration statement filed by the Company on July 26, 2018 and this Section 2.02 shall apply to such shelf registration statement, mutatis mutandis, until the Shelf Registration Statement contemplated by this Section 2.02(a) is declared effective.

 

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(b) Holder Information to be Provided. The Company will give notice of its intention to file the Shelf Registration Statement to the Holders at least 15 Business Days prior to the intended filing date of the Shelf Registration Statement. Each Holder of Registrable Securities agrees to deliver such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Company may reasonably request in writing, if any, to the Company at least 10 Business Days prior to the anticipated filing date of the Shelf Registration Statement. If a Holder does not provide all such information the Company may reasonably request (a “Non-Complying Holder”), that Holder will not be named as a selling securityholder in the Prospectus and will not be permitted to sell its securities under the Shelf Registration Statement. From and after the effective date of the Shelf Registration Statement, the Company shall use reasonable best efforts, as promptly as is practicable after a Non-Complying Holder delivers the information required pursuant to the previous two sentences, (i) if required by applicable law, to file with the Commission a post-effective amendment to the Shelf Registration Statement; and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable; or (ii) to prepare and, if permitted or required by applicable law, to file a supplement to the related Prospectus or an amendment or supplement to any document incorporated therein by reference or file any other required document so that the Non-Complying Holder is named as a selling securityholder in the Shelf Registration Statement and the related Prospectus, and so that such Holder is permitted to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law; provided, that the Company shall not be required to file more than one post-effective amendment under this clause (b) in any calendar quarter or to file a supplement or post-effective amendment during any Shelf Suspension (but shall be required to make such filing as soon as practicable thereafter).

(c) Continued Effectiveness. Except as provided herein, the Company shall use its reasonable best efforts to keep any Shelf Registration Statement filed pursuant to Section 2.02(a) continuously effective under the Securities Act until the earliest of (i) the date as of which all Registrable Securities have been sold pursuant to such Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder), (ii) the date on which this Agreement terminates under Section 3.01 with respect to all Participating Holders, (iii) the date on which all Registrable Securities included in such Shelf Registration Statement cease to be Registrable Securities and (iv) such shorter period as all of the Participating Holders with respect to such Shelf Registration shall agree in writing.

(d) Certain Undertakings. Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause (i) each Shelf Registration Statement (as of the effective date of such Shelf Registration Statement), any amendment thereof (as of the effective date thereof) or supplement thereto (as of its date), (A) to comply in all material respects with applicable SEC Guidance and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and (ii) any related Prospectus (including any preliminary

 

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Prospectus) or Issuer Free Writing Prospectus and any amendment thereof or supplement thereto, as of its date, (A) to comply in all material respects with applicable SEC Guidance and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, the Company shall have no such obligations or liabilities with respect to any written information pertaining to any Holder and furnished in writing to the Company by or on behalf of such Holder specifically for inclusion therein. The Company agrees, to the extent necessary, to supplement or make amendments to each Shelf Registration Statement if required by the registration form used by the Company for the applicable Registration or by SEC Guidance, or as may reasonably be requested by any Participating Holder to permit such Participating Holders intended method of distribution.

(e) Suspension of Registration. If the Board of Directors, in its good faith judgment, determines that a Valid Business Reason shall exist to postpone the filing, amendment, or supplement, or suspend the use, of a Shelf Registration Statement filed pursuant to Section 2.02(a) and the Company furnishes to the Participating Holder (or Holders, as the case may be) a certificate signed by the Chief Executive Officer and/or the Chief Financial Officer of the Company (or persons in substantially equivalent positions) (the “Suspending Officer’s Certificate”), then the Company may postpone the filing, amendment or supplement (but not the preparation thereof), and/or suspend use, of such Shelf Registration Statement (a “Shelf Suspension”); provided, however, that in not event shall such postponement or suspension be for more than ninety (90) days after the date of the Suspending Officer’s Certificate and the Company shall not be permitted to exercise a Shelf Suspension more than two (2) times, or for more than an aggregate of one hundred twenty (120) days, in each case, during any 12-month period; provided, further, that in the event of a Shelf Suspension, such Shelf Suspension shall terminate at such earlier time as such Valid Business Reason ceases to exist. Each Holder agrees that, upon delivery of a Suspending Officer’s Certificate, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the applicable Shelf Registration Statement until the Company informs such Holder in accordance with this Section 2.02(e), that the Shelf Suspension has been terminated. Each Holder shall keep confidential the fact that a Shelf Suspension is in effect, the Suspending Officer’s Certificate and its contents unless and until otherwise notified by the Company, except (A) for disclosure to such Holder’s employees, agents and professional advisers who reasonably need to know such information for purposes of assisting the Holder with respect to its investment in the Company Shares and agree to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners or other direct or indirect investors who have agreed to keep such information confidential, (C) if and to the extent such matters are publicly disclosed by the Company or any of its Subsidiaries or any other Person that, to the actual knowledge of such Holder, was not subject to an obligation or duty of confidentiality to the Company and its Subsidiaries, (D) as required by law, rule or regulation; provided that the Holder gives prior written notice to the Company of such requirement and the contents of the proposed disclosure to the extent it is permitted to do so under applicable law, and (E) for disclosure to any other Holder. In the case of a Shelf Suspension, the Holders agree to suspend use of the applicable Prospectus and any Issuer Free Writing Prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon delivery of the Suspending Officer’s Certificate. The Company shall immediately notify the Holders upon the termination of any Shelf Suspension and amend or supplement the Prospectus and any Issuer Free Writing

 

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Prospectus, if necessary, so it does not contain a material misstatement of fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading and furnish to the Holders such numbers of copies of the Prospectus and any Issuer Free Writing Prospectus as so amended or supplemented as the Holders may reasonably request. The Company agrees, if necessary, to supplement or make amendments to each Shelf Registration Statement if required by the registration form used by the Company for the applicable Registration or by SEC Guidance, or as may reasonably be requested by any Holder. If the filing of any Registration Statement is suspended pursuant to this Section 2.02(e), upon the termination of the Shelf Suspension, the Requesting Holder(s) may request a new Shelf Take-Down under Section 2.02(f) (which, subject to section 2.02(f)(iv), shall not be counted as an additional Marketed Underwritten Shelf Take-Down for purposes of Section 2.12).

(f) Shelf Take-Downs.

(i) Subject to Section 2.12 and this Section 2.02(f), an offering or sale of Registrable Securities pursuant to a Shelf Registration Statement (each, a “Shelf Take-Down”) may be initiated by any Holder (or Holders, as the case may be) that has Registrable Securities registered for sale on such Shelf Registration Statement. The Company shall effect such Shelf Take-Down as promptly as practicable in accordance with this Agreement and except as set forth in Section 2.02(f)(iii) with respect to Marketed Underwritten Shelf Take-Downs, each such Requesting Holder shall not be required to permit the offer and sale of Registrable Securities by other Holders in connection with any such Shelf Take-Down initiated by such Requesting Holder(s).

(ii) Subject to Section 2.12, if the Requesting Holder(s) so elects by written request to the Company, a Shelf Take-Down, with respect to which the anticipated aggregate offering price to the public (calculated based upon the Market Price of the Registrable Securities on the date on which the Company receives such written request) of the Registrable Securities that the Requesting Holder(s) request to include in such Shelf Take-Down is at least $10 million (or $20 million in the case of a Marketed Underwritten Shelf Take Down), shall be in the form of an Underwritten Offering (an “Underwritten Shelf Take-Down Notice”), and the Company shall amend or supplement the applicable Shelf Registration Statement for such purpose as soon as practicable. Subject to clause (iii) below, such Requesting Holder(s) shall have the right to select, subject to the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), the managing underwriter or underwriters to administer such offering.

(iii) If the plan of distribution set forth in any Underwritten Shelf Take-Down Notice includes a customary “road show” (including an “electronic road show”) or other substantial marketing effort by the Company and the underwriters over a period expected to exceed 48 hours (a “Marketed Underwritten Shelf Take-Down”), upon delivery of such Underwritten Shelf Take-Down Notice (but in no event more than three (3) Business Days thereafter), the Company shall promptly deliver a written notice (a “Marketed Underwritten Shelf Take-Down Notice”) of such Marketed Underwritten Shelf Take-Down to all Holders with Registrable Securities on the Shelf Registration Statement (other than the Requesting Holder(s)), and the Company shall include in such Marketed Underwritten Shelf Take-Down all such

 

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Registrable Securities of such Holders that are Registered on such Shelf Registration Statement for which the Company has received written requests, which requests must specify the aggregate amount of such Registrable Securities of such Holder to be offered and sold pursuant to such Marketed Underwritten Shelf Take-Down, for inclusion therein within ten (10) days after the date that such Marketed Underwritten Shelf Take-Down Notice has been delivered; provided, that if the managing underwriter or underwriters of any proposed Marketed Underwritten Shelf Take-Down informs the Holders that have requested to participate in such Marketed Underwritten Shelf Take-Down that, in its or their good faith opinion, the number of securities which such Holders intend to include in such offering exceeds the Maximum Offering Size, then the Company shall include in such registration: (i) first, Registrable Securities that are requested to be included in such registration by the Requesting Holder and the other Holders pursuant to this Section 2.02(f)(iii), pro rata on the basis of the relative number of Registrable Securities owned at such time by each Holder seeking to participate in the Marketed Underwritten Shelf Take-Down; and (ii) second, after all of the Registrable Securities requested to be included in clause (i) are included, the Company Shares or other securities to be issued by the Company or held by any holder thereof with a contractual right to include such Company Shares or other securities in such registration that can be sold without having an adverse effect on such Marketed Underwritten Shelf Take-Down, pro rata on a basis based on the number of Company Shares or other securities to be sold. The Holders of a majority of the Registrable Securities to be included in any Marketed Underwritten Shelf Take-Down pursuant to this Agreement shall have the right to select, subject to the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), the managing underwriter or underwriters to administer such offering. No holder of securities of the Company shall be permitted to include such holder’s securities in any Marketed Underwritten Shelf Take-Down except for Holders who timely request, in accordance with this clause (iii), to include Registrable Securities in such Marketed Underwritten Shelf Take-Down. Additionally, in connection with any Shelf Take-Down taking the form of a “block trade”, the Company agrees to use its reasonable best efforts to timely furnish any information or take any actions reasonably requested by the Holders in connection with such a block trade, including consummating such transaction on an expedited basis; provided that if any such actions include the provision of the opinions or comfort letters contemplated by Section 2.05(a)(xiv) or (xv) then such block trade shall be deemed an Underwritten Shelf Take-Down for purposes of the limitations set forth in the proviso in the last sentence of Section 2.02(f)(iv).

(iv) Each Holder shall be permitted to withdraw all or part of its Registrable Securities from a Shelf Take-Down at any time prior to the sale of the Registrable Securities (in the case of a non-Underwritten Shelf Take-Down) or execution of the underwriting agreement (in the case of an Underwritten Shelf Take-Down), in each case by giving written notice to the Company of its request to withdraw The Company shall pay all Registration Expenses in connection with a Shelf Take-Down; provided however that if a Requesting Holder or its Affiliates withdraw all or part of their Registrable Securities from an Underwritten Shelf Take-Down it shall nevertheless be counted as an Underwritten Shelf Take-Down (or Marketed Underwritten Shelf Take-Down as the case may be) unless either (i) such Requesting Holder and its affiliates reimburse the Company for all Registration Expenses incurred related to the Shelf Registration up to the date of withdrawal, (ii) the withdrawal is requested within 15 days of receipt of a Suspending Officer’s Certificate or (iii) if the Maximum Offering Size determined in accordance with Section 2.01(f) is less than fifty percent (50%) of the number of Registrable Securities of the Requesting Holder(s) sought to be included in such Shelf Registration. Subject to Section 2.12, the number of Shelf Take-Downs that a Holder (or Holders, as the case may be) can initiate is unlimited; provided that in no event shall the Company be required to effect more than two (2) Underwritten Shelf Take-Downs or one (1) Marketed Underwritten Shelf Take-Down, in each case, in any 12 months period.

 

 

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(g) Automatic Shelf Registration Statements. Subject to Sections 2.01(a), 2.02(a) and 2.02(b), upon the Company becoming aware that it has become a Well-Known Seasoned Issuer (it being understood that the Company shall independently verify whether it has become a Well-Known Seasoned Issuer at the end of each calendar month ending after the third anniversary of this Agreement), (i) the Company shall give written notice to all of the Holders as promptly as practicable but in no event later than ten (10) Business Days thereafter, and such notice shall describe, in reasonable detail, the basis on which the Company has become a Well-Known Seasoned Issuer, and (ii) the Company shall as promptly as practicable and subject to any Shelf Suspension, Register, under an Automatic Shelf Registration Statement, the sale of all of the Registrable Securities in accordance with the terms of this Agreement. The Company shall use its reasonable best efforts to file such Automatic Shelf Registration Statement as promptly as practicable but in no event later than twenty (20) Business Days after it becomes a Well-Known Seasoned Issuer, and to cause such Automatic Shelf Registration Statement to remain effective thereafter until the earlier of the date (x) on which all of the securities covered by such Shelf Registration Statement are no longer Registrable Securities and (y) on which the Company cannot extend the effectiveness of such Shelf Registration Statement because it is no longer eligible for use of Form S-3. The Company shall give written notice of filing such Registration Statement to all of the Holders as promptly as practicable thereafter. At any time after the filing of an Automatic Shelf Registration Statement by the Company, if it is reasonably likely that it will no longer be a Well-Known Seasoned Issuer as of a future determination date (the “Determination Date”), as promptly as practicable and at least thirty (30) days prior to such Determination Date, the Company shall (A) give written notice thereof to all of the Holders and (B) use its reasonable best efforts to file a Registration Statement with respect to a Shelf Registration in accordance with this Section 2.02, treating all selling stockholders identified as such in the Automatic Shelf Registration Statement (and amendments or supplements thereto) as Requesting Holders and use its reasonable best efforts to have such Registration Statement declared effective. Any Registration pursuant to this Section 2.02(g) shall be deemed a Shelf Registration for purposes of this Agreement; provided, however that any Registration pursuant to this Section 2.02(g) shall not be counted as an additional Demand Registration for purposes of subclause (i) in Section 2.01(a).

(h) Registration of New Convertible Notes and Guaranteed Notes. If so requested by any New Convertible Note Holders or the Guaranteed Notes Holders that are Holders under this Agreement, the Company shall use its reasonable best efforts to amend or supplement an effective Shelf Registration Statement (including an Automatic Shelf Registration Statement) to include such New Convertible Notes or Guaranteed Notes, as applicable, as securities registered thereunder and any such Holder as a selling securityholder with respect to the New Convertible Notes or Guaranteed Notes, as applicable (and provisions of Section 2.02 above shall apply to the New Convertible Notes or Guaranteed Notes, as applicable, in the same manner as they do to other Registrable Securities); provided that Holders shall not be entitled to Demand Registration pursuant to Section 2.01 with respect to the registration of the New Convertible Notes or the Guaranteed Notes.

 

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SECTION 2.03. Piggyback Registration.

(a) Participation. If the Company at any time proposes to file a Registration Statement with respect to any offering of its equity securities for its own account or for the account of any other Persons (other than pursuant to (i) a Registration Statement filed under Section 2.01 or Section 2.02, it being understood that this clause (i) does not limit the rights of Holders to make written requests pursuant to Section 2.01 or Section 2.02 or otherwise limit the applicability thereof, except as otherwise provided herein, (ii) a Registration Statement on Form S-4 or Form S-8, (iii) a Registration of securities solely (a) relating to an offering and sale to employees, directors or consultants of the Company or its Subsidiaries pursuant to any employee stock plan or other employee benefit plan arrangement or (b) solely for the sale of securities, the proceeds of which will be used solely to fund an acquisition, (iv) a Registration not otherwise covered by clause (ii) above pursuant to which the Company is offering to exchange its own securities for other securities, (v) a Registration Statement relating solely to dividend reinvestment or similar plans or (vi) a Shelf Registration Statement pursuant to which only the initial purchasers and subsequent transferees of debt securities of the Company or any of its Subsidiaries that are convertible or exchangeable for Company Shares and that are initially issued pursuant to Rule 144A and/or Regulation S (or any successor provisions) of the Securities Act may resell such debt securities and sell the Company Shares into which such debt securities may be converted or exchanged) (any such offering, other than pursuant to a Registration described in the foregoing clauses (i)-(vi), a “Company Public Sale”), then, (A) as soon as practicable (but in no event less than fifteen (15) days prior to the proposed date of filing of such Registration Statement), the Company shall give written notice of such proposed filing to all Holders, and such notice shall offer each Holder the opportunity to Register under such Registration Statement such number of Registrable Securities as such Holder may request in writing delivered to the Company within five (5) Business Days of delivery of such written notice by the Company. Subject to Section 2.03(b), the Company shall use reasonable best efforts to include in such Registration Statement all such Registrable Securities that are requested by Holders to be included therein in compliance with the immediately foregoing sentence (a “Piggyback Registration”); provided, that if at any time after giving written notice of its intention to Register any equity securities and prior to the effective date of the Registration Statement filed in connection with such Piggyback Registration, the Company shall determine for any reason not to Register or to delay Registration of the equity securities covered by such Piggyback Registration, the Company shall give written notice of such determination to each Holder that had requested to Register its, his or her Registrable Securities in such Registration Statement and, thereupon, (1) in the case of a determination not to Register, shall be relieved of its obligation to Register any Registrable Securities in connection with such Registration (but not from its obligation to pay the Registration Expenses in connection therewith, to the extent payable) and (2) in the case of a determination to delay Registering, shall be permitted to delay Registering any Registrable Securities, for the same period as the delay in Registering the other equity securities covered by such Piggyback Registration. If the offering pursuant to such Registration Statement is to be underwritten, the Company shall so advise the Holders as a part of the written notice given pursuant this Section 2.03(a), and each Holder making a request for a Piggyback Registration pursuant to this Section 2.03(a) must, and the Company shall make such arrangements with the managing underwriter or underwriters so that each such Holder may, participate in such Underwritten Offering, subject to the conditions of Section 2.03(b). If the offering pursuant to such Registration Statement is to be on any other basis, the Company shall

 

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so advise the Holders as part of the written notice given pursuant to this Section 2.03(a), and each Holder making a request for a Piggyback Registration pursuant to this Section 2.03(a) must, and the Company shall make such arrangements so that each such Holder may, participate in such offering on such basis, subject to the conditions of Section 2.03(b). Each Holder shall be permitted to withdraw all or part of its Registrable Securities from a Piggyback Registration at any time prior to the effectiveness of such Registration Statement.

(b) Priority of Piggyback Registration. If the managing underwriter or underwriters of any proposed Underwritten Offering of Registrable Securities included in a Piggyback Registration informs the Company and the Holders that have requested to participate in such Piggyback Registration in writing that, in its or their good-faith opinion, the number of securities which such Holders and any other Persons intend to include in such offering exceeds the Maximum Offering Size, then the aggregate number of securities to be included in such Registration shall be (i) first, all of the securities that the Company proposes to sell, (ii) second, the number of Registrable Securities that, in the good-faith opinion of such managing underwriter or underwriters, can be sold without exceeding the Maximum Offering Size, which number shall be allocated pro rata on the basis of the relative number of Registrable Securities owned at such time by each Holder seeking to participate in the Piggyback Registration and (iii) third, any other securities eligible for inclusion in such Registration that, in the good-faith opinion of the managing underwriter or underwriters, can be sold without exceeding the Maximum Offering Size.

(c) No Effect on Demand and Shelf Registrations. Subject to the provisions of this Agreement, no Registration of Registrable Securities effected pursuant to a request under this Section 2.03 shall be deemed to have been effected pursuant to Section 2.01 or Section 2.02 or shall relieve the Company of its obligations under Section 2.01 or Section 2.02.

SECTION 2.04. Black-out Periods.

(a) Black-out Periods for Holders. In the case of any Company Public Sale or an offering of Registrable Securities pursuant to Section 2.01 or Section 2.02 that is an Underwritten Offering, each Holder that beneficially owns (as determined in accordance with SEC Guidance) in excess of 5% of the Common Stock and each Participating Holder agree with the Company, if requested by the managing underwriter or underwriters in such Underwritten Offering, to execute a lock-up agreement in customary form, in which such Holder may be required to agree not to (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Company Shares (including Company Shares that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Commission and Company Shares that may be issued upon exercise of any Company Share Equivalents) or securities convertible into or exercisable or exchangeable for Company Shares or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Company Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Company Shares or other securities, in cash or otherwise, in each case, during the period that is ninety (90) days (or such lesser period as may be reasonably requested by the managing underwriter or underwriters) after the date of the commencement of such Underwritten Offering, to the extent

 

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timely notified in writing by the Company or the managing underwriter or underwriters (or such other period as may be reasonably requested by the managing underwriter or underwriters); provided, that the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on (A) the Company, (B) the Chief Executive Officer and/or the Chief Financial Officer of the Company (or persons in substantially equivalent positions), in their capacities as such, or (C) on any other holder of more than 5% of the Company Shares, in each case, in connection with such Underwritten Offering; provided, further, that nothing herein will prevent any Participating Holder that is a partnership, limited liability company, corporation or other entity from making a distribution of Registrable Securities to the partners, members, stockholders or other equity holders thereof or a transfer to Affiliates that are otherwise in compliance with the applicable securities laws, so long as such distributees or transferees agree to be bound by the restrictions set forth in this Section 2.04(a), or from participating in any merger, acquisition or similar change of control transaction. Notwithstanding the foregoing, any lock-up agreement to be executed shall contain additional exceptions as may be agreed by the Participating Holders and the managing underwriter. This Section 2.04 shall not prohibit any transaction by any Participating Holder that is permitted by its lock-up agreement entered into in connection with an Underwritten Offering with the managing underwriter or underwriters in such Underwritten Offering (as such lock-up agreement is modified or waived by such managing underwriter or underwriters from time to time). The Company may impose stop-transfer instructions with respect to the Company Shares (or other securities) subject to the foregoing restriction until the end of the period referenced above. Notwithstanding anything to the contrary in this Agreement, and subject to Section 2.12, the time periods for which the Company shall be required to maintain the effectiveness of a Registration Statement or otherwise effect an offering of securities pursuant to Section 2.01 or Section 2.02 shall be extended for a period equal to the lock-up period required under this Section 2.04(a) to the extent any Holder makes a request for an offering or sale of securities under any such provision while any lock-up provision is in effect.

(b) Black-out Period for the Company. In the case of an offering of Registrable Securities pursuant to Section 2.01 or Section 2.02 that is an Underwritten Offering, the Company agrees, if requested by a Requesting Holder (or Requesting Holders, as the case may be) or the managing underwriter or underwriters in such Underwritten Offering, not to (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Company Shares (and any Company Shares that may be issued upon exercise of any Company Share Equivalents) or securities convertible into or exercisable or exchangeable for Company Shares or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Company Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Company Shares or other securities, in cash or otherwise, in each case, during the period beginning seven (7) days before, and ending ninety (90) days (or such lesser period as may be reasonably requested by the managing underwriter or underwriters and agreed to by the Requesting Holder(s)) after, the date of the commencement of such Underwritten Offering, to the extent timely notified in writing by a Requesting Holder or the managing underwriter or underwriters, as the case may be; provided, that the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on (i) the Chief Executive Officer and/or the Chief Financial Officer of the Company (or persons in

 

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substantially equivalent positions), in their capacities as such, or (ii) on any other holder of more than 5% of the Company Shares, in each case, in connection with such Underwritten Offering. If requested by the Requesting Holder(s) or the managing underwriter or underwriters of any such Underwritten Offering, the Company shall execute a separate lock-up agreement to the foregoing effect. This Section 2.04 shall not prohibit any transaction by the Company that is permitted by its lock-up agreement or provision in an underwriting agreement or otherwise entered into in connection with an Underwritten Offering with the managing underwriter or underwriters in such Underwritten Offering (as such lock-up agreement or provision is modified or waived by such managing underwriter or underwriters from time to time). Notwithstanding the foregoing, the Company may effect a public sale or distribution of securities of the type described above and during the periods described above if such sale or distribution is made pursuant to registrations on Form S-4 or Form S-8 or as part of any registration of securities for offering and sale to employees, directors or consultants of the Company and its Subsidiaries pursuant to any employee stock plan or other employee benefit plan arrangement.

SECTION 2.05. Registration Procedures.

(a) In connection with the Company’s Registration obligations under Sections 2.01, 2.02 and 2.03 and subject to the applicable terms and conditions set forth therein, the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the plan of distribution requested by the Participating Holder(s) and set forth in the applicable Registration Statement as expeditiously as reasonably practicable, and in connection therewith the Company shall:

(i) prepare the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing a Registration Statement, Prospectus or any Issuer Free Writing Prospectus, or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and the Participating Holders, if any, copies of all documents prepared to be filed, and provide such underwriters and the Participating Holders and their respective counsel with a reasonable opportunity to review and comment on such documents prior to their filing and (y) not file any Registration Statement or Prospectus or amendments or supplements thereto to which any Participating Holder or the underwriters, if any, shall reasonably object; provided, that, if the Registration is pursuant to a Registration Statement on Form S-1 or Form S-3 or any similar short-form Registration Statement, the Company shall include in such Registration Statement such additional information for marketing purposes as any managing underwriter reasonably requests in writing; provided further, that the Company may exclude such additional information from the Registration Statement if in its opinion, in consultation with outside legal counsel, such information contains a material misstatement of fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or would otherwise not be customary for similar offerings;

(ii) prepare and file with the Commission such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by any Participating Holder (to the extent such request relates to information relating to such Participating Holder), or (y) necessary to keep such Registration effective for the period

 

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of time required by this Agreement, and comply with provisions of the applicable securities laws and SEC Guidance with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement, and prior to the filing of such amendments and supplements, furnish such amendments and supplements to the underwriters, if any, and the Participating Holders, if any, and provide such underwriters and the Participating Holders and their respective counsel with an adequate and appropriate opportunity to review and comment on such amendments and supplements prior to their filing;

(iii) promptly notify the Participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed, (B) of any written comments by the Commission or any request by the Commission or any other Governmental Authority for amendments or supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance or threatened issuance by the Commission of any stop order suspending or threatening to suspend the effectiveness of such Registration Statement or any order by the Commission or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction;

(iv) promptly notify the Participating Holders and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement, the Prospectus included in such Registration Statement (as then in effect) or any Issuer Free Writing Prospectus (when taken together with the Prospectus) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement, Prospectus or Issuer Free Writing Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the Commission, and furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;

 

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(v) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;

(vi) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the Participating Holder(s) agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment;

(vii) furnish to each Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment, post-effective amendment or supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including any incorporated by reference), provided, that the Company, in its discretion, may satisfy its obligation to furnish any such documents to the Participating Holders and underwriters by filing such documents with the Commission so they are publicly available on the Commission’s EDGAR website;

(viii) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus), any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Participating Holder or underwriter, provided, that the Company, in its discretion, may satisfy its obligation to deliver any such documents to the Participating Holders and underwriters by filing such documents with the Commission so they are publicly available on the Commission’s EDGAR website;

(ix) on or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to register or qualify, and cooperate with the Participating Holders, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as any Participating Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by Section 2.01(d) and Section 2.02(c), whichever is applicable, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;

 

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(x) cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;

(xi) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other Governmental Authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;

(xii) make such representations and warranties to the Participating Holders and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings;

(xiii) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as any Participating Holder(s) or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities;

(xiv) obtain for delivery to the underwriter or underwriters, an opinion or opinions from counsel for the Company dated the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such underwriters and their respective counsel and use commercially reasonable efforts to have copies of such opinions provided to the Participating Holder on a non-reliance basis;

(xv) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Participating Holders, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the date of the closing of the Underwritten Offering, as specified in the underwriting agreement;

(xvi) cooperate with each Participating Holder and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;

(xvii) use its reasonable best efforts to comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;

(xviii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;

 

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(xix) use its reasonable best efforts to cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company Shares are then listed or quoted and on each inter-dealer quotation system on which any of the Company Shares are then quoted;

(xx) in connection with an Underwritten Offering, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by any Participating Holder, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such Participating Holder(s) or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; and

(xxi) in the case of an Underwritten Offering in an amount of at least $20 million, cause appropriate officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such Underwritten Offering and otherwise use reasonable best efforts to facilitate, cooperate with, and participate in each proposed Underwritten Offering contemplated herein and customary selling efforts related thereto provided, that such participation shall not unreasonably interfere with the business operations of the Company. Notwithstanding anything to the contrary contained herein, in no event shall the Company be obligated to cause its officers to participate in any road show presentation occurring within one hundred twenty (120) days after the consummation of a previous Underwritten Offering that included a roadshow presentation in which officers of the Company were participants.

In addition, for so long as the Holders own Registrable Securities, the Company shall provide reasonable cooperation upon request of the Holders to enable the Holders to enter into a trading plan under Rule 10b5-1 of the Exchange Act, including to the extent permitted by applicable law, ensuring that its insider trading policy (if applicable to the Holders or the Holders’ designated director, if any) permits implementation of such a trading plan.

(b) The Company may require each Participating Holder to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing. Each Participating Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.

(c) Each Participating Holder agrees that, upon delivery of any notice by the Company of the happening of any event of the kind described in Section 2.05(a)(iii)(C), (D), or (E) or Section 2.05(a)(iv), such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until (i) if such notice relates to an event of the kind described in Section 2.05(a)(iv), such Participating Holder’s receipt of the

 

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copies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(iv), (ii) such Participating Holder is advised in writing by the Company that the use of the Prospectus or Issuer Free Writing Prospectus, as the case may be, may be resumed, (iii) if such notice relates to an event of the kind described in Section 2.05(a)(iii)(C) or (E), such Participating Holder is advised in writing by the Company of the termination, expiration or cessation of the applicable order or suspension and (iv) if such notice relates to an event of the kind described in Section 2.05(a)(iii)(D), such Participating Holder is advised in writing by the Company that the representations and warranties of the Company in the applicable underwriting agreement are true and correct in all material respects. The Company may impose stop-transfer instructions with respect to the Registrable Securities subject to the foregoing restriction until the end of the period referenced above. In the event the Company shall give any such notice, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(iv) or is advised in writing by the Company that the use of the Prospectus or Issuer Free Writing Prospectus may be resumed.

SECTION 2.06. Underwritten Offerings.

(a) Demand Registrations. If requested by the underwriters for any Underwritten Offering requested by any Participating Holder pursuant to a Registration under Section 2.01, the Company shall enter into an underwriting agreement with such underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the Company, each Participating Holder and the underwriters, and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 2.09. Each Participating Holder shall cooperate reasonably with the Company in the negotiation of such underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Any such Participating Holder shall be required to make representations or warranties to, and other agreements with, the Company and the underwriters in connection with such underwriting agreement as are customarily made by selling stockholders in secondary underwritten public offerings, including representations, warranties or agreements regarding such Participating Holder (but not such Participating Holder’s knowledge about the Company), such Participating Holder’s title to the Registrable Securities, such Participating Holder’s authority to sell the Registrable Securities, such Participating Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, receipt of all required consents and approvals with respect to the entry into such underwriting agreement and the sale of such Registrable Securities and any other representations required to be made by such Participating Holder under applicable law, rule or regulation, and the aggregate amount of the liability of such Participating Holder in connection with such underwriting agreement shall not exceed such Participating Holder’s net proceeds after underwriting commissions and discounts (but before any taxes and expenses which may be payable by such Participating Holder) from such Underwritten Offering.

 

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(b) Shelf Registrations. If requested by the underwriters for any Underwritten Shelf Take-Down requested by any Holder pursuant to a Registration under Section 2.02(f)(iii), the Company shall enter into an underwriting agreement with such underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the Company, each Participating Holder and the underwriters, and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 2.09. Each Participating Holder shall cooperate reasonably with the Company in the negotiation of such underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Any such Participating Holder shall be required to make representations or warranties to, and other agreements with, the Company and the underwriters in connection with such underwriting agreement as are customarily made by selling stockholders in secondary underwritten public offerings, including representations, warranties and agreements regarding such Participating Holder (but not such Participating Holder’s knowledge about the Company), such Participating Holder’s title to the Registrable Securities, such Participating Holder’s authority to sell the Registrable Securities, such Participating Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, receipt of all required consents and approvals with respect to the entry into such underwriting agreement and the sale of such Registrable Securities and any other representations required to be made by such Participating Holder under applicable law, rule or regulation, and the aggregate amount of the liability of such Participating Holder in connection with such underwriting agreement shall not exceed such Participating Holder’s net proceeds after underwriting commissions and discounts (but before any taxes and expenses which may be payable by such Participating Holder) from such Underwritten Offering.

(c) Piggyback Registrations. If the Company proposes to Register any of its securities under the Securities Act as contemplated by Section 2.03 and such securities are to be distributed in an Underwritten Offering through one or more underwriters, the Company shall, if requested by any Holder pursuant to Section 2.03 and subject to the provisions of Section 2.03(b), use its reasonable best efforts to arrange for such underwriters to include on the same terms and conditions that apply to the other sellers in such Registration all the Registrable Securities to be offered and sold by such Holder among the securities of the Company to be distributed by such underwriters in such Registration. Any such Participating Holder shall not be required to make any representations or warranties to, or agreements with, the Company or the underwriters in connection with such underwriting agreement other than customary representations, warranties or agreements regarding such Participating Holder (but not such Participating Holder’s knowledge about the Company), such Participating Holder’s title to the Registrable Securities, such Participating Holder’s authority to sell the Registrable Securities, such Participating Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, receipt of all required consents and approvals with respect to the entry into such underwriting agreement and the sale of such Registrable Securities or any other representations required to be made by such Participating Holder under applicable law, rule or regulation, and the aggregate amount of the liability of such Participating Holder in connection with such underwriting agreement shall not exceed such Participating Holder’s net proceeds after underwriting commissions and discounts (but before any taxes and expenses which may be payable by such Participating Holder) from such Underwritten Offering.

 

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(d) Participation in Underwritten Registrations. Subject to the provisions of Sections 2.06(a),(b) and (c) above, no Person may participate in any Underwritten Offering hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Persons entitled to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

(e) Price and Underwriting Discounts. In the case of an Underwritten Offering under Section 2.01 or Section 2.02, the price, underwriting discount and other financial terms for the Registrable Securities shall be determined by the Requesting Holder(s) participating in such Underwritten Offering.

SECTION 2.07. No Inconsistent Agreements; Additional Rights(a) . The Company is not currently a party to, and shall not hereafter enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders by this Agreement, including allowing any other holder or prospective holder of any securities of the Company registration rights in the nature or substantially in the nature of those set forth in Section 2.01, Section 2.02 or Section 2.03 that would have priority over the Registrable Securities with respect to the inclusion of such securities in any Registration (except to the extent such registration rights are solely related to Registrations of the type contemplated by Section 2.03(a)(ii) through (iv)) or (b) demand registration rights in the nature or substantially in the nature of those set forth in Section 2.01 or Section 2.01 that are exercisable prior to such time as the Requesting Holders can first exercise their rights under Section 2.01 or Section 2.02.

SECTION 2.08. Registration Expenses. All expenses incident to the Company’s performance of or compliance with this Agreement shall be paid by the Company (including, for the avoidance of doubt, in connection with any Demand Registration, Shelf Registration or any Shelf Take-Down), including (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with the Commission or FINRA, including, if applicable, the reasonable and documented fees and expenses of any “qualified independent underwriter,” as such term is defined in FINRA Rule 5121 (or any successor provision) and the reasonable and documented fees and expenses of such qualified independent underwriter’s counsel in an aggregate amount not to exceed $50,000, (ii) all fees and expenses in connection with compliance with any securities or “Blue Sky” laws (including fees and disbursements of one firm of counsel for the underwriters in connection with “Blue Sky” qualifications of the Registrable Securities up to an aggregate maximum of $15,000), (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses and Issuer Free Writing Prospectuses), (iv) all fees and disbursements of counsel for the Company and of all independent certified public accountants of the Company (including the expenses of any special audits incidental to or required by any Registration or qualification and cold comfort letters required by or incident to such performance), (v) Securities Act liability insurance or similar insurance if the Company so desires, (vi) all fees and expenses incurred in connection with the listing of Registrable Securities on any securities exchange or quotation of the Registrable Securities on any inter-dealer quotation system, (vii) all of the Company’s internal expenses

 

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(including all salaries and expenses of its officers and employees performing legal or accounting duties), (viii) all expenses incurred by the Company and its directors and officers related to any analyst or investor presentations or any “road-shows” for any Underwritten Offering, including all travel, meals and lodging, (ix) reasonable and documented fees, out-of-pocket costs and expenses of one firm of counsel selected by the Holder(s) of a majority of the Registrable Securities covered by each Registration Statement in an aggregate amount not to exceed, $75,000, (x) fees and disbursements of underwriters customarily paid by issuers and sellers of securities, but excluding any underwriting fees, discounts and commissions attributable to the sale of Registrable Securities, (xi) transfer agents’ and registrars’ fees and expenses and the fees and expenses of any other agent or trustee appointed in connection with such offering and (xii) any other fees and disbursements customarily paid by the issuers of securities. All such fees and expenses are referred to herein as “Registration Expenses.” The Company shall not be required to pay any underwriting fees, discounts and commissions, or any transfer taxes or similar taxes or charges, if any, attributable to the sale of Registrable Securities, and all such fees, discounts, commissions, taxes and charges related to any Registrable Securities shall be the sole responsibility of the Holder of such Registrable Securities.

SECTION 2.09. Indemnification.

(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each of the Holders, each of their respective direct or indirect partners, members or shareholders and each of such partner’s, member’s or shareholder’s partners members or shareholders and, with respect to all of the foregoing Persons, each of their respective Affiliates, employees, directors, officers, trustees or agents and each Person who controls (within the meaning of the Securities Act or the Exchange Act) such Persons and each of their respective Representatives (collectively, the “Stockholder Parties”) from and against any and all losses, penalties, judgments, suits, costs, claims, damages, liabilities and expenses, joint or several (including reasonable and documented attorneys’, accountants’ and experts fees and expenses and costs and expenses of investigation) (each, a “Loss” and collectively “Losses”) insofar as such Losses arise out of or are relating to (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment or supplement thereto or any documents incorporated by reference therein, which shall include any information that has been deemed to be a part of any Prospectus under Rule 159 under the Securities Act), any Issuer Free Writing Prospectus or amendment or supplement thereto and (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, and the Company will reimburse, as incurred, each such Stockholder Party for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action; provided, that the Company shall not be liable to any Stockholder Party to the extent that any such Loss arises out of or is relating to an untrue statement or alleged untrue statement or omission or alleged omission made in any such Registration Statement or other document in reliance upon and in conformity with written information furnished to the Company by such indemnified party expressly for use in the preparation thereof (including without limitation any written information provided for inclusion in the Registration Statement

 

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pursuant to Section 2.05(a)(i)). This indemnity shall be in addition to any liability the Company may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any Stockholder Party and shall survive the transfer of such securities by such Holder. The Company shall also indemnify the underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) as may be reasonably requested by any such parties and on customary terms.

(b) Indemnification by the Participating Holders. Each Participating Holder agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act), and each other Holder, each of such other Holder’s respective direct or indirect partners, members or shareholders and each of such partner’s, member’s or shareholder’s partners members or shareholders and, with respect to all of the foregoing Persons, each of their respective Affiliates, employees, directors, officers, trustees or agents and each Person who controls (within the meaning of the Securities Act or the Exchange Act) such Persons and each of their respective Representatives from and against (i) any Losses resulting from any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Participating Holder’s Registrable Securities were registered under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment or supplement thereto or any documents incorporated by reference therein, which shall include any information that has been deemed to be a part of any Prospectus under Rule 159 under the Securities Act) or any Issuer Free Writing Prospectus or amendment or supplement thereto, or (ii) any Losses resulting from any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, in each case with respect to clauses (i) and (ii) to the extent, but only to the extent, that such untrue statement or omission is contained in information furnished in writing by such Participating Holder or Stockholder Party to the Company specifically for inclusion in such Registration Statement (including, without limitation, any written information provided for inclusion in the Registration Statement pursuant to Section 2.05(a)(i)) and has not been corrected in a subsequent writing prior to or concurrently with the sale of the Registrable Securities to the Person asserting the claim, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) was made in such Registration Statement, Prospectus, offering circular, Issuer Free Writing Prospectus or other document, in reliance upon and in conformity with written information furnished to the Company by such Participating Holder expressly for use therein, (iii) in the event that the Company notifies such Participating Holder in writing of the occurrence of an event of the type specified in Section 2.05(a)(iv), to the extent, and only to the extent, of any Losses resulting from such Participating Holder’s use of an outdated or defective Prospectus or Issuer Free Writing Prospectus after the date of such notice and prior to the date that its disposition of Registrable Securities pursuant to such Registration Statement may be resumed pursuant to Section 2.05(c) or, if applicable, such Participating Holder’s failure to use the supplemented or amended Prospectus or Issuer Free Writing Prospectus delivered to it pursuant to Section 2.05(a)(iv), but only to the extent that the use of such supplemented or amended Prospectus or Issuer Free

 

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Writing Prospectus would have corrected the misstatement or omission giving rise to such Loss, and (iv) in the event that the Company delivers to such Participating Holder a Postponing Officer’s Certificate or a Suspending Officer’s Certificate, to the extent, and only to the extent, of any Losses resulting from such Participating Holder’s disposition of Registrable Securities pursuant to such Registration Statement after the date of such certificate in contravention of the applicable restrictions under Sections 2.01(b) or 2.02(e). In no event shall the liability of such Participating Holder hereunder be greater in amount than the dollar amount of the net proceeds after underwriting commissions and discounts (but before any taxes and expenses which may be payable by such Participating Holder) received by such Participating Holder under the sale of Registrable Securities giving rise to such indemnification obligation.

(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification under this Section 2.09 shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations hereunder only to the extent, if at all, that it is actually and materially prejudiced by reason of such failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any Person entitled to indemnification hereunder shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (A) the indemnifying party has agreed in writing to pay such fees or expenses, (B) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after delivery of notice of such claim from the Person entitled to indemnification hereunder and employ counsel reasonably satisfactory to such Person, (C) the indemnified party has reasonably concluded (based upon advice of independent outside counsel) that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, or (D) in the reasonable judgment of any such indemnified party (based upon advice of independent outside counsel), an actual or potential conflict of interest exists between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). If the indemnifying party assumes the defense, the indemnifying party shall not have the right to settle such action, consent to entry of any judgment or enter into any settlement, in each case without the prior written consent (not to be unreasonably withheld) of the indemnified party, unless the entry of such judgment or settlement (i) includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional release from all liability in respect to such claim or litigation and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such indemnified party, and provided that any sums payable in connection with such settlement are paid in full by the indemnifying party. The indemnifying party will not be subject to any liability for any settlement made without its prior written consent, but such consent may not be unreasonably withheld. It is understood that the indemnifying party or parties shall not, except as specifically set forth in this Section 2.09(c), in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements or other charges of more than one separate firm admitted to practice in such jurisdiction at any one time unless the employment of more than one counsel has been authorized in writing by the indemnifying party or parties.

 

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(d) Contribution. If for any reason the indemnification provided for in paragraphs (a) and (b) of this Section 2.09 is unavailable to an indemnified party or insufficient in respect of any Losses referred to therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party or parties on the other hand in connection with the acts, statements or omissions that resulted in such losses, as well as any other relevant equitable considerations. In connection with any Registration Statement filed with the Commission by the Company, the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just or equitable if contribution pursuant to this Section 2.09(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.09(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The amount paid or payable by an indemnified party as a result of the Losses referred to in Sections 2.09(a) and 2.09(b) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 2.09(d), in connection with any Registration Statement filed by the Company, a Participating Holder shall not be required to contribute any amount in excess of the dollar amount of the net proceeds after underwriting commissions and discounts (but before any taxes and expenses which may be payable by such Participating Holder) received by such Participating Holder under the sale of Registrable Securities giving rise to such contribution obligation less any amount paid by such Participating Holders pursuant to Section 2.09(b). Each Participating Holder’s obligation to contribute pursuant to this Section 2.09 is several in the proportion that the proceeds of the offering received by such Participating Holder bears to the total proceeds of the offering received by all such Participating Holders and not joint. If indemnification is available under this Section 2.09, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Sections 2.09(a) and 2.09(b) hereof without regard to the provisions of this Section 2.09(d).

(e) No Exclusivity. The remedies provided for in this Section 2.09 are not exclusive and shall not limit any rights or remedies which may be available to any indemnified party at law or in equity or pursuant to any other agreement.

(f) Survival. The indemnities provided in this Section 2.09 shall survive the transfer of any Registrable Securities by such Holder.

(g) Other Indemnification. Indemnification similar to that specified herein (with appropriate modifications) shall be given by the Company and each Participating Holder with respect to any required registration or other qualification of securities under any law other than the Securities Act or the Exchange Act.

 

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SECTION 2.10. Registration Defaults.

If any of the following events shall occur (each, a “Registration Default”), then the Company shall pay Additional Interest to the Note Holders as contemplated in the Exchange Agreement (Convertibles Notes):

(a) if a Registration Statement is not filed with the Commission on or prior to the Required Filing Date;

(b) if a Registration Statement is filed but not declared effective by the Commission (or has not become effective in the case of an Automatic Shelf Registration Statement) on or prior to the 90th day following the relevant filing date; or

(c) if a Registration Statement has been declared or become effective but ceases to be effective or usable for the offer and sale of the Registrable Securities (without being succeeded immediately by an effective replacement registration statement), or the Registration Statement or Prospectus contained therein ceases to be usable in connection with the resales of Registrable Securities for a period of time which exceeds one hundred twenty (120) days in the aggregate in any consecutive 12-month period because of either a Shelf Suspension or a Demand Suspension or otherwise; provided that, no such Additional Interest shall accrue under this Section 2.10(c) if the Registration Statement ceases to be effective or usable for the offer, sale and resale of Registrable Securities solely as a result of requirement to file a post-effective amendment or supplement to the Prospectus to make changes to the information regarding selling securityholders or the plan of distribution provided for therein; provided further, however, that (i) upon the filing of the Registration Statement (in the case of paragraph (a) above), (ii) upon the effectiveness of the Registration Statement (in the case of paragraph (b) above), or (iii) upon such time as the Shelf Registration Statement which had ceased to remain effective or usable for resales again becomes effective and usable for resales (in the case of paragraph (c) above), the Additional Interest shall cease to accrue.

Commencing on the date any such Registration Default occurs, Additional Interest shall accrue on the aggregate outstanding principal amount of the New Convertible Notes, (i) at a rate of 0.25% per annum for the first 90 days from and including the date such Registration Default occurs and (ii) 0.50% per annum thereafter. Additional Interest shall cease to accrue when, (i) with respect to paragraph (a) above, the relevant filing is made and (ii) with respect to paragraphs (b) and (c) above, the relevant Registration Statement becomes effective.

Any amounts of Additional Interest due pursuant to this Section 2.10 will be payable in cash on the next succeeding Interest Payment Date to Note Holders entitled to receive such Additional Interest on the relevant Record Dates for the payment of interest. If any New Convertible Note ceases to be outstanding during any period for which Additional Interest is accruing, the Company will prorate the Additional Interest payable with respect to such Note. Upon the cure of all Registration Defaults then continuing, the accrual of Additional Interest will automatically cease and the interest rate borne by the New Convertible Notes will revert to the original interest rate at such time.

 

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If Additional Interest would be payable because more than one Registration Default occurs, the Company shall only be obligated to pay Additional Interest for one Registration Default at a given time, such that the Additional Interest owed by the Company shall never exceed 0.50% per annum. Other than the Company’s obligation to pay Additional Interest in accordance with this Section 2.10, the Company will not have any liability for damages with respect to a Registration Default.

Notwithstanding any provision in this Agreement, in no event shall Additional Interest accrue to holders of Common Stock or Warrants issued upon conversion of the New Convertible Notes pursuant to the Exchange Agreement (Convertible Notes).

SECTION 2.11. Rule 144. The Company covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder (or, if the Company is not required to file such reports, it will, upon the reasonable request of any Holder, make publicly available such necessary information for so long as necessary to permit sales pursuant to Rule 144), all to the extent required from time to time to enable the Holders to sell Registrable Securities without Registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144, as such rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the Commission. Upon the reasonable request of a Holder, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements and, if not, the specifics thereof.

SECTION 2.12. Limitation on Registrations and Underwritten Offerings. Notwithstanding the rights and obligations set forth in Section 2.01 and Section 2.02, in no event shall the Company be obligated to take any action to effect a Demand Registration or an Underwritten Shelf Take-Down within one hundred twenty (120) days after the consummation of a previous Demand Registration or Underwritten Shelf Take-Down, respectively.

ARTICLE III

MISCELLANEOUS

SECTION 3.01. Term. This Agreement shall terminate with respect to any Holder when it first ceases to hold any Registrable Securities; provided that Sections 2.08 and 2.09 shall survive termination of this Agreement.

SECTION 3.02. Injunctive Relief. It is hereby agreed and acknowledged that it will be impossible to measure in money the damage that would be suffered if the parties fail to comply with any of the obligations herein imposed on them and that in the event of any such failure, an aggrieved Person will be irreparably damaged and will not have an adequate remedy at law. Any such Person shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity) to injunctive relief, including specific performance, to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law.

 

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SECTION 3.03. Notices. Unless otherwise specified herein, all notices, consents, approvals, reports, designations, requests, waivers, elections and other communications authorized or required to be given pursuant to this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) when transmitted via facsimile, with confirmation of transmission, to the number set out below or on Schedule I, as applicable, (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service, (d) when transmitted via email (including via attached pdf document), with confirmation of receipt, to the email address set out below or on Schedule I, as applicable or (e) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties as applicable, at the address set out below or on Schedule I (or such other address as such Holder may specify by notice to the Company in accordance with this Section 3.02) and the Company at the following addresses:

To the Company:

SEACOR Marine Holdings Inc.

c/o Legal Department

12121 Wickchester Lane

Suite 500

Houston, Texas 77079

Attention: Andrew H. Everett III

Email: aeverett@seacormarine.com

with a copy (which shall not constitute notice) to:

Milbank LLP

55 Hudson Yards

New York, New York 10001

Attention: Brett Nadritch

Email: bnadritch@milbank.com

SECTION 3.04. Recapitalization. The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all equity securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in conversion of, in exchange for or in substitution of, the Registrable Securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. The Company shall cause any successor or assign (whether by merger, consolidation, sale of assets or otherwise) to assume this Agreement or enter into a new registration rights agreement with the Holders on terms substantially the same as this Agreement as a condition of any such transaction.

SECTION 3.05. Amendment. The terms and provisions of this Agreement may only be amended, modified or waived at any time and from time to time by a writing executed by the Company and the Holders of a majority of the Registrable Securities then outstanding; provided, that if any such amendment, modification or waiver shall adversely affect the rights of any Holder, the consent of all such affected Holders shall be required.

 

34


SECTION 3.06. Successors, Assigns and Transferees. The rights and obligations of each party hereto may not be assigned, in whole or in part, without the written consent of the Company; provided, however, that notwithstanding the foregoing, the rights and obligations set forth herein may be assigned, in whole or in part, by any Holder to any of its Affiliates and such transferee shall, with the consent of the transferring Holder, be treated as a “Holder” for all purposes of this Agreement; provided, further, that such transferee shall only be admitted as a party hereunder upon its, his or her execution and delivery of a joinder agreement in substantially the form attached as Exhibit A hereto, agreeing to be bound by the terms and conditions of this Agreement as if such Person were a party hereto (together with any other documents the Holders determine are necessary to make such Person a party hereto), whereupon such Person will be treated as a Holder for all purposes of this Agreement, with the same rights, benefits and obligations hereunder as the transferring Holder with respect to the transferred Registrable Securities (except that if the transferee was a Holder prior to such transfer, such transferee shall have the same rights, benefits and obligations with respect to such transferred Registrable Securities as were applicable to Registrable Securities held by such transferee prior to such transfer).

SECTION 3.07. Binding Effect. Except as otherwise provided in this Agreement, the terms and provisions of this Agreement shall be binding on and inure to the benefit of each of the parties hereto and their respective successors and permitted assigns.

SECTION 3.08. Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any Person not a party hereto (other than those Persons entitled to indemnity or contribution under Section 2.09, each of whom shall be a third party beneficiary thereof) any right, remedy or claim under or by virtue of this Agreement.

SECTION 3.09. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b)) BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

SECTION 3.10. Submission to Jurisdiction; Waiver of Service and Venue. Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the U.S. District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, the New Convertible Notes or any other document, instrument or agreement executed or delivered in connection herewith or therewith, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New

 

35


York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement, the New Convertible Notes or any other document, instrument or agreement executed or delivered in connection herewith or therewith shall affect any right that any of the parties hereto may otherwise have to bring any action or proceeding relating to this Agreement, the New Convertible Notes or any other document, instrument or agreement executed or delivered in connection herewith or therewith against the Company or any of their respective Subsidiaries or any of their respective properties and the property of such Subsidiaries in the courts of any jurisdiction.

(a) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, the New Convertible Notes or any other document, instrument or agreement executed or delivered in connection herewith or therewith in any court referred to in this Section 3.10. Each of the parties hereto and each subsequent Holder of a New Convertible Note by its acceptance of such New Convertible Note, hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(b) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 3.02. Nothing in this Agreement, the New Convertible Notes or any other document, instrument or agreement executed or delivered in connection herewith or therewith will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 3.11. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHER THEORY. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.11.

SECTION 3.12. Immunity Waiver. The Company hereby irrevocably waives, to the fullest extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including, without limitation, immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Agreement.

 

36


SECTION 3.13. Existing RRA Waiver. The parties hereto agree that upon execution of this Agreement the Existing RRA will immediately terminate and be of no further force or effect.

SECTION 3.14. Entire Agreement. This Agreement sets forth the entire agreement among the parties hereto with respect to the subject matter hereof. Any prior agreements or understandings among the parties hereto regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.

SECTION 3.15. Severability. If any provision of this Agreement shall be held to 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 3.16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

SECTION 3.17. Headings. The heading references herein and in the table of contents hereto are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

[Remainder of Page Intentionally Blank]

 

37


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

SEACOR MARINE HOLDINGS INC.
By:   /s/ John Gellert
Name:   John Gellert
Title:   President and Chief Executive Officer

[Signature Page to Registration Rights Agreement]


CEOF II DE I AIV, L.P.,

By:   CEOF II DE AIV GP, LP, its general partner
By:   CEOF II DE GP AIV, L.L.C., its general partner
By:  

/s/ Vipul Amin

Name:   Vipul Amin
Title:   Authorized Person

CEOF II COINVESTMENT (DE), L.P.,

By:   CEOF II DE AIV GP, LP, its general partner
By:   CEOF II DE GP AIV, L.L.C., its general partner
By:  

/s/ Vipul Amin

Name:   Vipul Amin
Title:   Authorized Person

CEOF II COINVESTMENT B (DE), L.P.,

By:   CEOF II DE AIV GP, LP, its general partner
By:   CEOF II DE GP AIV, L.L.C., its general partner
By:  

/s/ Vipul Amin

Name:   Vipul Amin
Title:   Authorized Person

[Signature Page to Registration Rights Agreement]


SCHEDULE I

HOLDERS:

 

CEOF II DE I AIV, L.P.
CEOF II Coinvestment (DE), L.P.
CEOF II Coinvestment B (DE), L.P.


EXHIBIT A

FORM OF JOINDER

THIS JOINDER (this “Joinder”) to the Registration Rights Agreement dated as of [                ], 2022, by and among SEACOR Marine Holdings Inc., a Delaware corporation (the “Company”), and the Persons set forth on Schedule I thereto (the “Registration Rights Agreement”), is made and entered into as of [                ], by and between the Company and [                ] (the “Assuming Holder”). Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Registration Rights Agreement.

WHEREAS, the Assuming Holder has acquired certain Registrable Securities from [                ].

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties to this Joinder hereby agree as follows:

Agreement to be Bound. The Assuming Holder hereby agrees that upon execution of this Joinder, it shall become a party to the Registration Rights Agreement and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Registration Rights Agreement as though an original party thereto and shall be deemed a Holder for all purposes thereof.

Successors and Assigns. Except as otherwise provided herein, this Joinder shall bind and inure to the benefit of and be enforceable by the Company and its successors, heirs and assigns and the Assigning Holder and its successors, heirs and assigns.

Notices. For purposes of Section 3.03 (Notices) of the Registration Rights Agreement, all notices, requests and demands to the Assigning Holder shall be directed to:

[Name]

[Address]

Governing Law. The provisions of Section 3.09 (Governing Law; Jurisdiction; Agent for Service), Section 3.10 (Submission to Jurisdiction; Waiver of Service and Venue), Section 3.11 (Waiver of Jury Trial) and Section 3.16 (Counterparts) of the Registration Rights Agreement are incorporated herein by reference as if set forth in full herein and shall apply to the terms and provisions of this Joinder and the parties hereto mutatis mutandis.

Descriptive Headings. The descriptive headings of this Joinder are inserted for convenience only and do not constitute a part of this Joinder.

*    *    *    *    *


IN WITNESS WHEREOF, the parties hereto have executed this Joinder to the Registration Rights Agreement as of the date first written above.

 

[_____________________]
By:  ______________________________________

Name:

Title:

[HOLDER]
By:  ______________________________________

Name:

Title:

EX-10.1

Exhibit 10.1

EXECUTION VERSION

 

 

 

FRAMEWORK AGREEMENT

by and among

SEACOR MARINE HOLDINGS INC.,

SEACOR MARINE LLC,

SEACOR OFFSHORE LLC,

SEACOR MARINE CAPITAL INC.,

OPERADORA DE TRANSPORTES MARITIMOS, S.A. DE C.V.,

OFFSHORE VESSELS HOLDING, S.A.P.I. DE C.V.,

and

CME DRILLSHIP HOLDINGS DAC

dated as of September 29, 2022

 

 

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I DEFINITIONS

     2  

Section 1.01

  Certain Definitions      2  

Section 1.02

  Other Definitional Provisions      9  

ARTICLE II PURCHASE AND SALE

     10  

Section 2.01

  Purchase and Sale      10  

Section 2.02

  The Closing; Closing Deliveries      11  

ARTICLE III REPRESENTATIONS AND WARRANTIES AS TO THE SEACOR MARINE GROUP

     13  

Section 3.01

  Organization and Standing      13  

Section 3.02

  No Conflicts      13  

Section 3.03

  Financial Statements      13  

Section 3.04

  Governmental Consents      14  

Section 3.05

  Authority; Execution and Delivery; Enforceability      14  

Section 3.06

  Title to Equity Interests and Assets      14  

Section 3.07

  Capitalization      15  

Section 3.08

  Litigation      15  

Section 3.09

  Taxes      15  

ARTICLE IV REPRESENTATIONS AND WARRANTIES AS TO THE OTM GROUP

     15  

Section 4.01

  Organization and Standing      15  

Section 4.02

  No Conflicts      15  

Section 4.03

  Governmental Consents      16  

Section 4.04

  Authority; Execution and Delivery; Enforceability      16  

Section 4.05

  Title to Equity Interests and Assets      16  

Section 4.06

  Financial Ability; Source of Funds      16  

Section 4.07

  Brokerage Fees      16  

ARTICLE V COVENANTS

     17  

Section 5.01

  Confidentiality      17  

Section 5.02

  [Reserved.]      18  

Section 5.03

  Public Announcements      18  

Section 5.04

  Names Following Closing      18  

Section 5.05

  Market Opportunities      18  

Section 5.06

  Right of First Offer      19  

Section 5.07

  Post-Closing Access      19  

Section 5.08

  Delivery of SEACOR Davis Vessel      19  

Section 5.09

  Cooperation for Closing      20  

ARTICLE VI SURVIVAL AND REMEDIES

     20  

Section 6.01

  Survival      20  

Section 6.02

  Indemnification by SMHI      20  

Section 6.03

  Indemnification by OTM      21  

Section 6.04

  Procedures      21  

Section 6.05

  Exclusive Remedy and Release      22  

Section 6.06

  Additional Indemnification Provisions      22  

 

-i-


Section 6.07

  Limitation on Liability      22  

Section 6.08

  Mitigation      22  

Section 6.09

  Disclaimer      23  

ARTICLE VII MISCELLANEOUS

     23  

Section 7.01

  Notices      23  

Section 7.02

  Assignment      24  

Section 7.03

  Severability      24  

Section 7.04

  Amendment and Waiver      25  

Section 7.05

  Entire Agreement      25  

Section 7.06

  Counterparts      25  

Section 7.07

  Governing Law      25  

Section 7.08

  Consent to Jurisdiction and Service of Process      25  

Section 7.09

  WAIVER OF JURY TRIAL      26  

Section 7.10

  Expenses      26  

Section 7.11

  No Third-Party Beneficiaries      26  

Section 7.12

  Remedies      26  

Section 7.13

  No Recourse      27  

Section 7.14

  Release      27  

Section 7.15

  Further Assurances      28  

EXHIBITS

 

Exhibit A    Form of Bareboat Charter Agreement
Exhibit B    Form of JV Termination Agreement
Exhibit C    Form of MexMar Lender Waiver
Exhibit D    Form of SEACOR Marlin Second A&R LLC Agreement
Exhibit E    Form of SEACOR Marlin Assignment Agreement
Exhibit F    Form of SEACOR Marine International Second A&R LLC Agreement
Exhibit G    Form of SEACOR Marine International Assignment Agreement
Exhibit H    Form of SEACOR Davis Bill of Sale
Exhibit I    Form of Loan Termination Agreement
Exhibit J    Form of Asset Purchase Agreement

SCHEDULES

 

Schedule 3.02    No Conflicts of the SEACOR Marine Group
Schedule 3.03(a)    Financial Statements of SEACOR Marine International
Schedule 3.03(b)    Pro-Forma Financial Statements of SEACOR Marine International
Schedule 4.02    No Conflicts of the OTM Group

 

-ii-


FRAMEWORK AGREEMENT

This FRAMEWORK AGREEMENT (this “Agreement”) is made as of September 29, 2022, by and among (a) SEACOR Marine Holdings Inc., a Delaware corporation (“SMHI”), SEACOR Marine LLC, a Delaware limited liability company (“SEACOR Marine LLC”), SEACOR Offshore LLC, a Delaware limited liability company (“SEACOR Offshore”), and SEACOR Marine Capital Inc., a Delaware corporation (“SEACOR Marine Capital” and, together with SMHI, SEACOR Marine LLC and SEACOR Offshore, the “SEACOR Marine Group Parties” and each, a “SEACOR Marine Group Party”), on the one hand, and (b) Operadora de Transportes Maritimos, S.A. de C.V., a company organized under the Laws of Mexico (“OTM”), CME Drillship Holdings DAC, an Irish Designated Activity Company (“CME Ireland”), and Offshore Vessels Holding, S.A.P.I. de C.V., a company organized under the Laws of Mexico (“OVH” and, together with OTM and CME Ireland, the “OTM Group Parties” and each, an “OTM Group Party”), on the other hand. The SEACOR Marine Group Parties and the OTM Group Parties are sometimes referred to herein, collectively, as the “Parties”, and each of them is sometimes referred to herein, individually, as a “Party”. Capitalized terms used but not otherwise defined herein shall have the meanings specified in Section 1.01.

RECITALS

WHEREAS, certain Subsidiaries of SMHI and OTM are parties to that certain Joint Venture and Shareholders Agreement of Mantenimiento Express Maritimo, S.A.P.I. de C.V., a company organized under the Laws of Mexico (“MexMar”), dated as of July 1, 2011 (as amended, the “MexMar JV Agreement”);

WHEREAS, in accordance with the MexMar JV Agreement, MexMar owns and operates offshore vessels in support of the oil and gas industry in Mexico;

WHEREAS, in accordance with the Organizational Documents of OVH, OVH also owns and operates offshore vessels in support of the oil and gas industry in Mexico;

WHEREAS, in accordance with that certain Amended and Restated Limited Liability Company Agreement of SEACOR Marlin LLC, a Marshall Islands limited liability company (“SEACOR Marlin”), by and between SEACOR Offshore, and MEXMAR Offshore (MI) LLC, a Marshall Islands limited liability company and Subsidiary of MexMar (“MOMI”), dated as of September 13, 2018 (the “SEACOR Marlin A&R LLC Agreement”), SEACOR Marlin owns, operates and charters the SEACOR Marlin vessel;

WHEREAS, as of the date hereof, (i) SEACOR Marine LLC owns all of the Equity Interests in SEACOR Marine International LLC, a Delaware limited liability company (“SEACOR Marine International”), (ii) SEACOR Marine International and OTM collectively own (either directly or by means of the Security Trust) all of the Equity Interests in MexMar and OVH, and (iii) SMHI and OTM collectively own, directly or indirectly, all of the Equity Interests in SEACOR Marlin (SEACOR Marlin, together with MexMar and OVH, the “Joint Ventures” and together with their respective Subsidiaries, the “JV Entities”);

WHEREAS, in connection with the consummation of the transactions contemplated hereby and immediately prior to the Closing, (i) SEACOR Marine International transferred to SEACOR Marine LLC and its Affiliates (other than the SEACOR Marine Transferred Entities) all of its assets and Liabilities other than its Equity Interests in the SEACOR Marine Transferred Entities (including its rights (derechos fideicomisarios) with respect to the Security Trust) and the contributions for future capital increases (aportaciones para futuros aumentos de capital) registered in favor of SEACOR Marine International in MexMar and OVH, and (ii) Subsidiaries of SMHI transferred to SEACOR Offshore LLC all right, title and interests in and to the SEACOR Davis Vessel (collectively, the “SEACOR Marine Pre-Closing Transfers”);


WHEREAS, OTM desires to acquire from SEACOR Marine LLC, and SEACOR Marine LLC desires to sell to OTM, all of the SEACOR Marine International Interests (the “SEACOR Marine Transferred Equity Interests”);

WHEREAS, in connection with the consummation of the transactions contemplated hereby and immediately prior to the Closing, (i) MOMI transferred all of its right, title and interest in and to the SEACOR Marlin Interests to CME Ireland pursuant to that certain Assignment Agreement by and between MOMI, CME Ireland and SEACOR Marlin, and (ii) MexMar transferred all of its right, title and interest in and to the OTM Transferred Assets to OVH (collectively, the “MexMar Pre-Closing Transfers” and, together with the SEACOR Marine Pre-Closing Transfers, the “Pre-Closing Transfers”);

WHEREAS, in connection with the Alice G McCall Vessel, OVH has an outstanding loan in favor of SEACOR Marine Capital in the aggregate amount (including interest) of $1,394,084.57 as of September 28, 2022 (the “Alice G McCall Vessel Loan”); and

WHEREAS, at the Closing, on the terms and subject to the conditions set forth in this Agreement, and after giving effect to the Pre-Closing Transfers, (i) OTM will acquire from SEACOR Marine LLC, and SEACOR Marine LLC will sell to OTM, the SEACOR Marine Transferred Equity Interests; (ii) SEACOR Offshore will acquire from CME Ireland, and CME Ireland will sell to SEACOR Offshore, the SEACOR Marlin Interests owned by CME Ireland (collectively, the “OTM Transferred Equity Interests”), in exchange for the SEACOR Davis Vessel; and (iii) SEACOR Marine Capital will acquire from OVH, and OVH will assign, convey and transfer the OTM Transferred Assets to SEACOR Marine Capital, in full repayment and satisfaction of the Alice G McCall Vessel Loan.

AGREEMENT

NOW, THEREFORE, in consideration for the promises, representations and warranties and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Certain Definitions. For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth below:

Affiliate” means, with respect to any Person, any other Person Controlling, Controlled by, or under common Control with such Person.

Agreement” has the meaning set forth in the preamble hereof.

Alice G McCall Vessel” means the fast support vessel known as the “Alice G McCall”, Official Number 1211724.

Alice G McCall Vessel Loan” has the meaning set forth in the recitals hereof.

Asset Purchase Agreement” means the Asset Purchase Agreement by and between SEACOR Marine Capital, as purchaser, and OVH, as seller, being entered into concurrently with the execution and delivery of this Agreement, whereby OVH will transfer title to the OTM Transferred Assets to SEACOR Marine Capital, in substantially the form attached hereto as Exhibit J.

Balance Sheet Date” has the meaning set forth in Section 3.03(a).

 

2


Bareboat Charter Agreement” means the Bareboat Charter Agreement by and between MexMar and SEACOR Marlin being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit A.

Books and Records” means, with respect to SEACOR Marine International, copies of its Organizational Documents and all files, documents, instruments, papers, books and records to the extent primarily relating to its business or assets, including financial statements, Tax Returns and related work papers and letters from accountants, ledgers, journals, deeds, title policies, minute books, Equity Interest certificates and books, Equity Interest transfer ledgers, contracts, licenses, operating data and other similar information, in each case, held by SMHI or its Subsidiaries.

Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in New York, New York or Mexico City, Mexico.

Closing” has the meaning set forth in Section 2.02(a).

Closing Date” has the meaning set forth in Section 2.02(a).

CME Ireland” has the meaning set forth in the preamble hereof.

Code” means the U.S. Internal Revenue Code of 1986.

Consent” means any consent, approval, authorization, expiration or termination of applicable waiting period (including any extension thereof), exemption, waiver, variance, filing, registration or notification.

Contract” means any written or oral agreement, arrangement, contract, lease, license or obligation, or other legally binding agreement, commitment or undertaking.

Contracting Party” has the meaning set forth in Section 7.13.

Control” means the possession, directly or indirectly, of the power to direct the management and policies of any Person, whether through the ownership of voting securities, Contract or otherwise.

Environmental Law” means any applicable Laws relating to pollution or the protection of the human health (to the extent relating to exposure to hazardous substances) or the environment.

Equity Interest” means, with respect to any entity, any corporate stock, share, partnership interest, limited liability company interest, membership interest or unit, or any other equity interest of, or other equity participation or security (including phantom equity participation) in, such entity that confers on any Person the right to receive a share of the profits and losses of, or distribution of the assets of, such entity.

Financial Statements” has the meaning set forth in Section 3.03(a).

Fraud” means, with respect to any Party, any willful breach or inaccuracy of any representation or warranty made by any Party set forth in this Agreement that constitutes knowing and intentional common Law fraud under the Laws of the State of Delaware (it being understood and agreed that “Fraud” shall not be deemed to include constructive fraud, negligence or recklessness).

GAAP” means generally accepted accounting principles in the United States.

 

3


Governmental Authority” means any (a) foreign or domestic, supranational or national, or U.S., Mexican or foreign federal, state, regional, municipal, provincial or local governmental authority, or any political subdivision of any of the foregoing, (b) any court of competent jurisdiction, administrative agency or commission, tribunal or arbitral body or (c) any quasi-governmental authority or similar instrumentality of any governmental authority.

Indebtedness” means (a) indebtedness for borrowed money or issued or incurred in substitution or exchange for indebtedness for borrowed money, (b) amounts owing as deferred purchase price for property or services, including all seller notes and “earn out” payments, whether or not matured, (c) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument, debt security or other similar instrument, (d) indebtedness secured by a Lien, (e) obligations or commitments to repay deposits or other amounts advanced by and owing to third parties, (f) any liability in respect of banker’s acceptances or letters of credit (to the extent drawn), (g) obligations under any interest rate, currency or other hedging agreement, (h) obligations under leases that should be recorded as capital leases under GAAP, (i) direct or indirect guarantees or other contingent liabilities with respect to any indebtedness, obligation, claim or liability of any other Person of a type described in clauses (a) through (h) above, or (j) any obligations in the nature of accrued and unpaid interest, premiums, late charges, termination fees, costs or penalties with respect to any of the foregoing.

Indemnified Party” has the meaning set forth in Section 6.04(a).

Indemnifying Party” has the meaning set forth in Section 6.04(a).

InfraMar” means Infraestructura Del Mar, S.A.P.I de C.V., a company organized under the Laws of Mexico.

Joint Ventures” has the meaning set forth in the recitals hereof.

JV Entities” has the meaning set forth in the recitals hereof.

JV Termination Agreement” means the termination and release agreement by and among each of the parties to the MexMar JV Agreement, being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit B.

Laws” means all laws, constitutions, treaties, statutes, rules, regulations, ordinances, directives, treaties of any Governmental Authority and all Orders.

Liability” means any liability, Indebtedness, Loss, obligation, claim, cost, penalty, Tax (whether known or unknown, whether direct or indirect, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether matured or unmatured and whether due or to become due).

Liens” means any lien, mortgage, security interest, pledge, charge, claim, lease, option, easement, encroachment, restriction on assignment, transfer or voting, title retention agreement or arrangement or other similar encumbrance or restriction.

Loan Termination Agreement” means the loan termination agreement by and between SEACOR Marine Capital and OVH, being entered into concurrently with the execution and delivery of this Agreement, whereby SEACOR Marine Capital will terminate the Alice G McCall Vessel Loan and fully and unconditionally release OVH and each member of the OTM Group from any Liabilities thereunder, in substantially the form attached hereto as Exhibit I.

 

4


Losses” means any and all losses, liabilities, damages, fines, penalties, interest payments, judgements and other costs and expenses (including documented out-of-pocket costs and expenses of Proceedings, amounts paid in connection with any assessments, judgments or settlements relating thereto, court costs, and reasonable fees of attorneys, accountants and other experts incurred in connection with defending against any such Proceedings).

MexMar” has the meaning set forth in the recitals hereof.

MexMar Credit Facility” means that certain Second Amended and Restated Term Loan Credit Facility Agreement by and between MexMar and the MexMar Lenders, dated as of July 8, 2022.

MexMar JV Agreement” has the meaning set forth in the recitals hereof.

MexMar Lenders” means each of DNB Capital LLC, as Lender, the Governor and Company of the Bank of Ireland, as Lender, and DNB Bank ASA, New York Branch, as Swap Bank, Facility Agent and Collateral Agent, under the MexMar Credit Facility.

MexMar Lender Waiver” means the Waiver by and between MexMar and the MexMar Lenders, being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit C.

MexMar Pre-Closing Transfers” has the meaning set forth in the recitals hereof.

MOMI” has the meaning set forth in the recitals hereof.

Names” has the meaning set forth in Section 5.04(a).

Non-Recourse Party” has the meaning set forth in Section 7.13.

Order” means any order, decision, ruling, writ, judgment, injunction, decree, stipulation, determination, award, assessment, agreement or other similar determination (in each case, whether preliminary or final) issued, promulgated or entered by or with any Governmental Authority.

Organizational Documents” means, with respect to (a) any corporation or Mexican company, its articles or certificate of incorporation and bylaws, shareholder agreements or documents of similar substance, (b) any limited liability company, its articles or certificate of organization or formation and its operating agreement or limited liability company agreement or documents of similar substance, (c) any partnership (whether general or limited), its certificate of partnership and partnership agreement or documents of similar substance and (d) any other entity, its organizational and governing documents of similar substance to any of the foregoing.

OTM” has the meaning set forth in the preamble hereof.

OTM General Representations” has the meaning set forth in Section 6.03(a).

OTM Group” means, collectively, OTM and its Subsidiaries, including, from and after the Closing, SEACOR Marine International, MexMar, OVH and InfraMar.

OTM Group Parties” has the meaning set forth in the preamble hereof.

OTM Group Released Person” has the meaning set forth in Section 7.14(a).

 

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OTM Group Releasing Person” has the meaning set forth in Section 7.14(a).

OTM Indemnified Parties” has the meaning set forth in Section 6.02(a).

OTM Transferred Assets” means, collectively, all of the OTM Group’s right, title and interest in and to (i) the SEACOR Viking – Hybrid container, assembled in Norway and imported with HS Code 85371000, weighing 18,000 kg and measuring 6700 x 2500 x 3700, including rectifiers / convertors (Drives), transformers and battery module racks presently located at Bollinger shipyard in Morgan City, Louisiana and as further described in American Bureau of Shipping (“ABS”) Survey Report Number OS3507427, AG3227084.R1, AG3227089.R1, and GE3468763, and (ii) the SEACOR Viking – Battery modules, presently located at Corvus facility in Richmond, British Columbia, and as further described in ABS Survey Report Numbers VA3467025, and as such system is more fully described in Kongsberg Maritime AS Quotation Technical Section – 102576-4 regarding “Hybrid Power upgrade”.

OTM Transferred Equity Interests” has the meaning set forth in the recitals hereof.

OVH” has the meaning set forth in the preamble hereof.

Party” or “Parties” has the meaning set forth in the preamble hereof.

Permitted Liens” means (a) Liens existing under the MexMar Credit Facility and the Alice G McCall Vessel Loan, and (b) restrictions on sales of securities under the MexMar JV Agreement, the Organizational Documents of OVH, MexMar, InfraMar, SEACOR Marlin and SEACOR Marine International and applicable securities Laws.

Person” means any individual, partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization or other entity (including any Governmental Authority).

Pre-Closing Transfers” has the meaning set forth in the recitals hereof.

Proceeding” means any action, claim, demand, litigation, suit, or other proceeding by or before any Governmental Authority.

Purchase Price” means $66,000,000, of which (i) $44,220,000 are allocated to the Equity Interests and contributions for future capital increases (aportaciones para futuros aumentos de capital) registered in favor of SEACOR Marine International in MexMar, (ii) $21,779,999 are allocated to the Equity Interests and contributions for future capital increases (aportaciones para futuros aumentos de capital) registered in favor of SEACOR Marine International in OVH, and (iii) $1 is allocated to the Equity Interests and contributions for future capital increases (aportaciones para futuros aumentos de capital) registered in favor of SEACOR Marine International in InfraMar.

Reactivation Expenses” has the meaning set forth in Section 2.01(b).

Representatives” means, with respect to any Person, such Person’s members, partners, equityholders, trustees, directors, managers, officers, employees, attorneys, consultants, advisors (including investment advisors), representatives and other agents acting on behalf of such Person in connection with the transactions contemplated hereby.

ROFO Exercise Notice” has the meaning set forth in Section 5.06.

ROFO Notice” has the meaning set forth in Section 5.06.

 

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ROFO Offer” has the meaning set forth in Section 5.06.

SEACOR Davis Bill of Sale” means the bill of sale by and between SEACOR Offshore and CME Ireland being entered into concurrently with the execution and delivery of this Agreement, whereby SEACOR Offshore will transfer, assign and convey to CME Ireland all of SEACOR Offshore’s right, title and interest in and to the SEACOR Davis Vessel, in substantially the form attached hereto as Exhibit H.

SEACOR Davis Vessel” means the anchor handling towing supply vessel known as the “SEACOR Davis”, MI Official Number 9855.

SEACOR Marine Capital” has the meaning set forth in the preamble hereof.

SEACOR Marine Group” means, collectively, each of the SEACOR Marine Group Parties and their Subsidiaries (other than the SEACOR Marine Transferred Entities), including, from and after the Closing, SEACOR Marlin.

SEACOR Marine Group Parties” has the meaning set forth in the preamble hereof.

SEACOR Marine Group Released Person” has the meaning set forth in Section 7.14(b).

SEACOR Marine Group Releasing Person” has the meaning set forth in Section 7.14(b).

SEACOR Marine Indemnified Parties” has the meaning set forth in Section 6.03(a).

SEACOR Marine International” has the meaning set forth in the recitals hereof.

SEACOR Marine International Assignment Agreement” means the Assignment Agreement by and between OTM, SEACOR Marine LLC and SEACOR Marine International, being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit G.

SEACOR Marine International Interests” means the issued and outstanding Equity Interests of SEACOR Marine International.

SEACOR Marine International Second A&R LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of SEACOR Marine International, being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit F.

SEACOR Marine LLC” has the meaning set forth in the preamble hereof.

SEACOR Marine Pre-Closing Transfers” has the meaning set forth in the recitals hereof.

SEACOR Marine Transferred Entities” means, collectively, MexMar, OVH, InfraMar and each of their respective Subsidiaries (other than SEACOR Marlin).

SEACOR Marine Transferred Equity Interests” has the meaning set forth in the recitals hereof.

SEACOR Marlin” has the meaning set forth in the recitals hereof.

SEACOR Marlin A&R LLC Agreement” has the meaning set forth in the recitals hereof.

 

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SEACOR Marlin Assignment Agreement” means the Assignment Agreement by and between CME Ireland, SEACOR Offshore and SEACOR Marlin, being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit E.

SEACOR Marlin Interests” means the issued and outstanding Equity Interests of SEACOR Marlin.

SEACOR Marlin Second A&R LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of SEACOR Marlin, being entered into concurrently with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit D.

SEACOR Offshore” has the meaning set forth in the preamble hereof.

Security Trust” has the meaning set forth in Section 6.01.

SMHI” has the meaning set forth in the preamble hereof.

SMHI Fundamental Representations” has the meaning set forth in Section 6.01.

SMHI General Representations” has the meaning set forth in Section 6.01.

Subsidiary” means, with respect to any Person: (a) any corporation, partnership, limited liability company or other entity a majority of the interests of which having voting power under ordinary circumstances to elect at least a majority of the board of directors, general partners, board of managers or other Persons performing similar functions is at the time owned or controlled, directly or indirectly, by such Person or by one or more of the other direct or indirect Subsidiaries of such Person or a combination thereof (regardless of whether, at the time, interests of any other class or classes shall have, or might have, voting power by reason of the occurrence of any contingency), (b) a partnership in which such Person or any direct or indirect Subsidiary of such Person is a general partner or (c) a limited liability company or other entity in which such Person or any direct or indirect Subsidiary of such Person is a manager.

Tax” or “Taxes” means any tax of any kind whatsoever, including any U.S. or Mexican federal, state, local or foreign income, profits, gross or net receipts, property, sales, use, capital gain, transfer, excise, license, production, franchise, employment, social security, occupation, payroll, registration, capital, government pension or insurance, royalty, escheat, unclaimed property, severance, stamp or documentary, value-added, goods and services, business or occupation or other tax, levy, import, duty, charge, or employer social security contribution collected or assessed by, or payable to, a Governmental Authority, together with all related fines, penalties, and interest.

Tax Returns” means any return, declaration, report, claim for refund or information return or statement (including schedules or attachments thereto or amendments thereof) filed or required to be filed with any Governmental Authority in connection with the determination, assessment or collection of any Tax or the administration of any Laws relating to any Tax.

Third Party Claim” has the meaning set forth in Section 6.04(a).

Transaction Documents” means this Agreement, the Asset Purchase Agreement, the Bareboat Charter Agreement, the JV Termination Agreement, the SEACOR Marlin Assignment Agreement, the SEACOR Marine International Assignment Agreement, the SEACOR Marlin Second A&R LLC Agreement, the SEACOR Marine International Second A&R LLC Agreement, the SEACOR Davis Bill of Sale, the Loan Termination Agreement, and all other documents or certificates delivered or required to be delivered by any Party pursuant to this Agreement.

 

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Transaction Expenses” means all costs and expenses incurred in connection with negotiation, preparation, execution and delivery of this Agreement and the other Transaction Documents, and the consummation of the transactions contemplated hereby and thereby, including the fees and disbursements of counsel, accountants, financial advisors, experts and consultants.

Section 1.02 Other Definitional Provisions

.

(a) All references in this Agreement to Exhibits, Articles, Sections, clauses and other subdivisions refer to the corresponding Exhibits, Articles, Sections, clauses and other subdivisions of or to this Agreement unless expressly provided otherwise. Titles appearing at the beginning of any Articles, Sections, clauses or other subdivisions of this Agreement are for convenience only, do not constitute any part of this Agreement, and shall be disregarded in construing the language hereof.

(b) The Exhibits to this Agreement are attached hereto and by this reference incorporated herein for all purposes.

(c) The words “this Agreement,” “herein,” “hereby,” “hereunder” and “hereof,” and words of similar import, refer to this Agreement as a whole and not to any particular clause or other subdivision thereof unless expressly so limited. The words “this Article,” “this Section,” “this clause,” and words of similar import, refer only to the Article, Section, clause or other subdivision hereof in which such words occur. The word “or” has the inclusive meaning “and/or,” and the word “including” (and correlative forms thereof) shall be deemed to be followed by the phrase “without limitation.”

(d) All references to “$,” “U.S. Dollars,” “Dollars” and “dollars” and other monetary figures shall be deemed to refer to United States currency unless otherwise expressly provided herein. All accounting terms used but not defined herein shall have the meanings given to them under GAAP.

(e) Pronouns in masculine, feminine or neuter genders shall be construed to include any other gender, and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, in each case, unless the context otherwise requires.

(f) Unless the context otherwise requires, any reference to (i) any Person shall be deemed to refer to such Person’s successors and permitted assigns, and, in the case of any Governmental Authority, to any Person(s) succeeding to its functions and capacities, (ii) any Affiliate of any Person shall be deemed to refer to such Person’s Affiliate at any given time of determination, (iii) any Law shall be deemed to refer to all rules and regulations promulgated thereunder and (iv) any Contract or Law shall be deemed to refer to such Contract or Law as amended, supplemented or otherwise modified (including, in the case of any Contract, any waivers thereto) from time to time (and in the case of any Contract, in accordance with the terms hereof or thereof, as applicable), and in effect at any given time (and in the case of any Law, to any successor provisions).

(g) Any reference to any “day” or any number of “days” without explicit reference to “Business Days” shall be deemed to refer to a calendar day or number of calendar days. If any action is to be taken on or by a particular calendar day that is not also a Business Day, then such action may be deferred until the immediately succeeding Business Day.

(h) The language used in this Agreement shall be deemed to be the language chosen jointly by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person.

 

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ARTICLE II

PURCHASE AND SALE

Section 2.01 Purchase and Sale.

(a) Transferred Equity Interests. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing:

(i) SEACOR Marine LLC shall sell, assign, transfer and convey to OTM, and OTM shall purchase and acquire from SEACOR Marine LLC, all of SEACOR Marine LLC’s right, title and interest in and to the SEACOR Marine Transferred Equity Interests, free and clear of all Liens (other than Liens arising under the Organizational Documents of SEACOR Marine International and applicable securities Laws); and

(ii) CME Ireland shall sell, assign, transfer and convey to SEACOR Offshore, and SEACOR Offshore shall purchase and acquire from CME Ireland, all of CME Ireland’s right, title and interest in and to the OTM Transferred Equity Interests, in each case, free and clear of all Liens (other than Liens arising under the Organizational Documents of SEACOR Marlin and applicable securities Laws).

(b) Transferred Assets and Loan Repayment. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, (i) OTM shall cause OVH to assign, transfer, convey and deliver to SEACOR Marine Capital, and SEACOR Marine Capital shall acquire from OVH, all of OVH’s right, title and interest in and to the OTM Transferred Assets, in full repayment of the Alice G McCall Vessel Loan, such that, immediately following the Closing, there will be no further obligations of OVH or any other member of the OTM Group (or any of their respective Affiliates), monetary or otherwise, with respect to the Alice G McCall Vessel Loan, (ii) SEACOR Offshore shall convey and transfer to CME Ireland, and CME Ireland shall acquire from SEACOR Offshore, the SEACOR Davis Vessel as further described in Section 2.01(c)(ii); and (iii) MexMar shall pay to SEACOR Marine LLC (or its designee) the balance of $2,750,000 to cover all properly documented reactivation costs and expenses incurred by any member of the SEACOR Marine Group with respect to the reactivation of the SEACOR Davis Vessel (the “Reactivation Expenses”). Within 30 days from the Closing, SEACOR Marine LLC shall deliver to MexMar a reconciliation report of all Reactivation Expenses incurred by the SEACOR Marine Group up until delivery of the SEACOR Davis Vessel to CME Ireland in accordance with this Agreement, which report shall include invoices and other supporting documentation that is reasonably requested by MexMar with respect to such expenses. If the amounts shown in such report are greater than the Reactivation Expenses, and MexMar approved such excess amounts in writing, MexMar shall reimburse the SEACOR Marine Group the excess amount within five Business Days from receiving such report. If the amounts shown on the report are lower than the Reactivation Expenses, SEACOR Marine LLC shall reimburse MexMar such deficiency within five Business Days from receiving such report.

(c) Consideration. At the Closing:

(i) OTM shall pay to SEACOR Marine LLC, as full consideration for the SEACOR Marine Transferred Equity Interests, an aggregate amount in cash equal to the Purchase Price by wire transfer of immediately available funds in U.S. Dollars to an account designated in writing by SEACOR Marine LLC;

(ii) SEACOR Offshore shall convey and transfer to CME Ireland, as full consideration for the OTM Transferred Equity Interests, all of SEACOR Offshore’s right, title and interest in and to the SEACOR Davis Vessel, at an agreed transfer value of $7,000,000; and

 

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(iii) OVH shall convey and transfer to SEACOR Marine Capital, as repayment and settlement in full of all of the obligations now or hereinafter existing under the Alice G McCall Vessel Loan, all of OVH’s right, title and interest in and to the OTM Transferred Assets.

Section 2.02 The Closing; Closing Deliveries.

(a) On the terms and subject to the conditions set forth in this Agreement, the closing of the transactions contemplated hereby (the “Closing”) shall take place electronically through the exchange of documents via e-mail concurrently with the execution and delivery of this Agreement on the date hereof (the “Closing Date”). The Closing shall be deemed to have been consummated at 12:01 a.m. New York, New York local time on the Closing Date, and all actions required to be taken pursuant hereto at the Closing (including the delivery of all Closing deliveries pursuant to Section 2.02(b) and Section 2.02(c)) shall occur and shall be deemed to take place simultaneously.

(b) At the Closing, the SEACOR Marine Group Parties shall deliver, or cause to be delivered, to the OTM Group Parties:

(i) an executed counterpart for each Transaction Document to which each of the SEACOR Marine Group Parties (or any member of the SEACOR Marine Group) is specified to be a party, duly executed by an authorized Representative of such SEACOR Marine Group Party or the applicable member of the SEACOR Marine Group;

(ii) resignation letters of John Gellert, Jesus Llorca, Monty Dames, Jr., Andrew Everett, Gregory Rossmiller and Humberto Fitzgerald Romero Alvares as officers and members of the Board of Directors (or equivalent governing body), as applicable, of SEACOR Marine International, InfraMar and the JV Entities (other than SEACOR Marlin);

(iii) an executed counterpart of the joint unanimous written consent of the members and the Board of Managers of SEACOR Marlin, on which it is resolved to (A) authorize the transfer of the OTM Transferred Equity Interests to SEACOR Offshore, and waive all restrictions on transfer of the OTM Transferred Equity Interests to SEACOR Offshore, (B) accept the resignations delivered by the members of the Board of Directors of SEACOR Marlin pursuant to Section 2.02(c)(iii), and approve a full release of such Persons from any Liability related to their actions as members of the Board of Directors of SEACOR Marlin, and (C) revoke all powers of attorney granted to any attorney in fact appointed by members of the OTM Group;

(iv) an executed counterpart of the joint unanimous written consent of the sole member and the Board of Directors of SEACOR Marine LLC, on which it is resolved to (A) authorize the transfer of the SEACOR Marine Transferred Equity Interests to OTM, and waive all restrictions on transfer of the SEACOR Marine Transferred Equity Interests to OTM, (B) accept the resignations delivered by the members of the Board of Directors of SEACOR Marine International pursuant to Section 2.02(b)(ii), and approve a full release of the members of the Board of Directors of SEACOR Marine International who resign pursuant to Section 2.02(b)(ii) from any Liability related to their actions as members of the Board of Directors, and (C) revoke all powers of attorney granted to any attorney in fact appointed by members of the SEACOR Marine Group;

(v) an executed counterpart of the unanimous resolutions of the shareholders of MexMar, OVH and InfraMar, on which it is resolved to (A) accept the resignations delivered by the members of the Board of Directors of MexMar, OVH and InfraMar pursuant to Section 2.02(b)(ii), and approve a full release of the members of the Board of Directors of each of MexMar, OVH and InfraMar who resign pursuant to Section 2.02(b)(ii) from any Liability related to their actions as members of the Board of Directors, (B) revoke all powers of attorney granted to any attorney in fact appointed by members

 

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of the SEACOR Marine Group, (C) with respect to the unanimous resolutions of the shareholders of MexMar and InfraMar, approve the termination of the MexMar JV Agreement and the execution of the JV Termination Agreement, (D) with respect to the unanimous resolutions of the shareholders of MexMar, approve (1) the MexMar Pre-Closing Transfers, (2) the execution of the MexMar Lender Waiver, and (3) the execution of the Bareboat Charter Agreement, and (E) with respect to the unanimous resolutions of the shareholders of OVH, approve (1) the transfer of the OTM Transferred Assets to SEACOR Marine Capital and the execution of the Asset Purchase Agreement, and (2) the cancellation of the Alice G McCall Vessel Loan and the execution of the Loan Termination Agreement;

(vi) the Books and Records, other than (i) any Books and Records that the SEACOR Marine Group Parties are required by Law to retain (copies of which, to the extent permitted by Law, will be delivered to OTM at Closing) and (ii) personnel and employment records for employees and former employees who are not employees of the JV Entities; and

(vii) the MexMar Lender Waiver, duly executed by MexMar and the MexMar Lenders; and

(viii) copies of (A) the construction agreement, including exhibits, schedules and warranties, of the SEACOR Davis Vessel, (B) the bill of sale or other equivalent title documents evidencing SEACOR Offshore’s title to the SEACOR Davis Vessel, navigation patents (patente de navegacion) or transcripts of registry evidencing ownership to the SEACOR Davis Vessel free and clear of all Liens, other than Permitted Liens, and (C) all permits (including importation permits), certifications, and licenses related to the SEACOR Davis Vessel, including any ABS certificates, classification certificates, loadline certificates, radio licenses, engineering plans and drawings, and historical preventive maintenance records of the vessel.

(c) At the Closing, without limiting OTM’s obligation to pay the amounts specified in Section 2.01(c), the OTM Group Parties shall deliver, or cause to delivered, to the SEACOR Marine Group Parties:

(i) an executed counterpart for each Transaction Document to which each of the OTM Group Parties (or any member of the OTM Group) is specified to be a party, duly executed by an authorized Representative of such OTM Group Party or the applicable member of the OTM Group;

(ii) an invoice, which shall comply with all fiscal applicable requirements, evidencing the transfer of title of the OTM Transferred Assets to SEACOR Marine Capital;

(iii) resignation letters of Alfredo Miguel Bejos, Alejandro Garcia Bejos and Alejandro Romano Baez from the Board of Managers of SEACOR Marlin;

(iv) the MexMar Lender Waiver, duly executed by MexMar and the MexMar Lenders;

(v) an executed counterpart of the joint unanimous written consent of the members and the Board of Managers of SEACOR Marlin, on which it is resolved to (A) authorize the transfer of the OTM Transferred Equity Interests to SEACOR Offshore, and waive all restrictions on transfer of the OTM Transferred Equity Interests to SEACOR Offshore, (B) accept the resignations delivered by the members of the Board of Directors of SEACOR Marlin pursuant to Section 2.02(c)(iii), and approve a full release of such Persons from any Liability related to their actions as members of the Board of Directors of SEACOR Marlin, and (C) revoke all powers of attorney granted to any attorney in fact appointed by members of the OTM Group; and

 

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(vi) an executed counterpart of the shareholder’s meeting or unanimous resolutions of the shareholders of each of MexMar, OVH and InfraMar, on which it is resolved to (A) accept the resignations delivered by the members of the Board of Directors of MexMar, OVH and InfraMar pursuant to Section 2.02(b)(ii), and approve a full release of the members of the Board of Directors of each of MexMar, OVH and InfraMar who resign pursuant to Section 2.02(b)(ii) from any Liability related to their actions as members of the Board of Directors, (B) revoke all powers of attorney granted to any attorney in fact appointed by members of the SEACOR Marine Group, and, with respect to the unanimous resolutions of the shareholders of MexMar, (C) approve the termination of the MexMar JV Agreement and the execution of the JV Termination Agreement, (D) with respect to the unanimous resolutions of the shareholders of MexMar, approve (1) the MexMar Pre-Closing Transfers, (2) the execution of the MexMar Lender Waiver, and (3) the execution of the Bareboat Charter Agreement, and (E) with respect to the unanimous resolutions of the shareholders of OVH, approve (1) the transfer of the OTM Transferred Assets to SEACOR Marine Capital and the execution of the Asset Purchase Agreement, and (2) the cancellation of the Alice G McCall Vessel Loan and the execution of the Loan Termination Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES AS TO THE SEACOR MARINE GROUP

Except as expressly set forth in the Schedules, SMHI represents and warrants to the OTM Group Parties as follows:

Section 3.01 Organization and Standing. Each of the SEACOR Marine Group Parties (a) is a corporation or limited liability company, as applicable, duly organized, validly existing and in good standing under the Laws of the State of Delaware and (b) has all requisite corporate power and authority to own, operate and lease its assets and conduct its business, in each case, as currently conducted, except as would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the SEACOR Marine Group Parties to consummate the transactions contemplated by this Agreement. Each of the SEACOR Marine Group Parties is duly qualified to do business and in good standing in each jurisdiction in which such qualification is required by applicable Laws, except as would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the SEACOR Marine Group Parties to consummate the transactions contemplated by this Agreement. SEACOR Marine International is classified as a disregarded entity for U.S. federal income tax purposes.

Section 3.02 No Conflicts. The execution and delivery by each member of the SEACOR Marine Group of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (a) breach, conflict with or violate its Organizational Documents, (b) assuming all Consents set forth on Schedule 3.02 are obtained or made, result in any conflict, breach of or default under (or an event that, with or without notice or lapse of time, or both would constitute a breach or violation of or default under), or give rise to a right of termination, cancellation or acceleration of any obligation under, any material Contract to which it is a party or by which any of its assets are bound or (c) violate any Laws applicable to it or its assets, except, in the case of clauses (b) and (c), as would not, individually or in the aggregate, reasonably be expected to materially impair its ability to consummate the transactions contemplated by this Agreement.

Section 3.03 Financial Statements.

(a) Schedule 3.03(a) includes the unaudited balance sheet of SEACOR Marine International as of August 31, 2022 (the “Balance Sheet Date”) and the related unaudited statement of income for the eight (8) months ended on the Balance Sheet Date (the “Financial Statements”). The Financial Statements have been prepared in accordance with GAAP, except as otherwise described therein or on the Schedules and subject to normal year-end adjustments and the absence of disclosures normally made in footnotes. The Financial Statements fairly present, in all material respects, the financial position of SEACOR Marine International, as of the dates thereof, respectively, and the related statements of income and stockholders’ equity fairly present, in all material respects, the results of the operations and stockholders’ equity of SEACOR Marine International for the period then ended.

 

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(b) After giving effect to the Pre-Closing Transfers, SEACOR Marine International does not own any assets or properties, or have any Liabilities, other than (i) assets consisting of its Equity Interests in InfraMar, and (ii) those assets and Liabilities reflected in the pro-forma financial statements attached hereto as Schedule 3.03(b). SEACOR Marine International has no employees and is not a party to any employee benefit plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 or any other applicable Law).

Section 3.04 Governmental Consents. No Consent of, with or to any Governmental Authority is required to be obtained or made by the SEACOR Marine Group Parties or any other member of the SEACOR Marine Group in connection with the execution, delivery and performance by it of this Agreement or any other Transaction Document to which it is a party, or the consummation by it of the transactions contemplated hereby or thereby, other than (a) Consents that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected materially impair the ability of the SEACOR Marine Group Parties or the applicable member of the SEACOR Marine Group to consummate the transactions contemplated by this Agreement or the applicable Transaction Document to which it is a party, or (b) notices not required to be given until after the Closing.

Section 3.05 Authority; Execution and Delivery; Enforceability. Each member of the SEACOR Marine Group has full corporate power and authority to execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by each member of the SEACOR Marine Group of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the relevant member of the SEACOR Marine Group. Each member of the SEACOR Marine Group has duly executed and delivered this Agreement and the other Transaction Documents to which it is a party, and each of this Agreement and the other Transaction Documents to which it is a party constitute a valid and binding obligation of such member of the SEACOR Marine Group, enforceable against it in accordance with its terms, except to the extent that such enforcement may be affected by Laws relating to bankruptcy, reorganization, insolvency or creditors’ rights.

Section 3.06 Title to Equity Interests and Assets.

(a) SEACOR Marine LLC is the record and beneficial owner of the SEACOR Marine Transferred Equity Interests, free and clear of any Liens, other than Permitted Liens. CIBANCO, S.A. Institución de Banca Múltiple, as successor of Deutsche Bank México, S.A. Institución de Banca Múltiple División Fiduciaria, acting as Trustee (Fiduciario) under that certain Security Trust Agreement No. DB/1590, by and among SEACOR Marine International, CIBANCO, S.A. Institución de Banca Múltiple, as final successor of Deutsche Bank México, S.A. Institución de Banca Múltiple División Fiduciaria and the other parties therein (the “Security Trust”), is the record owner, for the benefit of SEACOR Marine International, of 49% of the outstanding Equity Interests of MexMar free and clear of any Liens other than Permitted Liens and Liens resulting from such Security Trust. SEACOR Marine International is the record and beneficial owner of 49% of the outstanding Equity Interests of OVH and 99.17% of the outstanding Equity Interests of Inframar, free and clear of any Liens, other than Permitted Liens.

(b) SEACOR Offshore is the record and beneficial owner of the SEACOR Davis Vessel, free and clear of any Liens.

(c) The SEACOR Davis Vessel is located within the territorial waters of the United States of America.

 

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Section 3.07 Capitalization. The SEACOR Marine Transferred Equity Interests represent all of the issued and outstanding Equity Interests of SEACOR Marine International. The SEACOR Marine Transferred Equity Interests have been duly authorized and validly issued, are fully paid to the extent required, and are not subject to any preemptive rights. As of the date hereof, no other Equity Interests of SEACOR Marine International have been issued, reserved for issuance or are outstanding. SEACOR Marine International is not a party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which obligates it to issue, sell or transfer, or repurchase, redeem or otherwise acquire, any of the membership interests or other Equity Interest in SEACOR Marine International. Except for the SEACOR Marine Transferred Equity Interests, SEACOR Marine International does not own any Equity Interest or any other type of equity securities in any Person.

Section 3.08 Litigation. There is no action, suit, Proceeding at law or in equity, or any arbitration, administrative or other Proceeding by, before or against any Governmental Authority or any other Person, pending or, to the knowledge of the SEACOR Marine Group Parties, threatened, against or affecting SEACOR Marine International or the SEACOR Davis Vessel.

Section 3.09 Taxes. SEACOR Marine International has filed or caused to be filed all Tax Returns that it is required to file with any Governmental Authority on or prior to the Closing Date. All material Taxes and material Tax Liabilities of SEACOR Marine International that are due and payable on or prior to the Closing Date have been or will be paid on or prior to the Closing Date. SEACOR Marine International is not undergoing any audit or other examination related to Taxes, nor has it received any notices from any Governmental Authority that such audit or examination is pending. All Taxes that SEACOR Marine International is (or was) required by Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly withheld or collected, and have been paid to the proper authorities to the extent due and payable. SEACOR Offshore has duly and timely prepared and filed with the appropriate Governmental Authorities all returns, reports, information returns or other documents filed or required to be filed with such Governmental Authorities and has timely paid any Taxes or other amounts due in respect the SEACOR Davis Vessel.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES AS TO THE OTM GROUP

OTM represents and warrants to the SEACOR Marine Group Parties as follows:

Section 4.01 Organization and Standing. Each of the OTM Group Parties (a) is a Mexican stock corporation (Sociedad anónima de capital variable) or Irish Designated Activity Company, as applicable, validly existing and in good standing under the Laws of its jurisdiction of formation and (b) has all requisite corporate power and authority to own, operate and lease its assets and conduct its business, in each case, as currently conducted, except as would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the OTM Group Parties to consummate the transactions contemplated by this Agreement. Each of the OTM Group Parties is duly qualified to do business and in good standing in each jurisdiction in which such qualification is required by applicable Laws, except as would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the OTM Group Parties to consummate the transactions contemplated by this Agreement.

Section 4.02 No Conflicts. The execution and delivery by each member of the OTM Group of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (a) breach, conflict with or violate its Organizational Documents, (b) assuming all Consents set forth on Schedule 4.02 are obtained or made, result in any conflict, breach of or default under (or an event that, with or without notice or lapse of time, or both would constitute a breach or violation of or default under), or give rise to a right of termination,

 

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cancellation or acceleration of any obligation under, any material Contract to which it is a party or by which any of its assets are bound or (c) violate any Laws applicable to it or its assets, except, in the case of clauses (b) and (c), as would not, individually or in the aggregate, reasonably be expected to materially impair its ability to consummate the transactions contemplated by this Agreement.

Section 4.03 Governmental Consents. No Consent of, with or to any Governmental Authority is required to be obtained or made by the OTM Group Parties or any other member of the OTM Group in connection with the execution, delivery and performance by it of this Agreement or any other Transaction Document to which it is a party, or the consummation by it of the transactions contemplated hereby or thereby, other than (a) Consents that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the OTM Group Parties or the applicable member of the OTM Group to consummate the transactions contemplated by this Agreement or the applicable Transaction Document to which it is a party, or (b) notices not required to be made until after the Closing.

Section 4.04 Authority; Execution and Delivery; Enforceability. The legal Representative, or Representatives, of each member of the OTM Group has full power and authority to enter into this Agreement and each other Transaction Document to which such member of the OTM Group is a party, and such powers have not been revoked or limited in any manner whatsoever. Each member of the OTM Group has full corporate power and authority to execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by each member of the OTM Group of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the relevant member of the OTM Group. Each member of the OTM Group has duly executed and delivered this Agreement and the other Transaction Documents to which it is a party, and each of this Agreement and the other Transaction Documents to which it is a party constitutes a valid and binding obligation of such member of the OTM Group, enforceable against it in accordance with its terms, except to the extent that such enforcement may be affected by Laws relating to bankruptcy, reorganization, insolvency or creditors’ rights.

Section 4.05 Title to Equity Interests and Assets. CME Ireland is the record and beneficial owner of the OTM Transferred Equity Interests, free and clear of any Liens, other than Permitted Liens and Liens imposed by applicable securities Laws and regulations.

Section 4.06 Financial Ability; Source of Funds.

(a) OTM has sufficient cash, available lines of credit or other sources of immediately available funds to pay in cash the Purchase Price in accordance with the terms hereof and all other amounts to be paid by OTM hereunder to consummate the transactions contemplated by this Agreement and to satisfy all other obligations, fees, costs and expenses incurred by OTM in connection herewith.

(b) No funds to be paid to SMHI hereunder have been derived from, or will be derived from or constitute, either directly or indirectly, the proceeds of any criminal activity in violation of any applicable anti-corruption, anti-terrorism, anti-money laundering, sanctions or export control Laws or similar Laws.

Section 4.07 Brokerage Fees. None of OTM or any other member of the OTM Group has entered into any Contract with any agent, broker, investment banker, financial advisor or other Person that entitles any such Person to any broker’s, finder’s, financial advisor’s or similar fee or commission in connection with the execution and delivery by OTM of this Agreement or the other Transaction Documents to which OTM is a party, or the consummation by OTM of the transactions contemplated hereby or thereby, in each case, that will be payable by SMHI, any of its Affiliates or SEACOR Marlin.

 

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ARTICLE V

COVENANTS

Section 5.01 Confidentiality.

(a) Each Party agrees (on behalf of itself and its Subsidiaries) that for 18 months after the Closing, each Party shall, and shall cause its Subsidiaries to, treat all information relating to the SEACOR Marine Group and the OTM Group and the business of each of the foregoing as confidential, preserve the confidentiality thereof, and not use or disclose to any Person such information without the other Party’s prior written Consent (except as expressly permitted by this Agreement) unless (a) such information is publicly available as of the date hereof or becomes publicly available after the date hereof through no act or omission in violation hereof by the Party seeking to disclose such information, its Subsidiaries or any of their respective Representatives, (b) disclosure of such information is to either Party’s owners, its Subsidiaries, or its and their respective directors, officers, employees, managers, advisors, direct and indirect investors or prospective investors, (c) disclosure of such information is so required by or requested under applicable Law, or (d) disclosure of such information is reasonably necessary to be made to third parties (subject to such Persons being informed of the obligations under this Section 5.01) in connection with (i) the performance by either Party or any of their Affiliates of their respective obligations under any of the Transaction Documents (but, for the avoidance of doubt, on the terms and subject to the conditions hereof and thereof) or (ii) the enforcement of by either Party or any of their Affiliates of any right or remedy arising out of or relating to any of the Transaction Documents. If the disclosure of such information is so required by applicable Law, the Party seeking to disclose such information shall, to the extent not prohibited by applicable Law, use commercially reasonable efforts to (A) provide the other Party with as much prior written notice as is reasonably practicable under the circumstances and (B) if reasonably requested by the other Party and at such requesting Party’s sole expense, to (1) cooperate with the other Party in obtaining an appropriate protective order or (2) obtain written assurance from the Person to whom such information will be disclosed that confidential treatment will be afforded to such information.

(b) For 18 months following the Closing Date, the SEACOR Marine Group will treat all information related to the SEACOR Marine Transferred Entities and the business of each of the foregoing as confidential, preserve the confidentiality thereof, and not use or disclose to any Person such information without OTM’s prior written Consent (except as expressly permitted by this Agreement) unless (a) such information is publicly available as of the date hereof or becomes publicly available after the date hereof through no act or omission in violation hereof by the SEACOR Marine Group or any of their respective Representatives, (b) disclosure of such information is to the SEACOR Marine Group’s owners, its Subsidiaries, or its and their respective directors, officers, employees, managers, advisors, direct and indirect investors or prospective investors, (c) disclosure of such information is so required by or requested under applicable Law, or (d) disclosure of such information is reasonably necessary to be made to third parties (subject to such Persons being informed of the obligations under this Section 5.01) in connection with (i) the performance by the SEACOR Marine Group or any of their Affiliates of their respective obligations under any of the Transaction Documents (but, for the avoidance of doubt, on the terms and subject to the conditions hereof and thereof) or (ii) the enforcement of by the SEACOR Marine Group or any of their Affiliates of any right or remedy arising out of or relating to any of the Transaction Documents. If the disclosure of such information is so required by applicable Law, the SEACOR Marine Group shall, to the extent not prohibited by applicable Law, use commercially reasonable efforts to (A) provide OTM with as much prior written notice as is reasonably practicable under the circumstances and (B) if reasonably requested by OTM and at OTM’s sole expense, to (1) cooperate with OTM in obtaining an appropriate protective order or (2) obtain written assurance from the Person to whom such information will be disclosed that confidential treatment will be afforded to such information.

 

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(c) For the avoidance of doubt, the Parties expressly agree and acknowledge that SMHI may disclose and describe the terms of this Agreement in any filing on Form 8-K relating to this Agreement or the transactions contemplated hereby, or in any other filing SMHI determines is required to be made by or with any government agency or stock exchange.

Section 5.02 [Reserved.]

Section 5.03 Public Announcements. So long as this Agreement is in effect, the parties will use reasonable efforts to consult with each other before issuing any press release or making any public announcement primarily relating to this Agreement or the transactions contemplated hereby and, except for any press release or public announcement as may be required by applicable Law, court process or any listing agreement with the New York Stock Exchange, will use reasonable efforts not to issue any such press release or make any such public announcement without consulting the other parties.

Section 5.04 Names Following Closing.

(a) Neither OTM nor any other member of the OTM Group will have the right to use, and immediately following the Closing, OTM will (and will cause the other members of the OTM Group to) cease to use, the “SEACOR” or “SEACOR Marine” names or any variations or derivatives thereof or any trademarks or logos of SMHI or any of its Subsidiaries (the “Names”), or any name that is reasonably similar to the Names, except as provided in Section 5.04(c).

(b) As soon as practicable after the Closing Date (and in any event within five (5) Business Days thereafter) OTM shall (and shall cause the members of the OTM Group to) make all filings necessary to change the corporate name of SEACOR Marine International to a name that does not include any of the Names in whole or in part and to amend or terminate any certificate of assumed name, fictitious name, d/b/a filings or other filings containing any such Names so as to eliminate such Names. As soon as practicable after the Closing Date (and in any event within five (5) Business Days following the effective date of the change the corporate name of SEACOR Marine International), OTM shall (and shall cause the members of the OTM Group to) change the record name of SEACOR Marine International in each of the corporate books of MexMar, OVH and InfraMar to the new corporate name of SEACOR Marine International as appointed by OTM pursuant to this Section 5.04(b).

(c) Following the Closing, SEACOR Marine International and each of the SEACOR Marine Transferred Entities may continue to use the “SEACOR” or “SEACOR Marine,” Names to the extent such Names are included in the names of the offshore supply vessels owned or operated by SEACOR Marine International or any of the SEACOR Marine Transferred Entities as of the date hereof (including, for the avoidance of doubt, the SEACOR Davis Vessel), provided, that, as soon as practicable after the Closing Date (and in any event within two (2) years thereafter) OTM shall (and shall cause the members of the OTM Group to) make all filings necessary to change the name of each such offshore supply vessel to a name that does not include any of the Names in whole or in part and to amend or terminate any filings containing any such Names so as to eliminate such Names.

Section 5.05 Market Opportunities. From and after the Closing Date until the five year anniversary thereof, if any member of the SEACOR Marine Group wishes to charter any of its offshore supply vessels, fast supply vessels, lift boats or any other type of vessel to a customer located within Mexican territory, upon written notice by the applicable member of the SEACOR Marine Group to OTM, OTM shall (a) cooperate in good faith with the member of the SEACOR Marine Group in all negotiations with such third party customer with respect to the charter of such vessels, and (b) upon such customer executing and delivering binding contracts with OTM (or a member of the OTM Group) for the charter of such vessel, enter into a back-to-back time charter agreement with the relevant member of the SEACOR Marine Group with respect to such vessel, on the same terms and conditions as those agreed upon with such third party customer; and as consideration therefor, the relevant member of the SEACOR Marine Group shall pay to OTM (or the relevant member of the OTM Group) a fee in an amount not greater than five percent of the collected vessel charter rate.

 

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Section 5.06 Right of First Offer. From and after the Closing Date until the five year anniversary thereof, if the OTM Group wishes to charter an offshore supply vessel, fast supply vessel, lift boat, or anchor handling towing supply vessel within the Mexican market from a third party other than any member of the SEACOR Marine Group, prior to presenting such charter opportunity to any third party, OTM shall deliver to SMHI a written notice (a “ROFO Notice”), containing in reasonable detail all of the terms and conditions of such charter opportunity (the “ROFO Offer”). The ROFO Offer shall constitute an irrevocable offer by OTM to SMHI to charter the relevant vessel on such terms and conditions as set forth in the ROFO Offer. SMHI may elect to participate in such business opportunity, by written notice (the “ROFO Exercise Notice”) to OTM at any time during the 5 Business Days following SMHI’s receipt of the ROFO Notice, upon the terms and conditions set forth in the ROFO Notice. The ROFO Exercise Notice shall constitute an irrevocable acceptance by SMHI of the charter terms set forth in the ROFO Offer. If SMHI does not submit a ROFO Exercise Notice within 5 Business Days of receipt of the ROFO Notice, then OTM shall be permitted to pursue such charter opportunity on the same terms and conditions as those set forth in the ROFO Notice.

Section 5.07 Post-Closing Access. From and after the Closing Date, in connection with any reasonable business purpose (including the preparation or amendment of financial statements, SEC, Tax, audit, accounting, claims, litigation, regulatory or other similar reporting obligations, and the determination of any matter relating to the rights or obligations of the OTM Group or the SEACOR Marine Group under any Transaction Document), upon reasonable prior notice, at the requesting Party’s sole cost and expense, and except as determined by either Party in good faith to be necessary to preserve any applicable privilege (including the attorney-client privilege) or comply with any contractual confidentiality provisions or any Law or Order, each Party shall, and shall cause the other members of the OTM Group or the SEACOR Marine Group, as applicable, and each such Person’s respective Representatives to, (a) afford the members of the OTM Group or the SEACOR Marine Group, as applicable, and their respective Representatives reasonable access, during normal business hours, to the properties, books and records of the OTM Group or the SEACOR Marine Group, as applicable, in respect of the JV Entities, SEACOR Marlin, the SEACOR Marine Transferred Equity Interests, the OTM Transferred Equity Interests, and the OTM Transferred Assets, (b) furnish to the members of the OTM Group or the SEACOR Marine Group, as applicable, and their respective Representatives such additional financial and other information regarding the JV Entities, SEACOR Marlin, the SEACOR Marine Transferred Equity Interests, the OTM Transferred Equity Interests and the OTM Transferred Assets as the OTM Group or the SEACOR Marine Group, as applicable, and their respective Representatives may from time to time reasonably request and (c) make available to the OTM Group or the SEACOR Marine Group, as applicable, and their respective Representatives those employees of the OTM Group or SEACOR Marine Group, as applicable, whose assistance, expertise, testimony, notes or recollections or presence are reasonably necessary to assist the members of the OTM Group or the SEACOR Marine Group, as applicable, and their respective Representatives in connection with inquiries for any purpose referred to above, including the presence of such Persons as witnesses in hearings or trials for such purposes; provided, however, that such investigation shall not unreasonably interfere with the business or operations of the Parties; provided, further, that the auditors and accountants of the Parties shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants.

Section 5.08 Delivery of SEACOR Davis Vessel. SEACOR Offshore shall deliver the SEACOR Davis Vessel to CME Ireland within the territorial waters of the United States of America. The SEACOR Davis Vessel shall include the diesel, lubricants and other equipment and accessories included in the Estimated Reactivation Expenses.

 

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Section 5.09 Cooperation for Closing. The Parties shall cooperate and use their respective commercially reasonable efforts to consummate and make effective the transactions contemplated by this Agreement and the other Transaction Documents. The Parties’ obligations under this Section 5.09 shall include the obligation to defend any judicial or administrative action or similar Proceeding instituted (or threatened to be instituted) by any Governmental Authority under any Law seeking to have a stay, restraining order, injunction or similar order entered by any Governmental Authority with respect to the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document, but shall exclude, for the avoidance of any doubt (a) proposing, negotiating, committing to or effecting, by Consent decree, hold, separate order, or otherwise, the sale, transfer, license, divestiture or other disposition of, or any prohibition or limitation on the ownership, operation, effective control or exercise of full rights of ownership of, any of the businesses, product lines or assets of any member of the SEACOR Marine Group or OTM Group, and (b) incurring any Indebtedness. The Parties shall review and discuss in advance, and shall consider in good faith the views of the other Party, in connection with the preparation of any proposed written or material oral communication with any Governmental Authority in connection with such Proceedings, and neither Party shall participate in any meeting with any Governmental Authority unless it first consults with the other Party in advance, and to the extent permitted by the Governmental Authority, gives the other Party the opportunity to be present thereat. Neither Party shall agree to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or any of the other Transaction Documents at the behest of any Person without the written Consent of the other Party (such Consent not to be unreasonably withheld, conditioned or delayed).

ARTICLE VI

SURVIVAL AND REMEDIES

Section 6.01 Survival. None of the representations, warranties, covenants or agreements set forth in this Agreement (or in any certificate delivered pursuant hereto) shall survive the Closing, other than (a) each covenant and agreement set forth in this Agreement that by its terms is to be performed following the Closing, which shall survive the Closing until fully performed, (b) the representations and warranties made pursuant to Section 3.06(b), Section 3.08, and Section 3.09 (the “SMHI General Representations”), which shall survive for 12 months following the Closing Date, (c) the representations and warranties made pursuant to Section 3.03, Section 3.06(a) and Section 3.07 (the “SMHI Fundamental Representations”), which shall survive for two years following the Closing Date, and (d) the representation and warranties made pursuant to Section 4.06 and Section 4.07 (the “OTM General Representations”), which shall survive for 12 months following the Closing Date. No Party or any of its respective Affiliates shall have any Liability with respect to any representation, warranty, covenant or agreement from and after the time that such representation, warranty, covenant or agreement ceases to survive hereunder; provided that the foregoing shall not limit any claim of Fraud.

Section 6.02 Indemnification by SMHI.

(a) Subject to the provisions of this Article VI, after the Closing, SMHI shall indemnify, defend and hold harmless the OTM Group and its Affiliates (collectively, the “OTM Indemnified Parties”), from and against any and all Losses incurred or suffered by any of the OTM Indemnified Parties, to the extent arising out of or resulting from any breach of any SMHI General Representation or SMHI Fundamental Representation.

(b) Notwithstanding any other provision to the contrary, SMHI shall not be required to indemnify, defend or hold harmless any OTM Indemnified Party against, or reimburse any OTM Indemnified Party for, any Losses unless a valid notice of a claim is duly delivered by such OTM Indemnified Party to SMHI prior to the expiration of the SMHI General Representations or SMHI Fundamental Representations, as applicable.

 

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Section 6.03 Indemnification by OTM.

(a) Subject to the provisions of this Article VI, after the Closing, OTM shall indemnify, defend and hold harmless the SEACOR Marine Group and its Affiliates (collectively, the “SEACOR Marine Indemnified Parties”), from and against any and all Losses incurred or suffered by any of the SEACOR Marine Indemnified Parties, to the extent arising out of or resulting from any breach of any OTM General Representation.

(b) Notwithstanding any other provision to the contrary, OTM shall not be required to indemnify, defend or hold harmless any SEACOR Marine Indemnified Party against, or reimburse any SEACOR Marine Indemnified Party for, any Losses unless a valid notice of a claim is duly delivered by such SEACOR Marine Indemnified Party to OTM prior to the expiration of the OTM General Representations.

Section 6.04 Procedures.

(a) A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”), shall promptly notify the party or parties liable for such indemnification (the “Indemnifying Party”) in writing of any pending or threatened claim or demand that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure, it being agreed that notices for claims in respect of a breach of a representation, warranty, covenant or agreement must be delivered prior to the expiration of any applicable survival period specified in Section 6.01 for such representation, warranty, covenant or agreement.

(b) Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to Section 6.04(a), the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered within 20 Business Days of the receipt of notice of such Third Party Claim, to assume the defense and control of such Third Party Claim (at the expense of such Indemnifying Party); provided, that (i) the Indemnifying Party allows the Indemnified Party a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense, (ii) such Third Party Claim does not seek an injunction or other equitable relief that would be binding upon the Indemnified Party, and (iii) the Indemnifying Party conducts the defense of such Third Party Claim actively. If the Indemnifying Party does not assume the defense and control of any Third Party Claim pursuant to this Section 6.04(b), the Indemnified Party shall be entitled to assume and control such defense, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. SMHI shall, and shall cause its Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing books and records and personnel and witnesses, as appropriate for any defense of such Third Party Claim. If the Indemnifying Party has assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, in its sole discretion and without the Consent of any Indemnified Party; provided, that such compromise, settlement or judgment (x) does not involve any injunctive relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party and (y) by its terms unconditionally releases the Indemnified Party completely in respect of such Third Party Claim without any cost whatsoever to the Indemnified Party. No Indemnified Party will Consent to the entry of any judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written Consent of the Indemnifying Party.

 

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Section 6.05 Exclusive Remedy and Release. The Parties acknowledge and agree that, except as set forth in Section 7.12 and with respect to any claim of Fraud, the indemnification provisions of Section 6.02 shall be the sole and exclusive remedy of the Parties for any Losses (including any Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability, or otherwise) that each Party may at any time suffer or incur, or become subject to, as a result of or in connection with this Agreement or the transactions contemplated hereby, including any breach of any representation or warranty in this Agreement by any Party, or any failure by any Party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement and the other Transaction Documents. Without limiting the generality of the foregoing, the Parties hereby irrevocably waive any right of rescission they may otherwise have or to which they may become entitled.

Section 6.06 Additional Indemnification Provisions. With respect to each indemnification obligation contained in this Agreement, all Losses shall be (a) net of any Tax benefits actually realized by the Indemnified Party in connection with the incurrence of such Loss and (b) net of any third-party insurance or indemnity, contribution or similar proceeds that have been actually recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification (it being agreed that if third-party insurance or indemnification, contribution or similar proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made), and the Indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to seek full recovery under all insurance and indemnity, contribution or similar provisions covering such Loss to the same extent as it would if such Loss were not subject to indemnification hereunder. Upon making any payment to the Indemnified Party for any indemnification claim pursuant to this Article VI, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third parties with respect to the subject matter underlying such indemnification claim, and the Indemnified Party shall assign any such rights to the Indemnifying Party. For purposes of this Section 6.06, a Tax benefit shall be deemed to have been actually realized if, and to the extent, the hypothetical Tax liability, if any, of the Indemnified Party (or any affiliated, combined, consolidated or unitary group of which the Indemnified Party is a member) for any taxable year, calculated without taking into account any Tax items attributable to the Loss, exceeds the actual Tax liability, if any, of the Indemnified Party (or any affiliated, combined, consolidated or unitary group of which the Indemnified Party is a member) for such taxable year, calculated by taking into account any Tax items attributable to such Loss.

Section 6.07 Limitation on Liability. Notwithstanding anything to the contrary contained in this Agreement (including this Article VI), neither Party shall be liable to the other Party or its Affiliates, whether in contract, tort (including negligence and strict liability) or otherwise, at Law or in equity, and “Losses” shall not include any amounts for any consequential, special, incidental, indirect, punitive or similar damages whatsoever (including lost profits, diminution of equity value, or damages calculated on multiples of earnings or other similar equity valuation approaches); provided, however, that nothing in this Section 6.07 shall prevent any OTM Indemnified Party or SEACOR Marine Indemnified Party from being indemnified pursuant to this Article VI for all components of awards against them in claims by third parties, including components of such awards to such third parties relating to consequential, special, incidental, indirect, punitive or similar damages (including lost profits, diminution of value, or damages calculated on multiples of earnings or other metrics approaches).

Section 6.08 Mitigation. Each of the Parties agrees to use its commercially reasonable efforts to mitigate its Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder; provided that neither Party will be required to initiate or exhaust any Proceedings (including any collection claims or Proceedings under any insurance policies) against any Person as a condition for such Party to demand indemnification for Losses pursuant to this Agreement or any other Transaction Document.

 

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Section 6.09 Disclaimer. EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III, ARTICLE IV OR IN ANY OTHER TRANSACTION DOCUMENT, THE SEACOR MARINE TRANSFERRED EQUITY INTERESTS, THE OTM TRANSFERRED EQUITY INTERESTS, AND THE OTM TRANSFERRED ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS,” AND THE PARTIES AND THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES EXPRESSLY DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS, TITLE, CONDITION, VALUE, OR QUALITY OF THE ASSETS OF THE JV ENTITIES, THE SEACOR MARINE GROUP, THE OTM GROUP OR THEIR RESPECTIVE BUSINESSES OR ANY PART THEREOF OR THE PROSPECTS (FINANCIAL AND OTHERWISE) AND RISKS OF THE PARTIES AND THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES AS THEY RELATE TO THE SEACOR MARINE TRANSFERRED EQUITY INTERESTS, THE OTM TRANSFERRED EQUITY INTERESTS, AND THE OTM TRANSFERRED ASSETS, AND THE PARTIES AND THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES EXPRESSLY DISCLAIM, AND HEREBY WAIVE, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES, ANY REPRESENTATION OR WARRANTY OF QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, USAGE, OR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THE SUFFICIENCY OR CONDITION OF ASSETS OF THE JV ENTITIES, THE SEACOR MARINE GROUP, THE OTM GROUP OR THEIR RESPECTIVE BUSINESSES OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, OR COMPLIANCE WITH AND LIABILITIES ARISING UNDER ENVIRONMENTAL LAWS (INCLUDING WITH RESPECT TO THE USE, PRESENCE, DISPOSAL OR RELEASE OF HAZARDOUS SUBSTANCES AND ANY LIABILITIES ARISING UNDER OR WITH RESPECT TO THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OR ANY OTHER ANALOGOUS FEDERAL, STATE OR FOREIGN LAW OR REGULATION), IN EACH CASE EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE III, ARTICLE IV OR IN ANY OTHER TRANSACTION DOCUMENT.

ARTICLE VII

MISCELLANEOUS

Section 7.01 Notices. Except as otherwise provided herein, all notices, claims, demands and other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be effective (a) immediately when transmitted via e-mail or facsimile between 9:00 a.m. and 6:00 p.m. (New York City time) on any Business Day (or the immediately succeeding Business Day if transmitted outside of such hours) (without any “bounce back” or similar undeliverable error) or (b) when received if delivered by hand or pre-paid overnight courier service or certified or registered mail on any Business Day if delivered. All such notices, claims, demands and other communications shall be sent to the applicable Party at its respective address set forth below, unless another address has been previously specified to the other Party (if applicable) in writing:

If to any of the OTM Group Parties:

Operadora de Transportes Maritimos, S.A. de C.V.

Sierra Nevada No. 130, Piso 2

Lomas Virreyes

Col. Lomas de Chapultepec

Ciudad de Mexico 11000

 

23


Attn: Alejandro Romano

Email: aromano@cicmx.com

with a copy (which shall not constitute notice) to:

White & Case, LLP

609 Main Street, Suite 2900

Houston, TX 77002

Attn: Rodrigo Dominguez

Email: rodrigo.dominguez@whitecase.com

If to any of the SEACOR Marine Group Parties:

SEACOR Marine Holdings, Inc.

c/o Legal Department

12121 Wickchester Lane

Suite 500

Houston, Texas 77079

Attn: Andrew H. Everett II

Email: aeverett@seacormarine.com

with a copy (which shall not constitute notice) to:

Milbank LLP

55 Hudson Yards

New York, NY 10001

Attn: Scott Golenbock

Email: SGolenbock@milbank.com

Section 7.02 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective current and future successors and permitted assigns, except that neither this Agreement nor any of the rights or obligations hereunder may be assigned or delegated by any Party without the prior written Consent of the other Party, and any attempted assignment or delegation by any Party in violation of this Section 7.02 shall be null and void ab initio; provided, that the Parties may assign this Agreement (in whole or in part) to one or more of their respective Affiliates without the Consent of the other Party; provided, further, than in the case of such permitted assignment, the Party making such assignment will remain jointly and severally liable under this Agreement with its Affiliate, and such assignment shall not relieve the assigning Party of its responsibilities for performance of any obligations under this Agreement.

Section 7.03 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under applicable Law, then such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting the remainder of such provision or the remaining provisions of this Agreement, and the Parties shall amend or otherwise modify this Agreement to replace any invalid, illegal or otherwise unenforceable provision with a valid, legal and enforceable provision that gives effect to the intent of the Parties to the maximum extent permitted by applicable Law so long as the economic or legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any Party. Notwithstanding the foregoing, the Parties intend that the provisions of Section 7.12 and Section 7.13 be construed as integral provisions of this Agreement.

 

24


Section 7.04 Amendment and Waiver.

(a) This Agreement may be amended only in a writing signed by the Parties.

(b) Any waiver of any provision of this Agreement, waiver of any breach of any provision of this Agreement, or waiver of, or election whether or not to enforce, any right or remedy arising under this Agreement or at Law, must be in writing and signed by or on behalf of the Person granting the waiver, and no waiver or election shall be inferred from the conduct of any Party.

(c) Any waiver of a breach of any provision of this Agreement shall not be, or be deemed to be, a waiver of any subsequent breach.

(d) Failure to enforce any provision of this Agreement at any time or for any period shall not waive that or any other provision or the right subsequently to enforce all provisions of this Agreement.

(e) Failure to exercise, or delay in exercising, any right or remedy shall not operate as a waiver or be treated as an election not to exercise such right or remedy, and single or partial exercise or waiver of any right or remedy shall not preclude its further exercise or the exercise of any other right or remedy.

Section 7.05 Entire Agreement. This Agreement and the other Transaction Documents set forth the entire agreement among the Parties with respect to the subject matter hereof and thereof, and supersede any prior understandings or agreements among the Parties, written or oral, with respect to the subject matter hereof and thereof. In the event of any direct conflict between this Agreement and the other Transaction Documents, this Agreement shall control and prevail.

Section 7.06 Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or electronic transmission in portable document format (pdf)), any one of which need not contain the signatures of more than one Party, but all such counterparts taken together shall constitute one and the same instrument.

Section 7.07 Governing Law. This Agreement and any claim, controversy or dispute arising out of or relating to this Agreement and the transactions contemplated hereby, and the interpretation and enforcement of the rights and duties of the Parties, as applicable, shall be governed by and construed in accordance with the Laws of the State of Delaware without giving effect to any choice or conflict of Laws provision or rule that would result in the application of the Laws of any other jurisdiction.

Section 7.08 Consent to Jurisdiction and Service of Process.

(a) Each of the Parties irrevocably submits to the exclusive jurisdiction of the Delaware Court of Chancery or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court, in each case, located in Wilmington, Delaware, for purposes of any Proceeding directly or indirectly arising out of or related in any way to this Agreement or the transactions contemplated hereby, and the interpretation and enforcement of the rights and duties of the Parties under this Agreement (and the each of the Parties agrees not to commence or support any Person in any such Proceeding relating thereto except in such courts). Each of the Parties further expressly and irrevocably waives any right or objection which such Party may now or in the future have to the laying of the venue of any such Proceeding in such courts and shall not plead or claim in any such court that any such Proceeding brought in such court has been brought in an inconvenient forum.

(b) Service of process with respect thereto may be made upon any Party by mailing a copy thereof by registered mail to such Party at its address as provided in Section 7.01 and in accordance with this Section 7.08(b). OTM shall appoint The Corporation Trust Company, with offices currently located at

 

25


1209 Orange Street, Wilmington, New Castle County, Delaware 19801 as its authorized agent to hear, accept, acknowledge and receive for the service of summons, notices, subpoenas, writs, notices, rulings, communications or petitions of any nature whatsoever, and other legal process in Delaware, United States of America, for purposes of any legal action, suit or Proceeding brought by any of the SEACOR Marine Group Parties in respect of this Agreement, and covenants and agrees to maintain such appointed agent for a term of three years as of the date hereof. The serving of process in the manner provided in this Section 7.08(b) in any such action, suit or Proceeding shall be deemed personal service and accepted by OTM as such and shall be valid and binding upon OTM for all the purposes of any such action, suit or Proceeding. For these purposes, OTM shall deliver to the SEACOR Marine Group Parties evidence of appointment of such agent for service of process, and evidence of acceptance of such process agent’s appointment. Furthermore, OTM shall deliver a special power of attorney for lawsuits and collections (poder para pleitos y cobranzas) duly formalized before a Mexican Public Notary, granted by OTM to the agent of service of process.

Section 7.09 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES UNDER THIS AGREEMENT.

Section 7.10 Expenses. Unless otherwise expressly provided for in this Agreement or any other Transaction Document, each Party shall pay, without right of reimbursement or offset from any other Party, all Transaction Expenses incurred by it or any of its Affiliates, whether or not the transactions contemplated by this Agreement are consummated. In the event any Proceeding is commenced to recover damages or enforce any rights or obligations under this Agreement, the prevailing Party in such Proceeding shall be entitled to recover its documented, out-of-pocket fees, costs and expenses (including reasonable fees and disbursements of counsel) incurred or paid in enforcing the prevailing Party’s rights under this Agreement, regardless of whether those fees, costs or expenses are otherwise recoverable as costs in the Proceeding; provided, however, that to the extent a Party is required by any Governmental Authority to pay any filing fees or other fees or expenses under applicable antitrust or competition laws in connection with the consummation of the transactions contemplated by this Agreement, such fees and expenses will be split evenly between SMHI and OTM.

Section 7.11 No Third-Party Beneficiaries. No Person other than the Parties shall have any rights, remedies, obligations or benefits under any provision of this Agreement, except for the Non-Recourse Parties pursuant to Section 7.13.

Section 7.12 Remedies.

(a) The rights and remedies conferred on any Party by, or pursuant to, this Agreement are cumulative, and, except as expressly provided in this Agreement, are in addition to, and not exclusive of, any other rights and remedies available to such Party at Law or in equity.

(b) The Parties agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached or threatened to be breached, and further agree that monetary damages would be an inadequate remedy therefor. Accordingly, each Party agrees, on behalf of itself, its Affiliates and its and their respective Representatives, that, in the event of any non-performance or other breach or threatened breach by any Party of any of provision of this Agreement, the other Party shall be entitled to seek an injunction, specific performance and other equitable relief, and to enforce specifically the provisions of this Agreement, to prevent such non-performance or other breach or threatened breach of the such provisions. Any Party

 

26


seeking any injunction, specific performance or other equitable relief, or to enforce specifically the provisions of this Agreement, shall not be required to provide any bond or other security in connection with any such injunction, specific or other equitable relief or enforcement. In the event that any Proceeding is brought to enforce specifically the provisions of this Agreement, no Party shall allege, and each Party, on behalf of itself, its Affiliates and its and their respective Representatives, hereby waives the defense, that there is an adequate remedy at Law and agrees that it will not oppose the granting of any equitable relief to any other Party on the basis that (i) any Party has an adequate remedy at Law or (ii) an award of specific performance is not an appropriate remedy for any reason at Law or equity.

Section 7.13 No Recourse. All causes of action or Proceedings (whether in contract or in tort, in equity or at Law, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement, or the negotiation, preparation, execution, delivery, performance or breach of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be brought only against (and are those solely of) the Persons that are expressly identified as parties to this Agreement in the preamble of this Agreement or that execute and deliver any other Transaction Document (each, a “Contracting Party”). No Person who is not a Contracting Party, including any past, present or future direct or indirect equity holder, Affiliate or Representative of such Contracting Party or any Affiliate or Representative of any of the foregoing (the “Non-Recourse Party”), shall have any Liability or other obligation (whether in contract or in tort, in equity or at Law, or granted by statute) for any cause of action or Proceeding arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, preparation, execution, delivery, performance, or breach; and, to the maximum extent permitted by applicable Law, each Contracting Party hereby waives and releases all such causes of action and Proceedings against any such Non-Recourse Party. Without limiting the generality of the foregoing, to the maximum extent permitted by applicable Law, (a) each Contracting Party hereby waives and releases any and all causes of action or Proceedings that may otherwise be brought in equity or at Law, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability or other obligation of any Contracting Party on any Non-Recourse Party, whether granted by statute or based on theories of equity, agency, Control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Contracting Party disclaims any reliance upon any Non-Recourse Party with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement.

Section 7.14 Release.

(a) Effective as of the Closing, each of the OTM Group Parties, on its own behalf and on behalf of its Affiliates and its and their directors, members of boards of managers and officers (solely in their capacities as directors, members of boards of managers and officers of the OTM Group Parties and each of their Affiliates), and each of the respective heirs, executors, administrators, successors and permitted assigns of each of the foregoing (each, an “OTM Group Releasing Person”), hereby absolutely and unconditionally releases and forever discharges each of the SEACOR Marine Group Parties and the other members of the SEACOR Marine Group and each of its past, present and future direct and indirect equity holders (other than the OTM Group and its direct and indirect equityholders), Affiliates (other than the OTM Group and its Affiliates) and Representatives, and each of its and their respective Affiliates and Representatives (including the Persons listed in Section 2.02(b)(ii)), and each of the respective heirs, executors, administrators, successors and permitted assigns of each of the foregoing (each, an “OTM Group Released Person”) from, and agrees not to assert any cause of action or Proceeding with respect to, any Losses or Liabilities whatsoever, of any kind or nature, whether at Law or in equity, which have been or could have been asserted against any OTM Group Released Person, which any OTM Group Releasing Person has or ever had, in each case, solely to the extent arising out of or in any way relating to events, circumstances or actions occurring, existing or taken prior to or as of the Closing Date solely in respect of

 

27


matters relating to the SEACOR Group Parties’ ownership or operation of the SEACOR Marine Transferred Entities; provided, that notwithstanding the foregoing, no OTM Group Releasing Person releases any OTM Group Released Person in respect of (i) any obligations of an OTM Group Released Person pursuant to this Agreement or any of the Transaction Documents, (ii) its rights to assert any cause of action or Proceeding with respect to any Losses or Liabilities to the extent arising under or related to any Transaction Document, or (iii) Fraud.

(b) Effective as of the Closing, each of the SEACOR Marine Group Parties, on its own behalf and on behalf of its Affiliates and its and their directors, members of boards of managers and officers (solely in their capacities as directors, members of boards of managers and officers of the SEACOR Marine Group Parties and each of their Affiliates), and each of the respective heirs, executors, administrators, successors and permitted assigns of each of the foregoing (each, a “SEACOR Marine Group Releasing Person”), hereby absolutely and unconditionally releases and forever discharges each of the OTM Group Parties and the other members of the OTM Group and each of its past, present and future direct and indirect equity holders (other than the SEACOR Marine Group and its direct and indirect equityholders), Affiliates (other than the SEACOR Marine Group and its Affiliates) and Representatives (including the Persons listed in Section 2.02(c)(iii)), and each of its and their respective Affiliates and Representatives, each of the respective heirs, executors, administrators, successors and permitted assigns of each of the foregoing (each, a “SEACOR Marine Group Released Person”) from, and agrees not to assert any cause of action or Proceeding with respect to, any Losses or Liabilities whatsoever, of any kind or nature, whether at Law or in equity, which have been or could have been asserted against any SEACOR Marine Group Released Person, which any SEACOR Marine Group Releasing Person has or ever had, in each case, solely to the extent arising out of or in any way relating to events, circumstances or actions occurring, existing or taken prior to or as of the Closing Date solely in respect of matters relating to the OTM Group Parties’ ownership or operation of the JV Entities or the OTM Transferred Assets; provided, that notwithstanding the foregoing, no SEACOR Marine Group Releasing Person releases any SEACOR Marine Group Released Person in respect of (i) any obligations of a SEACOR Marine Group Released Person pursuant to this Agreement or any of the Transaction Documents, (ii) its rights to assert any cause of action or Proceeding with respect to any Losses or Liabilities to the extent arising under or related to any Transaction Document, or (iii) Fraud.

Section 7.15 Further Assurances. From time to time after the Closing, each Party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments, and shall take, or cause to be taken, all such other actions as the other Party may reasonably request to evidence and effectuate the transactions contemplated by this Agreement.

[Signature pages follow.]

 

 

28


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written.

 

SMHI:
SEACOR MARINE HOLDINGS INC.
By:  

/s/ JOHN GELLERT

Name:   John Gellert
Title:   President and Chief Executive Officer
SEACOR MARINE LLC:
SEACOR MARINE LLC
By:  

/s/ JESUS LLORCA

Name:   Jesus Llorca
Title:   Executive Vice President and Treasurer
SEACOR OFFSHORE:
SEACOR OFFSHORE LLC
By:  

/s/ JESUS LLORCA

Name:   Jesus Llorca
Title:   Vice President and Treasurer
SEACOR MARINE CAPITAL:
SEACOR MARINE CAPITAL INC.
By:  

/s/ JESUS LLORCA

Name:   Jesus Llorca
Title:   Vice President and Treasurer

Signature Page to Framework Agreement


OTM:
OPERADORA DE TRANSPORTES MARITIMOS, S.A. DE C.V.
By:  

/s/ JOSÉ ANTONIO GUERRERO MENDOZA

Name:   José Antonio Guerrero Mendoza
Title:   Sole Manager
OVH:
OFFSHORE VESSELS HOLDING, S.A.P.I. DE C.V.
By:  

/s/ ALEJANDRO ROMANO BÁEZ

Name:   Alejandro Romano Báez
Title:   Attorney in fact
CME IRELAND:
CME DRILLSHIP HOLDINGS DAC
By:  

/s/ ALEJANDRO ROMANO BÁEZ

Name:   Alejandro Romano Báez
Title:   Attorney in fact

Signature Page to Framework Agreement

EX-10.2

Exhibit 10.2

Execution Version

 

 

 

THIRD AMENDED AND RESTATED TERM LOAN CREDIT FACILITY AGREEMENT

PROVIDING FOR A

SENIOR SECURED TERM LOAN

IN THE AMOUNT OF UP TO $28,831,148.32

BY AND AMONG

MANTENIMIENTO EXPRESS MARÍTIMO, S.A.P.I. DE C.V.,

as Borrower

DNB BANK ASA, NEW YORK BRANCH

as Facility Agent and Collateral Agent,

and

the Institutions

identified on Schedule 1-A,

as Lenders

 

 

 

as of September 29, 2022


TABLE OF CONTENTS

 

         Page  

1.  DEFINITIONS

     2  

1.1

  Specific Definitions      2  

1.2

  Computation of Time Periods; Other Definitional Provisions      21  

1.3

  Accounting Terms      21  

1.4

  Certain Matters Regarding Materiality      21  

1.5

  Forms of Documents      21  

2.  REPRESENTATIONS AND WARRANTIES

     22  

2.1

  Representations and Warranties      22  

3.  THE FACILITY

     28  

3.1

  Purposes      28  

3.2

  Continuation of the Original Facility      28  

3.3

  Notation of Advances on Note      28  

3.4

  Waiver and Defenses; Other Restrictions      28  

4.  CONDITIONS

     30  

4.1

  Conditions Precedent to the Occurrence of the Effective Date.      30  

5.  REPAYMENT AND PREPAYMENT

     32  

5.1

  Repayment      32  

5.2

  Intentionally Omitted      32  

5.3

  Intentionally Omitted      32  

5.4

  Voluntary Prepayment of Term Loan Facility      33  

5.5

  Intentionally Omitted      33  

5.6

  Mandatory Prepayment/Cancellation; Sale or Loss of Vessels      33  

5.7

  Interest and Costs with Prepayments/Application of Prepayments      33  

6.  INTEREST AND RATE

     33  

6.1

  Applicable Rate      33  

6.2

  Default Rate      33  

6.3

  Interest Payments      33  

6.4

  SOFR Conforming Changes      33  

6.5

  Benchmark Replacement Setting      34  

7.  PAYMENTS

     38  

7.1

  Place of Payments, No Set Off      38  

7.2

  Tax Credits      38  

7.3

  Sharing of Setoffs      38  

 

-i-


7.4

  Computations; Banking Day      39  

7.5

  Application of Moneys Prior to an Event of Default      39  

7.6

  FATCA Information      40  

7.7

  FATCA Deduction.      40  

8.  EVENTS OF DEFAULT

     41  

8.1

  Events of Default      41  

8.2

  Indemnification      44  

8.3

  Application of Moneys After an Event of Default      44  

9.  COVENANTS

     44  

9.1

  Affirmative Covenants      44  

9.2

  Negative Covenants      52  

9.3

  Financial Covenants      56  

9.4

  Asset Maintenance      56  

9.5

  Substitution of Relevant Vessels      56  

10.  ACCOUNTS

     57  

10.1

  Accounts      57  

10.2

  Application of Accounts      57  

11.  ASSIGNMENT

     58  

12.  ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.

     59  

12.1

  Illegality      59  

12.2

  Increased Costs      59  

12.3

  Lender’s Certificate Conclusive      60  

12.4

  Compensation for Losses      60  

12.5

  Market Disruption      60  

13.  CURRENCY INDEMNITY

     60  

13.1

  Currency Conversion      60  

13.2

  Change in Exchange Rate      60  

13.3

  Additional Debt Due      60  

13.4

  Rate of Exchange      61  

14.  FEES AND EXPENSES

     61  

14.1

  Fees      61  

14.2

  Expenses      61  

15.  APPLICABLE LAW, JURISDICTION AND WAIVER

     61  

15.1

  Applicable Law      61  

15.2

  Jurisdiction      61  

15.3

  WAIVER OF IMMUNITY      62  

15.4

  WAIVER OF JURY TRIAL      62  

 

-ii-


16.  THE FACILITY AGENT AND COLLATERAL AGENT

     62  

16.1

  Appointment of the Facility Agent and Collateral Agent      62  

16.2

  Collateral Agent as Trustee      62  

16.3

  Distribution of Payments      63  

16.4

  Holder of Interest in Note      63  

16.5

  No Duty to Examine, Etc      63  

16.6

  The Facility Agent as Lender      63  

16.7

  Acts of the Facility Agent      63  

16.8

  Certain Amendments      64  

16.9

  Assumption re Event of Default      64  

16.10

  Limitations of Liability      65  

16.11

  Indemnification of the Facility Agent      65  

16.12

  Consultation with Counsel      65  

16.13

  Resignation      65  

16.14

  Representations of Lenders      66  

16.15

  Reversal of Redistribution      66  

16.16

  Erroneous Payments.      67  

17.  NOTICES AND DEMANDS

     68  

17.1

  Notices      68  

18.  MISCELLANEOUS

     69  

18.1

  Time of Essence      69  

18.2

  References      69  

18.3

  Further Assurances      69  

18.4

  Prior Agreements, Merger      69  

18.5

  Entire Agreement; Amendments      69  

18.6

  Indemnification      70  

18.7

  USA Patriot Act Notice; OFAC and Bank Secrecy Act      70  

18.8

  Remedies Cumulative and Not Exclusive; No Waiver      70  

18.9

  Successors and Assigns      71  

18.10

  Invalidity      71  

18.11

  Counterparts; Electronic Delivery      71  

18.12

  Headings      71  

18.13

  Disclosure      71  

18.14

  Contractual Recognition of Bail-In      71  

18.15

  CEA Eligible Contract Participant      72  

18.16

  Amendment and Restatement.      72  

 

-iii-


SCHEDULES

1    The Lenders and the Loans/The Agents
2    Vessels
3    Disclosure
4    Approved Ship Brokers
5    Repayment Schedule

EXHIBITS

A    Form of Promissory Note
B    [Intentionally Omitted]
C    [Intentionally Omitted]
D    Form of Earnings Assignment
E    Form of Collection Rights Assignment
F    Form of Insurances Assignment
G    Form of Charter Assignment
H    Form of Account Pledge Agreement
I    Form of Assignment and Assumption Agreement
J    Form of Compliance Certificate
K    [Intentionally Omitted]
L    Form of Manager’s Undertaking

 

-iv-


THIRD AMENDED AND RESTATED SENIOR SECURED

TERM LOAN CREDIT FACILITY AGREEMENT

THIS THIRD AMENDED AND RESTATED SENIOR SECURED TERM LOAN CREDIT FACILITY AGREEMENT (this “Agreement”) is made as of September 29, 2022, by and among (1) MANTENIMIENTO EXPRESS MARÍTIMO, S.A.P.I. DE C.V., a company organized and existing under the laws of the United Mexican States (the “Borrower”), as borrower, (2) the institutions listed on Schedule 1-A, as lenders (together with any bank, institution or institutional lender which becomes a Lender pursuant to Section 11, the “Lenders”), and (3) DNB BANK ASA, NEW YORK BRANCH (“DNB”), as facility agent for the Creditors (as defined below) (in such capacity, the “Facility Agent”) and as collateral agent for the Creditors with respect to all Collateral (in such capacity, the “Collateral Agent”).

WITNESSETH THAT:

WHEREAS, on January 20, 2015 (the “Original Closing Date”), the Borrower entered into a senior secured term loan credit facility agreement by and among (i) the Borrower, as borrower, (ii) DVB Bank America N.V. (“DVB Bank”), as facility agent and collateral agent and (iii) certain financial institutions named therein as lenders and swap banks (as amended, amended and restated, supplemented or otherwise modified prior to the date hereof, including that certain amended and restated senior secured term loan credit facility agreement, dated as of December 16, 2016, and that certain Second Amended and Restated Senior Secured Term Loan Credit Facility Agreement dated as of July 8, 2022, the “Original Facility Agreement”);

WHEREAS, in accordance with that certain letter agreement, dated as of May 18, 2022, the outstanding portion of the Facility owed to DVB Bank SE, as lender under the Original Facility Agreement in the principal amount of $30,063,628.33 (the “OVH Subordinated Loan”) was purchased by Offshore Vessel Holdings, S.A.P.I. de C.V. (“OVH”), an Affiliate of the Borrower, which was subsequently converted to a separate debt instrument evidenced by that certain subordinated loan agreement dated May 18, 2022 entered into by the Borrower and OVH (the “OVH Subordinated Loan Agreement”);

WHEREAS, pursuant to and in accordance with the terms of that certain subordination and intercreditor agreement (the “Subordination and Intercreditor Agreement”), dated as of May 18, 2022, the obligations of the Borrower owed under the OVH Subordinated Loan Agreement, and the security interests granted to secure such obligations, are subordinated to those held by the Creditors under this Agreement and the other Finance Documents;

WHEREAS, pursuant to that certain successor agent agreement (the “Successor Agent Agreement”), dated as of June 29, 2022, DVB Bank transferred and assigned, and DNB assumed and accepted, all of DVB Bank’s duties, obligations, responsibilities and rights as “Facility Agent” for the Creditors and as “Collateral Agent” for the Creditors under this Agreement and the other Finance Documents;

WHEREAS, pursuant to separate letter agreements dated as of the date hereof, the outstanding portions of the Facility owed to DNB Capital LLC and The Governor and Company of the Bank of Ireland, as lenders under the Original Facility Agreement in the principal amount of $28,831,148.32 was purchased by SEACOR Marine Capital Inc. (“SMCI”), such that SMCI is the sole lender under the Facility;

WHEREAS, the parties hereto desire to amend and restate the Original Facility Agreement to, among other things, (i) modify the definition of “Change of Control”, (ii) modify the maturity date of the Facility, (iii) change the interest rate of the Facility, (iv) reduce the amount of cash required to be retained by the Borrower; and (v) amend certain other terms of the Original Facility Agreement, upon the terms and subject to the conditions set forth herein; and


NOW, THEREFORE, in consideration of the premises set forth above, the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as set forth below:

1. DEFINITIONS

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:

 

Acceptable Accounting Firm    means PriceWaterhouseCoopers or such other accounting firm acceptable to the Lenders in their sole discretion;
Acceptable Charter    means, with respect to a Mexican-flagged Vessel, a Pemex Charter or any time charter, or other employment acceptable to the Facility Agent, under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) with an Acceptable Charterer, with rates (denominated in Dollars), projected cash flow, and all other terms and conditions satisfactory to the Facility Agent or, with respect to a non-Mexican flagged Vessel, any other Charter Party Agreement;
Acceptable Charterer    means Pemex or such other Person acceptable to the Lenders in their sole discretion;
Account(s)    means each or any of the Earnings Account, Drydock Reserve Account, Retention Account, Peso Trust Account, US Dollar Trust Earnings Account, US Dollar Trust Drydock Reserve Account and US Dollar Trust Retention Account, and any other accounts, including without limitation, accounts of any Obligor into which Cash Equivalents may be deposited;
Account Pledge Agreements    means the Earnings Account Pledge Agreement, the Retention Account Pledge Agreement and the Drydock Reserve Account Pledge Agreement;
Advance(s)    means any amount advanced to the Borrower with respect to the Facility pursuant to Section 3 or (as the context may require) the aggregate amount of all Advances for the time being outstanding;
Affected Financial Institution    means (a) any EEA Financial Institution or (b) any UK Financial Institution;
Affiliate    means with respect to any Person, any other Person who directly or indirectly controls, is controlled by or under common control with such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any Person means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of that Person whether through ownership of voting securities or by contract or otherwise;

 

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Agreement    means this Senior Secured Term Loan Credit Facility Agreement, as the same shall be amended, amended and restated, modified or supplemented from time to time;
AHTS    means an anchor handling tug/supply vessel;
Anti-Money Laundering Laws    has the meaning ascribed thereto in Section 2.1(u) hereof;
Applicable Rate    means the rate of interest applicable to the Facility pursuant to Section 6.1;
Assignment and Assumption Agreement(s)    means the Assignment and Assumption Agreement(s) executed pursuant to Section 11 substantially in the form set out in Exhibit I;
Assignment Notices    means notices by the relevant Security Party to be given pursuant to each of the respective Assignments;
Assignments    means the Earnings Assignments, the Insurances Assignments, the Collection Rights Assignments and the Charter Assignments;
Available Tenor    has the meaning given thereto in Section 6.5(e);
Bail-In Action    means the exercise of any Write-down and Conversion Powers.
Bail-In Legislation   

(a) in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and

(b) in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

Banking Day(s)    means day(s) on which banks are open for the transaction of business in New York, USA, Mexico City, Mexico, and Oslo, Norway;
Benchmark    has the meaning given thereto in Section 6.5(e);
Benchmark Replacement    has the meaning given thereto in Section 6.5(e);
Benchmark Replacement Adjustment    has the meaning given thereto in Section 6.5(e);

 

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Benchmark Replacement Date    has the meaning given thereto in Section 6.5(e);
Benchmark Transition Event    has the meaning given thereto in Section 6.5(e);
Benchmark Transition Start Date    has the meaning given thereto in Section 6.5(e);
Benchmark Unavailability Period    has the meaning given thereto in Section 6.5(e);
Borrower    has the meaning ascribed thereto in the preamble;
Cash Equivalents    means (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such Person, (b) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any State thereof or, the District of Columbia or any foreign jurisdiction having capital, surplus and undivided profits aggregating in excess of $500,000,000, having maturities of not more than one year from the date of acquisition by such Person, (c) repurchase obligations with a term of not more than 90 days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (b) above, (d) commercial paper issued by any issuer rated at least A-1 by S&P or at least P-1 by Moody’s (or carrying an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally), and in each case maturing not more than one year after the date of acquisition by such Person or (e) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (a) through (d) above;
Change of Control    means (i) the Sponsor ceases to directly or indirectly own 100% of the shares in the Shareholders, or (ii) the Shareholders cease to, beneficially through the Guarantee, Administration and Source of Payment Trust Agreement or directly, own 100% of the shares in the Borrower; for the avoidance of doubt, notwithstanding the foregoing, the execution by the Shareholders and the Borrower of the Guarantee, Administration and Source of Payment Trust Agreement in respect of the contribution of the shares it owns in its Subsidiaries shall not be considered a Change of Control;
Charter Assignments    means the assignments in respect of each of the Charter Party Agreements relating to non-Mexican flagged Relevant Vessels, to be executed by the relevant Obligor in favor of the Collateral Agent, substantially in the form set out in Exhibit G;

 

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Charter Party Agreements    means charter party agreements, or other employment acceptable to the Facility Agent, relating to the Relevant Vessels entered into between the relevant Obligor and any Acceptable Charterer, satisfactory to the Facility Agent in form and substance;
Classification Society    means any classification society acceptable to the Lenders with whom a Relevant Vessel is entered and who conducts periodic physical surveys and/or inspections of a Relevant Vessel;
Code    means the Internal Revenue Code of 1986, as amended, and any successor statute and regulation promulgated thereunder;
Collateral    means all property or other assets, real or personal, tangible or intangible, whether now owned or hereafter acquired, in which the Facility Agent, the Collateral Agent, the Trustee or any Creditor has been granted a security interest pursuant to any Security Document;
Collateral Agent    has the meaning ascribed thereto in the preamble;
Collection Rights Assignment(s)    means the assignments in respect of the collection rights arising from the Pemex Charters and any other Charter Party Agreements relating to any Relevant Vessels employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), executed or to be executed by the relevant Obligor in favor of the Trustee, substantially in the form set out in Exhibit E;
Commercial Manager    means an Obligor, PGES, SEACOR Marine or such other commercial manager acceptable to the Lenders;
Commitment(s)    means, in relation to a Lender as of the Effective Date, the portion of the Facility set out opposite its name in Schedule 1-A or, as the case may be, in any relevant Assignment and Assumption Agreement, as such amount shall be reduced from time to time pursuant to Section 5;
Compliance Certificate    means a certificate certifying the compliance by the Borrower with all of its covenants contained herein and showing the calculations of financial covenants in reasonable detail, executed and delivered by two (2) directors of the Borrower to the Facility Agent from time to time pursuant to Section 9.1(d) in the form set out in Exhibit J, or in such other form as the Facility Agent may agree;
Conforming Changes    means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Banking Day,” the definition of “U.S. Government Securities Banking Day,” the definition of “Interest Period” or any similar

 

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   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 6.5 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 Finance Documents);
Creditors    means, collectively, the Lenders, the Facility Agent and the Collateral Agent;
Debt Service Coverage Ratio    means the ratio of (i) EBITDA to (ii) the scheduled principal amortizations and scheduled interest payments hereunder;
Deed of Covenants    means the deed of covenants on the Relevant Vessels (other than the Mexican flagged Relevant Vessels), the execution of which the Facility Agent deems advisable, to be executed by the relevant Obligor, as owner, in favor of the Collateral Agent, and to be acceptable to the Lenders in form and substance;
Default    means any event which with the giving of notice or lapse of time or both would constitute an Event of Default;
Default Rate    has the meaning ascribed thereto in Section 6.2;
Designated Jurisdiction    means the United States, the United Mexican States, the Republic of Marshall Islands or another jurisdiction acceptable to the Lenders, in which the relevant Vessel is flagged;
DOC    means a document of compliance issued to an Operator in accordance with rule 13 of the ISM Code;
Dollars” and the sign “$    means the legal currency, at any relevant time hereunder, of the United States 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);

 

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Drydock Reserve Account    means the account of an Obligor, denominated in Dollars, to be established, if, and to the extent that, any Relevant Vessels are employed in a trade other than in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos), with a financial institution acceptable to the Facility Agent, into which the Drydock Reserve Amounts of all such Relevant Vessels are paid;
Drydock Reserve Account Pledge Agreement    means the pledge over the Drydock Reserve Account to be executed by an Obligor in favor of the Collateral Agent, if necessary, substantially in the form set out in Exhibit H, to be governed by the laws of the State of New York;
Drydock Reserve Amounts    means (x) for the period commencing on the ten (10) month anniversary of the Original Closing Date and ending on the three (3) year anniversary date of the Original Closing Date, $140,000 and (y) thereafter, $285,000, or such amount as may be adjusted from time to time with the Lenders’ prior written consent, which is paid on a monthly basis from (i) US Dollar Trust Earnings Account, with respect to all of the Relevant Vessels employed in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos), or (ii) Earnings Account with respect to all of the Relevant Vessels that are employed in a trade other than in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos) and which shall be used for drydocking expenses;
Earnings Account    means the account of any Obligor, denominated in Dollars, to be established, if, and to the extent that, any Relevant Vessels are not employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), with DNB or such other financial institution acceptable to the Majority Lenders, into which the earnings of all of such Relevant Vessels are paid;
Earnings Account Pledge Agreement    means the pledge over the Earnings Account to be executed by the relevant Obligor in favor of the Collateral Agent, if necessary, substantially in the form set out in Exhibit H, to be governed by the laws of the State of New York;
Earnings Assignments    means the assignments in respect of the earnings and the requisition compensation of the Relevant Vessels, except for such Vessels employed with Pemex, from any and all sources, to be executed by the relevant Obligor in favor of the Collateral Agent, substantially in the form set out in Exhibit D;

 

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EBITDA    means, with respect to any Person for any period, consolidated net income, plus consolidated interest, taxes, depreciation, amortization and other non-cash charges, to the extent deducted in calculating net income;
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;
Effective Date    means September 29, 2022;
Eligible Assignee    means: (a) any commercial bank organized under the laws of the United States, or any State thereof, and having total assets in excess of $1,000,000,000, (b) any commercial bank organized under the laws of any other country that is a member of the Organization for Economic Cooperation and Development (the “OECD”) or has concluded special lending arrangements with the International Monetary Fund Associated with its General Arrangements to Borrow, or a political subdivision of any such country, and having total assets in excess of $1,000,000,000, so long as such bank is acting through a branch or agency located in the United States or in the country in which it is organized or another country that is described in this clause (b), (c) the central bank of any country that is a member of the OECD, or (d) any Affiliate of any existing Lender; provided, that such Person described in clauses (a), (b), (c) and (d) above is (i) the effective beneficiary, (ii) for tax purposes, is a resident of a country which has entered with Mexico into a treaty to avoid double taxation, and (iii) authorized to act as a credit institution under the laws of its jurisdiction of incorporation or formation, or it is regarded as an “investment bank” under Mexican Income Tax Law provisions and current Tax Miscellaneous Resolution (“Resolución Miscelánea Fiscal”), unless otherwise agreed by the Borrower;
Environmental Affiliate(s)    means any person or entity, the liability of which for Environmental Claims the Security Parties or any Subsidiary may have assumed by contract or operation of law;

 

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Environmental Approval(s)    has the meaning ascribed thereto in Section 2.1(q);
Environmental Claim(s)    has the meaning ascribed thereto in Section 2.1(q);
Environmental Law(s)    has the meaning ascribed thereto in Section 2.1(q);
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 Security Party or any Subsidiary, would be deemed a single employer under Section 414 of the Code or which would be considered a member of a “controlled group” with any Security Party or any Subsidiary 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 any Security Party or any Subsidiary or 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 any Security Party or any Subsidiary or ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (vi) the receipt by any Security Party or any Subsidiary or ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Security Party or any Subsidiary or ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Section 4245 of ERISA, in reorganization within the meaning of Section 4241 of ERISA, or in endangered or critical status within the meaning of Section 432 of the Code or Section 305 of ERISA; (vii) any “reportable event”, as defined in Section 4043 of ERISA with respect to a Plan (other than an event for which the 30-day notice period to the PBGC is waived); or (viii) the existence with respect to any Plan of a “prohibited transaction” for purposes of Section 406 of ERISA or Section 4975 of the Code;
ERISA Termination Event    means (i) 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 any Security Party or any Subsidiary or ERISA Affiliate thereof in connection with any Plan or Multiemployer Plan; (ii) the receipt by any Security Party or any Subsidiary or 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

 

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   administer any Plan or Multiemployer Plan under Section 4042 of ERISA; (iii) the filing of a notice of intent to terminate a Plan under Section 4041 of ERISA; (iv) the institution of proceeding to terminate a Plan or a Multiemployer Plan; (v) the incurrence by any Security Party or any Subsidiary or ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; or (vi) 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;
Event(s) of Default    means any of the events set out in Section 8.1;
Exchange Act    means the Securities and Exchange Act of 1934, as amended;
Facility    means the senior secured term loan facility made available by the Lenders to the Borrower hereunder and as further described in Clause 3.2, or the balance thereof from time to time outstanding;
Facility Agent    has the meaning ascribed thereto in the preamble;
Fair Market Value    means at any time and from time to time, in respect of (i) any Vessel that is less than eighteen hundred (1,800) DWT, one (1) desk-top charter free appraisal on an “as is”, “willing seller, willing buyer” basis of such Vessel from Dufour, Laskay & Strouse and (ii) a Vessel that is equal to or greater than eighteen hundred (1,800) DWT, the average of two (2) desk-top charter-free appraisals on an “as is”, “willing seller, willing buyer” basis of such Vessel from the ship brokers listed in Schedule 4 or such other independent ship brokers selected by the Facility Agent, provided that at least one of the independent ship brokers must be selected by the Facility Agent and, if requested by the Borrower, the Borrower may choose the second independent ship broker to provide one appraisal from the list set forth in Schedule 4; provided further that if one of the appraisals provides a Vessel value that is more than one hundred ten percent (110%) of the Vessel value set forth in the second appraisal, the Fair Market Value shall be the average of (1) the two original appraisals and (2) a third appraisal from an independent ship broker listed in Schedule 4, or, if not listed in Schedule 4, an independent ship broker selected by the Borrower and approved by the Facility Agent (which approval shall not be unreasonably withheld). No appraisal is to be dated more than two (2) weeks prior to the date on which a determination of Fair Market Value is required pursuant to this Agreement;

 

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FATCA    means (i) sections 1471 to 1474 of the Code or any associated regulations or other official guidance; (ii) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or (iii) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the United States Internal Revenue Service, the United States government or any governmental or taxation authority in any other jurisdiction;
FATCA Deduction    means a deduction or withholding from a payment under this Agreement, the Note, any Security Document required by FATCA;
FATCA Exempt Party    means a Party that is entitled to receive payments free from any FATCA Deduction;
Federal Funds Effective Rate    means for any period, a fluctuating interest rate for each day during such period equal to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Banking Day, for the next preceding Banking Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Banking Day, the average of the quotations for such day on such transactions received by the Facility Agent from three (3) Federal Funds brokers of recognized standing selected by the Facility Agent;
Fee Letter    means any fee letter or other agreement designated as a “Fee Letter” evidencing fees payable to any Creditor hereunder;
Final Payment Date    means September 30, 2023; provided that if any such date is not a Banking Day, then the Final Payment Date shall be the immediately preceding Banking Day;
Finance Documents    means this Agreement, the Note, the Subordination and Intercreditor Agreement, any Fee Letter and the Security Documents;
Floor    means a rate of interest equal to 0.00%;
Foreign Plan    means an employee benefit plan, program, policy, scheme or arrangement that is not subject to United States law and is maintained or contributed to by any Security Party or any Subsidiary or for which any Security Party or any Subsidiary has or could have any liability;
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 a lien on, or seizure of, any of the Collateral;

 

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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 Obligors’ independent auditors for these purposes) over the assets of such Foreign Plan;
GAAP    means generally accepted accounting principles for the United States as from time to time in effect;
GMA    means Grupo Mexicano de Aeronáutica, S.A. de C.V., a Mexican company;
Governmental Authority    means any foreign, federal, state, regional, local, municipal or other government, or any department, commission, board, bureau, agency, public authority or instrumentality thereof, or any court or arbitrator;
Guarantee, Administration and Source of Payment Trust Agreement    means the Mexican law-governed ninth amended and restated Irrevocable Guarantee, Administration and Source of Payment Trust Agreement No. DB/1590 (before F/1590), dated as of December 15, 2021, among, inter alios, the Borrower, OTM, GMA, SEACOR International, as settlor and second beneficiary, and DNB Bank ASA, New York Branch, as collateral agent, on behalf of the Creditors as first beneficiary, and the Trustee, as trustee, as further amended, amended and restated, supplemented or otherwise modified from time to time;
Indebtedness    means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, including all monies drawn down under this Agreement, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery thereof or the completion of such services, except trade payables, (v) all obligations on account of principal of such Person as lessee under capitalized leases, (vi) all indebtedness of other Persons secured by a lien on any asset of such Person, whether or not such indebtedness is assumed by such Person; provided that the amount of such indebtedness shall be the lesser of (a) the fair market value of such asset at such date of determination and (b) the amount of such indebtedness, and (vii) all indebtedness of other Persons guaranteed by such Person to the extent guaranteed; the amount of Indebtedness of any Person at any date shall be the

 

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   outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, provided that the amount outstanding at any time of any indebtedness issued with original issue discount is the face amount of such indebtedness less the remaining unamortized portion of the original issue discount of such indebtedness at such time as determined in conformity with MFRS;
Indemnitee    has the meaning ascribed thereto in Section 18.6;
Insurances Assignments    means the first priority assignments in respect of the insurances over the Relevant Vessels to be executed by the relevant Obligor in favor of the Collateral Agent, substantially in the form set out in Exhibit F;
Interest Period    means, with respect to the Facility, each three (3) month period and such shorter period agreed by the Borrower and the Lenders;
Inventory of Hazardous Materials    has the meaning specified in Resolution MEPC.269(68) of the International Maritime Organization;
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 Facilities 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;
Lenders    has the meaning ascribed thereto in the preamble;
Majority Lenders    means, at any time, Lenders whose combined Commitments exceed 66.67% of the total Commitments;
Manager’s Undertaking(s)    means letters of undertaking to be issued by any party other than the Obligors that is or becomes the Technical Manager or the Commercial Manager to the Facility Agent, substantially in the form set out in Exhibit L or in such form acceptable to the Lenders, pursuant to which such Technical Manager and such Commercial Manager shall subordinate their respective rights to those of the Facility Agent;

 

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Margin    means a rate of interest per annum of 5.00%;
Market Disruption Event    has the meaning ascribed thereto in Section 12.5;
Market Disruption Notification    has the meaning ascribed thereto in Section 12.5;
Material Adverse Effect    means a material adverse effect on (i) the ability of the Borrower to repay the Facility or perform any of its obligations hereunder or under the Note, (ii) the ability of any Security Party to perform its obligations under any Finance Documents to which it is a party, (iii) the business, property, assets, liabilities, operations, or financial condition of the Security Parties taken as a whole or (iv) the legality, validity or enforceability of any Finance Document;
Materials of Environmental Concern    has the meaning ascribed thereto in Section 2.1(p);
Mexico    means the United Mexican States including the Mexican Marine Zones (Zonas Marinas Mexicans) as defined in the Mexican Federal Law of the Sea (Ley Federal del Mar);
MFRS    means Mexican financial reporting standards which are identified as “Normas de Información Financiera” or “NIFs” issued by the Mexican “Consejo Mexicano para la Investigación y Desarrollo de Normas de Información Financiera, A.C.” from time to time in effect;
Mortgages    means, as applicable, the first preferred ship mortgage(s), first priority naval mortgage(s) or the first priority mortgages (together with the Deeds of Covenants collateral thereto where applicable), on the Relevant Vessels (other than the Mexican flagged Vessels) under the laws of the relevant Designated Jurisdiction, to be executed by the relevant Obligor, as owner, in favor of the Collateral Agent, and to be acceptable to the Lenders in form and substance;
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 any Security Party or any Subsidiary or ERISA Affiliate has or could have any liability or obligation to contribute;
Note    means the promissory note to be executed by the Borrower to the order of the Facility Agent to evidence the Facility, substantially in the form set out in Exhibit A or otherwise acceptable to the Facility Agent (as such promissory note may be amended, amended and restated, supplemented or otherwise modified from time to time);

 

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Obligor    means the Borrower and any other Person designated by the Borrower and the Facility Agent as an Obligor after the Effective Date for the purposes of this Agreement;
Operator    means, with respect to any Vessel, the Person who is concerned with the operation of such Vessel and falls within the definition of “Company” set out in rule 1.1.2 of the ISM Code;
Original Closing Date    has the meaning ascribed thereto in the preamble;
OTM    means Operadora de Transportes Marítimos, S.A. de C.V., a Mexican company;
Party    means any Creditor or any Security Party;
Payment Dates    means each of the payment dates indicated on Schedule 5, with the last Payment Date being the Final Payment Date;
PBGC    means the Pension Benefit Guaranty Corporation or any successor entity thereto;
Pemex    means Petroleos Mexicanos, a state productive entity (empresa productiva del estado), organized and existing under the laws of the United Mexican States, including any affiliate or subsidiary thereof;
Pemex Charter(s)    means a Charter Party Agreement between Pemex and the relevant Obligor relating to a Vessel;
Periodic Term SOFR Determination Day    has the meaning specified in the definition of “Term SOFR”;
Person    means any individual, sole proprietorship, corporation, 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;
Peso Trust Account    means the account, established by the Trustee, into which the Mexican Peso denominated earnings of the Relevant Vessels employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) will be paid;
PGES    means Proyectos Globales de Energía y Servicios CME S.A. de C.V.;

 

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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 any Security Party or any Subsidiary or 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;
Proceeding    has the meaning ascribed thereto in Section 8.1(j);
PSV    means a platform supply vessel;
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;
Relevant Government Body    has the meaning given thereto in Section 6.5(e);
Relevant Vessel(s)    means, the Vessels listed in Schedule 2 or any other vessel pledged as collateral to secure the obligations arising under the Finance Documents;
Repayment Ratio    means a fraction, the numerator of which is the Fair Market Value of the sold or lost Relevant Vessel and the denominator of which is the aggregate Fair Market Value of the Relevant Vessels;
Required Percentage    means two hundred twenty-five percent (225%) of the outstanding amount of the Facility;
Resolution Authority    means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority;
Restricted Party   

means any Person:

 

(i) that is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person);

 

(ii) that is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of, a country or territory which is subject to comprehensive country-wide Sanctions Laws; or

 

(iii) that is directly or indirectly owned or controlled by a person referred to in (i) and/or (ii) above; or

 

(iv) with which any Lender is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions Laws;

 

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Retention Account    means the account of an Obligor, denominated in Dollars, to be established, if, and to the extent that, any Relevant Vessels are employed in a trade other than in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos) with a financial institution acceptable to the Majority Lenders, into which the Retention Amounts of all such Relevant Vessels are paid;
Retention Account Pledge Agreement    means the pledge over the Retention Account to be executed by an Obligor in favor of the Collateral Agent, if necessary, substantially in the form set out in Exhibit H, to be governed by the laws of the State of New York;
Retention Amounts    means one-third (1/3) of the amount due on the following Payment Date (including principal, interest and any amount payable under any Interest Rate Agreement) which is paid (i) from the US Dollar Trust Earnings Account with respect to all of the Relevant Vessels employed in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos) and (ii) from the Earnings Account with respect to all of the Relevant Vessels employed in a trade other than in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos), on a monthly basis and which shall be used to repay the Advances;
Sanctions Authority    means the United Nations, the European Union, the United States of America, the United Kingdom, the Norwegian State, and any authority acting on behalf of any of them in connection with Sanctions Laws;
Sanctions Laws    means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive measures, Executive Orders or notices from regulators implemented, adopted, imposed, administered, enacted and/or enforced by any Sanctions Authority;
Sanctions List    means any list of persons or entities published in connection with Sanctions Laws by or on behalf of any Sanctions Authority;
SEACOR International    means SEACOR Marine International LLC, a Delaware limited liability company;
SEACOR Marine    means SEACOR Marine LLC, a Delaware limited liability company;
Security Document(s)    means the Account Pledge Agreements, the Guarantee, Administration and Source of Payment Trust Agreement, the Mortgages, the Deeds of Covenants, the Earnings Assignments, the Insurances Assignments, the Charter Assignments, the Collection Rights Assignments and any other documents that may be executed as security for the Facility and the Borrower’s obligations in connection therewith;

 

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Security Party(ies)    means each or any of the Borrower and the Shareholders;
Shareholders    means any of OTM and SEACOR International;
SMC    means the safety management certificate issued in respect of each Vessel 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 Vessels    means the vessels CASPIAN and BALTIC;
Sponsor(s)    means PGES;
Subsidiary(ies)    means, with respect to any Obligor, any business entity of which more than 50% of the outstanding voting stock or other equity interest is owned directly or indirectly by such Obligor and/or one or more other Subsidiaries of such Obligor;
Substitute Vessel    has the meaning ascribed thereto in Section 9.5;
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 taxing authority whatsoever, except for taxes on or measured by the overall net income of each Creditor imposed by its jurisdiction of incorporation or applicable lending office, the United States, the State or City of New York or any governmental subdivision or taxing authority of any thereof or by any other taxing authority having jurisdiction over such Creditor (unless such jurisdiction is asserted by reason of the activities of any Security Party or any Subsidiary) and excluding any taxes imposed under FATCA;
Technical Manager    means an Obligor, SEACOR Marine or such other technical manager acceptable to the Lenders;
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

 

18


   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 Reference Rate    means the forward-looking term rate based on SOFR;
Third Party Charters    means all charters on the Relevant Vessels;
Total Loss    means, with respect to any Relevant Vessel: (i) actual, constructive or compromised or arranged total loss of such Vessel; (ii) such Vessel is condemned, confiscated, requisitioned, captured, seized or subjected to forfeiture, or title thereto is taken (other than a requisition for use by any governmental or purported governmental authority); (iii) capture, seizure, arrest, detention or confiscation of such Vessel by any government or by persons acting or purporting to act on behalf of any government unless such Vessel be released and restored to the relevant Obligor, as owner of record, from such capture, seizure, arrest, detention or confiscation within one hundred eighty (180) days after the occurrence thereof; or (iv) there is a theft or disappearance of such Vessel for a period extending past three (3) months subsequent to the occurrence of such theft or disappearance;
Trustee    means CIBanco, S.A., Institución de Banca Múltiple, as successor of Deutsche Bank México, S.A., Institución de Banca Multiple, Division Fiduciaria;
UK Financial Institution    means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms;

 

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UK Resolution Authority    means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution;
United States    means the United States of America;
US Dollar Trust Drydock Reserve Account    means the account, denominated in Dollars, established by the Trustee, into which the Drydock Reserve Amounts of all Relevant Vessels employed in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos), are paid; it is understood that such US Dollar Trust Drydock Reserve Account as of the Original Closing Date shall hold no less than $1,785,000;
US Dollar Trust Earnings Account    means the account, denominated in Dollars, established by the Trustee, into which the earnings of all Relevant Vessels employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) after being converted to Dollars, are paid;
US Dollar Trust Retention Account    means the account, denominated in Dollars, established by the Trustee, into which the Retention Amounts of all Relevant Vessels employed in Mexico under the Mexican Navigation and Commerce Law (Ley de Navegación y Comercio Marítimos), are paid;
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;
Vessel(s)    means (i) each of the vessels identified on Schedule 2 or (ii) any Substitute Vessel pursuant to Section 9.5;
Withdrawal Liability(ies)    means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA; and
Write-down and Conversion Powers   

means:

 

(a) in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and

 

20


  

(b) in relation to any other applicable Bail-In Legislation:

 

(i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and

 

(ii) any similar or analogous powers under that Bail-In Legislation.

1.2 Computation of Time Periods; Other Definitional Provisions. In this Agreement, the Note and the Security 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 Note or such Security Document, as applicable; references to agreements and other contractual instruments (including this Agreement, the Note and the Security 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 Note 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.

1.3 Accounting Terms. Unless otherwise specified herein, all accounting terms used in this Agreement, the Note 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 or to the Lenders under this Agreement shall be prepared, in accordance with MFRS.

1.4 Certain Matters Regarding Materiality. To the extent that any representation, warranty, covenant or other undertaking of the Security Parties or any Subsidiary in this Agreement is qualified by reference to an event or events 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 Facility Agent or any Lender has knowledge or approves of any noncompliance by the Borrower, the Security Parties or any Subsidiary 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 18.5 of this Agreement, as the case may be, or the correlative provisions of the Security Documents.

 

21


2. REPRESENTATIONS AND WARRANTIES

2.1 Representations and Warranties. In order to induce the Creditors to enter into this Agreement and to induce the Lenders to continue to make the Facility available, each of the Obligors hereby represents and warrants to the Creditors (which representations and warranties shall survive the execution and delivery of this Agreement and the Note) (all the representations and warranties in this Section 2 shall be deemed to be made by the Obligors on the Effective Date) that as of the Effective Date:(a) Due Organization and Power. each Security Party is duly formed and validly existing in good standing under the laws of its jurisdiction of incorporation or formation, and each Security Party has full power to carry on its business as now being conducted and to enter into and perform its obligations under this Agreement, the Note and the Security Documents, to which it is a party, and has or will have complied with all statutory, regulatory and other requirements relative to such business and such agreements;

(b) Authorization and Consents. all necessary corporate 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 Security Party to enter into and perform its obligations under this Agreement, the Note, and the Security Documents, to which it is a party, and, in the case of the Borrower, to borrow, service and repay the Facility, and, as of the date of this Agreement, no further consents or authorities, governmental or otherwise, are necessary for the service and repayment of the Facility or any part thereof;

(c) Binding Obligations. this Agreement, the Note, the Subordination and Intercreditor Agreement, and the Security Documents constitute or will, when executed and delivered, constitute the legal, valid and binding obligations of each Security Party as is a party thereto, enforceable against such Security Party 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 bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights;

(d) No Violation. the execution and delivery of, and the performance of the provisions of, this Agreement, the Note, the Subordination and Intercreditor Agreement, and those of the Security Documents to which it is a party by each Security Party do not contravene any applicable law or regulation existing at the date hereof or any contractual restriction binding on such Security Party or the certificate of incorporation or by-laws (or equivalent instruments) thereof and that the proceeds of the Facility shall be used by the Borrower exclusively for its own account;

(e) Share Capital and Ownership.

 

  (i)

OTM is the beneficial owner of 51% of the shares representative of the capital stock of the Borrower and SEACOR International is the beneficial owner of 49% of the shares representative of the capital stock of the Borrower; the Sponsor directly or indirectly owns 100% of the shares in OTM and SEACOR International; and PGES indirectly owns 100% of the shares representative of the capital stock of the Borrower;

 

  (ii)

[Intentionally Omitted];

 

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  (iii)

As of the Effective Date, good and marketable title to one hundred percent (100%) of the shares in each of the Obligors is either (A) contributed into the Guarantee, Administration and Source of Payment Trust Agreement or (B) pledged in favor of the Collateral Agent pursuant to a Mexican law share pledge; and

 

  (iv)

neither Obligor owns any shares of capital stock, limited liability company interest, partnership interest or any other direct or indirect equity interest in any corporation, limited liability company, partnership or other entity.

(f) Filings; Stamp Taxes. other than the recording of the Mortgages with the appropriate authorities for the Designated Jurisdiction, the registration of the transfer of shares in favor of the Trustee under the Guarantee, Administration and Source of Payment Trust Agreement in the registration book of each Obligor’s shareholders, the registration of the Guarantee, Administration and Source of Payment Trust Agreement before the Mexican Maritime Public Registry, the registration of the Collection Right Assignments before the Sole Registry of Movable Property (Registro Único de Garantías Mobiliarias), the filing of Uniform Commercial Code Financing Statements in the State of New York, the State of Delaware and the District of Columbia in respect of the Assignments, and the payment and filing or recording fees consequent thereto, it is not necessary for the legality, validity, enforceability or admissibility into evidence of this Agreement, the Note, the Subordination and Intercreditor Agreement, or the Security 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 stamp, registration or similar Taxes be paid on or in relation to this Agreement, the Note, the Subordination and Intercreditor Agreement, or any of the Security Documents, other than Mexican federal withholding tax required to be withheld from each payment of interest (or any other amount deemed as interest pursuant to Mexican Income Tax Law) in an amount currently equal to 4.90% of such payment of interest; provided that such payments were made to a non-Mexican bank lender or financing entity (entidad de financiamiento) that (i) is the effective beneficiary of the respective interest income, (ii) is a resident of a country with which Mexico has signed a treaty to avoid double taxation, and the relevant requirements set forth in such treaty to enjoy the benefits set forth therein are duly and timely complied with, and (iii) has complied with the requirements for reduced withholding set forth under the Miscellaneous Tax Resolution or other applicable resolution issued by the Mexican tax authorities from time to time;

(g) Approvals Consents and Licenses. all approvals, consents and licenses required, whether by statute or otherwise, in connection with the entry into and performance by any Obligor, and the validity and enforceability against any Obligor, of this Agreement, the Note, the Subordination and Intercreditor Agreement, and the Security Documents have been obtained and are in full force and effect;

(h) Litigation. no action, suit or proceeding is pending or threatened against any Obligor before any court, board of arbitration or administrative agency which is reasonably likely to result in a Material Adverse Effect;

(i) No Default. no Default or Event of Default has occurred and is continuing, and neither an Obligor nor any Subsidiary thereof is in default under any material agreement by which it is bound, or is in default in respect of any financial commitment or obligation;

(j) Vessels. during the term of this Facility, the Relevant Vessels shall be:

 

  (i)

in the sole and absolute ownership of an Obligor and duly registered in the name of such Obligor, under the flag of the Designated Jurisdiction, unencumbered save and except,

 

  (1)

in the case of any non-Mexican flagged Vessels, for the Mortgages thereon in favor of the Collateral Agent recorded against it,

 

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  (2)

in the case of the Mexican flagged Vessels, for the Guarantee, Administration and Source of Payment Trust Agreement thereon in favor of the Collateral Agent, or

 

  (3)

in each case, as otherwise permitted by the Mortgage or Guarantee, Administration and Source of Payment Trust Agreement and Deed of Covenants, as applicable;

 

  (ii)

classed in the highest classification and rating for vessels of the same age and type with the Classification Society without any overdue or material outstanding recommendations;

 

  (iii)

operationally seaworthy and in every way fit for its intended service;

 

  (iv)

insured in accordance with the provisions of the Mortgage recorded against it or as required pursuant to the Deed of Covenants and the Guarantee, Administration and Source of Payment Trust Agreement, as applicable, and the requirements thereof in respect of such insurances will have been complied with; and

 

  (v)

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 flag of the Designated Jurisdiction and (B) vessels engaged in a trade similar to that performed or to be performed by the Vessels, except where the failure to so comply would not have a Material Adverse Effect;

(k) Insurance. each Obligor and each Subsidiary has insured its properties and assets against such risks and in such amounts as are customary for companies engaged in similar businesses and as otherwise required by the Mortgages or the Deed of Covenants and the Guarantee, Administration and Source of Payment Trust Agreement, as applicable;

(l) Financial Information. all financial statements, projections, information and other data furnished by the Security Parties and each Subsidiary to the Facility Agent, on or prior to the date hereof, are complete and correct, such financial statements have been prepared in accordance with MFRS and accurately and fairly present the financial condition of the parties covered thereby as of the respective dates thereof and the results of the operations thereof for the period or respective periods covered by such financial statements, and, since the date of such Security Party’s financial statements most recently delivered to the Facility Agent, there has been no Material Adverse Effect as to any of such parties and none thereof has any contingent obligations, liabilities for taxes or other outstanding financial obligations, except as disclosed in such statements, information and data;

(m) Tax Returns. each Obligor and each Subsidiary has filed all tax returns required to be filed by them and has paid all 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 adequate reserves shall have been set aside on its books;

(n) ERISA. (i) none of the Obligors, any Subsidiary or any ERISA Affiliate thereof is party to a Plan or Foreign Plan, (ii) the execution and delivery of this Agreement and the consummation of the transactions hereunder will not involve any “prohibited transaction” for purposes of Section 406 of ERISA or Section 4975 of the Code, (iii) no ERISA Termination Event has occurred or is reasonably expected to occur,

 

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(iv) no ERISA Funding Event exists or has occurred or is reasonably expected to occur and (v) no Foreign Termination Event or Foreign Underfunding exists or has occurred or is reasonably expected to occur that, when taken together with all other ERISA Termination Events, ERISA Funding Events, Foreign Termination Events and Foreign Underfundings that exist or have occurred or which could reasonably be expected to occur, could reasonably be expected to have a Material Adverse Effect;

(o) Chief Executive Office. the Borrower’s chief executive office and principal place of business, in which the records relating to the earnings and other receivables of the Borrower are kept, is located at Sierra Nevada 130, Piso 2, Colonia Lomas de Chapultepec, Miguel Hidalgo, 11050 Mexico City, Mexico;

(p) Sanctions.

 

  (i)

each of the Security Parties, each Subsidiary thereof, their respective directors, officers, employees or agents has been and is in compliance with Sanctions Laws; and

 

  (ii)

none of the Security Parties, nor any Subsidiary thereof, their respective directors, officers, employees or agents is (x) a Restricted Party; or (y) is subject to, involved in, or aware of any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions Laws by any Sanctions Authority.

(q) Environmental Matters and Claims. (a) except as heretofore disclosed in writing to the Facility Agent and the Lenders (i) each Obligor and its Environmental Affiliates will, when required to operate their business as then being conducted, be in compliance with all applicable United States and Mexican federal and state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or protection of human health 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 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”); (ii) each Obligor and its Environmental Affiliates will, when required, have all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other authorizations required under applicable Environmental Laws (“Environmental Approvals”) and will, when required, be in compliance with all Environmental Approvals required to operate their business as then being conducted; (iii) neither an Obligor nor its any of its Environmental Affiliates has received any notice of any claim, action, cause of action, investigation or demand by any person, entity, enterprise or government, or any political subdivision, intergovernmental body or agency, department or instrumentality thereof, 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 Environmental Claims that have been fully and finally adjudicated or otherwise determined and all fines, penalties and other costs, if any, payable by an Obligor in respect thereof have been paid in full or which are fully covered by insurance (including permitted deductibles)); and (iv) there are no circumstances that may prevent or interfere with such full compliance in the future; and (b) except as heretofore disclosed in writing to the Facility Agent there is no Environmental Claim pending or threatened against an Obligor or its Environmental Affiliates 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, that could form the basis of any Environmental Claim against such persons the adverse disposition of which is reasonably likely to result in a Material Adverse Effect;

 

25


(r) Compliance with ISM Code, ISPS Code and MTSA. each Vessel complies and each Operator complies with the requirements, to the extent applicable, of the ISM Code, the ISPS Code, the MTSA and any Mexican laws or regulations implementing the same, as applicable, including (but not limited to) the maintenance and renewal of valid certificates pursuant thereto;

(s) No Threatened Withdrawal of DOC, ISSC or SMC. there is no actual or, to the best of each Obligor’s knowledge, threatened withdrawal of any Operator’s DOC or any Vessel’s ISSC or SMC or other certification or documentation related to the ISM Code, the ISPS Code or otherwise required for the operation in respect to any of the Vessels;

(t) Withholding Taxes. no Security Party is subject to withholding taxes in any jurisdiction nor will any Security Party be subject to withholding taxes due to the transactions contemplated by this Agreement, except for the Mexican federal withholding tax required to be withheld from each payment of interest in an amount as of the Effective Date equal to 4.90% of such payment of interest by the Borrower; provided that the beneficiary of such interest is (i) the effective beneficiary, (ii) for tax purposes, is a resident of a country which has entered with Mexico into a treaty to avoid double taxation, and (iii) authorized to act as a credit institution under the laws of its jurisdiction of incorporation or formation or it is regarded as an “investment bank” under Mexican Income Tax Law provisions and current Mexican Miscellaneous Tax Resolution (“Resolución Miscelánea Fiscal”);

(u) Money Laundering. the operations of the Security Parties are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of (i) the Mexican Federal Law to Prevent and Identify Transactions with Illegal Funds (“Ley Federal para la Prevención e Identificación de Operaciones con Recursos de Procedencia Ilícita”) and (ii) the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Bank Secrecy Act, as amended by the USA PATRIOT Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Patriot Act”), and the applicable anti-money laundering statutes of jurisdictions where the Security Parties conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”). The Borrower requires the Facility for use in connection with its respective lawful organizational purpose and for no other purposes no Security Party nor any of their Subsidiaries has contravened any of the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Security Parties with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Security Parties, threatened. The Borrower represents that it is the ultimate beneficiary of the Facility contemplated in this Agreement and will promptly notify the Lenders (by written notice to the Facility Agent) if it ceases to be the ultimate beneficiary. Such written notice shall disclose the name and the address of the new ultimate beneficiary;

(v) Liens. other than as disclosed on Schedule 3, there are no liens of any kind on any property owned by any Obligor or any Subsidiary, except as permitted by the Mortgages, the Deeds of Covenants or the Guarantee, Administration and Source of Payment Trust Agreement;

(w) Indebtedness. other than as disclosed in Schedule 3, neither an Obligor nor any Subsidiary has any Indebtedness;

 

26


(x) Investment Company. no Security Party is required to be registered as an “investment company” (as defined in the Investment Company Act of 1940, as amended);

(y) Margin Stock. none of the proceeds of the Facility shall be used to purchase or carry margin stock within the meanings of Regulations T, U or X of the Board of Governors of the Federal Reserve System; no Security Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock within the meaning of Regulations T, U or X of the Board of Governors of the Federal Reserve System;

(z) Shareholders’ Agreements and Tax Sharing Agreements. other than as previously disclosed to the Facility Agent, there are no:

 

  (i)

agreements entered into by any Obligor governing the terms and relative rights of its capital stock and any agreements entered into by shareholders of such Obligor with respect to its capital stock; and

 

  (ii)

tax sharing, tax allocation and other similar agreements entered into by any Obligor;

(aa) No Proceedings to Dissolve. there are no proceedings or actions pending or contemplated by any Obligor, or contemplated by any third party, to dissolve, wind-up or terminate any Obligor;

(bb) Solvency. in the case of an Obligor, (a) the sum of its assets, at a fair valuation, does and will exceed its liabilities, including, to the extent they are reportable as such in accordance with MFRS, contingent liabilities, (b) the present fair market saleable value of its assets is not and shall not be less than the amount that will be required to pay its probable liability on its then existing debts, including, to the extent they are reportable as such in accordance with MFRS, contingent liabilities, as they mature, (c) it does not and will not have unreasonably small working capital with which to continue its business and (d) it has not incurred, does not intend to incur and does not believe it will incur, debts beyond its ability to pay such debts as they mature;

(cc) Compliance with Laws. each Obligor is in compliance with all applicable laws, including but not limited to its respective jurisdiction of incorporation, the laws of the flag state of the Vessels, and the law in such places where the Vessels are operating, except where the failure to comply would not alone or in the aggregate result in a Material Adverse Effect;

(dd) No Material Adverse Effect. there has occurred no event which might reasonably be expected to cause a Material Adverse Effect;

(ee) Pari Passu. this Agreement and the Facility and the obligations of the Borrower and the other Security Parties under this Agreement and the other Finance Documents shall rank at least pari passu in right of payment with all other present and future unsecured Indebtedness of the Borrower and such other Security Parties (except for mandatory obligations preferred by law);

(ff) Good Title. (i) as of the date of each contribution of assets and rights made by any Obligor to the Trustee pursuant to the Guarantee, Administration and Source of Payment Trust Agreement, the relevant Obligor was the sole and legitimate owner of the corresponding assets and rights, (ii) each such contribution was legal, valid and enforceable against such Obligor, and (iii) it was such Obligor’s intent that the assets and rights that it contributed to the Trustee pursuant to the Guarantee, Administration and Source of Payment Trust Agreement, shall be held by the Trustee pursuant to the Guarantee, Administration and Source of Payment Trust Agreement to guarantee, and as security for, the obligations resulting from the Facility; and

 

27


(gg) Survival. all representations, warranties and covenants made herein and in any certificate or other document delivered pursuant hereto or in connection herewith shall survive the making of the Facility and the issuance of the Note.

3. THE FACILITY.

3.1 Purposes. the Lenders have made the Facility available to the Borrower prior to the Effective Date and, subject to the satisfaction of the conditions set forth in this Agreement, shall continue to make the Facility available to the Borrower for the purpose of partially financing the Vessels.

3.2 Continuation of the Original Facility. (a) The Facility was fully drawn prior to the Effective Date pursuant to the terms of the Original Facility Agreement. This Agreement and the other Finance Documents do not extinguish the existing indebtedness of the credit facility arising under the Original Facility Agreement, nor does this Agreement constitute a novation of the Original Facility Agreement and the security documents entered in respect thereof, which shall continue to be valid and effective.

(a) As of the Effective Date, the Facility consists of one (1) tranche with a repayment schedule reflected in Schedule 5.

(b) As of the Effective Date, there is no outstanding commitment of any Lender to make any Advance available to the Borrower.

3.3 Notation of Advances on Note. 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 Note, which notation, absent manifest error, shall be prima facie evidence of the amount of the relevant Advance.

3.4 Waiver and Defenses; Other Restrictions

(a) Waiver of Defenses

The liabilities and obligations of an Obligor shall not be impaired by:

 

  (i)

this Agreement or any other Finance Document being or later becoming void, unenforceable or illegal as regards any other Obligor;

 

  (ii)

any Lender or the Collateral Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Obligor;

 

  (iii)

any Lender or the Collateral Agent releasing any other Obligor or any lien or security interest created by a Finance Document; or

 

  (iv)

any time, waiver or consent granted to, or composition with any other Obligor or other person;

 

  (v)

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor;

 

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  (vi)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any other 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 security;

 

  (vii)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Obligor or any other person;

 

  (viii)

any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance Document or any other document or security, in each case to which such Obligor is a party, 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 Finance Document or other document or security;

 

  (ix)

any unenforceability, illegality or invalidity of any obligation of any other Obligor or any other person under any Finance Document or any other document or security; or

 

  (x)

any insolvency or similar proceedings.

(b) Deferral of Borrower’s Rights

Until all amounts which may be or become payable by the Borrower under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent (acting on the instructions of all the Lenders) otherwise directs, no Obligor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents:

 

  (i)

to be indemnified by any other Obligor; or

 

  (ii)

to claim any contribution from any Obligor in relation to any payment made by it under the Finance Documents.

(c) Fraudulent Conveyance. Notwithstanding any provision to the contrary contained herein or in any other of the Finance Document, the obligations of each Obligor hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit.

(d) Subordination. Any indebtedness of an Obligor now or hereafter owing to another Obligor is hereby subordinated to the obligations of such debtor Obligor owing to the Creditors; and if the Facility Agent so requests at a time when an Event of Default has occurred and is continuing, all payments with respect to such indebtedness of such debtor Obligor shall be collected, enforced and received by the Obligor holding such intercompany indebtedness for the benefit of the Creditors and be paid over to the Facility Agent on behalf of the Creditors, but without affecting or impairing in any manner the liability of any Obligor hereunder or under the provisions of the other Finance Documents. Each Obligor that is a holder of any intercompany indebtedness hereby agrees that, so long as any Default or Event of Default has occurred and is continuing hereunder, it will not sue for, or otherwise take any action to enforce the obligations to pay or amounts owing in respect of such intercompany indebtedness. Each Obligor hereby waives any requirement for marshalling of assets by the Collateral Agent or any Creditor in connection with any foreclosure of any lien

 

29


of the Creditors under the Finance Documents. Each Obligor agrees that it will not, and hereby waives any right to, make any assertion or claim in any action, suit or proceeding of any nature whatsoever (including without limitation, any insolvency proceeding) in any way challenging (or supporting the challenge of ) the priority, validity, effectiveness, extent, perfection or enforceability of the liens and security interests granted to the Collateral Agent and/or any other Creditor under and in connection with the Finance Documents, or any amendment, extension, replacement thereof or any related agreement.

4. CONDITIONS

4.1 Conditions Precedent to the Occurrence of the Effective Date. The occurrence of the Effective Date hereunder shall be expressly subject to the following conditions precedent:

(a) Corporate Authority. the Facility Agent shall have received the following documents in form and substance satisfactory to the Facility Agent and the Lenders:

 

  (i)

copies, certified as true and complete by a Mexican notary public, of the resolutions of the shareholders (or equivalent thereof) of each of the Obligors and OVH evidencing approval of this Agreement, the Note, the Subordination and Intercreditor Agreement, and the Security Documents to which it is to be 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 (i) with respect to SEACOR International, an officer of SEACOR International and (ii) with respect to OTM, a notary public, of the resolutions of the board of directors (only with respect to SEACOR International) and shareholders, or members thereof, as the case may be, of the Shareholders, evidencing approval of the Guarantee, Administration and Source of Payment Trust Agreement 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;

 

  (iii)

copies, certified as true and complete by an authorized officer of each Security Party of all documents evidencing any other necessary action (including by such parties thereto other than the Security Parties as may be required by the Facility Agent), approvals or consents with respect to this Agreement, the Note, the Subordination and Intercreditor Agreement, and the Security Documents to which it is to be a party;

 

  (iv)

copies, certified as true and complete by (i) with respect to SEACOR International, an officer of SEACOR International and (ii) with respect to the other Security Parties, a Mexican notary public, of the certificate of incorporation and by-laws, certificate of formation and operating agreement, or equivalent instruments thereof of the Security Parties, which can be in the form of a certification that no changes have occurred since the Original Closing Date);

 

30


  (v)

copies, certified as true and complete by a notary public, of the shareholder’s registry book of each of the Obligors (which, in the case of the Borrower, can be in the form of an officer’s certification that no changes have occurred since the Original Closing date);

 

  (vi)

certificate of an authorized officer of each Security Party certifying as to the record ownership of all of its issued and outstanding capital stock or membership interests, as the case may be;

 

  (vii)

[Intentionally Omitted];

 

  (viii)

original of the power of attorney of each of the Obligors and OVH under which this Agreement and the Security Documents to which it is to be a party shall be executed;

 

  (ix)

[Intentionally Omitted]; and

 

  (x)

good standing certificates or the equivalent thereof (constancia de folio mercantil issued by the Mexican Public Registry of Commerce) with respect to each of the Security Parties issued by the appropriate authorities of the respective jurisdiction of incorporation or formation, as the case may be, of each Security Party, including with respect to the Obligors and OVH, evidence that the relevant Obligor is registered as an empresa naviera, a constancia de folio de empresa issued by the Mexican National Maritime Public Registry, to be provided within five Banking Days of the Effective Date.

(b) The Agreement and Note. the Borrower shall have duly executed and delivered to the Facility Agent (i) this Agreement and (ii) that certain Fourth Amended and Restated Note in favor of the Facility Agent for the benefit of the Lenders (and the Lenders or the Facility Agent, as the case may be, shall have marked each of the notes, if any, issued by the Borrower pursuant to the terms of the Original Credit Facility Agreement as “Cancelled” immediately upon receipt by the Facility Agent of a new Note under this paragraph (b), and use commercially reasonable efforts to return such previously issued notes to the Borrower);

(c) [Intentionally omitted];

(d) Environmental Claims. the Lenders shall be satisfied that none of the Security Parties or Environmental Affiliates thereof is subject to any Environmental Claim;

(e) Legality. the Lenders shall have received satisfactory evidence that no event or state of affairs exists which constitutes, in the opinion of the Lenders, a threat that it will be unlawful for the Obligors to make any payment as required under the terms of this Agreement, the Note, and the Security Documents;

(f) Licenses, Consents and Approvals. the Lenders shall have received satisfactory evidence that all necessary licenses, consents and approvals in connection with the transactions contemplated by this Agreement, the Note, and the Security Document have been obtained;

(g) Know Your Customer Requirements. the Facility Agent shall have received documentation to its satisfaction in connection with its know your customer requirements;

(h) Litigation. the Lenders shall have received satisfactory evidence that no action, suit or proceeding is pending or threatened against any Security Party, or any Subsidiary thereof before any court, board of arbitration or administrative agency which is reasonably likely to result in a Material Adverse Effect;

 

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(i) Subordination and Intercreditor Agreement. the Facility Agent shall have received an accession and confirmation letter to the Subordination and Intercreditor Agreement, pursuant to which the relevant parties to this Agreement and the Subordinated Loan Agreement have acceded to such agreement;

(j) Payment of Fees. The Facility Agent shall have received (for the benefit of itself and the Lenders) any fees payable on or prior to the Effective Date pursuant to any Fee Letter;

(k) Legal Opinions. the Facility Agent, on behalf of the Creditors, shall have received legal opinions addressed to the Facility Agent and the Lenders from (i) White & Case, S.C., special Mexican counsel to the Facility Agent and (ii) such other counsel and with respect to such laws as the Facility Agent may reasonably request;

(l) [Intentionally Omitted];

(m) English Translations. if the Facility Agent so requires in respect of any of the documents referred to in this Section 4.1, a certified English translation prepared by a translator approved by the Facility Agent;

(n) Intentionally omitted;

(o) Amended and Restated Insurances Assignment. the Facility Agent shall have received an executed insurances assignment with respect to insurance policies applicable to all Relevant Vessels and all deliverables required thereunder; and

(p) Evidence of Perfection of Security. the Collateral Agent shall have received all such evidence as the Lenders shall reasonably request to ensure the perfected status of the security interests in all Collateral.

4.2 Conditions Subsequent to the Occurrence of the Effective Date. Within ten (10) Banking Days after the Effective Date:

(a) Amendment to the Guarantee, Administration and Source of Payment Trust Agreement. The Facility Agent shall have received evidence that the parties to the Guarantee, Administration and Source of Payment Trust Agreement have duly executed an amendment thereto to provide for, the modifications to the terms of the Facility contained herein, it being understood that the failure of the Borrower to timely satisfy this condition subsequent shall constitute an immediate Event of Default hereunder.

5. REPAYMENT AND PREPAYMENT

5.1 Repayment. Subject to the provisions of this Section 5 regarding application of prepayments, the Borrower shall repay the principal of the Facility as set forth in Schedule 5, as such Schedule may be adjusted by the Facility Agent from time to time to reflect any prepayment made in accordance with the terms of this Agreement.

5.2 Intentionally Omitted.

5.3 Intentionally Omitted.

 

32


5.4 Voluntary Prepayment of Term Loan Facility. The Borrower may prepay, upon five (5) Banking Days’ written notice (which notice shall be irrevocable), the Facility, in whole or in part. Each prepayment shall be in a minimum amount of One Million Dollars ($1,000,000) plus any multiple of One Million Dollars ($1,000,000) thereof or, if less, the full amount of the then outstanding Facility or such other amount agreed by the Facility Agent and any and all costs or expenses incurred by any Lender in connection with any breaking of funding (as certified by such Lender, which certification shall, absent any manifest error, be conclusive and binding on the Borrower). No part of the Facility will be available for re-borrowing.

5.5 Intentionally Omitted.

5.6 Mandatory Prepayment/Cancellation; Sale or Loss of Vessels. On (i) any sale of a Relevant Vessel, (ii) the date which is ninety (90) days after the date on which the use of a Relevant Vessel in the normal course of business has become prohibited or illegal, (iii) the date which is ninety (90) days after the date on which a Relevant Vessel is rendered unfit for service or incapable of being used in ordinary service or (iv) the earlier of (x) one hundred eighty (180) days after the Total Loss of a Relevant Vessel or (y) the date on which the insurance proceeds in respect of such loss are received by the relevant Obligor, the Trustee, or the Collateral Agent as assignee thereof, the Borrower shall prepay the Facility in an amount equal to the then outstanding amount of the Facility (including accrued but unpaid interest) multiplied by the Repayment Ratio. The Borrower shall prepay any outstanding principal of the Facility to the extent required to comply with the reduction set forth above as well as the requirements of Sections 9.1(bb), 9.3 and 9.4 of this Agreement.

5.7 Interest and Costs with Prepayments/Application of Prepayments.

(a) Any prepayment of the Facility made hereunder (including, without limitation, those made pursuant to Sections 5 and 9) shall be subject to the condition that on the date of prepayment all accrued interest to the date of such prepayment shall be paid in full with respect to the Facility or portions thereof being prepaid and any and all costs or expenses incurred by any Lender in connection with any breaking of funding (as certified by such Lender, which certification shall, absent any manifest error, be conclusive and binding on the Borrower).

(b) All prepayments of the Facility under Sections 5.4 and 5.6 shall be applied in inverse order of maturity.

6. INTEREST AND RATE

6.1 Applicable Rate. The Facility shall bear interest at the Applicable Rate which shall be the rate per annum which is equal to the aggregate of (a) Term SOFR plus (b) the Margin.

6.2 Default Rate. Any amounts due under this Agreement, 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, on the date immediately preceding the due date on such amounts, plus two percent (2%) (the “Default Rate”).

6.3 Interest Payments. Accrued interest in respect of the Facility shall be payable quarterly in arrears on the last day of each Interest Period and on each Payment Date, with the final interest payment date for the Facility payable on the Final Payment Date.

6.4 Term SOFR Conforming Changes. In connection with the technical, administrative or operational changes to the use or administration of Term SOFR, the Facility Agent will have the right to make Conforming Changes from time to time in consultation with the Borrower and, notwithstanding anything to the contrary herein or in any other Finance Document, any amendments implementing such Conforming

 

33


Changes will become effective without any further action or consent of any other party to this Agreement or any other Finance Document provided that any Conforming Changes relating to the timing, frequency or amounts of payments made by the Borrower shall require the prior consent of the Borrower, such consent not to be unreasonably withheld or delayed. The Facility Agent will promptly notify the Borrower of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

6.5 Benchmark Replacement Setting. Notwithstanding anything to the contrary herein or in any other Finance Document:

(a) Benchmark Replacement. Upon the occurrence of a Benchmark Transition Event with respect to any Benchmark, the Facility Agent and the Borrower may amend this Agreement to replace such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Banking Day after the Facility Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Facility Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 6.5(a) will occur prior to the applicable Benchmark Transition Start Date.

(b) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Facility Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Finance 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 Finance 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 notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 6.5(d) and (y) the commencement of any Benchmark Unavailability Period. 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 6.5, 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, 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 Finance Document, except, in each case, as expressly required pursuant to this Section 6.5.

(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Finance 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 regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the 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 or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Facility Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor; and

 

34


(e) Notwithstanding anything contained in this Agreement to the contrary, the Facility Agent shall be under no obligation (i) to monitor, determine or verify the unavailability or cessation of any Benchmark (or other applicable benchmark interest rate), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any date on which such rate may be required to be transitions or replaced in accordance with the terms of the this Agreement, applicable law or otherwise, (ii) to select, determine or designate any replacement to such rate, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been satisfied, (iii) to select, determine or designate any modifier to any replacement or successor index, or (iv) to determine whether or what any amendments to this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document are necessary or advisable, if any, in connection with any of the foregoing. The Facility Agent shall not be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document as a result of the unavailability of any Benchmark (or other applicable benchmark interest rate), including as a result of any inability, delay, error or inaccuracy on the part of any other party, including without limitation the Majority Lenders or the Borrower, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the performance of such duties. The Facility Agent does not warrant or accept responsibility for, and shall not have any liability (except as provided herein) with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Benchmark, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Facility Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The 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 for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

(f) Certain Defined Terms. The words and expressions specified below shall, except where the context otherwise requires, have the meanings attributed to them below in this Section 6.5:

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 pursuant to this Agreement, 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 6.5(d);

 

35


Benchmark” means, initially, the Term SOFR Reference Rate; provided, that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 6.5(a);

Benchmark Replacement” means, with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by the Facility Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided, that if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Finance 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 at such time;

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:

 

  (i)

in the case of clause (i) or (ii) of the definition of “Benchmark Transition Event,” the later of (x) the date of the public statement or publication of information referenced therein and (y) 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

 

  (ii)

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

 

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

 

  (i)

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);

 

  (ii)

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

 

  (iii)

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

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

Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (x) the applicable Benchmark Replacement Date and (y) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication);

Benchmark Unavailability Period” means, the period (if any) (i) 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 Finance Document in accordance with Section 6.5 and (ii) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Finance Document in accordance with Section 6.5;

 

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Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto; and

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

7. PAYMENTS

7.1 Place of Payments, No Set Off. All payments to be made hereunder by the Obligors shall be made to the Facility Agent, not later than noon New York time (any payment received after 3 p.m. New York time shall be deemed to have been paid on the next Banking Day) on the due date of such payment, to DNB BANK ASA, New York Branch, 30 Hudson Yards, 81st Floor, New York, New York 10001 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, provided, however, that if any of the Obligors shall at any time be compelled by law to withhold or deduct any Taxes from any amounts payable to the Lenders hereunder, then the Obligors shall pay such additional amounts in Dollars as may be necessary in order that the net amounts received after withholding or deduction shall equal the amounts which would have been received if such withholding or deduction were not required and, in the event any withholding or deduction is made, whether for Taxes or otherwise, the Obligors shall promptly send to the Facility Agent such documentary evidence with respect to such withholding or deduction (including documentary evidence satisfactory to the Facility Agent that the tax has been paid to the appropriate taxation authority) as may be required from time to time by the Lenders.

7.2 Tax Credits. If any Lender obtains the benefit of a credit against the liability thereof for federal income taxes imposed by any taxing authority for all or part of the Taxes as to which any Obligor has paid additional amounts as aforesaid, then such Lender shall pay an amount to the relevant Obligor which that Lender determines will leave it (after such payment) in the same position as it would have been had the Tax payment not been made by the Obligors. Each Lender agrees that in the event that Taxes are imposed on account of the situs of its loans hereunder, such Lender, upon acquiring knowledge of such event, shall, if commercially reasonable and if, in the opinion of that Lender, is not prejudicial to it, shift such loans on its books to another office of such Lender so as to avoid the imposition of such Taxes. Nothing contained in this clause shall in any way prejudice the right of the Lenders to arrange their tax affairs in such way as they, in their sole discretion, deem appropriate. In particular, no Lender shall be required to obtain such tax credit, if this interferes with the way such Lender normally deals with its tax affairs.

7.3 Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right of banker’s lien, setoff or counterclaim or pursuant to a secured claim under Section 506 of the Federal Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim, exercised or received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of the Facility as a result of which its funded Commitment shall be proportionately less than the funded Commitment of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the funded Commitment of such other Lender so that the aggregate funded Commitment of each Lender shall be in the same proportion to the aggregate funded Commitments then outstanding as its funded Commitment prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all funded Commitments outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that, if any such purchase or purchases or adjustments shall be made pursuant to this Section 7.3 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such

 

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recovery and the purchase price or prices or adjustment restored without interest. Any Lender holding a participation in a funded Commitment deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing to such Lender by reason thereof as fully as if such Lender had made an advance in the amount of such participation. The Obligors expressly consent to the foregoing arrangement.

7.4 Computations; Banking Day.

(a) All computations of interest and fees shall be made by the Facility Agent or the other Creditors, as the case may be, on the basis of a 360-day year, 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. Each determination by the Facility Agent or the other Creditors of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

(b) Whenever any payment hereunder or under the Note shall be stated to be due on a day other than a Banking Day (other than in connection with the Final Payment Date), 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.

7.5 Application of Moneys Prior to an Event of Default. So long as no Event of Default has occurred and is continuing, all earnings from the Relevant Vessels shall be applied by the Facility Agent, the Collateral Agent or the Trustee, at the direction of the Facility Agent, in the following manner:

 

  (i)

first, in or towards the payment or reimbursement of any fees, expenses or liabilities incurred by the Facility Agent, the Collateral Agent or the Trustee in connection with this Agreement, the Note or under any of the Security Documents,

 

  (ii)

secondly, to the relevant Obligor for the payment of operating expenditures, including corporate overhead expenses, in accordance with a pre-approved budget on a per Vessel basis,

 

  (iii)

thirdly, [Intentionally Omitted],

 

  (iv)

fourthly, to the US Dollar Trust Retention Account and Retention Account (as applicable) pro rata;

 

  (v)

fifthly, to the US Dollar Trust Drydock Reserve Account and Drydock Reserve Account (as applicable) of the Borrower pro rata;

 

  (vi)

sixthly, towards the payment of any indemnity or other amounts payable to the Lenders (including, but not limited to, the amounts owing to the Lenders on each Payment Date, all or a portion of which, for the avoidance of doubt, shall be paid from the US Dollar Trust Retention Account and/or the Retention Account (as applicable)), on a pari passu basis; and

 

  (vii)

seventhly, to the Borrower or its designate.

 

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7.6 FATCA Information.

(a) Subject to paragraph (c) below, each Party shall, within ten Banking Days of a reasonable request by another Party:

 

  (i)

confirm to that other Party whether it is:

(1) a FATCA Exempt Party; or

(2) not a FATCA Exempt Party; and

 

  (ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable “passthru payment percentage” or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA.

(b) If a Party confirms to another Party pursuant to 7.6(a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

(c) Paragraph (a) above shall not oblige any Creditor to do anything which would or might in its reasonable opinion constitute a breach of:

 

  (i)

any law or regulation;

 

  (ii)

any fiduciary duty; or

 

  (iii)

any duty of confidentiality.

(d) If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:

 

  (i)

if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of this Agreement, the Note, or any Security Document as if it is not a FATCA Exempt Party; and

 

  (ii)

if that Party failed to confirm its applicable “passthru payment percentage” then such Party shall be treated for the purposes of the this Agreement, the Note, or any Security Document (and payments made thereunder) as if its applicable “passthru payment percentage” is 100%,

 

  (iii)

until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other information.

7.7 FATCA Deduction.

(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

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(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Facility Agent and the Facility Agent shall notify the other Creditors.

8. EVENTS OF DEFAULT

8.1 Events of Default. The occurrence of any of the following events shall be an Event of Default:

(a) Payment Default. any payment of principal or interest is not paid when due; or

(b) Non-Payment Other Amounts. any other amount becoming payable to any Creditor under this Agreement, the Note, the Subordination and Intercreditor Agreement, or any of the Security Documents is not paid within three (3) Banking Days of the due date or date of demand (as the case may be); or

(c) Representations. any representation, warranty or other statement made by any of the Obligors or OVH in this Agreement, the Subordination and Intercreditor Agreement, in any of the Security Documents or in any other instrument, document or other agreement delivered in connection herewith or therewith proves to have been untrue or misleading in any material respect (or if such representation, warranty or other statement is already qualified by materiality, in any respect) as at the date as of which made or confirmed; or

(d) Impossibility; Illegality. it becomes impossible or unlawful for any Security Party to fulfill any of its covenants or obligations hereunder, under the Note, the Subordination and Intercreditor Agreement, or under any of the Security Documents or for any of the Creditors to exercise any of the rights vested in any of them hereunder, under the Note, under any of the Security Documents; or

(e) Mortgages, Deeds of Covenants and Guarantee, Administration and Source of Payment Trust Agreement. there is an event of default under or a breach or termination of any Mortgage, any Deed of Covenants, the Subordination and Intercreditor Agreement, the Guarantee, Administration and Source of Payment Trust Agreement, or any thereof shall be unenforceable; or

(f) Pemex Consent. any Obligor shall fail to obtain the consent of Pemex or from the relevant Acceptable Charterer, if required, to the Collection Rights Assignment in respect of any Relevant Vessel subject to a Pemex Charter or the relevant Charter Party Agreement, within forty-five (45) days of the making of the Advance relating thereto; or

(g) Covenants. any Security Party defaults in the due and punctual observance or performance of any term, covenant or agreement in this Agreement, the Note, the Subordination and Intercreditor Agreement, any of the Security Documents, or in any other instrument, document or other agreement delivered in connection herewith or therewith, to which it is a party, or there occurs any other event which constitutes a default under this Agreement, the Note, or any of the Security Documents, provided however, that the Security Parties shall have fifteen (15) days from the occurrence of such default to remedy a default with respect to the following covenants only: 9.1(g)(ii), 9.1(g)(iii), 9.1(j), 9.1(k), 9.1(m), 9.1(o), 9.1(r) and 9.1(x); or

 

41


(h) Indebtedness. any Obligor shall default in the payment when due under the OVH Subordinated Loan Agreement, or of any Indebtedness or of any other indebtedness, in either case, in the outstanding principal amount equal to or exceeding Five Hundred Thousand Dollars ($500,000) or such Indebtedness or indebtedness is, or by reason of such default is subject to being, accelerated or any party becomes entitled to enforce the security for any such Indebtedness or indebtedness and such party shall take steps to enforce the same, unless such default or enforcement is being contested in good faith and by appropriate proceedings or other acts and the relevant Obligor shall set aside on its books adequate reserves with respect thereto; or

(i) Change in Control and Change of Ownership. there is any Change of Control in respect of any of the Security Parties or any change in the ownership of the capital stock or other equity interest of any Security Party without the prior written consent of the Lenders; provided that the execution of the Guarantee, Administration and Source of Payment Trust Agreement shall not be considered a Change of Control with respect to any Obligor and shall be considered a change in ownership of such Obligor that has been consented to by the Lenders; or

(j) Bankruptcy. any of the Security Parties commences any proceeding under any reorganization, arrangement or readjustment of debt, dissolution, winding up, adjustment, composition, bankruptcy, concurso mercantil, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (a “Proceeding”), or there is commenced against any thereof any Proceeding and such Proceeding remains undismissed or unstayed for a period of sixty (60) days or any receiver, trustee, liquidator or sequestrator of, or for, any thereof or any substantial portion of the property of any thereof is appointed and is not discharged within a period of sixty (60) days or any thereof by any act indicates consent to or approval of or acquiescence in any Proceeding or the appointment of any receiver, trustee, liquidator or sequestrator of, or for, itself or of, or for, any substantial portion of its property; or

(k) Termination of Operations; Sale of Assets. except as expressly permitted under this Agreement, any Obligor ceases its operations or sells or otherwise disposes of all or substantially all of its assets or all or substantially all of the assets of any Security Party or any Subsidiary thereof are seized or otherwise appropriated; or

(l) Judgments. any judgment or order is made, the effect whereof would be to render ineffective or invalid this Agreement, the Note, any of the Security Documents, or any material provision thereof, or any Security Party or any Subsidiary thereof asserts that any such agreement or provision thereof is invalid; or

(m) Inability to Pay Debts. any Security Party is unable to pay or admits its inability to pay its debts as they fall due or a moratorium shall be declared in respect of any material indebtedness of any Security Party; or

(n) Material Adverse Effect. an event or a series of events shall in the reasonable opinion of the Creditors, occur which might be expected to cause a Material Adverse Effect; or

(o) Cross-Default. (i) any Obligor defaults under any material contract or material agreement to which it is a party or by which it is bound (including the OVH Subordinated Loan Agreement); or (ii) any payment default or other material default under any of the Charter Party Agreements (including the Pemex Charters); or (iii) there is a material default by the Commercial Manager under a commercial management agreement relating to a Relevant Vessel; or (iv) there is a material default by the Technical Manager under a technical management agreement relating to a Relevant Vessel; or

(p) Security Interest. any Security Party fails to perfect or maintain any security interest granted by it to the Collateral Agent in connection herewith; or

(q) Total Loss of Vessels. any of the Relevant Vessels shall become a Total Loss and the Facility is not repaid in accordance with Section 5.6; or

 

42


(r) Corporate Purpose. any Obligor materially changes or amends its corporate purpose; or

(s) Corporate Name or Corporate Domicile. any of the Security Parties changes its corporate name or its corporate domicile without having notified the Facility Agent in writing of such change no less than sixty (60) days prior to said change; or

(t) Consolidation and Merger. any of the Security Parties consolidates with, or merges into, any corporation or entity, or merges any corporation into it without the prior written consent of the Facility Agent; or

(u) Dividends. any Obligor declares or pays any dividend or other distribution on the capital stock of such Obligor, other than as permitted under Section 9.2(n); or

(v) ERISA. an ERISA Funding Event, ERISA Termination Event, Foreign Termination Event or Foreign Underfunding shall occur that, in the reasonable opinion of the Majority Lenders, when taken together with all other ERISA Funding Events, ERISA Termination Events, Foreign Termination Events and Foreign Underfundings that have occurred, could reasonably be expected to have a Material Adverse Effect;

(w) Conditions Subsequent. Failure to satisfy any Condition Subsequent by its due date; or

(x) Classification Society Report. the Facility Agent shall have received a report by any Classification Society, or by any marine engineer or surveyor following an inspection that any Relevant Vessel is not in compliance with the requirements for the highest classification for vessels of like age and type or is not in compliance with the requirements of applicable law for use as intended under this Agreement and action shall not have been commenced within fifteen (15) days after written notice thereof shall have been given by the Facility Agent to the Obligors and such corrective action shall not be diligently prosecuted or completed in a manner and time schedule consistent with industry standards.

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, and on the instructions of the Majority Lenders shall, by notice to the Borrower, declare the entire unpaid balance of the Facility, accrued interest and any other sums payable by the Borrower hereunder or under the Note 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 subsections (j) or (m) of this Section 8.1 with respect to the Obligors, the Note shall be immediately due and payable without declaration or other notice to the Borrower. In such event, the Lenders may proceed to protect and enforce their 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 Note, or in any Security Document, or in aid of the exercise of any power granted herein or therein, or the Lenders may proceed to enforce the payment of the Note or to enforce any other legal or equitable right of the Lenders, 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. Without limiting the foregoing, each of the Security Parties agrees that during the continuance of any Event of Default each of the Lenders shall have the right to appropriate and hold or apply (directly, by way of set-off or otherwise) to the payment of the obligations of the Borrower to the Lenders hereunder and/or under the Note (whether or not then due) all moneys and other amounts of such Security Party then or thereafter in possession of any Lender, the balance of any deposit account (demand or time, mature or unmatured) of any Security Party then or thereafter with any Lender and every other claim of any Security Party then or thereafter against any of the Lenders.

 

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8.2 Indemnification. The Obligors agree to, and shall, indemnify and hold the Facility Agent and the other Creditors harmless against any loss, as well as against any costs or expenses (including legal fees and expenses), which any of the Facility Agent or the other Creditors sustains or incurs as a consequence of any default in payment of the principal amount of the Facility, interest accrued thereon or any other amount payable hereunder, under the Note, or under any Security Documents, including, but not limited to, all actual losses incurred in liquidating or re-employing fixed deposits made by third parties or funds acquired to effect or maintain the Facility or any portion thereof. Any Creditor’s certification of such costs and expenses shall, absent any manifest error, be conclusive and binding on the Obligors.

8.3 Application of Moneys After an Event of Default. Except as otherwise provided in any Security Document, all moneys received by the Facility Agent or the other Creditors under or pursuant to this Agreement, the Note, or any of the Security Documents upon the happening of any Event of Default (unless cured to the satisfaction of the Majority Lenders or the Lenders, as the case may be) shall be applied by the Facility Agent in the following manner:

 

  (i)

first, in or towards the payment or reimbursement of any fees, expenses or liabilities which may be owing to the Facility Agent, the Collateral Agent or any other Creditors under this Agreement, under the Note or under any of the Security Documents, including without limitation any amounts incurred by the Facility Agent, the Collateral Agent or any other Creditor in connection with the ascertainment, protection or enforcement of their rights and remedies hereunder, under the Note and under any of the Security Documents,

 

  (ii)

secondly, in or towards repayment of principal of the Facility and towards the payment of any interest owing in respect of the Facility,

 

  (iii)

thirdly, in or towards payment of all other sums which may be owing to the other Creditors under this Agreement, under the Note or under any of the Security Documents,

 

  (iv)

fourthly, in or towards payments of any breakage costs, and

 

  (v)

fifthly, the surplus (if any) shall be paid to the Borrower or to whosoever else may be entitled thereto.

9. COVENANTS

9.1 Affirmative Covenants. Each of the Obligors hereby covenants and undertakes with the Lenders that, from the date hereof and so long as any principal, interest or other moneys are owing in respect of this Agreement, under the Note, or under any of the Security Documents, each of the Obligors will:

(a) Performance of Obligations. duly perform and observe the terms of this Agreement, the Note, and the Security Documents;

(b) Notice of Default, etc. promptly upon, and in any event no later than three (3) Banking Days after obtaining knowledge thereof, inform the Facility Agent of the occurrence of (a) any Default or Event of Default, (b) any litigation or governmental proceeding pending or threatened against any Security Party or any Subsidiary which could reasonably be expected to have a Material Adverse Effect, including but not limited to, in respect of any Environmental Claim and (c) any other event or condition which is reasonably likely to have a Material Adverse Effect;

 

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(c) Obtain Consents. without prejudice to Section 2.1 and this Section 9.1, within ten (10) days, obtain every consent and do all other acts and things which may from time to time be necessary or advisable for the continued due performance of all its and the other Security Parties’ respective obligations under this Agreement, under the Note, and under the Security Documents;

(d) Financial Information. deliver to the Facility Agent for further delivery to the Lenders:

 

  (i)

as soon as available but not later than one hundred eighty (180) days after the end of each fiscal year of the Borrower complete copies of the consolidated financial reports of the Borrower and its Subsidiaries, together with a Compliance Certificate and an updated employment schedule of the Relevant Vessels, all in reasonable detail, which shall include at least the consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such year and the related consolidated statements of income and sources and uses of funds for such year, prepared in accordance with MFRS and which shall be audited reports prepared by an Acceptable Accounting Firm;

 

  (ii)

as soon as available but not later than one hundred twenty (120) days after the end of the second quarter of each fiscal year of the Borrower complete copies of the unaudited consolidated quarterly balance sheet of the Borrower and its Subsidiaries, the related consolidated profit and loss statements and sources and uses of income, a fleet employment schedule, a drydock schedule, and a comparison of the Borrower’s operating expenses budget versus its actual expenses, together with a Compliance Certificate and an updated employment schedule of the Relevant Vessels, all in reasonable detail, unaudited, but prepared in accordance with MFRS and certified to be true and complete by a senior financial officer of the Borrower;

 

  (iii)

as soon as available but not later than one hundred-eighty (180) days after the end of the respective fiscal year of PGES, complete copies of the consolidated financial reports of PGES and its Subsidiaries, all in reasonable detail, which shall include at least the consolidated balance sheet of the Sponsor and its Subsidiaries as of the end of such year and the related consolidated statements of income and sources and uses of funds for such year, prepared in accordance with GAAP or MFRS, as applicable, and which shall be audited reports prepared by an Acceptable Accounting Firm;

 

  (iv)

as soon as available but not later than one hundred twenty (120) days after the end of the second quarter of each fiscal year of PGES, complete copies of the unaudited consolidated quarterly balance sheet of PGES and its Subsidiaries and the related consolidated profit and loss statements and sources and uses of income all in reasonable detail, unaudited, but prepared in accordance with GAAP or MFRS, as applicable, and certified to be true and complete by a senior financial officer of the Sponsor;

 

  (v)

as soon as available but not later than ten (10) days prior to the end of each fiscal year of each of the Obligors, copies of the fleet employment schedule, drydock schedule and OPEX budget in respect of the subsequent fiscal year; and

 

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  (vi)

such other statements (including, without limitation, monthly consolidated statements of operating revenues and expenses), lists of assets and accounts, annual projections, off-balance sheet and time charter hire commitments, reports and other financial information with respect to the Sponsors’ businesses as the Facility Agent may from time to time request, certified to be true and complete by a senior financial officer of the respective Security Party;

(e) Vessel Covenants. ensure that:

 

  (i)

each Relevant Vessel is in the sole and absolute ownership of the relevant Obligor and/or the Trustee and duly registered in the name of the relevant Obligor under the flag of the Designated Jurisdiction;

 

  (ii)

with respect to each non-Mexican flagged Relevant Vessel, the relevant Mortgage thereon shall have been duly filed for recording or recorded under the laws of such jurisdiction and that such Vessel shall be unencumbered, save and except for such Mortgage thereon or Deed of Covenants in favor of the Collateral Agent, recorded against it and as otherwise permitted thereby;

 

  (iii)

the relevant Obligor is the owner of record of the Mexican flagged Relevant Vessels, and such Relevant Vessels are registered under Mexican flag (which shall be established by an official communication issued by the appropriate Mexican authority stating that the flagging and registration (matriculación) under the laws and flag of the United Mexican States is in effect), and the Guarantee, Administration and Source of Payment Trust Agreement thereon shall have been duly filed for recording or recorded under the laws of Mexico and that such Vessel shall be, unencumbered, save and except for such Guarantee, Administration and Source of Payment Trust Agreement, or as otherwise permitted by the Guarantee, Administration and Source of Payment Trust Agreement and Deed of Covenants;

 

  (iv)

[Intentionally Omitted];

 

  (v)

each Relevant Vessel is classed in the highest classification and rating for vessels of the same age and type with a Classification Society acceptable to the Lenders and without any overdue recommendations;

 

  (vi)

each Relevant Vessel is operationally seaworthy and in every way fit for its intended service; and

 

  (vii)

each Relevant Vessel is insured in accordance with the provisions of the relevant Mortgage recorded against it or the Deed of Covenants and the Guarantee, Administration and Source of Payment Trust Agreement, as applicable, and the requirements thereof in respect of such insurances have been complied with, including, without limitation, with respect to the Mexican flagged Relevant Vessels, the endorsements to the relevant insurance policies and the notice to the relevant insurance companies, with respect to the Guarantee, Administration and Source of Payment Trust Agreement, referred to by Articles 109 and 110 of the Mexican Law of Insurance Contract (Ley sobre el Contrato de Seguro) and such insurance companies shall thereafter immediately make an annotation on the corresponding insurance policy in connection therewith, and each of the Obligors hereby agrees and shall be obligated to provide evidence to the Facility Agent of such annotation;

 

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(f) Vessel Valuations. obtain appraisals addressed to the Facility Agent of the Fair Market Value of each of the Relevant Vessels every six (6) months during the term of this Agreement, commencing on July 31, 2022 and such valuations are to be at the Obligors’ cost. If the Obligors have defaulted on their obligations under this Agreement, the Obligors shall obtain appraisals addressed to the Facility Agent of the Fair Market Value of each of the Relevant Vessels at any time that the Lenders shall request; such valuations are to be at the Obligors’ cost. In the event the Obligors fail or refuse to obtain the valuations requested pursuant to this Section 9.1(f) within thirty (30) days of the Facility Agent’s request therefor, the Facility Agent will be authorized to obtain such valuations, at the Obligors’ cost, from one of the approved ship brokers listed in Schedule 4 or such other independent ship brokers selected by the Facility Agent, which valuations shall be deemed the equivalent of valuations duly obtained by the Obligors pursuant to this Section 9.1(f) and shall be at the Obligors’ cost, but the Facility Agent’s actions in doing so shall not excuse any default of the Obligors under this Section 9.1(f);

(g) Charter Party Agreements. (i) cause each of the Relevant Vessels to be employed with an Acceptable Charterer provided that renewals or the substitution of employment with an Acceptable Charterer must be in place within fifteen (15) days after the expiry of any Relevant Vessel’s existing employment, (ii) promptly deliver to the Facility Agent copies of any documentation that renews or extends any of the Charter Party Agreements and/or copies of any documentation that replaces any of the Charter Party Agreements and (iii) in respect of all Charter Party Agreements, execute and deliver to the Collateral Agent a Charter Assignment and use reasonable commercial efforts to cause the charterer to execute and deliver to the Collateral Agent a consent to such Charter Assignment in the form required thereby;

(h) Corporate Existence. do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, and all licenses, franchises, permits and assets necessary to the conduct of its business;

(i) Business Plan. no later than ten (10) days prior to each January 1, provide the Facility Agent with a satisfactory business plan, including financial forecasts and operating budgets for a period covering no less than the remaining term of the Facility;

(j) Books and Records. at all times keep, and cause each Subsidiary to keep, proper books of record and account into which full and correct entries shall be made in accordance with MFRS;

(k) Taxes and Assessments. pay and discharge all 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 the legality thereof shall be contested in good faith and by appropriate proceedings or other acts and it shall set aside on its books adequate reserves with respect thereto. Upon the Facility Agent’s request, the Obligors shall provide evidence of payment of taxes, assessments and governmental charges or levies in the form of certified copies of the corresponding payment certificates which are stamped by the competent governmental authorities;

(l) Inspection. allow, and cause each Subsidiary to allow, upon reasonable notice from the Facility Agent, any representative or representatives designated by the Facility Agent, subject to applicable laws and regulations, to visit any of its properties and inspect its Relevant Vessels, and, on request, 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 and at the expense of the Obligors; provided, that so long as no Default or Event of Default has occurred and is continuing, the Obligors shall only be required to pay for two (2) inspections per Relevant Vessel under this Section 9.1(l) per calendar year;

 

47


(m) Inspection and Survey Reports. if the Facility Agent shall so request, the Obligors shall provide the Facility Agent with copies of all internally generated inspection or survey reports on the Relevant Vessels;

(n) Compliance with Statutes, Agreements, etc. do or cause to be done all things necessary, and procure that any charterer, technical manager or commercial manager of any Relevant Vessel shall do or cause to be done all things necessary, to comply with all contracts or agreements to which any Obligor or charterer is a party, and all laws, and the rules and regulations thereunder, applicable to such party, including, without limitation, those laws, rules and regulations relating to employee benefit plans and environmental matters to the extent that non-compliance would reasonably be expected to have a Material Adverse Effect;

(o) 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 receipt by any Security Party or any Environmental Affiliates of the Security Parties of any written communication whatsoever 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 by it, or by any other Security Party or any Environmental Affiliates of the Security Parties that there exists any Environmental Claim pending or threatened against any such person, 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, any other Security Party or against any Environmental Affiliates of the Security Parties 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;

(p) ERISA. forthwith upon (i) the occurrence of a Foreign Termination Event or Foreign Underfunding which, when taken together with all ERISA Termination Events, ERISA Funding Events, Foreign Termination Events and Foreign Underfundings could reasonably be expected to give rise to a Material Adverse Effect or (ii) the occurrence of any ERISA Termination Event or the occurrence or existence of any ERISA Funding Event, furnish or cause to be furnished to the Lenders written notice thereof;

(q) Vessel Management. cause the Relevant Vessels to be managed commercially by the Commercial Manager and technically by the Technical Manager;

(r) ISM Code, ISPS Code and MTSA Matters. to the extent applicable to the Relevant Vessels, (i) procure that the Operators will comply with and ensure each such Vessel will comply with the requirements of the ISM Code, the ISPS Code and the MTSA, to the extent applicable, in accordance with the implementation schedule thereof, including (but not limited to) the maintenance and renewal of valid certificates pursuant thereto; and (ii) will procure that the Operators will immediately inform the Facility Agent if there is any threatened or actual withdrawal of its DOC or the ISSC or the SMC in respect of any such Vessel; and (iii) will procure that the Operators will promptly inform the Facility Agent upon the issuance to the relevant Obligor or Operators of a DOC and the issuance to the Relevant Vessels of an SMC and an ISSC, to the extent applicable;

 

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(s) Brokerage Commissions, etc. indemnify and hold the Facility Agent and the other Creditors harmless from any claim for any brokerage commission, fee or compensation from any broker or third party resulting from dealings of or with the Security Parties in connection with the transactions contemplated hereby;

(t) Accounts; Assignment. procure that the US Dollar Trust Earnings Account, Peso Trust Account, US Dollar Trust Drydock Reserve Account and the US Dollar Trust Retention Account are maintained by the Trustee. The Borrower shall procure that all earnings from all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) are to be paid into the Peso Trust Account, immediately converted into Dollars, in case such earnings are denominated in Pesos (as required pursuant to the terms of the Guarantee, Administration and Source of Payment Trust Agreement) and immediately thereafter deposited into the US Dollar Trust Earnings Account. Each Obligor shall procure that all Drydock Reserve Amounts, with respect to all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the US Dollar Trust Drydock Reserve Account and that all Retention Amounts, with respect to all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the US Dollar Trust Retention Account from the US Dollar Trust Earnings Account pursuant to Section 7.5. Each Obligor shall maintain the Earnings Account, and the Borrower shall maintain the Drydock Reserve Account and Retention Account for any Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos). Each Obligor shall procure that all earnings from all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) are to be paid into the Earnings Account of such Obligor. The Obligors shall procure that all Drydock Reserve Amounts, with respect to all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the Drydock Reserve Account of such Obligor and that all Retention Amounts, with respect to all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the Retention Account from the Earnings Accounts pursuant to Section 7.5. Notwithstanding anything contained herein to the contrary, no Obligor shall have an obligation to establish the Earnings Account, Drydock Account or Retention Account, nor transfer any funds to or from such Accounts, so long as none of the Relevant Vessels are employed in a trade other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos). Upon establishing the Earnings Account, the Drydock Reserve Account and the Retention Account, the relevant Obligor shall deliver to the Facility Agent the Account Pledge Agreements and any other such pledge, assignment or security agreement as the Facility Agent shall require in order to grant a valid, perfected security interest in the aforementioned Accounts in favor of the Collateral Agent;

(u) Insurance. maintain with financially sound and reputable insurance companies, insurance on all their respective 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;

(v) Vessel Insurance. with respect to each Relevant Vessel, (i) insure, and keep insured, or procure that each Obligor, as owner of record, will insure and keep the Relevant Vessels insured in accordance with the terms of the Mortgage or the Deed of Covenants and Guarantee, Administration and Source of Payment Trust Agreement, as applicable, and with such insurances as the Lenders may require more specifically: (a) each Relevant Vessel will be insured with respect to all risks hull and machinery (including excess risks) plus freight interest and hull interest, if applicable, and with respect to all war risks (including the London blocking and trapping addendum or similar arrangement) provided that the total hull coverage and war risk coverage is to be at least the higher of (I) the Fair Market Value of the Relevant Vessel at the most recent

 

49


date at which such Fair Market Value shall have been determined pursuant to this Agreement and (II) one hundred twenty percent (120%) of the total amounts outstanding under the Facility, (b) each Relevant Vessel will be insured with respect to full protection and indemnity cover (including liability for oil pollution) for an amount of not less than One Billion Dollars ($1,000,000,000) and excess war risk protection and indemnity cover for an amount of not less than Five Hundred Million Dollars ($500,000,000), covered by a protection and indemnity association which is a member of the International Group of Protection and Indemnity Associations and, in the case of Relevant Vessels employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), covered by a first class Mexican insurance company acceptable to the Facility Agent, (c) any PSVs of at least 1,800 DWT or AHTSs of at least 70 tons bollard pull will, upon becoming a Relevant Vessel, be insured with respect to mortgage rights insurance and (d) all insurances will be at the expense of the Obligor, shall be on terms acceptable to the Facility Agent and shall be placed with brokers, underwriters or clubs acceptable to the Facility Agent, (ii) notify the Facility Agent in writing, at least fourteen (14) days prior to all insurance renewals, (iii) deliver to the Facility Agent all letters of undertaking, copies of all insurance policies and certificates of entry on terms acceptable to the Facility Agent and its advisors at least once every year within three (3) Banking Days prior to each anniversary of the Original Closing Date, (iv) ensure that Facility Agent is named as loss payee on all insurances, (v) reimburse the Facility Agent for payment of mortgagee’s interest insurance and mortgagee’s additional perils (pollution) insurance (to be obtained only to the extent any Relevant Vessel operates in United States waters) to be subscribed by the Facility Agent in an amount equal to one hundred twenty percent (120%) of the Facility, (vi) procure that the deductible of the hull and machinery insurance is not higher than the amount agreed upon and set forth in the relevant loss payable clause, (vii) procure that the Facility Agent is named as first priority mortgagee in all insurance documents, (viii) obtain confirmation from the underwriters that the notice(s) of assignment of insurances and the loss payable clauses are included in the insurance documents, (ix) obtain letters of undertaking from the insurers and insurance brokers which are acceptable to the Facility Agent in form and substance, and (ix) if requested by the Lenders, provide the Facility Agent with an insurance report from an independent insurance agency or reimburse the Facility Agent for the cost of such an insurance report if obtained by the Facility Agent;

(w) Change of Ownership. ensure no change in the ownership of the capital stock or other equity interest of the Borrower (i.e. OTM is to beneficially own 100% of the shares in the Borrower) or any of the Shareholders, except, with respect to the transfer of the shares representative of the capital stock of the Obligors, under the Guarantee, Administration and Source of Payment Trust Agreement;

(x) Performance Under Charters. perform all of its material obligations under all Charter Party Agreements;

(y) Collection Rights Assignment. if any Vessel employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) is employed under a new Charter Party Agreement during the term of this Agreement, the relevant Obligor shall, within thirty (30) Banking Days after the execution thereof, obtain the authorization or consent thereto of the relevant Acceptable Charterer, and within one (1) Banking Day after the authorization or consent of the Acceptable Charterer is obtained, execute with the Trustee a Collection Rights Assignment with respect to the collection rights derived from such Charter Party Agreement, and notice of such Collection Rights Assignment shall be given to the relevant Acceptable Charterer within ten (10) days of the execution of said Collection Rights Assignment;

(z) Off Hire Information. inform the Facility Agent if any Relevant Vessel that is a platform supply vessel with a DWT of at least 1,800 or an AHTS of at least 70 tons bollard pull is off hire for a continuous period of more than 60 days at any time;

 

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(aa) Subordination. ensure that (i) all financing arrangements between (x) any Obligor on the one hand and (y) any Sponsor or any shareholder of such Obligor on the other hand, (ii) all claims held by any Sponsor or any equity owner of any Obligor (including any Shareholder) against such Obligor, and (iii) all sums owed by any Obligor to any Technical Manager or Commercial Manager, are in each case fully subordinated to the rights of the Creditors;

(bb) Security. ensure that, except as otherwise provided in this Section 9.1(bb), the Facility is secured at all times by a fleet of Vessels of which at least fifty percent (50%) of the aggregate Fair Market Value of the Relevant Vessels (and if the Facility is fully drawn, at least fifty percent (50%) of the number of the Relevant Vessels) consists of PSVs of at least 1,800 DWT or AHTSs of at least 70 tons bollard pull; provided that, notwithstanding the requirements set forth above in this Section 9.1(bb), in the event that a Relevant Vessel of 1,800 or more DWT or an AHTS of 70 or more tons bollard pull becomes a Total Loss, the Obligors shall be deemed to have complied fully with the requirements of this Section 9.1(bb) if, within one hundred and eighty (180) days after the Total Loss of such Relevant Vessel the relevant Obligor, at its sole discretion, either (a) obtains a Substitute Vessel for such Relevant Vessel that was a Total Loss, and thereafter satisfies the requirements set forth in this Section 9.1(bb), or (b) prepays the Facility with respect to the Relevant Vessel that was a Total Loss in an amount in compliance with Section 5.6 of this Agreement; provided further that in the event of such prepayment as provided herein, thereafter the Obligors shall ensure that the Facility is secured at all times by a fleet of Vessels of which at least fifty percent (50%) of the aggregate Fair Market Value of the Relevant Vessels (and if the Facility is fully drawn, at least fifty percent (50%) of the number of the Relevant Vessels) consists of PSVs of at least 1,800 DWT or AHTSs of at least 70 tons bollard pull.

(cc) Green Scrapping.

 

  (i)

each Relevant Vessel and any other vessel owned or controlled by the Borrower at all times carries an Inventory of Hazardous Materials, unless no such list is required to be maintained under applicable law; and

 

  (ii)

each Relevant Vessel and any other vessel owned or controlled by the Borrower out of service for dismantling, scrapping, or recycling, or sold to an intermediary with the intention of being dismantled, scrapped or recycled, is recycled at a recycling yard which conducts it recycling business in a socially and environmentally responsible manner in accordance with the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 and/or EU Ship Recycling Regulation, 2013.

(dd) Compliance with Lender’s Compliance Policies. comply with all Lender compliance policies that are applicable to the Security Parties;

(ee) [Intentionally Omitted]

(ff) Reflagging/Non-Mexican Employment. in the event that any Relevant Vessel is to be employed in a trade other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) or is to be registered under the laws of a Designated Jurisdiction other than Mexico, the Obligors shall furnish to the Facility Agent notice of such event no later than thirty (30) days prior to the termination of such Relevant Vessel’s employment in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) or registration under the laws of a Designated Jurisdiction other than Mexico (as the case may be). In addition, on or prior to the termination of such Relevant Vessel’s employment in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) or registration under the laws of a Designated Jurisdiction other than Mexico (as the case may be), the Obligors shall provide the documents and meet the conditions (as applicable to such change in employment or registration, as the case may be) set forth in Sections 4.2(a), 4.2(c)

 

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(with respect to non-Mexican flagged Vessels), 4.2(d) (with respect to non-Mexican flagged Relevant Vessels), 4.2(e), 4.2(g), 4.2(h), 4.2(i), 4.2(m), 4.2(n), 4.2(o), 4.2(q), 4.2(r), 4.2(s), 4.2(t), 4.2(u), 4.2(v), 4.2(y), 4.2(z), 4.2(aa) of the Original Facility Agreement. Further, the Facility Agent, on behalf of the Creditors, shall have received legal opinions addressed to the Facility Agent and the Lenders from (i) Watson Farley & Williams, special counsel to the Security Parties, in respect of the laws of New York, the District of Columbia and Delaware, (ii) Seward & Kissel LLP, special counsel to the Creditors and (iii) such other counsel and with respect to such laws as the Facility Agent may reasonably request, including, but not limited to, the laws of the Designated Jurisdiction under which the Relevant Vessel has been employed and/or registered. Finally, the Facility Agent shall receive satisfactory evidence that the Obligors are in compliance with Section 10 of this Agreement;

(gg) Trust Security Interest. maintain the security interest created under the Guarantee, Administration and Source of Payment Trust Agreement free and clear of any maritime privileges and preferences set forth in Article 91 of the Navigation and Maritime Commerce Law of the United Mexican States;

(hh) Information. promptly upon becoming aware (i) supply to the Facility Agent the details of any inquiry, claim, action, suit, proceeding, or investigation pursuant to Sanctions Laws by any Sanctions Authority, against any of the Security Parties, any Subsidiary thereof, any of its direct or indirect owners, or any of their, directors, officers or employees or agents, as well as information on what steps are being taken with regards to answer or oppose such and (ii) notify the Facility Agent that any of the Security Parties, any Subsidiary thereof, any of its direct or indirect owners or any of their respective directors, officers or employees or agents has become a Restricted Party;

(ii) Sanctions. ensure that none of the Security Parties, any of their respective Subsidiaries, their respective directors, officers, employees, or agents is a Restricted Party;

(jj) Compliance with Laws. comply, and ensure that any Subsidiary thereof complies, with all Sanctions Laws and the laws of the Designated Jurisdiction; and

(kk) Specified Vessels. ensure that with respect to each Specified Vessel:

 

  (i)

no mortgage, pledge, lien, charge, encumbrance or any security interest whatsoever upon each such Specified Vessel shall be created, assumed or permitted to exist;

 

  (ii)

no such Specified Vessels (or any equity interest held by the Borrower in the vessel owning entities of such Specified Vessels) shall be, directly or indirectly, sold, transferred or otherwise disposed of; and

 

  (iii)

to the extent the Borrower is entitled to share in any revenues generated from each such Specified Vessel, such revenue shall be promptly distributed to the Borrower (by way of dividend or otherwise).

9.2 Negative Covenants. Each of the Obligors hereby covenants and undertakes with the Lenders that, from the date hereof and so long as any principal, interest or other moneys are owing in respect of this Agreement, under the Note, or under any of the Security Documents, such Obligor, as applicable, will not and, where so required, will procure that no Security Party will:

 

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(a) Liens. create, assume or permit to exist, any mortgage, pledge, lien, charge, encumbrance or any security interest whatsoever upon any property, whether now owned or hereafter acquired except:

 

  (i)

liens disclosed in Schedule 3;

 

  (ii)

liens for taxes not yet payable for which adequate reserves have been maintained;

 

  (iii)

the Mortgages, the Assignments and other liens in favor of the Collateral Agent, as applicable;

 

  (iv)

liens, charges and encumbrances against the Relevant Vessels permitted to exist under the terms of the Mortgages, Deeds of Covenants or the Guarantee, Administration and Source of Payment Trust Agreement;

 

  (v)

pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, deposits to secure public or statutory obligations, warehousemen’s or other like liens, or deposits to obtain the release of such liens and deposits to secure surety, appeal or customs bonds on which any Security Party or any Subsidiary is the principal, as to all of the foregoing, only to the extent arising and continuing in the ordinary course of business;

 

  (vi)

other liens, charges, encumbrances, pledges and deposits to secure obligations incidental to the conduct of the business of each such party, the ownership of any such party’s property and assets and which do not in the aggregate materially detract from the value of each such party’s property or assets or materially impair the use thereof in the operation of its business; and

 

  (vii)

liens securing the obligations under the OVH Subordinated Loan Agreement in accordance with the terms of the Subordination and Intercreditor Agreement;

(b) Indebtedness. incur any Indebtedness, other than as disclosed on Schedule 3, excluding Indebtedness to the Facility Agent, Collateral Agent, Trustee or any of the Creditors hereunder except that the Obligors may incur (i) Indebtedness incurred under the OVH Subordinated Loan Agreement in accordance with the terms of the Subordination and Intercreditor Agreement and (ii) Indebtedness incurred in the ordinary course of business, so long as the Obligors remain in compliance with the covenants set forth in Section 9.3 hereof before or after giving effect to such incurrence;

(c) Change of Flag, Name, Management or Ownership. change the flag of any Relevant Vessel other than to a Designated Jurisdiction or a jurisdiction acceptable to the Lenders, change the name of any Relevant Vessel, change the technical or commercial management of any Relevant Vessel or change the ownership of any Relevant Vessel other than from any Obligor to the Trustee;

(d) Change in Business. with respect to the Obligors, engage in any business other than the operation, purchase, sale and construction of vessels, and with respect to each of the Security Parties, materially change the nature of its business or commence any business other than the business referenced in this Section 9.2(d);

 

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(e) Sale or Pledge of Shares. sell, assign, transfer, pledge or otherwise convey or dispose of any of the shares (including by way of spin-off, installment sale or otherwise) of the capital stock of any Security Party or any Subsidiary; provided that with respect to the shares representative of the capital stock of the Obligors, the execution and perfection of the Guarantee, Administration and Source of Payment Trust Agreement shall not be considered a breach of this paragraph 9.2(e);

(f) Sale of Assets. sell, transfer or otherwise dispose of any Relevant Vessel unless the Facility is repaid in accordance with Section 5.6 or the Relevant Vessel is replaced with a Substitute Vessel pursuant to Section 9.5;

(g) Changes in Offices or Names. change the location of the chief executive office of any Obligor or any other Security Party, the office of the principal place of business of any Obligor or any other Security Party or the office of any Obligor or any other Security Party in which the records relating to the earnings or insurances of the Relevant Vessels are kept or the name of any Obligor or any other Security Party unless the Facility Agent shall have received forty five (45) days prior written notice of such change;

(h) Consolidation and Merger. consolidate with, or merge into, any corporation or other entity, or merge any corporation or other entity into it without the prior written consent of the Majority Lenders (or in the case of such consolidation or merger that results in a Change of Control, at a time when there are a total of fewer than three (3) Lenders, all Lenders);

(i) Acquisition of Shares. acquire any shares of securities in any other corporation or other entity;

(j) Assume Obligations. assume, guarantee, endorse or otherwise become liable in connection with any pledge or obligation of any person, firm or entity except as contemplated by this Agreement or the Security Documents, unless the Creditors are granted similar rights as such person, firm or entity;

(k) Change Fiscal Year. change its fiscal year, except to the extent as may be mandated by applicable law;

(l) Affiliate Transactions. enter into any transaction with an Affiliate thereof except in the ordinary course of business conducted on an arm’s-length basis and not having a Material Adverse Effect on the Borrower’s business taken as a whole;

(m) Use of Corporate Funds. pay out any funds to any company or person except (i) in the ordinary course of business in connection with the management of the business of any Obligor, including the operation and/or repair of the Relevant Vessels and other vessels owned or operated by any Obligor, and (ii) the servicing of Indebtedness permitted hereunder;

(n) Dividends. declare or pay any dividend or other distribution on the capital stock of any Obligor or make payments of principal or interest on inter-company loans provided however, that the Borrower may pay dividends pursuant to the terms of any revenue sharing agreement related to the vessels CASPIAN and BALTIC;

(o) No Accounts. establish or maintain any accounts with any other financial institution, other than in the ordinary course of business, without the prior approval of the Facility Agent;

 

54


(p) No Money Laundering. in connection with this Agreement or any of the Security Documents, contravene any law, official requirement or other regulatory measure or procedure implemented to combat “money laundering” (as defined in Article 1 of the Directive (2005/60/EC) of the Council of the European Communities) and comparable United States Federal and state laws. The Obligors will promptly inform the Lenders (by written notice to the Facility Agent) if any Obligor is not or ceases to be the beneficiary and will provide in writing the name and address of the beneficiary;

(q) Use of Proceeds. use the proceeds of the Facility in violation of Regulation T, Regulation U or Regulation X or make available, directly or indirectly, the proceeds of the Loan to or for the benefit of a Restricted Party or apply the proceeds in a manner or for a purpose prohibited by Sanctions Laws;

(r) Charter Party Agreements. amend or terminate any Charter Party Agreement (including any Acceptable Charters) with respect to any Relevant Vessel (it being understood and agreed that the Lenders have consented to those amendments to the Pemex Charters in respect of the daily rate discounts, temporary suspensions and change in collection days described in Schedule A to that certain Amendment No. 2, dated July 28, 2016, including those described in that certain email dated June 3, 2016 from the Borrower to the Facility Agent, which email has been shared with the Lenders, as may be amended and such additional changes acceptable to the Lenders to be separately communicated after the date thereof without a formal amendment to this Agreement provided that all of the Lenders consent to such additional changes);

(s) Change of Control and Change of Ownership. permit any Change of Control in respect of the Security Parties or any Subsidiary or permit any change in the ownership of the capital stock or other equity interest of any Security Party from that disclosed to the Facility Agent. For the avoidance of doubt, the execution and perfection of the Guarantee, Administration and Source of Payment Trust Agreement shall not be considered a Change of Control with respect to the Obligors and shall be considered a change in ownership of the Obligors that has been consented to by the Facility Agent and the Lenders;

(t) Bareboat Charter. enter into any bareboat charter with respect to any Relevant Vessel, other than such bareboat charter as may have existed as of the Original Closing Date;

(u) Operating Leases. enter into any operating lease of, or charter in, any Relevant Vessel, other than such operating leases or charters as may have existed as of the Original Closing Date;

(v) ERISA. enter into any Plan or Foreign Plan without obtaining the previous written consent of the Facility Agent;

(w) Nuclear Waste/Materials. permit any Relevant Vessel to carry nuclear waste or nuclear materials;

(x) Unlawful Trade. engage in any unlawful trade or violate any applicable law or carry any cargo that will expose any of the Relevant Vessels to penalty, forfeiture, or capture which is reasonably likely to result in a Material Adverse Effect and will not do, or suffer or permit to be done, anything which can or may adversely affect the registration of the Relevant Vessels under the laws and regulations of the United Mexican States (or another Designated Jurisdiction under the laws of which a Relevant Vessel is registered, if applicable);

(y) Substantial Change. make, or permit to be made, any substantial change in the structure, type or speed of any of the Relevant Vessels, without receiving prior written consent thereof by the Facility Agent;

 

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(z) Sanctions and Anti-Money Laundering. (i) engage in a trade or financial transaction or other dealing with any Restricted Party; (ii) use, or permit or allow any Subsidiary or Affiliate of any Security Party to use, the Facility or the proceeds from the Facility, directly or indirectly, to lend, contribute, provide or otherwise make available funds (1) to a Restricted Party or to fund any trade or business involving any Restricted Party, or (2) to a person or entity for the purpose of engaging in any activities in violation of Sanctions Laws or Anti-Money Laundering Laws, or (3) in such a way that will otherwise result in a violation of Sanctions Laws and Anti-Money Laundering Laws, by such Security Party, Subsidiary or Affiliate thereof, including, without limitation, any such Person becoming a Restricted Party; (iii) permit or allow any of its assets (including, without limitation, any Vessel) to be used, directly or indirectly, (1) by or for the benefit of any Restricted Party, (2) in any trade or activity which is prohibited under Sanctions Laws or Anti-Money Laundering Laws, or (3) in such a way that could expose any Security Party or its assets or its insurers to enforcement proceedings or any other consequence whatsoever arising from Sanctions Laws or Anti-Money Laundering Laws; or (iv) permit or allow any Vessel to trade in or with Iranian ports or carry or store or warehouse crude oil, petroleum products, petrochemical products or other products subject to Sanctions Laws if they originate in Iran, or are being exported from Iran to any other country; or

(aa) Speculative Transactions. other than any non-speculative foreign currency forward contract entered into in the ordinary course of business, enter into any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, or other similar agreement or arrangement; or

(bb) OVH Subordinated Loan. amend or otherwise modify the terms of the OVH Subordinated Loan without the prior written consent of the Majority Lenders.

9.3 Financial Covenants. The Borrower hereby covenants and undertakes with the Lenders that, from the date hereof and so long as any principal or interest are outstanding or other moneys are owing in respect of this Agreement, under the Note, or under any of the Security Documents, it will:(a) Debt Service Coverage Ratio. maintain, at all times during the term of this Agreement measured on a rolling four (4) quarter basis, a Debt Service Coverage Ratio of at least 1.20:1.00, determined as at the end of each fiscal quarter;

(b) Minimum Cash Balance. maintain, at all times during the term of this Agreement, minimum cash and Cash Equivalents balances in its Accounts equal to $2,500,000.00.

9.4 Asset Maintenance. If at any time during the term of the Agreement the Fair Market Value of all of the Relevant Vessels is less than the Required Percentage of the outstanding amount of the Facility, the relevant Obligor shall, within a period of thirty (30) days following receipt by such Obligor of written notice from the Facility Agent notifying such Obligor of such shortfall and specifying the amount thereof (which amount shall, in the absence of manifest error, be deemed to be conclusive and binding on such Obligor), either (i) deliver to the Collateral Agent such additional collateral as may be satisfactory to the Lenders in their sole discretion of sufficient value to make the Fair Market Value of the Relevant Vessels plus the additional collateral, not less than the Required Percentage of the outstanding amount of the Facility, or (ii) the relevant Obligor shall prepay the amount of the Facility (together with interest thereon and any other monies payable in respect of such prepayment pursuant to Section 5) as shall result in the Fair Market Value of the Relevant Vessels being not less than the Required Percentage of the outstanding amount of the Facility.

9.5 Substitution of Relevant Vessels. Provided that no Default or Event of Default (other than such Event of Default or default arising as a result of a Total Loss of a PSV of at least 1,800 DWT or an AHTS of least 70 tons bollard pull) has occurred and is continuing, an Obligor may substitute a vessel (a “Substitute Vessel”) for any Vessel, on a one for one basis, provided that:

 

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(a) such Substitute Vessel is approved by the Lenders and, if applicable, by the relevant Acceptable Charterer;

(b) the aggregate Fair Market Value (at acquisition of such Substitute Vessel) of all of the Relevant Vessels shall be comprised of at least fifty percent (50%) PSVs of at least 1,800 DWT or AHTSs of least 70 tons bollard pull; and

(c) the relevant Obligor has met the conditions of Section 4 of the Original Facility Agreement with respect to such Substitute Vessel.

10. ACCOUNTS

10.1 Accounts. The Borrower shall procure and maintain that the Peso Trust Account, the US Dollar Trust Drydock Reserve Account, and US Dollar Trust Retention Account. The Obligors shall procure that all earnings from all Third Party Charters that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) are to be paid into the Peso Trust Account, immediately converted into Dollars (as required pursuant to the terms of the Guarantee, Administration and Source of Payment Trust Agreement) and immediately thereafter deposited into the US Dollar Trust Earnings Account. The Obligors shall procure that all Drydock Reserve Amounts, with respect to all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the US Dollar Trust Drydock Reserve Account and that all Retention Amounts, with respect to all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the US Dollar Trust Retention Account from the US Dollar Trust Earnings Account pursuant to Section 7.5. The Borrower shall maintain the Earnings Accounts, Drydock Reserve Account and Retention Account for any Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos). Each Obligor shall procure that all earnings from all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) are to be paid into the Earnings Account of such Obligor. Each Obligor shall procure that all Drydock Reserve Amounts, with respect to all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the Drydock Reserve Account and that all Retention Amounts, with respect to all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the Retention Account from the Earnings Account pursuant to Section 7.5. Upon establishing the Earnings Account, the Drydock Reserve Account and the Retention Account, the Borrower shall deliver to the Facility Agent the Account Pledge Agreements and any other such pledge, assignment or security agreement as the Facility Agent shall require in order to grant a valid, perfected security interest in the aforementioned Accounts in favor of the Collateral Agent. All monies on deposit in the Peso Trust Account, US Dollar Trust Earnings Account, the US Dollar Trust Drydock Reserve Account, the US Dollar Trust Retention Account, the Earnings Account, the Drydock Reserve Account and the Retention Account shall be collateral security for the payment and performance by the relevant Obligor of their obligations hereunder, under the Note, and under the Security Documents, and each of the Obligors, by its execution of this Agreement, hereby pledges, assigns and grants to the Collateral Agent a security interest in such monies.

10.2 Application of Accounts. Upon the occurrence of an Event of Default, moneys then held in the Peso Trust Account, US Dollar Trust Earnings Account, US Dollar Trust Drydock Reserve Account, US Dollar Trust Retention Account, Earnings Account, Drydock Reserve Account and Retention Account shall be retained by the Collateral Agent and the Trustee, as applicable, as collateral security for the Facility to be applied by the Facility Agent in the manner set forth in Section 8.3.

 

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11. ASSIGNMENT

(a) This Agreement shall be binding upon, and inure to the benefit of, the Obligors, the Creditors and their respective successors and assigns, except that any of the Obligors may not assign any of its rights or obligations hereunder without the prior written consent of the Lenders. In giving any consent as aforesaid to any assignment by the Obligors, the Lenders shall be entitled to impose such conditions as they shall deem advisable. At any time, any Lender shall be entitled to assign the whole or any part of its rights or obligations under this Agreement or grant participation(s) in the Facility to any Lender, any subsidiary, holding company or other affiliate or office of such Lender or to any subsidiary, office or other affiliate company, special purpose entity or funding vehicle of any thereof without the consent of the Obligors; provided, however, that such subsidiary, holding company or other affiliate or office of such Lender or subsidiary, office or other affiliate company, special purpose entity or funding vehicle of any thereof is an Eligible Assignee. If no Event of Default has occurred and is continuing, any Lender shall be entitled to assign the whole or any part of its rights or obligations under this Agreement or grant participation(s) in the Facility to any Eligible Assignee with the prior written consent (in each case not to be unreasonably withheld or delayed) of the Borrower and, in the case of assignments, the Facility Agent. Notwithstanding the foregoing, if the Borrower does not provide its prior written consent or object to the assignment or participation, as the case may be, within ten (10) days after receiving notice of such assignment or participation, the Borrower shall be deemed to have given its consent to such assignment or participation. If an Event of Default has occurred and is continuing, any Lender shall be entitled to assign the whole or any part of its rights or obligations under this Agreement or grant participation(s) in the Facility to any Eligible Assignee or to any private equity fund, hedge fund, investor partnership, financial institution, special purpose entity, funding vehicle, insurance company or any other entity acceptable to such Lender; provided, that (i) such assignee is not a person who directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with a competitor or an Affiliate of a competitor of the Obligors and (ii) the Facility Agent has provided its prior written consent to such assignment (such consent not to be unreasonably withheld). Such Lender shall forthwith give notice of any such assignment or participation to the Facility Agent and the Borrower, provided, however, that (a) any such assignment to a Lender is to be made pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit I hereto (such Assignment and Assumption Agreement to be delivered to the Facility Agent, for its acceptance and recording in the Register), and (b) except as provided in Section 14, no such assignment or participation will result in any additional costs to, or additional material requirements on, the Obligors. The Obligors will take all reasonable actions requested by the Lenders to effect such assignment, including, without limitation, the execution of a written consent to such Assignment and Assumption Agreement. Anything contained in this Section 11 to the contrary notwithstanding, any Lender may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of the Note) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Lender from its obligations hereunder.

(b) The Facility Agent shall maintain at its address referred to in Section 17, a copy of each Assignment and Assumption Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount of the Facility owing to, each Lender, and payments of interest, principal, and other amounts paid by a Security Party, from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Obligor, the other Security Parties and the Creditors may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement, the Note and the Security Documents. The Register shall be available for inspection by the Borrower, the other Security Parties or the Creditors at any reasonable time and from time to time upon reasonable prior notice.

 

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12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.

12.1 Illegality. In the event that by reason of any change in any applicable law, regulation or regulatory requirement or in the interpretation thereof, a Lender has a basis to conclude that it has become unlawful for such Lender to maintain or give effect to its obligations as contemplated by this Agreement, such Lender shall inform the Facility Agent and the Borrower to that effect whereafter the Borrower shall be required to repay to such Lender that portion of the Facility advanced by such Lender immediately. In any such event, but without prejudice to the aforesaid obligations of the Borrower to repay such portion of the Facility, the Borrower and the relevant Lender shall negotiate in good faith with a view to agreeing on terms for making such portion of the Facility available from another jurisdiction or otherwise restructuring such portion of the Facility on a basis which is not unlawful.

12.2 Increased Costs. If any change in applicable law, regulation or regulatory requirement (including any applicable law, regulation or regulatory requirement which relates to capital adequacy or liquidity controls or which affects the manner in which any Lender allocates capital resources under this Agreement), or in the interpretation or application thereof by any governmental or other authority, shall:

 

  (a)

subject any Lender to any Taxes with respect to its income from the Facility, or any part thereof; or

 

  (b)

change the basis of taxation to any Lender of payments of principal or interest or any other payment due or to become due pursuant to this Agreement (other than a change in the basis effected by the jurisdiction of organization of such Lender, the jurisdiction of the principal place of business of such Lender, the United States of America, the State or City of New York or any governmental subdivision or other taxing authority having jurisdiction over such Lender (unless such jurisdiction is asserted by reason of the activities of any of the Security Parties) or such other jurisdiction where the Facility may be payable); or

 

  (c)

impose, modify or deem applicable any reserve requirements or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, a Lender or its holding company; or

 

  (d)

impose on any Lender any other condition affecting the Facility or any part thereof;

and the result of the foregoing is either to increase the cost to such Lender of making available or maintaining its Commitment or any part thereof or to reduce the amount of any payment received by such Lender, then and, in any such case, if such increase or reduction, in the opinion of such Lender, materially affects the interests of such Lender under or in connection with this Agreement:

(a) the Lender shall notify the Facility Agent and the Borrower of the happening of such event; and

(b) the Borrower agrees forthwith upon demand to pay to such Lender such amount as such Lender certifies to be necessary to compensate such Lender for such additional cost or such reduction.

For the avoidance of doubt, this Section 12.2 shall apply to all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any United States regulatory authority (i) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority), regardless of the date adopted, issued, promulgated or implemented.

 

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12.3 Lenders Certificate Conclusive. A certificate or determination notice of any Lender as to any of the matters referred to in this Section 12 shall, absent manifest error, be conclusive and binding on the Borrower.

12.4 Compensation for Losses. Where the Facility or any portion thereof is to be repaid by the Borrower pursuant to this Section 12, the Borrower agrees simultaneously with such repayment to pay to the relevant Lender all accrued interest to the date of actual payment on the amount repaid and all other sums then payable by the Borrower to the relevant Lender pursuant to this Agreement, together with such amounts as may be certified by the relevant Lender to be necessary to compensate such Lender for any actual loss, premium or penalties incurred or to be incurred thereby on account of funds borrowed to make, fund or maintain its Commitment or such portion thereof, but otherwise without penalty or premium.

12.5 Market Disruption. If Term SOFR is not available for an Interest Period on the date of determination of the Benchmark (excluding the circumstances described in Section 6.5) (a “Market Disruption Event”), then, (a) the Facility Agent shall promptly notify the Borrower, each of the Lenders stating the circumstances giving rise to the Market Disruption Event (a “Market Disruption Notification”) provided that the level of detail of the Market Disruption Notification shall be in the Facility Agent’s discretion and the Market Disruption Notification itself shall, absent manifest error, be final, conclusive and binding on all parties hereto and (b) for so long as the circumstances giving rise to the Market Disruption Event are continuing, the rate of interest on each Lender’s Advances for the Interest Period shall be the percentage rate per annum which is the aggregate of the (i) the higher of (x) the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. and (y) one-half percent (1/2%) above the Federal Funds Effective Rate, plus (ii) the Margin. The procedure provided for by this Section 12.5 shall be repeated for each successive Interest Period during which a Market Disruption Event has occurred.

13. CURRENCY INDEMNITY

13.1 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 Note, or any of the Security Documents, then the conversion shall be made, in the discretion of the Facility Agent, at the rate of exchange 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 Facility Agent 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.

13.2 Change in Exchange Rate. If there is a change in the rate of exchange 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 rate of exchange prevailing on the date of payment, will produce the amount then due under this Agreement, the Note, 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.

13.3 Additional Debt Due. Any amount due from the Borrower under this Section 13 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 Note, and/or any of the Security Documents.

 

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13.4 Rate of Exchange. The term “rate of exchange” in this Section 13 means the rate at which the Facility Agent in accordance with its normal practices is able on the relevant date to purchase Dollars with the judgment currency and includes any premium and costs of exchange payable in connection with such purchase.

14. FEES AND EXPENSES

14.1 Fees. The Borrower shall pay to the Facility Agent and the Collateral Agent such fees owed by it pursuant to any Fee Letter.

14.2 Expenses. Each of the Obligors, jointly and severally, agrees, whether or not the transactions hereby contemplated are consummated, on demand to pay, or reimburse the Facility Agent, the Collateral Agent and the Trustee for the payment of, the expenses of the Facility Agent, the Collateral Agent, the Trustee and (after the occurrence and during the continuance of an Event of Default) the other 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 the Creditors’ rights or remedies with respect thereto or in the preservation of Creditors’ priorities under the documentation executed and delivered in connection therewith), including, without limitation, all costs and expenses of preparation, negotiation, execution and administration of this Agreement and the documents referred to herein, the fees and disbursements of the Creditors’ counsel in connection therewith, as well as the fees and expenses of any independent appraisers, surveyors, engineers, inspectors and other consultants retained by the Facility Agent, the Collateral Agent and the Trustee in connection with this Agreement and the transactions contemplated hereby and under the Security Documents, all costs and expenses, if any, in connection with the enforcement of this Agreement, the Note, and the Security Documents and stamp and other similar taxes, if any, incident to the execution and delivery of the documents (including, without limitation, the Note) herein contemplated and to hold the Creditors free and harmless in connection with any liability arising from the nonpayment of any such stamp or other similar taxes. Such taxes and, if any, interest and penalties related thereto as may become payable after the date hereof shall be paid immediately by the Obligors to the Creditors, as the case may be, when liability therefor is no longer contested by such party or parties or reimbursed immediately by the Obligors to such party or parties after payment thereof (if the Creditors, at their sole discretion, choose to make such payment). Each of the Obligors, jointly and severally, further agrees to pay all legal and other expenses incurred by the Facility Agent, Collateral Agent, Trustee and other Creditors.

14.3 The provisions of this Section 14 shall survive the earlier resignation or removal of the Facility Agent or the Collateral Agent, the termination of this Agreement and the repayment to the Lenders of all amounts owing thereto under or in connection herewith.

 

15.

APPLICABLE LAW, JURISDICTION AND WAIVER

15.1 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws thereof other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York.

15.2 Jurisdiction. Each party hereto hereby irrevocably submits to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York in any action or proceeding brought against it, therefore waives any other jurisdiction to which such party may be presently entitled to or to which it may be entitled to in the future by virtue of its domicile or for any other reason. Each Obligor hereby irrevocably agrees that valid service of summons or other legal process on it may be effected by serving a copy of the summons and other legal process in any such action or proceeding on the relevant Obligor by mailing or delivering the same by hand to the Obligors, at the address indicated for notices in Section 17.1, or to the agent for service of process referenced in this Section 15.2. The service, as herein provided, of such summons or other legal process in any such action or proceeding shall be deemed personal

 

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service and accepted by the relevant Obligor as such, and shall be legal and binding upon the relevant Obligor for all the purposes of any such action or proceeding. Each Obligor hereby appoints Farkouh, Furman & Faccio, LLP, 460 Park Avenue, 12th Floor, New York, NY 10022 (Attention: Fred Farkouh), for the time being as its agent for service of process in respect of proceedings before such courts (and agrees that service on such agent shall be deemed personal service) and to this effect prior to the date of execution of this Agreement, each Obligor shall take such corporate actions as may be necessary under applicable Mexican law to make such appointment of agent for service of process through a general power of attorney for collections and lawsuits, specifically mentioning such appointment, duly granted and notarized in Mexico, a certified copy of which shall be provided on the date of execution of this Agreement to both the Facility Agent and the aforementioned agent for service of process. Final judgment (a certified or exemplified copy of which shall be conclusive evidence of the fact and of the amount of any indebtedness of an Obligor to the Lenders, the Facility Agent, the Collateral Agent or the Trustee) against any of the Obligors in any such legal action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment. Each Obligor will advise the Facility Agent promptly of any change of address for the purpose of service of process. Notwithstanding anything herein to the contrary, the Lenders may bring any legal action or proceeding in any other appropriate jurisdiction.

15.3 WAIVER OF IMMUNITY. TO THE EXTENT THAT ANY OBLIGOR 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, EACH OF THE OBLIGORS HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT, THE NOTE, AND THE SECURITY DOCUMENTS.

15.4 WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BY AND AMONG THE OBLIGORS AND THE CREDITORS THAT EACH OF THEM HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTE, AND THE SECURITY DOCUMENTS.

 

16.

THE FACILITY AGENT AND COLLATERAL AGENT

16.1 Appointment of the Facility Agent and Collateral Agent . Each of the Lenders irrevocably appoints and authorizes the Facility Agent, which for purposes of this Section 16, shall be deemed to include the Facility Agent acting in its capacity as Collateral Agent pursuant to Section 16.2, to take such action as agent on its behalf and to exercise such powers under this Agreement, the Note, and the Security Documents as are delegated to the Facility Agent and the Collateral Agent by the terms hereof and thereof. Neither the Facility Agent, Collateral Agent, nor any of their respective directors, officers or employees shall be liable for any action taken or omitted to be taken by it or them under this Agreement, the Note, or the Security Documents or in connection therewith, except for its or their own gross negligence or willful misconduct. Each of the Facility Agent and Collateral Agent hereby accept such appointment.

16.2 Collateral Agent. Each of the Creditors irrevocably appoints the Collateral Agent as collateral agent on its behalf with regard to (i) the security, powers, rights, titles, benefits and interests (both present and future) constituted by and conferred on the Creditors or any of them or for the benefit thereof under or pursuant to this Agreement, the Note, the Subordination and Intercreditor Agreement, or any of the Security Documents (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to any Creditor in this Agreement, the Note, the Subordination and Intercreditor Agreement, or any Security Document), (ii) all moneys, property and other assets paid or

 

62


transferred to or vested in any Creditor or any agent of any Creditor or received or recovered by any Creditor or any agent of any Creditor pursuant to, or in connection with, this Agreement, the Note, or the Security Documents whether from any Security Party or any other person and (iii) 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 Creditor or any agent of any Creditor in respect of the same (or any part thereof).

16.3 Distribution of Payments. Whenever any payment is received by the Facility Agent from the Borrower or any other Security Party for the account of the Creditors, or any of them, whether of principal or interest on the Note, commissions, fees under Section 14 or otherwise, it will thereafter cause to be distributed on the same day if received before 3 p.m. EST, or on the next 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.

16.4 Holder of Interest in Note. The Facility Agent may treat each Lender as the holder of all of the interest of such Lender in the Note.

16.5 No Duty to Examine, Etc. The Facility Agent shall not be under a duty to examine or pass upon the validity, effectiveness or genuineness of any of this Agreement, the Note, the Security Documents, or any instrument, document or communication furnished pursuant to this Agreement or in connection therewith or in connection with the Note, or any Security Document, and the Facility Agent 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.

16.6 The Facility Agent as Lender. With respect to that portion of the Facility made available by it, if any, the Facility Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not an Facility Agent, and the term “Lender” or “Lenders” shall include the Facility Agent in its capacity as a Lender. The Facility Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with, the Obligors and the other Security Parties, as if it were not the Facility Agent.

16.7 Acts of the Facility Agent. Notwithstanding anything contained herein to the contrary:

(a) Obligations of the Facility Agent. the obligations of the Facility Agent under this Agreement, under the Note and under the Security Documents are only those expressly set forth herein and therein and the Facility Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing.

(b) No Duty to Investigate. the Facility Agent shall not at any time be under any duty to investigate whether a Default or an Event of Default has occurred or to investigate the performance of this Agreement, the Note, or any Security Document by any Security Party.

(c) Discretion of the Facility Agent. the Facility Agent shall be entitled, but not required, 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, the Note and the Security Documents, unless the Facility Agent shall have been instructed by the Majority Lenders to exercise such rights or to take or refrain from taking such action and has been provided indemnity or security satisfactory to it against any loss, liability or expense that may result from such action or inaction; provided, however, that the Facility Agent shall not be required to take any action which exposes the Facility Agent to personal liability or which is contrary to this Agreement or applicable law.

 

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(d) Instructions of Majority Lenders. the Facility Agent shall in all cases be fully protected in acting or refraining from acting under this Agreement, under the Note or under any Security Document in accordance with the instructions of the Majority Lenders, and any action taken, or failure to act pursuant to such instructions, shall, unless contrary to the express provisions of this Agreement, be binding on all of the Lenders. Notwithstanding anything contained in this Agreement, the Note, the Subordination and Intercreditor Agreement, any of the Security Documents to the contrary, without limiting any rights, protections, immunities or indemnities afforded to the Facility Agent and the Collateral Agent hereunder or thereunder (including without limitation this Section 16), phrases such as “satisfactory to the [Facility]/[Collateral] Agent,” “approved by the [Facility]/[Collateral] Agent,” “acceptable to the [Facility]/[Collateral] Agent,” “deemed by the [Facility]/[Collateral] Agent”, “as determined by the [Facility]/[Collateral] Agent,” “designated by the [Facility]/[Collateral] Agent”, “specified by the [Facility]/[Collateral] Agent”, “in the [Facility]/[Collateral] Agent’s discretion,” “selected by the [Facility]/[Collateral] Agent,” “elected by the [Facility]/[Collateral] Agent,” “requested by the [Facility]/[Collateral] Agent,” “in the opinion of the [Facility]/[Collateral] Agent,” “authorized by the [Facility]/[Collateral] Agent”, “with the consent of the [Facility]/[Collateral] Agent”, “decided by the [Facility]/[Collateral] Agent”, “determined by the [Facility]/[Collateral] Agent”, “required by the [Facility]/[Collateral] Agent,” “selected by the [Facility]/[Collateral] Agent”, “elected by the [Facility]/[Collateral] Agent” and phrases of similar import that authorize or permit the Facility Agent or the Collateral Agent to approve, disapprove, determine, act, evaluate or decline to act in its discretion shall be subject to the Facility Agent or Collateral Agent, as applicable, receiving instructions of the Majority Lenders to take such action or to exercise such rights.

16.8 Certain Amendments. Neither this Agreement, the Note, the Subordination and Intercreditor Agreement, any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Obligors, the Facility Agent and the Majority Lenders, provided that no such amendment shall, without the written consent of each Lender affected thereby, (i) reduce the interest rate or extend the time of a scheduled payment of principal or interest or fees on the Facility, or reduce the principal amount of the Facility or any fees hereunder, (ii) increase or decrease the Commitment of any Lender or subject any Lender to any additional obligation (it being understood that a waiver of any Event of Default, other than a payment default, or any mandatory repayment of the Facility shall not constitute a change in the Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 16.8, (iv) amend the definition of Majority Lenders or any other definition referred to in this Section 16.8, (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement, (vi) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or in such Security Document or (vii) amend the definition of “Restricted Party”, “Sanctions Authority”, “Sanctions List” or “Sanctions Laws” or Sections 2.1(p), 9.1(hh), 9.1(ii), or 9.2(q), 9.2(z). All amendments approved by the Majority Lenders under this Section 16.8 must be in writing and signed by the Obligors, each of the Lenders comprising the Majority Lenders and, if applicable, each Lender affected thereby and any such amendment shall be binding on all the Lenders. Notwithstanding anything to the contrary in this Section 16.8, no amendment to this Agreement, the Note, the Subordination and Intercreditor Agreement, any of the Security Documents shall affect the rights, duties, obligations, protections, immunities or indemnities of the Facility Agent or the Collateral Agent without its written consent.

16.9 Assumption re Event of Default. The Facility Agent shall be entitled to assume that no Default or Event of Default has occurred and is continuing, unless the Facility Agent has been notified in writing by any Security Party of such fact, or has been notified in writing by a Lender that such Lender considers that an Event of Default or such an event (specifying in detail the nature thereof) has occurred and is continuing. In the event that the Facility Agent shall have been notified, in the manner set forth in the preceding sentence, by any Security Party or any Lender of any Default or Event of Default, the Facility Agent shall notify the Lenders and shall take action and assert such rights under this Agreement, the Note and the Security Documents as the Majority Lenders shall request in writing so long as it has received indemnity or security satisfactory to it against any loss, liability or expense that may result from such action or inaction.

 

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16.10 Limitations of Liability. None of the Facility Agent or the Collateral Agent shall be under any liability or responsibility whatsoever:

(a) to any Security Party, any Lender or any other person or entity as a consequence of any failure or delay in performance by, or any breach by, any Lender or any other person of any of its or their obligations under this Agreement or under any Security Document;

(b) as a consequence of any failure or delay in performance by, or any breach by, any Security Party of any of its respective obligations under this Agreement, under the Note, or under the Security Documents; or

(c) to any Lender or Lenders, any Security Party or any other person or entity for any statements, representations or warranties contained in this Agreement, in any Security Document or in any document or instrument delivered in connection with the transaction hereby contemplated; or for the validity, effectiveness, enforceability or sufficiency of this Agreement, the Note, any Security Document, or any document or instrument delivered in connection with the transactions hereby contemplated, or the creation, perfection or priority of any lien or security interest created or purported to be created under this Agreement, the Security Documents or otherwise, or for any failure of any Security Party to perform its obligations hereunder or thereunder.

16.11 Indemnification of the Facility Agent. The Lenders agree to indemnify the Facility Agent and the Collateral Agent (to the extent not reimbursed by the Security Parties or any thereof), 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 Collateral Agent in any way relating to or arising out of this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document, any action taken or omitted by the Facility Agent or the Collateral Agent hereunder or thereunder or the preparation, administration, amendment or enforcement of, or waiver of any provision of, this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document, 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 solely and directly from the Facility Agent’s or the Collateral Agent’s (as applicable) gross negligence or willful misconduct as determined by a final non-appealable judgment issued by a court of competent jurisdiction. The obligations of the Lenders under this Section 16.11 shall survive the earlier resignation or removal of the Facility Agent or the Collateral Agent, the termination of this Agreement and the repayment to the Lenders of all amounts owing thereto under or in connection herewith.

16.12 Consultation with Counsel. The Facility Agent may consult with legal counsel reasonably selected by the Facility Agent and shall not be liable for any action taken, permitted or omitted by it in good faith in accordance with the advice or opinion of such counsel.

16.13 Resignation. The Facility Agent and the Collateral Agent each may resign at any time by giving thirty (30) days’ written notice thereof to the Lenders and the Borrower, provided such notice is not given any earlier than the earlier of (a) thirty (30) days prior to the Final Payment Date, and (b) August 31, 2023. Upon any such resignation, the Lenders shall have the right to appoint a successor Facility Agent or Collateral Agent, as applicable. If no successor Facility Agent or Collateral Agent, as applicable shall have been so appointed by the Lenders and shall have accepted such appointment within thirty (30) days after the

 

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retiring Facility Agent’s or Collateral Agent’s, as applicable, giving notice of resignation, then the retiring Facility Agent or Collateral Agent, as applicable, may, on behalf of the Lenders, appoint, or petition a court of competent jurisdiction to appoint, a successor Facility Agent or Collateral Agent, as applicable, which shall be a bank or trust company of recognized standing. Any resignation by the Facility Agent or Collateral Agent, as applicable, pursuant to this Section 16.13 shall be effective only upon the appointment of a successor Facility Agent or Collateral Agent, as applicable. The appointment of any successor Facility Agent or Collateral Agent, as applicable, shall (so long as no Event of Default has occurred and is continuing) be subject to the prior written consent of the Borrower, such consent not to be unreasonably withheld. After the retiring Facility Agent’s or Collateral Agent’s, as applicable, resignation hereunder, the provisions of this Section 16 shall continue in effect for its benefit with respect to any actions taken or omitted by it while acting as Facility Agent or Collateral Agent, as applicable. Notwithstanding anything to the contrary contained herein or in any related document, any corporation or entity into which the Facility Agent may be merged or converted or with which it may be consolidated, or any corporation or entity resulting from any merger, conversion or consolidation to which the Facility Agent shall be a party, or any corporation or entity succeeding to the business of the Facility Agent shall be the successor of the Facility Agent hereunder and under any related document to which the Facility Agent is a party without the execution or filing of any paper with any Person or any further act on the part of any Person.

16.14 Representations of Lenders. Each Lender represents and warrants to each other Lender and the Facility Agent 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 Security Parties, that it has made an independent credit judgment and that it has not relied upon any statement, representation or warranty by any other Lender or the Facility Agent; and

(b) so long as any portion of its Commitment remains outstanding, it will continue to make its own independent evaluation of the financial condition and affairs of the Security Parties.

16.15 Additional Limitations of Liability.

(a) The Facility Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or instruction believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons;

(b) The Facility Agent may each execute any of its duties under this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document by or through agents, sub-agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties and shall not be responsible for the negligence or misconduct of any agents, subagents or attorneys-in-fact selected by it in good faith;

(c) The Facility Agent shall not be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document;

(d) No provision of this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document shall require the Facility Agent to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have grounds to believe that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it;

 

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(e) In no event shall the Facility Agent be liable for any failure or delay in the performance of its obligations under this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document because of circumstances beyond its control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, epidemics or pandemics or other health crises, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond such Agent’s control whether or not of the same class or kind as specified above;

(f) In no event shall the Facility Agent 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), even if the Facility Agent has been advised of the likelihood of such loss or damage and regardless of the form of action; and

(g) The rights, privileges, protections, exculpations, immunities, indemnities and benefits afforded to the Facility Agent in this Agreement, including, without limitation in this Section 16, are extended to, and shall be enforceable by: (i) the Facility Agent in this Agreement, the Note, the Subordination and Intercreditor Agreement or any Security Document and (ii) the entity serving as Collateral Agent hereunder and in each of the Note, the Subordination and Intercreditor Agreement or any Security Document whether or not specifically set forth herein or therein and each agent, custodian and other person employed to act hereunder and under any such documents, as the case may be.

16.16 Reversal of Redistribution. Each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Security Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Facility, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such obligation then owed and due to such Lender bears to the total of such obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the obligations of the respective Security Party to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such amount; provided that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.

16.17 Erroneous Payments.

(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 Effective Rate. A notice of the Facility Agent to any Person under this clause (a) shall be conclusive, absent manifest error.

 

 

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(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 any obligation or liability due and owing to 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 Effective 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 16.17 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 obligations (or any portion thereof) under any Finance 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 Finance 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 obligations owed by the Borrower or any other Security Party under the Finance Documents, 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 Security Party for the purpose of making such Rescindable Amount. For the avoidance of doubt, no provision in this Section 16.16 shall be interpreted to increase (or accelerate the due date for) or have the effect of increasing (or accelerating the due date for), the obligations of the Borrower or other Security Party under the Finance Documents relative to the amount (and/or timing for payment) of the obligations that would have been payable had the erroneous Rescindable Amount not been paid by the Facility Agent.

 

17.

NOTICES AND DEMANDS

17.1 Notices. All notices, requests, demands and other communications to any party hereunder shall be in writing (including prepaid overnight courier, facsimile transmission, email or similar writing) and shall be given to the Obligors and the Agents at the address, email, or facsimile number set forth below and to the Lenders at their address, email and facsimile number set forth in Schedule 1 or at such other address or facsimile numbers as such party may hereafter specify for the purpose by notice to each other party hereto. Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section 17.1 and telephonic confirmation of receipt thereof is obtained, (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, or (iii) if given by email, upon delivery to the email address specified in this Section.

 

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If to an Obligor:

MANTENIMIENTO EXPRESS MARITIMO, S.A.P.I. DE C.V.

Sierra Nevada #130, Piso 2

Colonia Lomas de Chapultepec

Miguel Hidalgo, Mexico City

CP 11000

Mexico

Attention: Alejandro Romano

Email: aromano@mexmar.com

If to the Facility Agent or the Collateral Agent:

DNB BANK ASA, New York Branch

30 Hudson Yards, 81st Floor

New York, New York 10001

Attention: Ms. Samantha Stone

E-mail: Samantha.stone@dnb.no

 

18.

MISCELLANEOUS

18.1 Time of Essence. Time is of the essence with respect to this Agreement but no failure or delay on the part of any Lender or the Facility Agent to exercise any power or right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by any Lender or the Facility Agent 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.

18.2 References. References herein to Sections, Exhibits and Schedules are to be construed as references to sections of, exhibits to, schedules to this Agreement, unless the context otherwise requires.

18.3 Further Assurances. Each Obligor agrees that if this Agreement or any Security Document shall, in the reasonable opinion of the Lenders, at any time be deemed by the Lenders for any reason insufficient in whole or in part to carry out the true intent and spirit hereof or thereof, it will execute or cause to be executed such other and further assurances and documents as in the opinion of the Lenders may be required in order to more effectively accomplish the purposes of this Agreement, the Note, or any Security Document.

18.4 Prior Agreements, Merger. Any and all prior understandings and agreements heretofore entered into between the Obligors on the one part, the Facility Agent, the Collateral Agent, the Trustee or the Lenders, on the other part, 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 Security Parties, the Facility Agent, the Trustee and/or the Lenders are parties, which alone fully and completely express the agreements between the Security Parties, the Facility Agent, the Collateral Agent, the Trustee and the Lenders.

18.5 Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties hereto, including all parties added hereto pursuant to an Assignment and Assumption Agreement. Subject to Section 16.8, any provision of this Agreement, the Note or any Security Document may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Obligors, the Facility Agent and the Majority Lenders. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one and the same instrument.

 

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18.6 Indemnification. Each Obligor agrees to indemnify each Creditor and their 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 counsel 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 Obligors 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) the use or proposed use of the proceeds from any Advance, (b) any violation by any Security Party (or any charterer or other operator of the Vessels) of any applicable Environmental Law, (c) any Environmental Claim arising out of the management, use, control, ownership or operation of property or assets by any Security Party (or, after foreclosure, by any Lender, the Facility Agent, the Collateral Agent or any Security Party or any of their respective successors or assigns), (d) the breach of any representation, warranty or covenant set forth in Sections 2.1(q) or 9.1(o), (e) the Facility (including the use of the proceeds of the Facility and any claim made for any brokerage commission, fee or compensation from any Person), (f) the execution, delivery, performance or non-performance of this Agreement, the Note, any Security Document, or any of the documents referred to herein or contemplated hereby (whether or not the Indemnitee is a party thereto), or (g) any violation by any Security Party of any Sanctions Laws (including, without limitation, any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by any Creditor as a result thereof). If and to the extent that the obligations of the Obligors under this Section are unenforceable for any reason, each Obligor agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. The obligations of the Obligors under this Section 18.6 shall survive the earlier resignation or removal of the Facility Agent or the Collateral Agent, the termination of this Agreement and the repayment to the Lenders of all amounts owing thereto under or in connection herewith.

18.7 USA Patriot Act Notice; OFAC and Bank Secrecy Act. The Facility Agent hereby notifies the Borrower and each other Security Party that pursuant to the requirements of the Patriot Act, and the Facility Agent’s policies and practices, the Facility Agent and each of the Lenders is required to obtain, verify and record certain information and documentation that identifies each Security Party, which information includes the name and address of each Security Party and such other information that will allow the Facility Agent and the Lenders to identify each Security Party in accordance with the Patriot Act.

18.8 Remedies Cumulative and Not Exclusive; No Waiver. Each and every right, power and remedy herein given to the Facility Agent and the other Creditors shall be cumulative and shall be in addition to every other right, power and remedy of the Facility Agent and the other Creditors now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy, whether herein given or otherwise existing, may be exercised from time to time, in whole or in part, and as often and in such order as may be deemed expedient by the Facility Agent or the other Creditors, and the exercise or the beginning of the exercise of any right, power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No failure, delay or omission by the Facility Agent or any of the Creditors in the exercise of any right or power or in the pursuance of any remedy accruing upon any breach or default by the Borrower or any Security Party shall impair any such right, power or remedy or be construed to be a waiver of any such right, power or remedy or to be an acquiescence therein; nor shall the acceptance by the Facility Agent or any of the Creditors of any security or of any payment of or on account of any of the amounts due from the Borrower or any Security Party to the Facility Agent or any of the Creditors and maturing after any breach or default or of any payment on account of any past breach or default be construed to be a waiver of any right with respect to any future breach or default or of any past breach or default not completely cured thereby. In addition to the rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any of the Security Parties’ obligations, the Facility Agent or any of the Creditors shall have rights and remedies of a secured party under the Uniform Commercial Code.

 

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18.9 Successors and Assigns. This Agreement and all obligations of the Security Parties hereunder shall be binding upon the successors and assigns of the Security Parties and shall, together with the rights and remedies of the Facility Agent hereunder, inure to the benefit of the Facility Agent and its respective successors and assigns.

18.10 Invalidity. If any provision of this Agreement shall at any time, for any reason, be declared invalid, void or otherwise inoperative by a court of competent jurisdiction, such declaration or decision shall not affect the validity of any other provision or provisions of this Agreement, or the validity of this Agreement as a whole and, to the fullest extent permitted by law, the other provisions hereof shall remain in full force and effect in such jurisdiction. The invalidity and unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

18.11 Counterparts; Electronic Delivery. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile or electronic transmission shall be deemed as effective as delivery of an originally executed counterpart. In the event that any party hereto delivers an executed counterpart of this Agreement by facsimile or electronic transmission, such party shall also deliver an originally executed counterpart as soon as practicable, but the failure of such party to deliver an originally executed counterpart of this Agreement shall not affect the validity or effectiveness of this Agreement.

18.12 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.

18.13 Disclosure. Each of the Security Parties irrevocably authorizes the Creditors to give, divulge and reveal from time to time information and details relating to its Accounts, any Vessel, the Facility, this Agreement, the Note, the Security Documents, the Commitments, any agreement entered into by any of the Security Parties in connection with this Agreement, the Note or the Security Documents and any other information provided by any of the Security Parties to any of the Creditors in connection with this Agreement, the Note or the Security Documents to (i) any private, public or internationally recognized authorities, (ii) the head offices, branches, affiliates and professional advisers of any of the Creditors, (iii) any other parties to this Agreement, the Note or the Security Documents and any parties to any agreement entered into by any of the Security Parties in connection therewith, (iv) any rating agencies and their professional advisers, (v) any Person with whom any of the Security Parties propose to enter (or contemplate entering) into contractual relations in relation to the Facility or the Commitments; and (vi) any other Person in connection with the funding, refinancing, transfer, assignment, sale, sub-participation or operational arrangement or other transaction in relation thereto, including, but not limited to, any enforcement, preservation, assignment, transfer, sale or sub-participation of any of the rights and/or obligations of any of the Creditors.

18.14 Contractual Recognition of Bail-In. Notwithstanding anything to the contrary in any Finance 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 Finance 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:

 

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(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder that 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)

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 Finance Document; or

 

  (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.

18.15 CEA Eligible Contract Participant. Notwithstanding anything to the contrary in any Finance Document, no Security Party shall be deemed to guarantee, become jointly and severally obligated for or pledge assets in support of a “swap,” as defined in Section 1(a)(47) of the Commodity Exchange Act (“CEA”) of another Security Party in favor of any counterparty if at the time that swap is entered into, such Security Party is not an “eligible contract participant” as defined in Section 1(a)(18) of the CEA.

18.16 EU Blocking Lender Carve-Out. the provisions of this Agreement and the other Transaction Documents, including the representations and warranties and covenants in Section 2.1(p), 9.1(gg), 9.1(hh), 9.1(ii), or 9.2(q) and 9.2(z) shall only apply for the benefit of a Creditor insofar as the giving of and compliance with provisions do not result in a violation of or conflict with any provision of Council Regulation (EC) 2271/1996 (in conjunction with Commission Delegated Regulation EU 2018/1100) or any similar anti-boycott laws or regulation by that Creditor.

18.17 Amendment and Restatement.

(a) On the Effective Date, the Original Facility Agreement shall be amended and restated in its entirety by this Agreement, and the Original Facility Agreement shall thereafter be of no further force and effect, except to evidence (i) the incurrence by the Security Parties of the indebtedness, liabilities and obligations under the Original Facility Agreement (whether or not such indebtedness, liabilities and obligations are contingent as of the Effective Date), (ii) the representations and warranties made by the Security Parties prior to the Effective Date and (iii) any action or omission performed or required to be performed pursuant to such Original Facility Agreement prior to the Effective Date (including any failure, prior to the Effective Date, to comply with the covenants contained in such Original Facility Agreement). The amendments and restatements set forth herein shall not cure any breach thereof or any “Default” or “Event of Default” under and as defined in the Original Facility Agreement existing prior to the Effective Date. This Agreement is not in any way intended to evidence payment of all or any portion of the obligations and liabilities existing under the Original Facility Agreement.

 

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(b) The terms and conditions of this Agreement and the Creditors’ rights and remedies under this Agreement and the other Finance Documents shall apply to (i) all of the indebtedness, liabilities and obligations incurred hereunder and the other Finance Documents and (ii) all of the indebtedness, liabilities and obligations of the Security Parties incurred under the Original Facility Agreement and the other “Finance Documents” (as defined in the Original Facility Agreement) (the “Original Finance Documents”).

(c) Each Security Party hereby reaffirms the security interests, liens and collateral granted pursuant to the Original Finance Documents (to which it is a party) to the Collateral Agent for the benefit of the Creditors (as defined in the Original Facility Agreement), which security interests, liens and interests in collateral shall continue in full force and effect during the term of this Agreement and any renewals thereof and shall continue to secure the indebtedness, liabilities and obligations of the Security Parties incurred under the Original Facility Agreement. Each of the Security Parties hereby consents to the execution, delivery and performance of this Agreement and all of the other Finance Documents executed in connection therewith.

(d) On and after the Effective Date, (i) all references to the Original Facility Agreement in the Finance Documents (other than this Agreement) shall be deemed to refer to the Original Facility Agreement, as amended and restated hereby, (ii) all references to any Article, Section or sub-clause of the Original Facility Agreement in any Finance Document (other than this Agreement) shall be deemed to be references to the corresponding provisions of this Agreement and (iii) except as the context otherwise provides, on or after the Effective date, all references to this Agreement herein (including for purposes of indemnification and reimbursement of fees) shall be deemed to be references to the Original Facility Agreement, as amended and restated hereby.

(e) This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar and, except as expressly provided herein or in any other Finance Document, all terms and conditions of the Original Finance Documents remain in full force and effect unless otherwise specifically amended hereby or amended by any other Finance Document.

[Signature Pages Follow]

 

 

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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.

 

BORROWER:
MANTENIMIENTO EXPRESS MARÍTIMO, S.A.P.I. DE C.V.
By:  

/s/ Alejandro Romano

  Name: Alejandro Romano
  Title: Attorney-in-Fact
AGENTS:
DNB BANK ASA, NEW YORK BRANCH
as Facility Agent and Collateral Agent
By:  

/s/ Megan Keating

  Name: Megan Keating
  Title: Attorney-in-Fact


SEACOR MARINE CAPITAL INC., as Lender
By:  

/s/ Jesús Llorca

  Name: Jesús Llorca
  Title: Vice President/Treasurer
By:  

/s/ John Gellert

  Name: John Gellert
  Title: President/Chief Executive Officer


Schedule 1

Part A

Lenders

SEACOR Marine Capital Inc.

12121 Wickchester Lane, Suite 500

Houston, TX 77079

Attention: Jesús Llorca

Email:

jllorca@seacormarine.com

Outstanding Principal Amount of Owed to Each Lender

 

SMCI
28,831,148.32

Part B

Facility Agent and Collateral Agent

DNB BANK ASA, New York Branch

30 Hudson Yards, 81st Floor

New York, New York 10001

Attention: Ms. Samantha Stone

E-mail: Samantha.stone@dnb.no


Schedule 2

Vessels

 

Vessel Name

   Year
Built
   Vessel Type/DWT    IMO
Number
   Designated
Jurisdiction
   Builder/ Country

SEACOR PRIDE

   2004    PSV/1,883    9283564    Mexico    VT Halter / USA

SEACOR VIKING

   2012    PSV/4,666    9533696    Mexico    Fujian Mawei / China

SEACOR WARRIOR

   2012    PSV/5,122    9533701    Mexico    Fujian Mawei / China

SEACOR CABRAL

   2007    PSV/1,651    9498676    Mexico    Master Boat Builders / USA

SEACOR COLUMBUS

   2007    PSV/1,783    9458793    Mexico