Dated as of August 5, 2014 ABL CREDIT AGREEMENT among OVERSEAS SHIPHOLDING GROUP, INC., as Holdings, OSG BULK SHIPS, INC., as the Administrative Borrower, CERTAIN SUBSIDIARIES OF OSG BULK SHIPS, INC., as Co-Borrowers, THE OTHER GUARANTORS PARTY...

Exhibit 10.1

EXECUTION VERSION

Dated as of August 5, 2014

ABL CREDIT AGREEMENT

among

OVERSEAS SHIPHOLDING GROUP, INC.,

as Holdings,

OSG BULK SHIPS, INC.,
as the Administrative Borrower,

CERTAIN SUBSIDIARIES OF OSG BULK SHIPS, INC.,
as Co-Borrowers,

THE OTHER GUARANTORS PARTY HERETO,
as Guarantors,

THE LENDERS PARTY HERETO,

JEFFERIES FINANCE LLC,
BARCLAYS BANK PLC
and
UBS SECURITIES LLC,
as
Joint Lead Arrangers and Joint Book Running Managers,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,

JEFFERIES FINANCE LLC,
as Syndication Agent,

BARCLAYS BANK PLC and UBS SECURITIES LLC,
as Co-Documentation Agents,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

as Collateral Agent and Mortgage Trustee,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Swingline Lender,

and

XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as an Issuing Bank

TABLE OF CONTENTS

		Page

Article I DEFINITIONS		2
Section 1.01	Defined Terms	2
Section 1.02	Classification of Loans and Borrowings	62
Section 1.03	Terms Generally	62
Section 1.04	Accounting Terms; GAAP	63
Section 1.05	Resolution of Drafting Ambiguities	63
Section 1.06	Rounding	63
Section 1.07	Currency Equivalents Generally	63
Section 1.08	Change in Currency	64

Article II THE CREDITS		64
Section 2.01	Commitments	64
Section 2.02	Loans	65
Section 2.03	Borrowing Procedure	66
Section 2.04	Repayment of Loans	67
Section 2.05	Fees	68
Section 2.06	Interest on Loans	69
Section 2.07	Termination and Reduction of Commitments	70
Section 2.08	Interest Elections	70
Section 2.09	Optional and Mandatory Prepayments of Loans	72
Section 2.10	Alternate Rate of Interest	74
Section 2.11	Increased Costs; Change in Legality	74
Section 2.12	Breakage Payments	76
Section 2.13	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	77
Section 2.14	Taxes	78
Section 2.15	Mitigation Obligations; Replacement of Lenders	81
Section 2.16	Swingline Loans	83
Section 2.17	Letters of Credit	85
Section 2.18	Nature of Obligations	91
Section 2.19	Protective Advances and Optional Overadvances	92
Section 2.20	Extensions of Revolving Loans and Revolving Commitments	94
Section 2.21	Increases of the Revolving Commitments	96

Article III REPRESENTATIONS AND WARRANTIES		99
Section 3.01	Organization; Powers	99
Section 3.02	Authorization; Enforceability	99
Section 3.03	No Conflicts; No Default	100
Section 3.04	Financial Statements; Projections	100
Section 3.05	Properties	101
Section 3.06	Intellectual Property	101
Section 3.07	Equity Interests and Subsidiaries	102
Section 3.08	Litigation; Compliance with Legal Requirements	102

		Page

Section 3.09	Agreements	103
Section 3.10	Federal Reserve Regulations	103
Section 3.11	Investment Company Act; etc.	103
Section 3.12	Use of Proceeds	103
Section 3.13	Borrowing Base Calculation	103
Section 3.14	Taxes	103
Section 3.15	No Material Misstatements	104
Section 3.16	Labor Matters	104
Section 3.17	Solvency	104
Section 3.18	Employee Benefit Plans	104
Section 3.19	Environmental Matters	105
Section 3.20	Insurance	106
Section 3.21	Security Documents	106
Section 3.22	Anti-Terrorism Law; Foreign Corrupt Practices Act	107
Section 3.23	Concerning Vessels	108
Section 3.24	Form of Documentation; Citizenship	109
Section 3.25	Compliance with ISM Code and ISPS Code	109
Section 3.26	Threatened Withdrawal of DOC, SMC or ISSC	109
Section 3.27	Deposit Accounts and Securities Accounts	109

Article IV CONDITIONS TO CREDIT EXTENSIONS		109
Section 4.01	Conditions to Initial Credit Extension	109
Section 4.02	Conditions to All Credit Extensions	115

Article V AFFIRMATIVE COVENANTS		116
Section 5.01	Financial Statements, Reports, etc.	120
Section 5.02	Litigation and Other Notices	121
Section 5.03	Existence; Businesses and Properties	121
Section 5.04	Insurance	121
Section 5.05	Obligations and Taxes	122
Section 5.06	Employee Benefits	123
Section 5.07	Maintaining Records; Access to Properties and Inspections; Annual Meetings	123
Section 5.08	Use of Proceeds	123
Section 5.09	Compliance with Environmental Laws and other Legal Requirements	124
Section 5.10	Additional Collateral; Additional Guarantors and Borrowers	124
Section 5.11	Security Interests; Further Assurances	126
Section 5.12	Certain Information Regarding the Loan Parties	127
Section 5.13	Collateral Field Examinations; Appraisals	128
Section 5.14	Deposit Accounts; Securities Accounts	128
Section 5.15	Post-Closing Matters	129

		Page

Section 5.16	Citizenship; Flag of Vessel; Vessel Classifications; Operation of Vessels	129
Section 5.17	Designation of Subsidiaries	131
Section 5.18	Material Agreements	132
Section 5.19	Ship Management	132

Article VI NEGATIVE COVENANTS		132
Section 6.01	Indebtedness	132
Section 6.02	Liens	134
Section 6.03	Sale and Leaseback Transactions	137
Section 6.04	Investments, Loans and Advances	138
Section 6.05	Mergers and Consolidations	139
Section 6.06	Asset Sales	140
Section 6.07	Acquisitions	142
Section 6.08	Dividends	142
Section 6.09	Transactions with Affiliates	143
Section 6.10	Financial Covenant	144
Section 6.11	Prepayments of Other Indebtedness; Modifications of Organizational Documents and Certain Other Documents, etc.	144
Section 6.12	Limitation on Certain Restrictions on Subsidiaries	145
Section 6.13	Limitation on Issuance of Capital Stock	145
Section 6.14	Business	146
Section 6.15	Limitation on Accounting Changes	146
Section 6.16	Fiscal Periods	146
Section 6.17	No Further Negative Pledge	146
Section 6.18	Anti-Terrorism Law; Anti-Money Laundering	147
Section 6.19	Embargoed Person	147
Section 6.20	Restrictions on Chartering, etc.	147
Section 6.21	Additional Holdings Covenants	147
Section 6.22	Amended Reorganization Plan and Confirmation Order	147

Article VII GUARANTEE		148
Section 7.01	The Guarantee	148
Section 7.02	Obligations Unconditional	149
Section 7.03	Reinstatement	149
Section 7.04	Subrogation; Subordination	149
Section 7.05	Remedies	149
Section 7.06	Instrument for the Payment of Money	149
Section 7.07	Continuing Guarantee	150
Section 7.08	General Limitation on Guarantee Obligations	150
Section 7.09	Release of Guarantors	150
Section 7.10	Right of Contribution	150
Section 7.11	Keepwell	150

iii

		Page

Article VIII EVENTS OF DEFAULT		151
Section 8.01	Events of Default	154
Section 8.02	Rescission	154

Article IX APPLICATION OF COLLATERAL PROCEEDS		154
Section 9.01	Application of Proceeds	154

Article X THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT		155
Section 10.01	Appointment	155
Section 10.02	Agent in Its Individual Capacity	156
Section 10.03	Exculpatory Provisions	156
Section 10.04	Reliance by Agent	157
Section 10.05	Delegation of Duties	157
Section 10.06	Successor Agent	158
Section 10.07	Non-Reliance on Agent and Other Lenders	158
Section 10.08	Name Agents	158
Section 10.09	Indemnification	159
Section 10.10	Withholding Taxes	159
Section 10.11	Lender’s Representations, Warranties and Acknowledgements	159
Section 10.12	Security Documents and Guarantees	160
Section 10.13	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim	161
Section 10.14	Trust Property	162
Section 10.15	Intercreditor Agreement	162

Article XI MISCELLANEOUS		162
Section 11.01	Notices	162
Section 11.02	Waivers; Amendment	165
Section 11.03	Expenses; Indemnity	168
Section 11.04	Successors and Assigns	171
Section 11.05	Survival of Agreement	174
Section 11.06	Counterparts; Integration; Effectiveness	175
Section 11.07	Severability	175
Section 11.08	Right of Setoff; Marshalling; Payments Set Aside	175
Section 11.09	Governing Law; Jurisdiction; Consent to Service of Process	176
Section 11.10	Waiver of Jury Trial	176
Section 11.11	Headings	176
Section 11.12	Confidentiality	177
Section 11.13	Interest Rate Limitation	178
Section 11.14	Assignment and Acceptance	178
Section 11.15	Obligations Absolute	178
Section 11.16	Waiver of Defenses; Absence of Fiduciary Duties	178
Section 11.17	Patriot Act	179

		Page

Section 11.18	Bank Product Providers	179
Section 11.19	EXCLUDED SWAP OBLIGATIONS	180
Section 11.20	OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC.	180

ANNEXES

Annex I	—	Initial Lenders and Commitments

SCHEDULES

Schedule 1.01(a)	—	Vessels
Schedule 1.01(b)	—	Approved Classification Societies
Schedule 1.01(c)	—	Co-Borrowers
Schedule 1.01(d)	—	Foreign Customers
Schedule 1.01(e)	—	Concentration Customers
Schedule 1.01(f)	—	Mortgaged Property
Schedule 1.01(g)	—	Subsidiary Guarantors
Schedule 1.01(h)	—	Indebtedness to be Refinanced
Schedule 1.01 (i)	—	Unrestricted Subsidiaries
Schedule 3.05(b)	—	Real Property
Schedule 3.07(a)	—	Equity Interests
Schedule 3.07(c)	—	Corporate Organizational Chart
Schedule 3.07(d)	—	Immaterial Subsidiaries
Schedule 3.14	—	Taxes
Schedule 3.20	—	Insurance
Schedule 3.27	—	Specified ABL Accounts and Residual Bank Accounts
Schedule 5.15	—	Post-Closing Matters
Schedule 6.01(c)	—	Existing Indebtedness
Schedule 6.02(c)	—	Existing Liens
Schedule 6.04(b)	—	Existing Investments
Schedule 6.09(e)	—	Certain Affiliate Transactions
Schedule 6.09(f)	—	Certain Affiliate Transactions—Intercompany Claims

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

ABL CREDIT AGREEMENT

This ABL CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Agreement”), dated as of August 5, 2014, is among Overseas Shipholding Group, Inc., a Delaware corporation (“Holdings”), OSG Bulk Ships, Inc., a New York corporation (the “Administrative Borrower”), each Co-Borrower (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I), the other Guarantors from time to time party hereto, the Lenders from time to time party hereto, Jefferies Finance LLC, Barclays Bank PLC and UBS Securities LLC, as joint lead arrangers and joint book running managers (in such capacity, the “Arrangers”), Xxxxx Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), Barclays Bank PLC and UBS Securities LLC, as co-documentation agents (in such capacity, the “Documentation Agents”), Jefferies Finance LLC, as syndication agent (in such capacity, the “Syndication Agent”), Xxxxx Fargo Bank, National Association, as collateral agent and mortgage trustee for the Secured Parties (in such capacity, the “Collateral Agent” or the “Mortgage Trustee” as the context requires), Xxxxx Fargo Bank, National Association, as swingline lender (in such capacity, the “Swingline Lender”), and Xxxxx Fargo Bank, National Association as an issuing bank for the Lenders (in such capacity, the “Issuing Bank”).

WITNESSETH:

Whereas, (a) Holdings, the Administrative Borrower and certain of the other Companies are Debtors in the Bankruptcy Case filed under the Bankruptcy Code in the Bankruptcy Court and (b) Holdings, the Administrative Borrower and such other Companies are proponents of the Amended Reorganization Plan, which Amended Reorganization Plan has been confirmed by the Bankruptcy Court by the Confirmation Order on July 18, 2014;

Whereas, in connection with the Amended Reorganization Plan, the Borrowers have requested that the Lenders make available, on the effective date of the Amended Reorganization Plan, an asset-based senior secured revolving credit facility to be available for borrowings from time to time on and after the date hereof until the Maturity Date, in an aggregate principal amount not in excess of $75,000,000 all as more particularly set forth herein;

WHEREAS, the Borrowers have requested the Swingline Lender to extend credit, at any time and from time to time prior to the Maturity Date, in the form of Swingline Loans, in an aggregate principal amount at any time outstanding not in excess of $10,000,000. The Borrowers also have requested the Issuing Bank to issue Letters of Credit, in an aggregate face amount at any time outstanding not in excess of $25,000,000, to be used by the Administrative Borrower and its Wholly Owned Restricted Subsidiaries as provided herein;

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

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

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

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

Article I

DEFINITIONS

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

“ABL Loan Documents” shall mean this Agreement, the Intercreditor Agreement, the Notes, if any, the Security Documents, each Joinder Agreement, the Intercompany Subordination Agreement, each Intercompany Note, each Incremental Joinder Agreement, any documents or certificates executed by any Borrower in favor of the Issuing Bank relating to Letters of Credit, the Letters of Credit and all other documents, certificates, instruments or agreements executed by or on behalf of a Loan Party for the benefit of any Agent, the Issuing Bank or any Lender in connection herewith on or after the date hereof and, except for purposes of Section 11.02(b), the Fee Letter. Any reference in this Agreement or any other ABL Loan Document to an ABL Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such ABL Loan Document as the same may be in effect at any and all times such reference becomes operative.

“ABL Priority Collateral” shall mean: (i) all “accounts,” “chattel paper” and “payment intangibles,” other than “accounts”, “chattel paper” and “payment intangibles” (in each case, as defined in Article 9 of the NY UCC) which constitute identifiable proceeds of Term Loan Priority Collateral (it being understood and agreed that, for the avoidance of doubt, all “accounts,” “chattel paper” and “payment intangibles” arising from any charter, lease or other contract relating to the operation of any Vessel and Chartered Vessel (including any Collateral Vessel) shall constitute ABL Priority Collateral and not Term Loan Priority Collateral); (ii) the Specified ABL Accounts and (A) in the case of Specified ABL Accounts that are Deposit Accounts, all cash, checks, other “negotiable instruments” (as defined in Article 9 of the NY UCC), funds and other evidences of payments held therein or credited thereto and (B) in the case of Specified ABL Accounts that are Securities Accounts, all “security entitlements” and “securities” (in each case, as defined in Article 8 of the NY UCC) credited thereto; (iii) all “general intangibles” (other than intellectual property), “documents”, “instruments” (including promissory notes) and “commercial tort claims” (in each case, as defined in Article 9 of the NY UCC), in each case relating to, evidencing or governing any of the items referred to in the foregoing clauses (i) and (ii) and the following clauses (iv), (v) and (vi), but excluding intercompany indebtedness between or among Holdings, the Administrative Borrower and their respective Subsidiaries; (iv) all books and “records” (as defined in Article 9 of the NY UCC) relating to the items referred to in the preceding clauses (i) through (iii) and the following clauses (v) and (vi) constituting ABL Priority Collateral (including all books, databases, customer lists, engineer drawings, and records, whether tangible or electronic, which contain any information relating to any of the items referred to in the preceding clauses (i) through (iii) and the following clauses (v) and (vi) and related “letters of credit” (as defined in Article 5 of the NY UCC)), letter of credit rights, commercial tort claims or other claims and causes of action, in each case, to the extent related primarily to any of the foregoing and the following clauses (v) and (vi); (v) all “inventory” (as defined in Article 9 of the NY UCC, but excluding inventory located on or associated with Vessels and Chartered Vessels constituting Term Loan Priority Collateral) and all documents, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of such inventory; (vi) each ABL Priority Collateral Vessel, and all parts thereof and all parts and equipment related thereto, all contract and warranty rights related thereto, and all records, logs and other documents at any time maintained with respect to the foregoing; and (vii) all “supporting obligations” (as defined in Article 9 of the NY UCC) relating to the items referred to preceding clauses (i) through (vi) and all cash, money, insurance proceeds, instruments, securities, financial assets and deposit accounts received as proceeds of any of the foregoing and substitutions, replacements, accessions, products and proceeds (including insurance proceeds, rights or proceeds in respect of requisition or use, licenses, royalties, rents, issues, profits, revenues, income, payments, claims, damages and proceeds of suit) of any or all of the foregoing, other than, in each case, any Excluded Collateral. For the avoidance of doubt, and notwithstanding anything to the contrary in the foregoing, all cash and funds, securities entitlements and securities and other property held in or credited to any Specified ABL Account shall be deemed to be the proceeds of ABL Priority Collateral rather than Term Loan Priority Collateral. As used in this paragraph, “proceeds” has the meaning given to it in Article 9 of the NY UCC.

“ABL Priority Collateral Vessels” shall mean each of (i) as of the Closing Date, the Vessels identified as such on Schedule 1.01(a) and (ii) thereafter, any additional Vessel acquired by a Borrower (or any Vessel that ceases to constitute an Excluded Vessel after the Closing Date) that is designated by the Administrative Borrower pursuant to Section 5.10 as an ABL Priority Collateral Vessel.

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

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

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

“Accelerated Reporting Period” shall have the meaning assigned to such term in Section 5.01(d).

“Additional Amounts” shall have the meaning assigned to such term in the definition of “Applicable Margin” contained herein.

“Additional Permitted Unsecured Debt” shall mean unsecured Indebtedness of the Administrative Borrower, which may be guaranteed on an unsecured basis by the Co-Borrowers and the Subsidiary Guarantors, so long as (i) any such Indebtedness does not mature earlier than 91 days after the Maturity Date in effect at the time of the incurrence or issuance of such Indebtedness, (ii) such Indebtedness does not have any scheduled prepayment, amortization, redemption, sinking fund or similar obligations prior to 91 days after such Maturity Date (other than customary offers to purchase upon a change of control or asset sale), (iii) such Indebtedness does not contain any financial maintenance covenants (whether stated as a covenant, default or otherwise), (iv) such Indebtedness otherwise contains terms and conditions (excluding economic terms such as interest rate and redemption premiums) which, taken as a whole, are not more restrictive on the Administrative Borrower and its Restricted Subsidiaries in any material respect than the terms and conditions of the Term Loan Documents as in effect on the Closing Date (provided that a certificate of a Responsible Officer of the Administrative Borrower that is delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Additional Permitted Unsecured Debt, together with a reasonably detailed description of the material terms and conditions of such Additional Permitted Unsecured Debt or drafts of the documentation relating thereto, stating that the Administrative Borrower has determined in good faith that such terms and conditions satisfy the requirements set forth in this clause (iv) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Administrative Borrower of an objection (including a reasonable description of the basis upon which it objects) within five Business Days after being notified of such determination by the Administrative Borrower), and (v) such Indebtedness is not guaranteed by any person other than a Co-Borrower, a Subsidiary Guarantor or Holdings.

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

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

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

“Administrative Agent Fee Letter” shall mean the confidential fee letter, dated the Closing Date, among the Borrowers and the Administrative Agent.

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

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

“Administrative Expense Claims” shall have the meaning assigned to such term in the Amended Reorganization Plan.

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

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

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

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

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

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

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

“Amended Plan Documents” shall mean, collectively, the Amended Reorganization Plan and related Disclosure Statement filed by Holdings and the other Debtors with the Bankruptcy Court on July 16, 2014 (as amended, restated, modified or otherwise supplemented from time to time as, and to the extent, permitted by the Commitment Letter and this Agreement, together with any exhibits, documents, supplements, attachments and agreements related thereto).

“Amended Reorganization Plan” shall mean the first amended joint plan of reorganization relating to the Debtors’ Bankruptcy Case as filed with the Bankruptcy Court on July 16, 2014 (as amended, restated, modified or otherwise supplemented from time to time as, and to the extent, permitted by the Commitment Letter and this Agreement).

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

“Applicable Commitment Fee Percentage” shall mean (i) for each calendar quarter (or, with respect to the first calendar quarter after the Closing Date, the period from the Closing Date through September 30, 2014) during which the daily average Total Revolving Exposure for such period is greater than or equal to 50% of the Total Revolving Commitments, 0.375%, and (ii) for each calendar quarter (or, with respect to the first calendar quarter after the Closing Date, the period from the Closing Date through September 30, 2014) during which the daily average Total Revolving Exposure for such period is less than 50% of the Total Revolving Commitments, 0.50%.

“Applicable Margin” shall mean, with respect to any Type of Loan, at any time:

(a) subject to clause (b) below, the applicable percentage (on a per annum basis) set forth in the chart below to apply to Eurodollar Loans and ABR Loans, respectively, if the Quarterly Average Undrawn Availability for the immediately preceding fiscal quarter of the Administrative Borrower is in an amount within the range indicated in the chart below for such percentage:

Tier	Quarterly Average Undrawn Availability	Eurodollar Loans			ABR Loans
I	< 33.3% of the Total Revolving Commitments		2.75	%		1.75	%
II	> 33.3% but < 66.7% of the Total Revolving Commitments		2.50	%		1.50	%
III	> 66.7% of the Total Revolving Commitments		2.25	%		1.25	%

(b) for the period from and including the Closing Date to but excluding January 20, 2015, the Applicable Margin shall be set at Tier II in the table above. Thereafter, the Applicable Margin for each Type of Loan shall be (i) adjusted as of January 20, 2015 and the 20^th day of the first month of each fiscal quarter of the Administrative Borrower thereafter (i.e., the 20^th day of each of July, October, January and April), based upon the Borrowing Base Certificates (and related information) delivered to the Administrative Agent, in accordance with Section 5.01(d), with respect to the months comprising the immediately preceding fiscal quarter (each an “Adjustment Date”), commencing with the delivery by the Administrative Borrower of the Borrowing Base Certificate in each of the months comprising the fiscal quarter of the Administrative Borrower ending December 31, 2014, and (ii) based upon the calculation by the Administrative Agent of the Quarterly Average Undrawn Availability for such fiscal quarter. In the event that any Borrowing Base Certificate (and related information) is not provided to the Administrative Agent in accordance with Section 5.01(d), the Applicable Margin for each Type of Loan shall be set at the Applicable Margin for such Type of Loan set forth in Tier I above as of the 20^th day of the fiscal quarter of the Administrative Borrower following the month in respect of which such Borrowing Base Certificate was required to be so delivered and shall continue at Tier I until the earlier of (x) the delivery to the Administrative Agent of the required Borrowing Base Certificate (from and after which time the Applicable Margin shall be calculated based on the respective Quarterly Average Undrawn Availability until the Applicable Margin is recalculated in accordance with this definition) and (y) the next Adjustment Date, if any (at which time the Applicable Margin shall be calculated in accordance with the terms of this definition).

In the event that at any time after the end of a fiscal quarter of the Administrative Borrower, the Quarterly Average Undrawn Availability for such fiscal quarter used for the determination of the Applicable Margin is determined to have been less than the actual amount of the Quarterly Average Undrawn Availability for such fiscal quarter based on an error in the applicable Borrowing Base Certificate, the Applicable Margin for such prior fiscal quarter shall be adjusted automatically and retroactively to the applicable percentage based on such actual Quarterly Average Undrawn Availability and any additional interest for the applicable period as a result of such recalculation (“Additional Amounts”) shall be promptly paid by the Borrowers to the Administrative Agent (and in any event, within five Business Days following delivery by the Administrative Agent to the Administrative Borrower of a notice (which determination shall be prima facie evidence of the accuracy thereof) setting forth in reasonable detail the Administrative Agent’s calculation of the amount of any Additional Amounts). In the event that the Quarterly Average Undrawn Availability for such fiscal quarter used for the determination of the Applicable Margin is determined to have been greater than the actual amount of the Quarterly Average Undrawn Availability based on an error in the applicable Borrowing Base Certificate, the Applicable Margin for such prior fiscal quarter shall be adjusted to the applicable percentage based on such actual Quarterly Average Undrawn Availability and any reduction in interest for the applicable period as a result of such recalculation shall be credited against the next interest payment on the Loans by the applicable Borrowers. The payment of Additional Amounts shall be in addition to, and not in limitation of, any other amounts payable pursuant to Section 2.06(c). Additional Amounts shall constitute “Obligations” and the agreement to pay Additional Amounts shall survive the repayment of the Obligation and the termination of the Commitments.

“Approved Broker” shall mean any of Xxxxxx, Xxxxxx & Xxxxxxx, Xxxxxxx Marine Services or any other independent shipbroker to be mutually agreed upon between the Collateral Agent and the Administrative Borrower.

“Approved Classification Society” shall mean any classification society set forth on Schedule 1.01(b) or otherwise approved by the Administrative Agent (such approval not to be unreasonably withheld).

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

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

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

“Asset Sale” shall mean (a) any disposition of any property by any Restricted Party and (b) any issuance or sale of any Equity Interests of any Restricted Subsidiary of the Administrative Borrower, in each case, to any person other than the Administrative Borrower or a Wholly Owned Restricted Subsidiary thereof. Notwithstanding the foregoing, none of the following shall constitute “Asset Sales”: (i) any disposition of property permitted by, or expressly referred to in, Section 6.06(a), 6.06(c), 6.06(d), 6.06(e), 6.06(f), 6.06(g), 6.06(h), 6.06(i), 6.06(j), 6.06(k) or 6.06(l) or (ii) solely for purposes of clause (a) above, any other disposition of any property by any Company for Fair Market Value resulting in not more than $5,000,000 in Net Cash Proceeds per asset sale (or series of related asset sales).

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

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

“Bank Product” shall mean any one or more of the following financial products or accommodations extended to any of the Borrowers or Subsidiary Guarantors by a Bank Product Provider: (a) Cash Management Services, or (b) transactions under Hedging Agreements.

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

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

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

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

“Bankruptcy Case” shall mean the bankruptcy case of the Debtors listed as Case Number 12-20000 (PJW) filed under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court.

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

“Bankruptcy Court” shall mean the United States Bankruptcy Court for the District of Delaware.

“Bankruptcy Rules” shall mean the Federal Rules of Bankruptcy Procedure and the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware.

“Base Rate” shall mean the rate of interest announced, from time to time, within Xxxxx Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Xxxxx Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Xxxxx Fargo may designate.

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

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

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

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

“Borrowing Base” shall mean, at any time and from time to time, an amount equal to the sum of:

(a) 85% of Eligible Receivables of the Borrowers and the Subsidiary Guarantors; provided, however, (A) that from the Closing Date through and including the date that the Administrative Agent shall have received the initial collateral field examinations with respect to such Eligible Receivables as set forth in Section 5.15, the amount under this clause (a) shall be the lesser of (x) 60% of Eligible Receivables of the Borrowers and the Subsidiary Guarantors and (y) $10,000,000, and (B) if the Administrative Agent shall not have received the initial collateral field examinations on or before the date that is 60 days after the Closing Date (as such date may be extended by the Administrative Agent in its sole discretion; provided, however, if the initial collateral field examination has not been completed on or prior to such date due solely to administrative or other delays on the part of the Administrative Agent, its agents or employees, such period shall be further extended by a reasonable number of days determined by the Administrative Agent in its reasonable discretion), then the amount under this clause (a) shall be 0% after such 60^th day (or such later date, as the case may be) and until such date as the Administrative Agent shall have received the initial collateral field examinations with respect to such Eligible Receivables, plus

(b) 65% of the Net Forced Liquidation Value of Eligible ABL Priority Collateral Vessels of the Borrowers, minus

“Borrowing Base Certificate” shall mean a certificate duly executed by a Financial Officer of the Administrative Borrower, substantially in the form of Exhibit N, appropriately completed and evidencing the Borrowing Base.

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

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

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

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

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

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

“Cash Collateralized” shall mean, with respect to any Letter of Credit, as of any date, that the Borrowers shall have deposited with the Collateral Agent for the benefit of the Secured Parties, an amount in cash equal to 105% of the LC Exposure as at such date plus any accrued and unpaid interest thereon. “Cash Collateralize” shall have the correlative meaning.

“Cash Dominion Period” shall mean any period (a) commencing on the date on which (x) Excess Availability is less than 12.5% of the Total Revolving Commitments for a period of five consecutive days or (y) an Event of Default shall have occurred and be continuing and (b) ending on the first date thereafter on which (x) in the case of a Cash Dominion Period commencing as a result of clause (a)(y) above, no Event of Default exists and (y) in the case of Cash Dominion Period commencing as a result of clause (a)(x) above, Excess Availability for 30 consecutive days has been equal to or in excess of 12.5% of the Total Revolving Commitments.

“Cash Equivalents” shall mean, as of any date of determination and as to any person, any of the following (a) marketable securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such person, (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one year from the date of acquisition by such person and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Xxxxx’x, (c) time deposits and certificates of deposit of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one year from the date of acquisition by such person, (d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with any person meeting the qualifications specified in clause (c) above, which repurchase obligations are secured by a valid perfected security interest in the underlying securities, (e) commercial paper issued by any person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Xxxxx’x, and in each case maturing not more than one year after the date of acquisition by such person, and (f) investments in money market funds at least 95% of whose assets are comprised of securities of the types described in clauses (a) through (e) above.

“Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such period, less the sum of (a) interest on any debt paid by the increase in the principal amount of such debt including by issuance of additional debt of such kind or the accretion or capitalization of interest as principal and (b) items described in clause (c) or, other than to the extent paid in cash or Cash Equivalents, clause (g) of the definition of “Consolidated Interest Expense”. Notwithstanding anything to the contrary contained herein, for purposes of determining Cash Interest Expense for any period ending prior to the first anniversary of the Closing Date, Cash Interest Expense shall be an amount equal to actual Cash Interest Expense for the period from the Closing Date through the date of determination multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.

“Cash Management Obligations” shall mean all present and future obligations of the Borrowers and the Subsidiary Guarantors under or with respect to Cash Management Services.

“Cash Management Services” shall mean any (i) cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system), (ii) credit cards, (iii) credit card processing services, (iv) debit cards, (v) stored value cards, (vi) purchase cards and (vii) other cash management arrangements.

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

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

“CEXIM Loan Documents” shall mean that certain Loan Agreement, dated as of August 10, 2009 (as amended, supplemented or otherwise modified prior to the Closing Date), by and among the Subsidiaries of OIN party thereto as borrowers, Holdings, as guarantor, and Export-Import Bank of China, as original lender and agent, and any security agreements and related documents entered into in connection therewith.

“CFC” shall have the meaning assigned to such term in the definition of “Excluded Subsidiary” contained herein.

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

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

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

(c) during any period of 12 consecutive months, a majority of the members of the Board of Directors of Holdings cease to be composed of individuals (i) who were members of that Board of Directors at the commencement of such period, (ii) whose election or nomination to that Board of Directors was approved by individuals referred to in preceding clause (i) constituting at the time of such election or nomination at least a majority of that Board of Directors or (iii) whose election or nomination to that Board of Directors was approved by individuals referred to in preceding clauses (i) and (ii) constituting at the time of such election or nomination at least a majority of that Board of Directors (excluding, in the case of both preceding clauses (i) and (ii), any individual whose initial nomination for, or assumption of office as, a member of that Board of Directors occurs as a result of an actual (or threatened) solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the Board of Directors); or

(d) any “change in control” or similar event (however described) occurs under the Term Loan Documents.

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

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

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

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

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

“Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans (including Extended Revolving Loans) or Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment (including an Extended Revolving Commitment) or Swingline Commitment.

“Closing Date” shall mean August 5, 2014.

“Closing Date Material Adverse Effect” shall mean any event, change, effect, development, circumstance or condition that, either individually or in the aggregate, has caused or would reasonably be expected to cause a material adverse change in, or a material adverse effect on, the financial condition, shareholders’ equity or results of operations of Holdings and its Subsidiaries, taken as a whole, other than those events that (a) could reasonably be expected to result from the filing or commencement of the Bankruptcy Case or the announcement of the filing, commencement or process of the Bankruptcy Case, (b) are the result of any action approved by the Bankruptcy Court prior to May 2, 2014, (c) events set forth in the Prior Plan Documents or the Amended Reorganization Plan (without regard to “risk factor” or other forward looking disclosure and based solely on facts as disclosed therein and without giving effect to any developments not disclosed therein) (provided that changes in the underlying facts or related events may constitute a Closing Date Material Adverse Effect), or (d) are the result of any change after May 2, 2014 in global, national or regional political conditions (including acts of terrorism or war), macroeconomic factors, interest rates, currency exchange rates, or in the general business, market and economic conditions affecting the industries and regions in which Holdings and its Subsidiaries operate, in each case, to the extent that any such change does not have a disproportionate impact on Holdings and its Subsidiaries, taken as a whole, relative to other persons operating in the industries in which Holdings and its Subsidiaries operate.

“Co-Borrower” shall mean each Wholly Owned Domestic Restricted Subsidiary of the Administrative Borrower listed on Schedule 1.01(c) that owns an ABL Priority Collateral Vessel, as well as any additional Wholly Owned Domestic Restricted Subsidiary of the Administrative Borrower that owns an ABL Priority Collateral Vessel and becomes a Co-Borrower hereunder pursuant to Section 5.10.

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

“Collateral” shall mean, collectively, all of (a) the ABL Priority Collateral and (b) the Term Loan Priority Collateral.

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

“Collateral Vessel” shall mean an ABL Priority Collateral Vessel or a Term Loan Priority Collateral Vessel.

“Collateral Vessel Mortgage” shall mean a first preferred ship mortgage (with respect to an ABL Priority Collateral Vessel) or second preferred ship mortgage (with respect to a Term Loan Priority Collateral Vessel), substantially in the form of Exhibit Q-1 or Exhibit Q-2, respectively, or such other form as may be reasonably satisfactory to the Administrative Agent and the Administrative Borrower.

“Collections” shall mean all cash, checks, notes, instruments, and other items of payment (including, without limitation, insurance proceeds, cash proceeds of asset sales, rental proceeds, and tax refunds).

“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment (including an Extended Revolving Commitment) or Swingline Commitment.

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

“Commitment Letter” shall mean the Commitment Letter, dated May 2, 2014, among Holdings, the Administrative Borrower, OIN, Jefferies Finance LLC, Barclays Bank PLC, UBS AG, Stamford Branch, and UBS Securities LLC.

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

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

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

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

“Confidential Information Memorandum” shall mean that certain confidential information memorandum dated June 2014 and relating to the Transactions.

“Confirmation Order” shall have the meaning assigned to such term in Section 4.01(d)(ii).

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

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

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

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

(a) Consolidated Interest Expense for such period;

(b) Consolidated Amortization Expense for such period;

(d) Consolidated Tax Expense for such period;

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

(f) extraordinary losses or charges for such period;

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

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

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

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

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

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

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

(ii) subtracting therefrom, without duplication,

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

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

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

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

Notwithstanding anything to the contrary contained herein, for the purpose of calculating the Consolidated Fixed Charge Coverage Ratio and the Total Leverage Ratio for any period that includes the fiscal quarters of the Administrative Borrower ended on September 30, 2013, December 31, 2013, March 31, 2014, June 30, 2014 or September 30, 2014, (i) Consolidated EBITDA for the fiscal quarter ended on September 30, 2014 shall be calculated on a pro forma basis in accordance with the definition of Consolidated EBITDA contained herein as if the Transactions had been consummated on July 1, 2014, (ii) Consolidated EBITDA for the fiscal quarter ended on June 30, 2014 shall be deemed to be $29,700,000, (iii) Consolidated EBITDA for the fiscal quarter ended on March 31, 2014 shall be deemed to be $44,600,000, (iv) Consolidated EBITDA for the fiscal quarter ended on December 31, 2013 shall be deemed to be $42,000,000, and (v) Consolidated EBITDA for the fiscal quarter ended on September 30, 2013 shall be deemed to be $41,600,000.

“Consolidated Fixed Charge Coverage Ratio” shall mean, for any period, the ratio of (a) Consolidated EBITDA for such period minus the sum of, without duplication, (i) the aggregate amount of all Capital Expenditures made by the Administrative Borrower and its Restricted Subsidiaries for such period (other than Capital Expenditures to extent financed with equity proceeds, Equity Interests or Indebtedness (other than with the proceeds of Loans, which shall be included)), (ii) Consolidated Tax Expense for such period to the extent paid in cash and (iii) the aggregate amount of all Dividends paid in cash by the Administrative Borrower or any of its Restricted Subsidiaries during such period (other than (w) Permitted Tax Distributions to the extent otherwise included in the calculation of Consolidated Tax Expense for such period, (x) any other Holdings Specified Expenses to the extent otherwise included in the calculation of Consolidated Net Income (but not otherwise added back to Consolidated EBITDA) for such period, (y) Dividends paid to the Administrative Borrower or any of its Restricted Subsidiaries for such period and (z) Dividends for such period to the extent constituting Debt Service pursuant to clause (iii) of the definition thereof) to (b) Debt Service for such period.

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

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

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

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

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

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

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

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

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

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

Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated Interest Expense for any period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated Interest Expense from the Closing Date through the date of determination multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.

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

(a) the net income (or loss) for such period of any person (other than the Administrative Borrower ) that is not a Restricted Subsidiary of the Administrative Borrower (including any Unrestricted Subsidiary) or that is accounted for the by the equity method of accounting, except to the extent that cash in an amount equal to any such income has actually been received by the Administrative Borrower or (subject to clause (b) below) any of its Restricted Subsidiaries from such person during such period;

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

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

“Consolidated Tax Expense” shall mean, for any period, the sum of, without duplication, (i) the tax expense (including federal, state, local and foreign income taxes) of the Administrative Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP and (ii) the aggregate amount of all Permitted Tax Distributions made during such period (it being understood and agreed that, for the avoidance of doubt, Consolidated Tax Expense shall exclude the IRS Claims (as defined in the Amended Reorganization Plan) that are settled with the IRS as part of the Amended Reorganization Plan).

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

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

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

“Controlled Account” shall mean each Specified ABL Account that is not a Non-Controlled Account (it being understood and agreed that the OSG Bulk Ships, Inc. Concentration Account and the Specified Disbursement Account shall at all times be deemed to be a Controlled Account).

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

“Covenant Compliance Period” shall mean any period (a) commencing on the date on which Excess Availability is less than 12.5% of the Total Revolving Commitments and (b) ending on the first date thereafter on which Excess Availability for 30 consecutive days has been equal to or in excess of 12.5% of the Total Revolving Commitments.

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

“Customer” shall mean and include the account debtor with respect to any Receivable.

“Debtor” shall mean any of Holdings and any of its Subsidiaries that are identified as debtors and debtors-in-possession in the Bankruptcy Case.

“Debt Service” shall mean, for any period, the sum of, without duplication, (i) Cash Interest Expense for such period plus (ii) scheduled principal amortization of all Indebtedness (including the principal component of Capital Lease Obligations) of the Administrative Borrower and its Restricted Subsidiaries for such period (as determined on the first day of such period) plus (iii) cash Dividends (or cash Investments made in lieu thereof) pursuant to Section 6.08(d) (or Section 6.04(q)) to pay interest expense on the Existing OSG Notes.

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

“Default Excess” shall have the meaning assigned to such term in Section 2.15(c).

“Default Period” shall have the meaning assigned to such term in Section 2.15(c).

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

“Defaulted Loans” shall have the meaning assigned to such term in Section 2.15(c).

“Defaulting Lender” shall mean any Lender that has (a) failed to fund its portion of any Borrowing, or any portion of its participation in any Letter of Credit or Swingline Loan, within one Business Day of the date on which it shall have been required to fund the same (unless the subject of a good faith dispute between the Administrative Borrower and such Lender related hereto), (b) notified the Administrative Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) failed, within three Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans (unless the subject of a good faith dispute between the Administrative Borrower and such Lender); provided, that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent or the Administrative Borrower, (d) otherwise failed to pay over to the Administrative Borrower, the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due (unless the subject of a good faith dispute), or (e) at any time after the Closing Date (i) been (or has a parent company that has been) adjudicated as, or determined by any Governmental Authority having regulatory authority over such person or its properties or assets to be, insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment unless, in the case of any Lender referred to in this clause (e), the Administrative Borrower, the Administrative Agent, the Swingline Lender and the Issuing Bank shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder. For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority; provided, that, as of any date of determination, the determination of whether any Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any amounts funded by such Lender which have been assigned by such Lender to an SPC pursuant to Section 11.04(h). Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Administrative Agent to the Administrative Borrower and each other. In no event shall the reallocation of funding obligations provided for in Section 2.15(c) as a result of a Lender being a Defaulting Lender nor the performance by non-Defaulting Lenders of such reallocated funding obligations by themselves cause the relevant Defaulting Lender to become a non-Defaulting Lender.

“Deposit Account” shall mean a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

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

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

“Disclosure Statement” shall mean the first amended disclosure statement with respect to the Amended Reorganization Plan as filed with the Bankruptcy Court on May 2, 2014 (as amended, restated, modified or otherwise supplemented from time to time as, and to the extent, permitted by the Commitment Letter).

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

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

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

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

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

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

“Dollar Amount” shall mean, at any time, with respect to any Letter of Credit (and any related LC Exposure), (A) if denominated in Dollars, the amount thereof and (B) if denominated in any Alternative Currency, the amount thereof converted to Dollars in accordance with Sections 1.07, 2.17(e) and 2.17(m).

“Domestic Subsidiary” shall mean any Subsidiary other than a Foreign Subsidiary.

“Domestic Restricted Subsidiary” shall mean any Domestic Subsidiary that is a Restricted Subsidiary.

“DSF Loan Documents” shall mean that certain Second Amended and Restated Loan Agreement, dated as of August 28, 2008 (as amended, supplemented or otherwise modified prior to the Closing Date) by and among the Subsidiaries of OIN party thereto as borrowers, Holdings, the Administrative Borrower and OIN, as guarantors, Danish Ship Finance, as agent, and the lenders from time to time party thereto, and any security agreements and related documents entered into in connection therewith.

“Eligible ABL Priority Collateral Vessel” shall mean and include each ABL Priority Collateral Vessel which (i) is acceptable to the Collateral Agent in its Permitted Discretion, (ii) is described in a Vessel Appraisal, and (iii) meets each of the following requirements:

(a)

the Borrower who is the owner of record has good title to such Vessel;

(b)

such Borrower has the right to subject such Vessel to a Lien in favor of the Mortgage Trustee and such Vessel is subject to the Vessel Collateral Requirements and other provisions of the ABL Loan Documents and to a First Priority Lien in favor of the Mortgage Trustee and is free and clear of all other Liens of any nature whatsoever (except for Permitted Collateral Vessel Liens);

(c)

such Vessel is duly documented under the laws of the United States in the name of such Borrower by the United States Coast Guard and is qualified under the Xxxxx Act for operation in the coastwide trade of the United States, and the full purchase price for such Vessel has been paid by such Borrower;

(d)

such Vessel is not subject to any agreement (other than an agreement to which the Collateral Agent is a party) which would prohibit the Collateral Agent from exercising any rights of a secured creditor against such Vessel in accordance with the terms of the Security Agreement and the applicable Collateral Vessel Mortgage in the event of an Event of Default;

(e)

such Vessel is in class with no overdue recommendations; and

(f)

the representations and warranties with respect to such Vessel contained in any ABL Loan Documents relating thereto are true and correct, and such Borrower has complied with all covenants and obligations with respect to such Vessel (including with regard to insurance) contained in any ABL Loan Documents relating thereto.

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

“Eligible Receivables”shall mean and includes each Receivable of a Borrower or a Subsidiary Guarantor arising in the ordinary course of business. In determining the amount to be included, Eligible Receivables shall be calculated net of customer deposits and unapplied cash. In addition, no Receivable shall be an Eligible Receivable if:

(a) it does not arise from the actual and bona fide provision of chartering of Vessels or Chartered Vessels to third parties and services in connection therewith by such Borrower or Subsidiary Guarantor in the ordinary course of business of such Borrower or Subsidiary Guarantor, as applicable, which transactions are completed in accordance in all material respects with the terms and provisions contained in any agreement binding on such Borrower or Subsidiary Guarantor, as applicable, or the other party or parties thereto;

(b) it is due or unpaid more than the earlier of (i) 60 days after the original due date and (ii) 90 days after the original invoice date;

(c) it is owed by a Customer whose Receivables are unpaid more than the earlier of (i) 60 days after the original due date and (ii) 90 days after the original invoice date, which unpaid Receivables constitute more than 50.0% of the total Receivables of such Customer (such percentage may, in the Collateral Agent’s Permitted Discretion, be decreased from time to time);

(d) (x) it is not subject to the First Priority, valid and perfected Lien of the Collateral Agent, or (y) is not evidenced by an invoice or other documentary evidence reasonably satisfactory to the Collateral Agent;

(e) any covenant, representation or warranty contained in this Agreement or in any other ABL Loan Document with respect to such Receivable has been breached;

(f) the Customer shall (i) apply for, suffer, or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, administrator or liquidator of itself or of all or a substantial part of its property or call a meeting of its creditors, (ii) admit in writing its inability, or be generally unable, to pay its debts as they become due or cease operations of its business, (iii) make a general assignment for the benefit of creditors, (iv) commence a voluntary case under any Insolvency Law, (v) be adjudicated a bankrupt or insolvent, (vi) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vii) acquiesce to, or fail to have dismissed, any petition which is filed against it in any involuntary case under such Insolvency Law or (viii) take any action for the purpose of effecting any of the foregoing or which is indicative of insolvency;

(g) it is owed by a Customer located or incorporated (or other analogous term) outside the United States (collectively, “Foreign Customers”), except for a Foreign Customer that is acceptable in all respects to the Collateral Agent in its Permitted Discretion (subject to such lending formula with respect to Receivables of such Foreign Customers as the Collateral Agent may determine in its Permitted Discretion); provided, that, (i) unless otherwise determined by the Collateral Agent in its Permitted Discretion, the Foreign Customers set forth on Schedule 1.01(d) shall be deemed at all times to be acceptable in all respects to the Collateral Agent and (ii) the maximum aggregate amount of Eligible Receivables as to all Foreign Customers which may be considered eligible under this clause (g) shall not exceed the lesser of (x) 20.0% of all otherwise Eligible Receivables and (y) $4,500,000 in the aggregate at any time;

(h) other than with respect to Eligible Receivables of (x) the government of Israel to the extent permitted under clause (g) above or (y) the United States, any state thereof or any department, agency or instrumentality of any of them, which in the aggregate for all Eligible Receivables under this clause (h)(y) do not exceed 15.0% of all Eligible Receivables at any time, the Customer is either (a) the United States, any state thereof or any department, agency or instrumentality of any of them to the extent that the applicable Borrower or Subsidiary Guarantor to whom such Receivable is owing has not complied with the Assignment of Claims Act, 31 U.S.C. §3727 with respect to such Receivable to the extent requested by the Collateral Agent in its Permitted Discretion or (b) any other Governmental Authority;

(i) the Receivable is subject to any claimed or imposed offset, deduction, defense, dispute, or counterclaim, the Customer is also a creditor or supplier of a Borrower or Subsidiary Guarantor, or the Receivable is contingent in any respect or for any reason (each such offset, deduction, defense, dispute, counterclaim or contingency, a “Contra Claim”); provided, that such Receivables shall only be ineligible pursuant to this clause (i) to the extent of the aggregate amount of such Contra Claims;

(j) such Borrower or Subsidiary Guarantor, as applicable, has made any agreement with any Customer for any deduction therefrom, but only to the extent of such deductions, except for discounts or allowances made in the ordinary course of business for prompt payment, all of which discounts or allowances are reflected in the calculation of the face value of each respective invoice related thereto;

(k) the Collateral Agent believes, in its Permitted Discretion, that collection of such Receivable may not be paid by reason of the Customer’s financial inability to pay;

(l) such Receivable is not payable to such Borrower or Subsidiary Guarantor, as applicable;

(m) in the case of any single Customer and its Affiliates, such Receivables constitute more than 20.0% (or, in the case of those Customers set forth on Schedule 1.01(e), 35.0%) of all otherwise Eligible Receivables (but the portion of the Receivables not in excess of such percentage may be deemed Eligible Receivables);

(n) the Customer or any officer or employee of the Customer with respect to such Receivable is an officer, employee, agent or other Affiliate of any Borrower, any Subsidiary Guarantor or any other Subsidiary of any Loan Party;

(o) such Receivable is subject to any factoring or similar agreement;

(p) the underlying documentation governing such Receivable does not provide that such Receivable must be paid by the Customer in Dollars;

(q) the underlying documentation governing such Receivable are not governed by the laws of the United States or any state thereof; or

(r) any surety or performance bond supports the performance of the applicable Borrower’s or Subsidiary Guarantor’s obligations relating to the transactions giving rise to such Receivables.

Any Receivables which are not Eligible Receivables shall nevertheless be part of the Collateral. The Collateral Agent, in its Permitted Discretion, may change the eligibility criteria or impose additional eligibility criteria on the Eligible Receivables. However, unless an Event of Default exists and is continuing (in which case no notice shall be required and any changes shall take effect immediately), the Collateral Agent shall provide the Administrative Borrower with prompt written notice of any change in such criteria or new criteria established which changed or new criteria shall become effective no earlier than the fifth Business Day following delivery of such notice.

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

“Employee Benefit Plan” shall mean any “employee benefit plan” as defined in Section 3(3) of ERISA which is, or at any time during which the applicable statute of limitations remains open was, maintained or contributed to by any Company or any of its ERISA Affiliates, other than a Multiemployer Plan.

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

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

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

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

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

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

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

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

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

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

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

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

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

“Excess Availability” shall mean, as of any date of determination, an amount equal to (a) the Total Availability as of such date minus (b) the Total Revolving Exposure as of such date.

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

“Exchange Rate” shall mean and refer to the nominal rate of exchange (vis-à-vis Dollars) for a currency other than Dollars that appears at approximately 11:00 a.m., New York City Time, on the Reuters World Currency Page for such currency on the date of determination (or, in the event such rate does not appear on such Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion), expressed as the number of units of such other currency per one Dollar.

“Exchange Rate Reset Date” shall have the meaning assigned to such term in Section 2.17(m).

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

“Excluded Collateral” shall mean: (i) any contract, instrument, license or other agreement to which any Loan Party is a party, any of its rights or interests thereunder, or any assets subject thereto, the granting of a security interest in which is prohibited by, or constitutes a violation or breach of a restriction pursuant to applicable Legal Requirements (including the Xxxxx Act) or the respective contract, instrument, license or other agreement (including any requirement to obtain the consent of any Governmental Authority or third party (other than Holdings or any of its Subsidiaries or Controlled Affiliates)), in each case, only for so long as the grant of such security interest shall constitute or result in (x) the abandonment, invalidation or unenforceability of any right, title or interest of any Loan Party therein or (y) a breach or termination pursuant to the terms of, or a default under, any such contract, instrument, license, property rights or other agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Legal Requirement (including the Bankruptcy Code) or principles of equity); provided, however, that such security interest shall attach immediately and automatically at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied or any such consent has been obtained; and provided, further, that, to the extent severable, shall attach immediately to any portion of such contract, instrument, license or other agreement or any rights or interests thereunder or any assets subject thereto that does not result in any of the consequences specified in preceding clause (x) or (y) including any proceeds and receivables of any such contract, instrument, license or other agreement or any rights or interests thereunder or any assets subject thereto; (ii) any Margin Stock; (iii) any Equity Interests in, and assets of, any Joint Ventures or non-Wholly Owned Subsidiaries to the extent the pledge thereof would (A) violate or breach the terms of, or require the consent of any third party (other than Holdings or any of its Subsidiaries or Controlled Affiliates) pursuant to, any shareholder or similar arrangements (including joint venture agreements) relating to such Joint Venture or non-Wholly Owned Subsidiary, except to the extent that any such consent has been obtained, or (B) result (including following any exercise of remedies) in a change in control, repurchase obligation or other materially adverse consequence to any of the Loan Parties; (iv) any property subject to a Lien securing Purchase Money Obligations permitted hereunder to the extent that a grant of a security interest therein would violate the terms of such Indebtedness, other than proceeds and receivables thereof; (v) any United States “intent to use” trademark applications filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. Section 1051, prior to the accepted filing of a “Statement of Use” and issuance of a “Certificate of Registration” pursuant to Section 1(d) of the Xxxxxx Act or an accepted filing of an “Amendment to Allege Use” whereby such intent-to-use trademark application is converted to a “use in commerce” application pursuant to Section 1(c) of the Xxxxxx Act; (vi) assets to the extent a security interest in such assets (x) would result in an investment in “United States property” by a CFC within the meaning of Section 956 or 957 of the Code or (y) otherwise would result in a material adverse tax consequence to the Administrative Borrower, as reasonably determined by the Administrative Borrower in consultation with the Administrative Agent; (vii) assets as to which the costs of obtaining and/or perfecting such security interest are excessive in relation to the practical benefit of the security to be afforded thereby (as reasonably determined by the Administrative Borrower and the Administrative Agent); (viii) assets owned by a Subsidiary Guarantor after release of the Subsidiary Guarantor from its Guarantee pursuant to the ABL Loan Documents; (ix) any Specified OIN Collateral; (x) any leasehold interests in Real Property; (xi) any Excluded Accounts; (xii) motor vehicles, aircraft and other assets subject to certificates of title (other than Vessels) to the extent that a Lien on such assets cannot be perfected solely by the filing of a financing statement; (xiii) commercial tort claims with respect to claimed damages of less than $2,500,000; (xiv) letter of credit rights (other than to the extent consisting of supporting obligations that can be perfected solely by the filing of a financing statement); (xv) any Equity Interests in any Unrestricted Subsidiary; and (xvi) to the extent that, and only for so long as, the grant of a security interest therein shall constitute or result in a breach of any written consent agreement in existence on the Closing Date (as in effect on such date) among one or more Xxxx Parties (as defined below) and one or more Loan Parties relating to the Profit Sharing Agreement or the Amended and Restated Framework Agreement (as defined in the Security Agreement) (as in effect on the Closing Date) or require the consent of American Shipping Company ASA or American Tanker Inc. or any of their Affiliates (collectively, the “Xxxx Parties”) (which consent has not been obtained), the Profit Share (as defined in the Profit Sharing Agreement), if any, that (i) is not Retained Profit Share (as defined in the Profit Sharing Agreement), (ii) is determined, for the avoidance of doubt, after giving effect to any applicable Profit Share Reduction Event (as defined in the Profit Sharing Agreement), and (iii) is then due and owing to one or more of the Xxxx Parties or, if the Profit Share is not yet determined at the time of certification thereof pursuant to Section 5.10(n), is then estimated to be due and owing (and not yet paid) to one or more Xxxx Parties, in each case, as certified to the Administrative Agent and the Collateral Agent by a Responsible Officer of the Administrative Borrower in accordance with Section 5.01(n); provided, however, that such security interest shall attach immediately and automatically at such time as the grant of a security interest in the Profit Share would not constitute, or result in, a breach of such consent agreement or such consent shall have been obtained. It is understood and agreed that (x) to the extent any consent of a third party (that is not Holdings or any of its Subsidiaries or Controlled Affiliates) is required by the terms of any charter to a third party with respect to any Vessel that will comprise Collateral in order for a Loan Party to grant a Collateral Vessel Mortgage on such Vessel, such Loan Party shall use its commercially reasonable efforts to promptly obtain such consent in coordination with the Administrative Agent, (y) to the extent that any asset or property (including a Vessel) that is owned by a Loan Party ceases to be Excluded Collateral because none of the applicable exclusions set forth above continue to apply to such asset or property, such asset or property shall thereafter constitute Collateral and the applicable Loan Party shall take all such actions as may be required by the ABL Loan Documents to grant a perfected security interest therein to the Collateral Agent for the benefit of the Secured Parties and (z) notwithstanding the foregoing, to the extent that any asset or property of any Loan Party constitutes “collateral” under the Term Loan Documents, such asset or property shall not constitute Excluded Collateral hereunder.

“Excluded Subsidiary” shall mean (a) Immaterial Subsidiaries, (b) with respect to any direct and indirect Subsidiaries of the Administrative Borrower, Foreign Subsidiaries that are “controlled foreign corporations” (as defined in Section 957 of the Code) (each, a “CFC”), any direct or indirect Subsidiary of a CFC, or any Domestic Subsidiaries substantially all of the assets of which consist of the Equity Interests of one or more CFCs, (c) any Subsidiary that is not a Wholly Owned Subsidiary, (d) any Subsidiary that is prohibited by any applicable Legal Requirement of any Governmental Authority or by any contractual obligation existing on the Closing Date (or, if later, the date it became a Restricted Subsidiary so long as such contractual obligation was existing prior to becoming a Restricted Subsidiary and was not entered into in contemplation thereof and only applies to such Restricted Subsidiary) from guaranteeing the Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received, and (e) Unrestricted Subsidiaries; provided, that any Subsidiary of the Administrative Borrower that provides a guarantee or is otherwise an obligor in respect of the obligations under the Term Loan Documents or Additional Permitted Unsecured Debt Documents shall be required to be a Subsidiary Guarantor hereunder.

“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation incurred after the Closing Date if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of the applicable Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder.

“Excluded Taxes” shall mean, with respect to a Recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) income or franchise taxes and backup withholding taxes imposed on (or measured by) its net income (i) by the jurisdiction under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, including (for the avoidance of doubt) U.S. federal income tax imposed on the net income of a Foreign Lender as a result of such Foreign Lender engaging in a trade or business in the United States; (b) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.15), any U.S. Federal withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.14 (it being understood and agreed, for the avoidance of doubt, that any withholding tax imposed on a Foreign Lender as a result of a Change in Law or regulation or interpretation thereof occurring after the time such Foreign Lender became a party to this Agreement shall not be an Excluded Tax under this clause (b)); (c) taxes imposed as a result of a Foreign Lender’s failure to comply with Section 2.14(f); (d) branch profits taxes imposed by any jurisdiction described in clause (a) above; (e) any U.S. federal withholding taxes imposed under FATCA; and (f) any U.S. federal withholding taxes imposed as a result of such Foreign Lender’s failure to comply with Section 2.14(g).

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

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

“Existing 2018 OSG Notes” shall mean Holdings’ 8.125% Senior Notes due 2018 in an aggregate principal amount not to exceed $300,000,000.

“Existing 2024 OSG Notes” shall mean Holding’s 7.500% Senior Notes due 2024 in an aggregate principal amount not to exceed $146,000,000 (although as part of (and to the extent provided in) the Amended Reorganization Plan, certain holders may elect to receive, in respect of their existing notes, notes with a maturity date thereof of no earlier than February 15, 2021 and that may have certain other changes to the terms thereof as provided for in the Amended Reorganization Plan.

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

“Existing OSG Notes” shall mean, collectively, the Existing 2018 Notes and the Existing 2024 Notes.

“Existing Revolving Class” shall have the meaning assigned to such term in Section 2.20(a).

“Existing Revolving Commitment” shall have the meaning assigned to such term in Section 2.20(a).

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

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

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

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

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

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

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

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

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

“Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Board of Directors or, pursuant to a specific delegation of authority by such Board of Directors or a designated senior executive officer, of the Administrative Borrower, or the Subsidiary of the Administrative Borrower selling such asset (or, in the case of an OIN Spinoff, Holdings).

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

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

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

“Fee Letter” shall mean, individually and collectively, (a) the confidential Fee Letter, dated May 2, 2014, among Holdings, the Administrative Borrower, OIN, Jefferies Finance LLC, Barclays Bank PLC, UBS AG, Stamford Branch, and UBS Securities LLC, and (b) the Administrative Agent Fee Letter.

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

“Final Order” shall mean an order or judgment of the Bankruptcy Court, as entered on the docket of the Bankruptcy Court that has not been reversed, stayed, superseded or vacated, and as to which: (a) the time to appeal, seek review or rehearing or petition for certiorari has expired and no timely-filed appeal or petition for review, rehearing, remand or certiorari is pending; or (b) any appeal taken or petition for certiorari filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought, provided, however, that the possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules or other rules governing procedure in cases before the Bankruptcy Court, may be filed with respect to such order shall not cause such order not to be a Final Order.

“Financial Assets” has the meaning specified in the UCC.

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

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

“First Priority” shall mean, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is (a) the most senior Lien to which such Collateral is subject (subject only to non-consensual Permitted Liens that arise under any Legal Requirement), or (b) a Collateral Vessel Mortgage duly recorded by the National Vessel Documentation Center covering an ABL Priority Collateral Vessel (subject only to Permitted Collateral Vessel Liens (other than pursuant to Section 6.02(j)) which may, under applicable law, be entitled to priority over such Collateral Vessel Mortgage covering such ABL Priority Collateral Vessel).

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

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

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

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

“Funding Default” shall have the meaning assigned to such term in Section 2.15(c).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Immaterial Subsidiary” shall mean, as of any date of determination, any Wholly Owned Domestic Restricted Subsidiary of the Administrative Borrower (i) whose total assets (on a consolidated basis including its Restricted Subsidiaries, but excluding the value attributable to any Unrestricted Subsidiary) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) did not exceed 2.0% of Consolidated Total Assets as of such date or (ii) whose gross revenues (on a consolidated basis including its Restricted Subsidiaries, but excluding the revenues of any Unrestricted Subsidiary) for such Test Period did not exceed 2.0% of the consolidated gross revenues of the Administrative Borrower and its Restricted Subsidiaries for such period, but excluding the revenues of any Unrestricted Subsidiary; provided, however, (x) a Wholly Owned Domestic Restricted Subsidiary of the Administrative Borrower that no longer meets the foregoing requirements of this definition or is otherwise required to become a Loan Party pursuant to Section 5.10 shall no longer constitute an Immaterial Subsidiary for purposes of this Agreement and (y) notwithstanding the foregoing, the Administrative Borrower may elect to cause an Immaterial Subsidiary to become a Loan Party pursuant to Section 5.10, in which case such Immaterial Subsidiary shall, upon satisfaction of the provisions of such Section, no longer constitute an Immaterial Subsidiary. Notwithstanding the foregoing, (i) the total assets (as determined above) of all Immaterial Subsidiaries shall not exceed 5.0% of the Consolidated Total Assets, (ii) the gross revenues (as determined above) of all Immaterial Subsidiaries shall not exceed 5.0% of the consolidated gross revenues of Administrative Borrower and its Restricted Subsidiaries (as determined above) and (iii) any Restricted Subsidiary of the Administrative Borrower that guarantees or is an obligor of the Indebtedness incurred under this Agreement and the other ABL Loan Documents or the Indebtedness under the Term Loan Documents or Additional Permitted Unsecured Debt Documents shall not be deemed an Immaterial Subsidiary.

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

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

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

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

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

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

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

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

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

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

“Intellectual Property” shall mean any and all intellectual property rights recognized under applicable law, whether arising under United States laws or otherwise, including patents and patent applications; trademarks, trade names, service marks, copyrights, domain names and applications for registration thereof; trade secrets, proprietary information, inventions, databases, rights in software, formulae, works of authorship, know-how and processes, and the goodwill associated with any of the foregoing.

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

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

“Intercreditor Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit F among the Collateral Agent, the Term Loan Collateral Agent and the Loan Parties.

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

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

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

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

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

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

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

“Issuing Bank” shall mean, as the context may require, (a) each of (i) Xxxxx Fargo and (ii) any other Lender reasonably acceptable to the Administrative Agent and the Administrative Borrower that agrees to issue Letters of Credit hereunder, with respect to Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.17(j) and (k) with respect to Letters of Credit issued by such Lender; and/or (c) collectively, all of the foregoing, as the context may require. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Bank (and such Affiliate shall be deemed to be an “Issuing Bank” for all purposes of the ABL Loan Documents). In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.

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

“Joint Venture” shall mean any person other than a Subsidiary of the Administrative Borrower (i) in which the Administrative Borrower or any Restricted Subsidiary thereof holds or acquired a beneficial ownership interest (by way of ownership of Equity Interests or other evidence of ownership) in excess of 20.0% of the Equity Interests of such person and (ii) which is engaged in a business permitted by Section 6.14(b).

“Xxxxx Act” shall mean 46 U.S.C. sec. 50501 (a), (b), and (d), Chapters 121 and 551 of Title 46, United States Code entitled “Documentation of Vessels” and “Coastwise Trade,” respectively, and the laws pertaining to citizenship and related matters codified elsewhere in Title 46.

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

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

“LC Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit pursuant to Section 2.17. The amount of the LC Commitment shall be $25,000,000 on the Closing Date, but in no event shall the LC Commitment exceed the Total Revolving Commitments.

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

“LC Exposure” shall mean, at any time, the sum of (a) the aggregate amount available to be drawn under all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all Reimbursement Obligations outstanding at such time. The LC Exposure of any Lender at any time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time. For all purposes of this Agreement and the other ABL Loan Documents, if, on any date of determination, a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP (or any other equivalent applicable rule with respect to force majeure events), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn thereunder.

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

“LC Request” shall mean a request by the Administrative Borrower in accordance with the terms of Section 2.17(b) and substantially in the form of Exhibit G, or such other form as the Issuing Bank and the Administrative Borrower may agree to from time to time.

“LC Sub-Account” shall mean a cash collateral account maintained with, and under the sole dominion and control of, the Collateral Agent, which shall contain amounts deposited therein as cover for liabilities in respect of Letters of Credit as collateral security to be applied in accordance with Section 2.17(i).

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

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

“Letter of Credit” shall mean any letter of credit issued or to be issued by the Issuing Bank for the account of the Borrowers pursuant to Section 2.17.

“Letter of Credit Expiration Date” shall mean, subject to Section 2.17(c), the date which is five Business Days prior to the Maturity Date.

“LIBOR Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period therefor, the rate per annum as reported on Reuters Screen LIBOR01 page (or any successor page) two Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of Eurodollar Borrowing requested (whether as an initial Eurodollar Borrowing or as a continuation of a Eurodollar Borrowing or as a conversion of an ABR Borrowing to a Eurodollar Borrowing) by the Borrowers in accordance with this Agreement (and, if any such rate is below zero, the LIBOR Rate shall be deemed to be zero), which determination shall be made by the Administrative Agent and shall be prima facie evidence of the accuracy thereof.

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

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

“Loan Parties” shall mean the Borrowers and the Guarantors.

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

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

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

“Maturity Date” shall mean February 5, 2019; provided, however, (i) to the extent that any of the Existing 2018 OSG Notes (or any Indebtedness incurred to refund, refinance, replace, defease or discharge the Existing 2018 OSG Notes to the extent that any such Indebtedness has any scheduled prepayment, amortization, maturity, redemption, sinking fund or similar payment prior to the date that is 91 days after the Maturity Date in effect at the time of the incurrence or issuance of such Indebtedness) are outstanding on December 29, 2017, then the Maturity Date instead shall be December 29, 2017 and (ii) that with respect to any Extended Revolving Commitments (and any related outstandings), the Maturity Date with respect thereto instead shall be the final maturity date as specified in the applicable Extension Amendment.

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

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

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

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

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

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

“National Vessel Documentation Center” shall mean the National Vessel Documentation Center of the United States Coast Guard, Department of Homeland Security, and any successor board, agency or other Governmental Authority.

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

“Net Forced Liquidation Value” shall mean the value of the Borrowers’ Eligible ABL Priority Collateral Vessels that is estimated to be recoverable in a forced liquidation of such Eligible ABL Priority Collateral Vessels, net of all associated costs and expenses of such liquidation, such value to be as determined from time to time by an Approved Broker in connection with a Vessel Appraisal conducted in accordance with the terms hereof.

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

“Ninety-Day Excess Availability” shall mean the quotient obtained by dividing (a) the sum of each day’s Excess Availability during the 90 consecutive day period immediately preceding the date of the proposed transaction on which it is being determined whether the Payment Conditions have been satisfied, by (b) 90; provided that, with respect to any test on a date that is less than 90 days from the Closing Date, “Ninety-Day Excess Availability” shall mean the quotient obtained by dividing (a) the sum of each day’s Excess Availability for the period commencing on the Closing Date and ending on the date immediately preceding the date of the proposed transaction, by (b) the number of days in such period.

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

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

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

“Non-Recourse Debt” shall mean Indebtedness:

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

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

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

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

“Notes” shall mean any notes evidencing the Revolving Loans or Swingline Loans issued pursuant to Section 2.04(e), if any, substantially in the form of Exhibit H-1 or H-2, respectively.

“NY UCC” shall mean the UCC as in effect in the State of New York.

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

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

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

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

“OIN” shall mean OSG International, Inc., a Xxxxxxxx Islands corporation.

“OIN Credit Agreement” shall mean the credit agreement, dated as of the date hereof, among Holdings, OIN, certain Subsidiaries of OIN party thereto, the lenders party thereto from time to time, Jefferies Finance LLC, as administrative agent thereunder, Jefferies Finance LLC, as collateral agent thereunder, and the other agents and arrangers party thereto.

“OIN Loan Documents” shall mean the “Loan Documents” (or any similar term) as defined in the OIN Credit Agreement.

“OIN Spinoff” shall mean either (x) a dividend or other distribution by Holdings to its shareholders of 25% or more (directly or indirectly) of the Equity Interests of OIN in the aggregate (or any direct or indirect parent thereof that is a Subsidiary of Holdings) or (y) the sale, transfer, distribution or other disposition by Holdings or any of its Subsidiaries of 25% or more (directly or indirectly) of the Fair Market Value of the consolidated assets and/or Equity Interests of OIN (or any direct or indirect parent thereof that is a Subsidiary of Holdings).

“OIN Spinoff Conditions” shall mean (i) immediately before and after giving effect to the OIN Spinoff, no Default shall have occurred and be continuing, and (ii) simultaneously with the consummation of the OIN Spinoff, Holdings shall have set aside in an escrow account established by Holdings on terms, and pursuant to arrangements, reasonably satisfactory to the Administrative Agent cash in an aggregate amount of not less than the sum of (I) all accrued and unpaid interest on the Existing OSG Notes through the date of the consummation of the OIN Spinoff and (y) all interest expense that will accrue under the respective Existing OSG Notes from the date of the consummation of the OIN Spinoff through the maturity of the respective Existing OSG Notes (it being understood and agreed that such escrow arrangements may not be amended, modified or otherwise waived without the consent of the Administrative Agent).

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

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

“OSG Bulk Ships, Inc. Concentration Account” shall mean the Deposit Account of the Administrative Borrower at Fifth Third Bank - Tampa with account number 09990204290 (and any replacement Deposit Account or Deposit Accounts in respect thereof, subject to the terms of Section 5.14).

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

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

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

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

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

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

“Payment Conditions” shall mean that each of the following conditions are satisfied at the time of each action or proposed action and immediately after giving effect thereto: (a) there is no Default existing and continuing immediately before or after the action or proposed action; (b) in the case of any Investments, Dividends or Restricted Debt Payments permitted pursuant to Section 6.04(o), 6.08(f) or 6.11(a), respectively, (i) Ninety-Day Excess Availability and Excess Availability on the date of the action or proposed action (in each case calculated on a Pro Forma Basis after giving effect to the Borrowing of any Loans or issuance of any Letters of Credit in connection with the action or proposed action (and assuming that such Loans and Letters of Credit had remained outstanding throughout the applicable 90-day (or shorter, as the case may be) period for which Ninety-Day Excess Availability is to be determined)) shall exceed 20% of the Total Revolving Commitments at such time and (ii) the Administrative Borrower shall be in compliance, on a Pro Forma Basis, with a Consolidated Fixed Charge Coverage Ratio of not less than 1.10:1.00 and for the Test Period then most recently ended for which financial statements have been delivered to the Lenders hereunder as if such action or proposed action had occurred on the first day of such Test Period; (c) in the case of any Permitted Acquisitions permitted pursuant to Section 6.07(f), (i) Ninety-Day Excess Availability and Excess Availability on the date of the action or proposed action (in each case calculated on a Pro Forma Basis after giving effect to the Borrowing of any Loans or issuance of any Letters of Credit in connection with the action or proposed action (and assuming that such Loans and Letters of Credit had remained outstanding throughout the applicable 90-day (or shorter, as the case may be) period for which Ninety-Day Excess Availability is to be determined)) shall exceed 17.5% of the Total Revolving Commitments at such time and (ii) the Administrative Borrower shall be in compliance, on a Pro Forma Basis, with a Consolidated Fixed Charge Coverage Ratio of not less than 1.00:1.00 for the Test Period then most recently ended for which financial statements have been delivered to the Lenders hereunder as if such action or proposed action had occurred on the first day of such Test Period; provided that, if Ninety-Day Excess Availability and Excess Availability on the date of the action or proposed action (in each case, calculated on a Pro Forma Basis after giving effect to the Borrowing of any Loans or issuance of any Letters of Credit in connection with the action or proposed action) exceed 20.0% (or, in the case of any Investments, Dividends or Restricted Debt Payments, 25.0%) of the Total Revolving Commitments at such time, then compliance with subclauses (b)(ii) and (c)(ii) above shall not be required; and (d) the Administrative Borrower shall have delivered to the Administrative Agent an Officer’s Certificate of the Administrative Borrower certifying as to compliance with preceding clauses (a) and (b) or (c), as applicable, and demonstrating (in reasonable detail) the calculations required by preceding clause (b) or (c), as applicable.

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

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

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

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

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

(ii) after giving effect to such transaction on a Pro Forma Basis, the Payment Conditions shall be satisfied;

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

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

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

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

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

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

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

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

Notwithstanding anything to the contrary contained herein, if the gross amount of Receivables of the acquired person or comprising a portion of the assets that were acquired in connection with the Permitted Acquisition (as applicable) exceeds $2,000,000 in the aggregate, then none of such Receivables shall constitute Eligible Receivables until such time as the Collateral Agent and the Administrative Agent shall have received a collateral field examination (conducted at the Borrowers’ sole cost and expense) with respect to such Receivables, reasonably satisfactory to the Collateral Agent (it being agreed that any such collateral field examination shall be in addition to any collateral field examination performed at the Borrowers’ expense pursuant to Section 5.13).

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

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

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

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

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

“Permitted Discretion” shall mean a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.

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

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

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

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

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

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

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

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

“Permitted Tax Distributions” shall mean payments, dividends or distributions by the Administrative Borrower to Holdings to enable Holdings to pay its consolidated or combined federal, state or local taxes then due and payable for the respective period, which payments by the Administrative Borrower to Holdings are not in excess of the lesser of (x) the tax liabilities that would have been payable by the Administrative Borrower and its Restricted Subsidiaries on a stand-alone basis for the respective period (calculated, for the avoidance of doubt, without regard to the operations of any Unrestricted Subsidiary and without regard to any investment credits, foreign tax credits, net operating losses, capital losses or other tax attributes to the extent Holdings previously reimbursed the Administrative Borrower or its Restricted Subsidiary for utilizing such tax attribute in calculating Holdings’ consolidated or combined federal, state or local tax liability) and (y) the actual tax liabilities then due and payable by Holdings for the respective period.

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

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

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

“Preferred Stock” shall mean, with respect to any person, any and all preferred or preference Equity Interests (however designated) of such person whether now outstanding or issued after the Closing Date.

“Priority Claims” shall have the meaning assigned to such term in the Amended Reorganization Plan.

“Prior Plan Documents” shall mean, collectively, that certain joint plan of reorganization and related disclosure statement relating to the Bankruptcy Case and filed by the Debtors with the Bankruptcy Court on March 7, 2014.

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

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

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

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

“Professional Fees Claims” shall have the meaning assigned to such term in the Amended Reorganization Plan.

“Profit Sharing Agreement” shall mean that certain Profit Sharing Agreement, dated as of December 11, 2009, as amended pursuant to Amendment No. One to Profit Sharing Agreement, dated as of June 17, 2013, in each case, by and among Holdings, American Tanker, Inc., a Delaware corporation (f/k/a Xxxx American Shipping, Inc.) and the other parties signatory thereto, as in effect on the date hereof.

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

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

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

“Protective Advances” shall have the meaning assigned to such term in Section 2.19(a).

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

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

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

“Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Quarterly Average Undrawn Availability” shall mean, for any calendar quarter, the daily average of the aggregate amount of Undrawn Availability for such calendar quarter.

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

“Receivables” shall mean and include, as to each Borrower and Subsidiary Guarantor, all of such Borrower’s or Subsidiary Guarantor’s accounts (as defined in Article 9 of the UCC as in effect in the State of New York) and all supporting obligations in respect thereof.

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

“Refinancing” shall mean the repayment in full of (together with any applicable prepayment premium or fee, with the commitments thereunder being terminated, and all guarantees and security in respect thereof being released) all of the outstanding indebtedness of Holdings and its Subsidiaries listed on Schedule 1.01(h).

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

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

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

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

“Reimbursement Obligations” shall mean the Borrowers’ obligations under Section 2.17(e) to reimburse LC Disbursements.

“Reinvestment Proceeds Account” shall mean a Deposit Account established pursuant to the Term Loan Credit Agreement pursuant to which certain cash proceeds of Term Loan Priority Collateral are deposited following the sale, casualty or condemnation thereof pending the reinvestment thereof as, and to the extent, permitted by the Term Loan Credit Agreement.

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

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

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

“Required Lenders” shall mean, at any date of determination (but subject to Section 2.15(c)), Lenders having Revolving Loans, LC Exposure, Swingline Exposure and unused Revolving Commitments representing more than 50% of the sum of all Revolving Loans outstanding, LC Exposure, Swingline Exposure and unused Revolving Commitments at such time; provided, that, (a) if there are fewer than three Lenders at any time, then Required Lenders shall then mean all Lenders, (b) if there are three or more Lenders at any time, then Required Lenders shall then mean, in addition to, and not in limitation of, the provisions of this definition that precede this proviso, at least two Lenders and (c) Lenders that are Affiliates of one another shall be counted as a single Lender for purposes of foregoing clauses (a) and (b) of this proviso.

“Reserves” shall mean such reserves as the Collateral Agent may from time to time establish in its Permitted Discretion, including reserves for (a) matters that could adversely affect the Collateral, its value or the amount that the Administrative Agent, the Collateral Agent and the Lenders might receive from the sale or other disposition thereof or the ability of the Administrative Agent or the Collateral Agent to realize thereon, (b) sums that any Borrower or Subsidiary Guarantor is required to pay under any provision of this Agreement or any other ABL Loan Document or otherwise (such as taxes, assessments, payroll, insurance premiums, amounts owing to customs brokers, or, in the case of license or profit sharing agreements, royalties, profit sharing or other amounts payable under such license or profit sharing agreements), (c) amounts owing by any Borrower or Subsidiary Guarantor to any person to the extent secured by a Lien on, or trust over, any of the Collateral or over any assets or properties of any Customer of any Borrower, (d) amounts believed by the Collateral Agent to be necessary to provide for possible inaccuracies in any report or in any information provided to the Administrative Agent or the Collateral Agent pursuant to this Agreement, (e) dilution with respect to the Receivables of any Borrower or Subsidiary Guarantor (based on the ratio of the aggregate amount of non-cash reductions in the Receivables of the Borrowers and the Subsidiary Guarantors for any period to the aggregate dollar amount of sales of the Borrowers and the Subsidiary Guarantors for such period) calculated by the Collateral Agent for any period that is or is reasonably anticipated to be greater than 5.0% and (f) Bank Product Obligations to the extent that such Bank Product Obligations constitute Secured Obligations or otherwise receive the benefit of the security interest of the Collateral Agent in any Collateral. Notwithstanding the foregoing, (i) so long as no Event of Default then exists, the Collateral Agent shall provide the Administrative Borrower with five Business Days’ prior notice of the establishment of any new category of Reserves with respect to which the Collateral Agent had not previously implemented any Reserves, (ii) a Reserve shall not be established to the extent it is duplicative of any other Reserves or items that are otherwise excluded through eligibility criteria and (iii) the amount of any such Reserve so established shall have a reasonable relationship as determined by the Collateral Agent in its Permitted Discretion to the event, condition or other matters that is the basis therefor.

“Residual Bank Accounts” shall mean any Deposit Accounts identified as such in Part B of Schedule 3.27 that are Controlled Accounts and that are intended to be closed within three months following the Closing Date.

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

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

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

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

“Restricted Subsidiary” shall mean, at any time, any direct or indirect Subsidiary of the Administrative Borrower that is not then an Unrestricted Subsidiary; provided that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary”.

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

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

“Revolving Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans hereunder up to the amount set forth on Annex I hereto or on Schedule 1 to the Assignment and Acceptance pursuant to which such Lender assumed its Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07, (b) increased from time to time pursuant to Section 2.21, and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.04. In addition, the Revolving Commitment of each Lender shall include any Extended Revolving Commitments of such Lender. The aggregate principal amount of the Lenders’ Revolving Commitments on the Closing Date is $75,000,000.

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

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

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

“Revolving Loan” shall mean a revolving loan made by the Lenders to a Borrower pursuant to Section 2.01, including any Extended Revolving Loans.

“Rights Offering” shall mean that certain rights offering by Holdings with respect to its common Equity Interests in an aggregate amount equal to at least $1,510,000,000.

“S&P” shall mean Standard & Poor’s Rating Services, a division of the XxXxxx-Xxxx Companies, Inc., and its successors.

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

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

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

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

“Second Priority” shall mean, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is the most senior Lien to which such Collateral is subject (subject only to (i) so long as the Intercreditor Agreement is in effect, the prior Lien on the Term Loan Priority Collateral permitted pursuant to Section 6.02(j), (ii) non-consensual Permitted Liens that arise under any Legal Requirement and (iii) a Collateral Vessel Mortgage duly recorded by the National Vessel Documentation Center covering a Collateral Vessel (subject only to Permitted Collateral Vessel Liens which may, under applicable law, be entitled to priority over such Collateral Vessel Mortgage covering such Collateral Vessel).

“Section 2 Citizen” shall mean a “citizen of the United States” within the meaning of 46 U.S.C. §50501(a), (b) and (d) qualified to own and operate vessels for operation in the coastwise trade of the United States.

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

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

“Securities Account” has the meaning specified in the UCC.

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

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

“Securities Collateral” shall mean “Securities Collateral” (as defined in the Security Agreement) collectively with “Securities Collateral” (as defined in the Holdings Pledge Agreement).

“Securities Intermediary” has the meaning specified in the UCC.

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

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

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

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

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

“Specified ABL Accounts” shall mean each Deposit Account and Securities Account (including the OSG Bulk Ships, Inc. Concentration Account and the Specified Disbursement Account) (in either case, which may include a Residual Bank Account) into which proceeds of ABL Priority Collateral are paid (or required to be paid) or into which proceeds of Loans are disbursed, but shall exclude the Excluded Accounts.

“Specified Disbursement Account” shall mean the Deposit Account of the Administrative Borrower identified on Schedule 3.27 (or such other Deposit Account of the Administrative Borrower that has been designated as such, in writing, by the Administrative Borrower to the Administrative Agent, subject to the terms of Section 5.14.

“Specified OIN Collateral” shall mean (i) the Equity Interests of OIN held by Holdings or any of its Subsidiaries and (ii) all intercompany Indebtedness owed to Holdings by OIN or any of its Subsidiaries.

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

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

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

“Subsidiary Guarantor” shall mean each Restricted Subsidiary of the Administrative Borrower listed on Schedule 1.01(g), as well as any additional Restricted Subsidiary of the Administrative Borrower that is not an Excluded Subsidiary and becomes a Subsidiary Guarantor pursuant to Section 5.10.

“Supermajority Lenders” shall mean, at any time, Lenders having Revolving Loans, LC Exposure, Swingline Exposure and unused Revolving Commitments representing at least 66⅔% of the sum of all Loans outstanding, LC Exposure, Swingline Exposure and unused Revolving Commitments at such time; provided, that, (a) if there are fewer than three Lenders at any time, then Supermajority Lenders shall then mean all Lenders, (b) if there are three Lenders at any time, then Supermajority Lenders shall then mean, in addition to, and not in limitation of, the provisions of this definition that precede this proviso, at least two Lenders and (c) Lenders that are Affiliates of one another shall be counted as a single Lender for purposes of foregoing clauses (a) and (b) of this proviso.

“Suppressed Availability” shall mean, at any time, the amount by which the Borrowing Base at such time exceeds the Total Revolving Commitments at such time.

“Swap Obligation” shall mean, with respect to any Borrower and Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“Swingline Borrowing” shall mean a Borrowing comprised of Swingline Loans.

“Swingline Commitment” shall mean the commitment of the Swingline Lender to make revolving loans pursuant to Section 2.16, as the same may be reduced from time to time pursuant to Section 2.16; provided that in no event shall the Swingline Commitment exceed the Total Revolving Commitments. The aggregate principal amount of the Swingline Commitment shall be $10,000,000 on the Closing Date.

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

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

“Swingline Loan” shall mean any revolving loan made by the Swingline Lender pursuant to Section 2.16.

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

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

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

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

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

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

“Term Loan Administrative Agent” shall mean Xxxxxxxx Finance LLC, in its capacity as the initial administrative agent under the Term Loan Documents, or any successor administrative agent under the Term Loan Documents.

“Term Loan Collateral Agent” shall mean Xxxxxxxx Finance LLC, in its capacity as the initial collateral agent under the Term Loan Documents, or any successor collateral agent under the Term Loan Documents.

“Term Loan Credit Agreement” shall mean the Term Loan Credit Agreement, dated as of the date hereof, among Holdings, the Administrative Borrower, the Co-Borrowers, the Subsidiary Guarantors party thereto, the lenders party thereto from time to time, the Term Loan Administrative Agent, the Term Loan Collateral Agent, and the other agents and arrangers party thereto.

“Term Loan Documents” shall mean the “Loan Documents” (or any similar term) as defined in the Term Loan Credit Agreement or other Term Loan Facility.

“Term Loan Facility” shall mean (a) the Term Loan Credit Agreement and (b) one or more other term loan credit agreements evidencing Permitted Refinancing Indebtedness in respect of the credit agreement referenced in clause (a) above or any term loan credit agreement in this clause (b) and any agreements evidencing Refinancing Notes (or any similarly defined term) as defined in the Term Loan Credit Agreement (as in effect on the Closing Date)); provided that the holders of such Indebtedness under this clause (b) or a representative acting on behalf of the holders of such Indebtedness under this clause (b) shall have become a party to the Intercreditor Agreement (unless such term loan credit agreement or Refinancing Notes expressly provides that it is unsecured, and not intended to be and is not a Term Loan Facility).

“Term Loan Priority Collateral” shall mean all Collateral other than ABL Priority Collateral and Excluded Collateral.

“Term Loan Priority Collateral Vessel” shall mean any Vessel that constitutes Term Loan Priority Collateral. The Term Loan Priority Collateral Vessels as of the Closing Date are identified as such on Schedule 1.01(a).

“Term Loan Security Documents” shall mean, subject to the terms of the Intercreditor Agreement, the security agreements, pledge agreements, collateral vessel mortgages, real property mortgages and other security documents entered into pursuant to the Term Loan Credit Agreement in which Liens are granted on the Collateral to the Term Loan Collateral Agent for its benefit and the benefit of the other secured parties under the Term Loan Documents.

“Term Loans” shall mean the term loans from time to time outstanding under the Term Loan Credit Agreement.

“Test Period” shall mean each period of four consecutive fiscal quarters of the Administrative Borrower then last ended (in each case taken as one accounting period).

“Total Availability” shall mean, at any time, the lesser of (x) the Total Revolving Commitments at such time and (y) the Borrowing Base at such time.

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

“Total Revolving Commitments” shall mean the aggregate principal amount of all Revolving Commitments, which as of the Closing Date is in the aggregate amount of $75,000,000.

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

“Transaction Documents” shall mean, collectively, the Amended Plan Documents, the Term Loan Documents, any of the agreements entered into pursuant to the Rights Offering and the ABL Loan Documents.

“Transactions” shall mean, collectively, the transactions to occur pursuant to, or contemplated by, the Transaction Documents, including (a) the execution, delivery and performance by the Loan Parties of the ABL Loan Documents to which they are a party and the Borrowing of Loans hereunder on the Closing Date and the use of the proceeds thereof, (b) the Rights Offering, (c) the execution, delivery and performance by the Loan Parties of the Term Loan Documents to which they are a party and the borrowing of the Term Loans thereunder on the Closing Date and the use of the proceeds thereof, (e) the Refinancing, (f) the consummation of the transactions contemplated by the Amended Plan Documents and (g) the payment of the fees and expenses related to the foregoing.

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

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

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

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

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

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

“Undrawn Availability” shall mean, at any particular date, an amount equal to (a) the Total Availability at such date, minus (b) the sum of (i) the aggregate outstanding principal amount of all Loans at such date and (ii) the aggregate Dollar Amount of the LC Exposure at such date.

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

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

“Unrestricted Subsidiary” shall mean (a) as of the Closing Date, any Subsidiary of the Administrative Borrower that is set forth on Schedule 1.01(i) and (b) any other Subsidiary of the Administrative Borrower (other than a Co-Borrower) that is designated by the Board of Directors of the Administrative Borrower after the Closing Date as an Unrestricted Subsidiary pursuant to a resolution of such Board of Directors and such designation otherwise complies with Section 5.17 (in each case until such time (if any) as the Board of Directors of the Administrative Borrower designates any such Subsidiary as a Restricted Subsidiary pursuant to such Section 5.17), but (in each case) only to the extent that such Subsidiary:

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

(ii) except as permitted by Section 6.09, is not party to any agreement, contract, arrangement or understanding with the Administrative Borrower or any Restricted Subsidiary of the Administrative Borrower unless the terms of any such agreement, contract, arrangement or understanding are not less favorable to the Administrative Borrower or such Restricted Subsidiary than those that might be obtained at the time from persons who are not Affiliates of the Administrative Borrower;

(iii) is a person with respect to which neither the Administrative Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional Equity Interests or (y) to maintain or preserve such person’s financial condition or to cause such person to achieve any specified levels of operating results;

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

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

For the avoidance of doubt, a Subsidiary of an Unrestricted Subsidiary shall be an Unrestricted Subsidiary.

“Unsecured Credit Agreement” shall mean that certain credit agreement, dated as of February 9, 2006 (as amended, supplemented or otherwise modified prior to the Closing Date), by and among Holdings, OIN, the Administrative Borrower, U.S. Bank National Association in its capacity as successor and administrative agent and the lenders party thereto from time to time.

“Vessel Appraisal” shall mean a written appraisal of the Eligible ABL Priority Collateral Vessels delivered to the Collateral Agent, each of which appraisals shall consist of a written physical walk-around valuation (conducted in a fashion typical for such type of valuation and understood to exclude tank entry) or desktop appraisal (at the discretion of the Administrative Agent or the Collateral Agent) of each ABL Priority Collateral Vessel delivered to the Administrative Agent and the Collateral Agent, in form, scope and methodology reasonably acceptable to the Collateral Agent in its Permitted Discretion and prepared by an Approved Broker, addressed to the Collateral Agent and upon which the Administrative Agent, the Collateral Agent and the Lenders are expressly permitted to rely.

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

(a) the entity that owns such Collateral Vessel shall have duly authorized, executed and delivered, and caused to be recorded by the National Vessel Documentation Center, a Collateral Vessel Mortgage with respect to such Collateral Vessel and such Collateral Vessel Mortgage shall be effective to create in favor of the Mortgage Trustee for the benefit of the Secured Parties a legal, valid and enforceable first (in the case of ABL Priority Collateral Vessels) or second (in the case of Term Loan Priority Collateral Vessels) preferred ship mortgage lien upon such Collateral Vessel, subject only to Permitted Collateral Vessel Liens related thereto;

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

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

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

(iii) a Certificate of Ownership (CG-1330) confirming documentation of such Collateral Vessel under the law and flag of the United States, the record owner of the Collateral Vessel and all Liens of record (which shall be only Permitted Collateral Vessel Liens) for such Collateral Vessel, such certificate to be issued within 60 days of the date such vessel becomes a Collateral Vessel, and reasonably satisfactory to the Administrative Agent;

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

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

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

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

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

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

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

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

“Xxxxx Fargo” shall mean Xxxxx Fargo Bank, National Association, a national banking association.

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

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

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

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

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

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

Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with, and all terms of an accounting or financial nature shall be construed and interpreted in accordance with, GAAP as in effect from time to time. If at any time any change in GAAP would affect the computation of any financial ratio set forth in any ABL Loan Document, and the Administrative Borrower, the Required Lenders or the Administrative Agent shall so request, the Administrative Agent and the Administrative Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Required Lenders and the Administrative Borrower); provided, that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein, and the Administrative Borrower shall provide to the Administrative Agent and the Lenders within five days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of a Financial Officer of the Administrative Borrower setting forth in reasonable detail the differences (including any differences that would affect any calculations relating to the financial covenant as set forth in Section 6.10) that would have resulted if such financial statements had been prepared as if such change had been implemented.

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

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

Section 1.07 Currency Equivalents Generally.

(a) Any amount specified in this Agreement (other than in Section 2.17 or as set forth in clause (b) of this Section 1.07) or any of the other ABL Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the applicable Exchange Rate; provided that (x) the determination of any Dollar Amount shall be made in accordance with Section 2.17(m) and (y) if any basket amount expressed in Dollars is exceeded solely as a result of fluctuations in applicable currency exchange rates after the last time such basket was utilized, such basket will not be deemed to have been exceeded solely as a result of such fluctuations in currency exchange rates.

(b) For purposes of determining the Consolidated Fixed Charge Coverage Ratio and the Total Leverage Ratio, amounts denominated in a currency other than Dollars will be converted to Dollars for the purposes of (A) testing the financial covenant under Section 6.10, at the Exchange Rate in respect thereof as of the last day of the fiscal quarter for which such measurement is being made, and (B) calculating any Consolidated Fixed Charge Coverage Ratio and the Total Leverage Ratio (other than for the purposes of determining compliance with Section 6.10 but including for purposes of determining whether a Covenant Compliance Period then exists), at the Exchange Rate as of the date of calculation, and will, in the case of Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of Swap Obligations permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.

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

Section 1.08 Change in Currency.

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

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

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

Article II

THE CREDITS

Section 2.01 Commitments. Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly, to make Revolving Loans to the Borrowers (on a joint and several basis), at any time and from time to time on or after the Closing Date until the earlier of the Maturity Date and the termination of the Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment; provided, however, (x) in no event shall the Total Revolving Exposure at any time exceed the Total Availability at such time and (y) up to (but no more than) $25,000,000 in aggregate principal amount of Revolving Loans shall be permitted to be made on the Closing Date to finance the Transactions. Within the limits set forth in the preceding sentence and subject to the terms, conditions and limitations set forth herein, the Borrowers may borrow, pay or prepay and reborrow Revolving Loans.

Section 2.02 Loans. (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their applicable Revolving Commitments; provided, that the failure of any Lender to make any Revolving Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Revolving Loan required to be made by such other Lender). Except for Revolving Loans deemed made pursuant to Section 2.17(e), any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $100,000 and not less than $500,000 or (ii) equal to the remaining available balance of the applicable Revolving Commitments.

(b) Subject to Sections 2.10 and 2.11, each Borrowing of Revolving Loans shall be comprised entirely of ABR Loans or Eurodollar Loans as the Administrative Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Revolving Loan; provided, that any exercise of such option shall not affect the obligation of the Lender to make such Revolving Loan or the Borrowers to repay such Revolving Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; provided, that the Administrative Borrower shall not be entitled to request any Borrowing that, if made, would result in more than eight Eurodollar Borrowings in the aggregate outstanding hereunder at any one time (or such greater number of Eurodollar Borrowings as may be acceptable to the Administrative Agent in its sole discretion). For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

(c) Except with respect to Revolving Loans made pursuant to Section 2.17(e), each Lender shall make each Revolving Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in the United States as the Administrative Agent may designate from time to time not later than 10:00 a.m., New York City time, and the Administrative Agent shall promptly credit or remit the amounts so received to an account in the United States as directed by the Administrative Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, promptly return the amounts so received to the respective Lenders.

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

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

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

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

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

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

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

(v) [reserved]; and

(vi) that the conditions set forth in Sections 4.02(b) - (d) are satisfied as of the date of the notice.

The Borrowers agree to establish and maintain the Specified Disbursement Account for the purpose of receiving the proceeds of the Loans requested by Borrowers and made by the Administrative Agent or the Lenders hereunder. Unless otherwise agreed by the Administrative Agent and the Administrative Borrower, all Loans requested by the Borrowers and made by the Administrative Agent or the Lenders hereunder shall be made to the Specified Disbursement Account. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Administrative Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Revolving Loan to be made as part of the requested Borrowing. Additionally, any amount required to be paid as interest, fees, charges, costs and expenses payable or reimbursable by any Borrower hereunder, or other Obligations under this Agreement , at the election of the Administrative Agent and upon notice to the Administrative Borrower, shall be deemed a request by the Borrowers for an ABR Borrowing as of the date such payment is due, in the amount required to pay in full or in part such interest, fee, charge or other Obligation under this Agreement (notwithstanding such amount may not comply with the minimum borrowing amount required under Section 2.02) and such deemed request shall be irrevocable.

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

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

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

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

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

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

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

Section 2.05 Fees.

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

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

(c) LC and Fronting Fees. The Borrowers agree, jointly and severally, to pay (i) to the Administrative Agent for the account of each Lender a participation fee (the “LC Participation Fee”) with respect to its participations in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Margin from time to time used to determine the interest rate on Eurodollar Loans pursuant to Section 2.06 on the average daily amount of the Dollar Amount of such Lender’s LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank for its own account a fronting fee (“Fronting Fee”), which shall accrue at the rate of 0.25% per annum (or such other rate per annum as the Issuing Bank and the Administrative Borrower may from time to time agree) on the average daily amount of the Dollar Amount of the LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s customary fees and charges with respect to the administration, issuance, amendment, negotiation, renewal, payment or extension of any Letter of Credit or processing of drawings thereunder. Accrued LC Participation Fees and Fronting Fees shall be payable in arrears (i) on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date, and (ii) on the date on which the Revolving Commitments terminate and no Letters of Credit remain outstanding. Any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this Section 2.05(c) shall be payable within five Business Days after demand therefor. All LC Participation Fees and Fronting Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Notwithstanding the foregoing, upon the occurrence and during the continuance of any Default under Section 8.01(a) or (b) or any Event of Default under Section 8.01(a), (b), (g) or (h), the LC Participation Fee shall accrue, after as well as before judgment, at a rate per annum equal to 2% in excess of the rate then borne by the LC Participation Fee. Each payment of fees hereunder on any Letters of Credit denominated in an Alternative Currency shall be made in Dollars.

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

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

(f) Any fees otherwise payable by the Borrowers to any Defaulting Lender pursuant to this Section 2.05 shall be subject to Section 2.15(c).

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

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

(c) Notwithstanding the foregoing, (i) upon the occurrence and during the continuance of any Default under Section 8.01(a) or (b) or any Event of Default under Section 8.01(a), (b), (g) or (h), each Loan shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2% in excess of the rate then borne by such Loans, and (ii) without duplication of any amounts payable pursuant to preceding clause (i), (x) overdue principal and, to the extent permitted by applicable law, overdue interest, in respect of the Loans shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2% in excess of the rate applicable to respective Loans from time to time, and (y) without duplication of any amounts payable pursuant to the last sentence of Section 2.05(c) in respect of the LC Participation Fee, all other overdue amounts owing under the ABL Loan Documents shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2% in excess of the rate otherwise applicable to ABR Loans from time to time (in each such case, the “Default Rate”).

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

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual numbers of days elapsed (including the first day but excluding the last day); provided, that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.14, bear interest for one day. The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any Insolvency Proceeding.

Section 2.07 Termination and Reduction of Commitments. (a) The Revolving Commitments, the Swingline Commitment and the LC Commitment shall automatically terminate on the Maturity Date.

(b) At their option, the Borrowers may at any time terminate, or from time to time permanently reduce, the Revolving Commitments; provided, that (i) each reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $100,000 and not less than $500,000 and (ii) the Revolving Commitments shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in accordance with Section 2.09, the Total Revolving Exposure would exceed the Total Revolving Commitments. The Administrative Borrower shall notify the Administrative Agent in writing of any election to terminate or reduce Revolving Commitments under this Section 2.07(b) at least five Business Days prior to the effective date of such termination or reduction (which effective date shall be a Business Day), specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Administrative Borrower pursuant to this Section 2.07(b) shall be irrevocable; provided, that a notice of termination of the Revolving Commitments delivered by the Administrative Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities in order to refinance in full the Obligation hereunder, in which case such notice may be revoked by the Administrative Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

(c) If at the time of any mandatory prepayment required pursuant to Section 2.09(b)(v) or (vi) (determined as if Revolving Loans in an aggregate principal amount equal to such mandatory prepayment were outstanding at such time) an Event of Default exists and is continuing, the Revolving Commitments shall be reduced by an amount equal to 100% of the Net Cash Proceeds of the respective Asset Sale or Casualty Event.

(d) Any termination or reduction of the Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments pursuant to this Section 2.07 shall be made ratably among the Lenders in accordance with their respective Revolving Commitments.

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

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

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

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

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

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

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

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

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

Section 2.09 Optional and Mandatory Prepayments of Loans. (a) Optional Prepayments. The Borrowers shall have the right at any time and from time to time to prepay any Revolving Borrowing, in whole or in part, without premium or penalty, subject to the requirements of this Section 2.09; provided, that each partial prepayment shall be in an amount that is an integral multiple of $100,000 and not less than $500,000.

(b) Mandatory Prepayments.

(i) In the event of the termination of all the Revolving Commitments, the Borrowers, jointly and severally, shall, on the date of such termination, repay or prepay all outstanding Revolving Loans and Swingline Loans and either (A) replace all outstanding Letters of Credit or (B) Cash Collateralize all outstanding Letters of Credit in accordance with the procedures set forth in Section 2.17(i).

(ii) In the event of any partial reduction of the Revolving Commitments by the Borrowers, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Administrative Borrower and the Lenders of the Total Revolving Exposure after giving effect thereto and (y) if the Total Revolving Exposures would exceed the aggregate amount of Revolving Commitments after giving effect to such reduction, then the Borrowers, jointly and severally, shall, on the date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay Revolving Loans and third, replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.17(i) in an aggregate amount sufficient to eliminate such excess.

(iii) If at any time the Total Revolving Exposure exceeds the Total Availability at such time, the Borrowers, jointly and severally, shall, without notice or demand, immediately first, repay or prepay Swingline Loans, second, repay or prepay Revolving Loans, and third, replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.17(i) in an aggregate amount sufficient to eliminate such excess.

(iv) In the event that the aggregate Dollar Amount of the LC Exposure exceeds the LC Commitment then in effect, the Borrowers, jointly and severally, shall, without notice or demand, immediately replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.17(i) in an aggregate amount sufficient to eliminate such excess.

(v) Not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale by any Restricted Party of ABL Priority Collateral, the Borrowers, jointly and severally, shall apply 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.09(d).

(vi) Not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event by any Restricted Party of ABL Priority Collateral (other than (x) Casualty Events where the Net Cash Proceeds therefrom are less than $5,000,000 and (y) so long as no Default shall have occurred and be continuing, to the extent that such Net Cash Proceeds are applied, substantially concurrently with the receipt thereof, to pay or reimburse any expenses incurred to repair any damage to such ABL Priority Collateral as a result of such Casualty Event), the Borrowers, jointly and severally, shall apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.09(d);

(c) Cash Dominion. On each Business Day during which a Cash Dominion Period exists and is continuing, all funds credited in immediately available funds to a Specified ABL Account the previous Business Day shall be applied, as and when received by the Administrative Agent (unless Section 9.01 is otherwise applicable at such time), (i) first, pro rata to the Obligations consisting of fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by (or owing to) the Administrative Agent and the Collateral Agent in connection with this Agreement or any other ABL Loan Document, (ii) second, to the principal and interest of Swingline Loans made to the Borrowers by the Swingline Lender and not reimbursed by the Lenders until paid in full, (iii) third, pro rata to interest due in respect of all Protective Advances and Overadvances, (iv) fourth, pro rata to the principal amount of all Protective Advances and Overadvances, (v) fifth, pro rata to Reimbursement Obligations for which the Issuing Bank has not received reimbursement pursuant to Section 2.17(e), (vi) sixth, pro rata to interest due to the Lenders upon any of the Loans made to the Borrowers and to the Obligations consisting of costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lenders in connection with (and to the extent payable or reimbursable to the Lenders under) this Agreement or any other ABL Loan Document according to their respective Pro Rata Percentages thereof until paid in full, (vii) seventh, pro rata to fees due to the Lenders in connection with this Agreement or any other ABL Loan Document according to their respective Pro Rata Percentages thereof until paid in full, (viii) eighth, pro rata to the principal of the Revolving Loans made to the Borrowers by each Lender according to their respective Pro Rata Percentages thereof (and, if requested by the Administrative Agent or the Required Lenders after the occurrence of any Event of Default, on a pro rata basis, to Cash Collateralize Letters of Credit) and any Bank Product Obligations then due and owing to the extent of Reserves then maintained by the Collateral Agent with respect thereto (but excluding Bank Product Obligations that are not then covered by such Reserves), (ix) ninth, pro rata to any Bank Product Obligations then due and owing that were not paid pursuant to immediately preceding clause (viii), until paid in full, (x) tenth, pro rata to any other Obligations then due and owing until paid in full and (xi) eleventh, any remaining amounts to the Administrative Borrower on behalf of the Borrowers (it being understood that, for the avoidance of doubt, in the event that such Cash Dominion Period is due to Excess Availability being less than 12.5% of the Total Revolving Commitments, and the Borrowers are otherwise permitted to make a Borrowing hereunder, such borrowed amounts shall be deposited in the Specified Disbursement Account and shall be permitted to be made and used as permitted under this Agreement).

(d) Application of Prepayments. Prior to any optional prepayment of Revolving Loans hereunder, the Administrative Borrower shall select the Revolving Borrowing or Revolving Borrowings to be prepaid and shall specify such selection in the notice of such prepayment, subject to the provisions of this Section 2.09(d). Amounts to be applied pursuant to this Section 2.09 to the prepayment of Revolving Loans shall be applied first to reduce outstanding ABR Loans. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans.

(e) Notice of Prepayment. The Administrative Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by written notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, on the third Business Day before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing (other than a Swingline Borrowing), not later than 1:00 p.m., New York City time, one Business Day before the date of prepayment and (iii) in the case of prepayment of a Swingline Loan, not later than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable; provided, that a notice of prepayment of all outstanding Loans that is delivered in connection with a notice of the termination of the Revolving Commitments pursuant to Section 2.07(c), may state that such notice is conditioned upon the effectiveness of other credit facilities in order to refinance in full all Obligations hereunder, in which case such notice may be revoked by the Administrative Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Each such notice shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Such notice to the Lenders may be by electronic communication. Such notice shall not be required for repayments pursuant to clause (c) of this Section 2.09. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing and otherwise in accordance with this Section 2.09. Prepayments (other than pursuant to clause (c) above) shall be accompanied by accrued interest to the extent required by Section 2.06.

Section 2.10 Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

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

(b) the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Revolving Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give written notice thereof to the Administrative Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.

Section 2.11 Increased Costs; Change in Legality. (a) If any Change in Law shall:

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

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

(iii) subject any Lender or the Issuing Bank to any Taxes (other than (A) Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.14, (B) Taxes described in clauses (b) through (f) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, principal, letters of credit, Commitments or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company, if any, of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrowers will, jointly and severally, pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered; it being understood that this Section 2.11 shall not apply to Taxes that are Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.14.

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

(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in clause (a) or (b) of this Section 2.11 shall be delivered to the Administrative Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error. The Borrowers, jointly and severally, shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section 2.11 shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that (i) the Borrowers shall not be required to compensate a Lender or the Issuing Bank for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor, (ii) if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to indicate the period of retroactive effect thereof and (iii) such increased costs or reductions shall only be payable by the Borrowers to the applicable Lender or the Issuing Bank under this Section 2.11 to the extent that such Lender or Issuing Bank is generally imposing such charges on similarly situated borrowers.

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

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

(ii) such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in Section 2.11(f).

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

(f) For purposes of clause (e) of this Section 2.11, a notice to the Administrative Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Administrative Borrower.

Section 2.12 Breakage Payments. In the event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice is permitted to be withdrawn by the Borrowers), or (d) the assignment of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by the Administrative Borrower pursuant to Section 2.15, then, in any such event, the Borrowers, jointly and severally, shall compensate each Lender for the loss, cost and expense attributable to such event (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Eurodollar Loans but excluding loss of anticipated profits). Each Lender shall calculate any amount or amounts in good faith and in a commercially reasonable manner. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.12 shall be delivered to the Administrative Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error. The Borrowers, jointly and severally, shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof. Notwithstanding the foregoing, this Section 2.12 shall not apply to losses, costs or expenses resulting from Taxes, as to which Section 2.14 shall govern.

Section 2.13 Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The Borrowers shall make each payment required to be made hereunder or under any other ABL Loan Document (whether of principal, interest, fees or Reimbursement Obligations, or of amounts payable under Section 2.11, 2.12 or 2.14, or otherwise) on or before the time expressly required hereunder or under such other ABL Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Loan Portfolio Manager – OSG Bulk Ships, Inc., Fax: 000-000-0000, Email: xxxxxx.xxxxxxxx@xxxxxxxxxx.xxx, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Section 2.11, 2.12, 2.14 and 11.03 shall be made directly to the persons entitled thereto and payments pursuant to other ABL Loan Documents shall be made to the persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. If any payment under any ABL Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each ABL Loan Document shall be made in Dollars; provided that, LC Disbursements paid by the Borrowers in respect of Letters of Credit denominated in an Alternative Currency shall be made in such Alternative Currency.

(b) Subject to Sections 2.09(c) and 9.01, if at any time insufficient funds are received by and available to the Administrative Agent to pay in full all amounts of principal, Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Reimbursement Obligations then due to such parties.

(c) If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 11.08) or otherwise (including by exercise of its rights under the Security Documents), obtain payment in respect of any principal of or interest on any of its Revolving Loans, or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans, and participations in LC Disbursements and Swingline Loans; provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this Section 2.13(c) shall not be construed to apply to any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans, or participations in LC Disbursements or Swingline Loans to any Eligible Assignee or participant, other than to any Company or any Affiliate thereof (as to which the provisions of this Section 2.13(c) shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.13(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.13(c) to share in the benefits of the recovery of such secured claim.

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

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.13(d), 2.16(d), 2.17(d), 2.17(e) or 11.03(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Section 2.14 Taxes. (a) Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other ABL Loan Document shall be made without setoff, counterclaim or other defense and free and clear of and without deduction, reduction or withholding for any and all Taxes except as required by applicable Legal Requirements. If any amounts on account of Indemnified Taxes are required to be deducted or withheld from such payments, then (i) the sum payable by or on behalf of such Loan Party shall be increased as necessary so that after making all required deductions (including deductions, reductions or withholdings applicable to additional sums payable under this Section 2.14) the Administrative Agent, any Lender or the Issuing Bank, as the case may be, receives an amount equal to the sum it would have received had no such deductions, reductions or withholdings been made, (ii) the Borrowers shall make such deductions, reductions or withholdings and (iii) the Borrowers, jointly and severally, shall timely pay to the relevant Governmental Authority the full amount deducted or withheld in accordance with applicable Legal Requirements.

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

(c) The Borrowers agree, jointly and severally, to indemnify the Administrative Agent, each Lender and the Issuing Bank, within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrowers hereunder or under any other ABL Loan Document or any Other Taxes paid by the Administrative Agent or such Lender (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) and any penalties, interest and expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Administrative Borrower by a Lender or the Issuing Bank (in each case with a copy delivered concurrently to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank shall be conclusive absent manifest error.

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

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

(f) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any ABL Loan Document shall deliver to the Administrative Borrower and the Administrative Agent such properly completed and executed documentation and information reasonably requested by the Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. Without limiting the generality of the foregoing, each Foreign Lender shall, to the extent it is legally able to do so, (i) furnish to the Administrative Borrower and the Administrative Agent on or prior to the date it becomes a party hereto, (a) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (or successor form) (claiming the benefits of an applicable tax treaty), (b) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8ECI (or successor form), together with required attachments, (c) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8IMY (or successor form), (d) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8EXP (or successor form) or (e) if such Foreign Lender is relying on the so-called “portfolio interest exemption,” an accurate and complete originally executed “Portfolio Interest Certificate” in the form of Exhibit K and two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (or successor form), in the case of each of the preceding clauses (a) through (e), together with any required schedules or attachments, certifying, in each case, to such Foreign Lender’s legal entitlement to an exemption or reduction from U.S. federal withholding tax with respect to all payments hereunder, (ii) promptly notify the Administrative Borrower and the Administrative Agent if such Foreign Lender no longer qualifies for the exemption or reduction that it previously claimed as a result of change in such Foreign Lender’s circumstances, and (iii) to the extent it may lawfully do so at such times, provide a new Form W-8BEN or W-8BEN-E, as applicable (or successor form), Form W-8ECI (or successor form), Form W-8IMY (or successor form), Form W-8EXP (or successor form) and/or Portfolio Interest Certificate upon the expiration or obsolescence of any previously delivered form, or at any other time upon the reasonable request of the Administrative Borrower or the Administrative Agent, to reconfirm any complete exemption from, or any entitlement to a reduction in, U.S. federal withholding tax with respect to any payment hereunder. Each Lender that is not a Foreign Lender shall (i) furnish to the Administrative Borrower and the Administrative Agent on or prior to the date it becomes a party hereto two accurate and complete originally executed U.S. Internal Revenue Service Form W-9 (or successor form) or otherwise establish an exemption from U.S. backup withholding and (ii) to the extent it may lawfully do so at such times, provide a new Form W-9 (or successor form) upon the expiration or obsolescence of any previously delivered form, or at any other time upon the reasonable request of the Administrative Borrower or the Administrative Agent, to reconfirm its complete exemption from U.S. federal withholding tax with respect to any payment hereunder.

(g) If a payment made to a Lender under any ABL Loan Document may be subject to U.S. federal withholding Tax imposed under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent, at the time or times prescribed by law and at such times reasonably requested by the Administrative Borrower and the Administrative Agent, (A) such documentation prescribed by applicable Legal Requirements (including as prescribed by Section 1471(b)(3)(C)(i) of the Code), and (B) such other documentation reasonably requested by the Administrative Borrower and the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine that such Lender has complied with such Lender’s obligations under FATCA, or to determine the amount to deduct and withhold from such payment, or notify the Administrative Agent and the Administrative Borrower that such Lender is not in compliance with FATCA. Solely for purposes of this Section 2.14(g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(h) If the Administrative Agent or a Lender (or an assignee) determines in its sole discretion that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrowers or with respect to which the Borrowers have paid additional amounts pursuant to this Section 2.14, it shall pay over such refund to the Borrowers (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrowers under this Section 2.14 with respect to the Indemnified Taxes or the Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender (or assignee) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that if the Administrative Agent or such Lender (or assignee) is required to repay all or a portion of such refund to the relevant Governmental Authority, the Borrowers, upon the request of the Administrative Agent or such Lender (or assignee), shall repay the amount paid over to the Borrowers that is required to be repaid (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender (or assignee) within three Business Days after receipt of written notice that the Administrative Agent or such Lender (or assignee) is required to repay such refund (or a portion thereof) to such Governmental Authority. Nothing contained in this Section 2.14(h) shall require the Administrative Agent or any Lender (or assignee) to make available its Tax Returns or any other information which it deems confidential or privileged to the Borrowers or any other person. Notwithstanding anything to the contrary, in no event will the Administrative Agent or any Lender (or assignee) be required to pay any amount to the Borrowers the payment of which would place the Administrative Agent or such Lender (or assignee) in a less favorable net after-tax position than the Administrative Agent or such Lender (or assignee) would have been in if the additional amounts giving rise to such refund or credit of any Indemnified Taxes or Other Taxes had never been paid.

Section 2.15 Mitigation Obligations; Replacement of Lenders.

(a) Mitigation of Obligations. If any Lender requests compensation under Section 2.11(a) or (b), or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce materially amounts payable pursuant to Section 2.11(a), 2.11(b) or 2.14, as the case may be, in the future, (ii) would not subject such Lender to any unreimbursed cost or expense, (iii) would not require such Lender to take any action inconsistent with its internal policies or legal or regulatory restrictions, and (iv) would not otherwise be disadvantageous to such Lender. The Borrowers, jointly and severally, shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. A certificate setting forth such costs and expenses submitted by such Lender to the Administrative Agent shall be conclusive absent manifest error.

(b) Replacement of Lenders. In the event (i) any Lender or the Issuing Bank delivers a certificate requesting compensation pursuant to Section 2.11(a) or (b), (ii) any Lender or the Issuing Bank delivers a notice described in Section 2.11(e), (iii) the Borrowers are required to pay any additional amount to any Lender or the Issuing Bank or any Governmental Authority on account of any Lender or the Issuing Bank pursuant to Section 2.14, (iv) any Lender refuses to consent to any amendment, waiver or other modification of any ABL Loan Document requested by the Borrowers that requires the consent of 100% of the Lenders or 100% of all affected Lenders and which, in each case, has been consented to by the Required Lenders or (v) any Lender becomes a Defaulting Lender, the Borrowers may, at their sole expense and effort (including with respect to the processing and recordation fee referred to in Section 11.04(b)), upon notice to such Lender or the Issuing Bank and the Administrative Agent, require such Lender or the Issuing Bank to transfer and assign, without recourse (in accordance with and subject to restrictions contained in Section 11.04; provided that the failure of such assigning Lender to execute an Assignment and Acceptance shall not affect the validity and effect of such assignment), all of its interests, rights and obligations under this Agreement to an Eligible Assignee which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided, that (w) except in the case of clause (iv) above if the effect of such amendment, waiver or other modification of the applicable ABL Loan Document would cure any Default then ongoing, no Default shall have occurred and be continuing, (x) such assignment shall not conflict with any applicable Legal Requirement, (y) the Administrative Borrower shall have received the prior written consent of the Administrative Agent, the Issuing Bank and the Swingline Lender, which consent shall not unreasonably be withheld or delayed, and (z) the Borrowers or such assignee shall have paid to the affected Lender or the Issuing Bank in immediately available funds an amount equal to the sum of the principal of and interest and any prepayment premium or penalty (if any) accrued to the date of such payment on the outstanding Loans or LC Disbursements of such Lender or the Issuing Bank, respectively, affected by such assignment plus all Fees and other amounts owing to or accrued for the account of such Lender or the Issuing Bank hereunder (including any amounts under Sections 2.11 and 2.12); provided, further, that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s or the Issuing Bank’s claim for compensation under Section 2.11(a) or (b) or notice under Section 2.11(e) or the amounts paid pursuant to Section 2.14, as the case may be, cease to cause such Lender or the Issuing Bank to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.11(e), or cease to result in amounts being payable under Section 2.14, as the case may be (including as a result of any action taken by such Lender or the Issuing Bank pursuant to clause (a) of this Section 2.15), or if such Lender or the Issuing Bank shall waive its right to claim further compensation under Section 2.11(a) or (b) in respect of such circumstances or event or shall withdraw its notice under Section 2.11(e) or shall waive its right to further payments under Section 2.14 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender or the Issuing Bank shall not thereafter be required to make any such transfer and assignment hereunder. Each Lender and the Issuing Bank hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender and the Issuing Bank as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s or the Issuing Bank’s interests hereunder in the circumstances contemplated by this Section 2.15(b). After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue any additional Letters of Credit.

(c) Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that any Lender becomes a Defaulting Lender, then (i) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender,” and the amount of such Defaulting Lender’s Revolving Commitment, Revolving Loans, Swingline Exposure and LC Exposure shall be excluded for purposes of voting, and the calculation of voting, on any matters (including the granting of any consents or waivers) with respect to any of the ABL Loan Documents, except that the amount of such Defaulting Lender’s Revolving Commitment, Revolving Loans, Swingline Exposure and LC Exposure shall be included for purposes of voting, and the calculation of voting, on the matters set forth in Sections 11.02(b)(i)-(viii) (including the granting of any consents or waivers) only to the extent that any such matter disproportionately affects such Defaulting Lender; (ii) to the extent permitted by applicable Legal Requirements, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, (A) any optional prepayment of the Revolving Loans pursuant to Section 2.09(a) shall, if the Administrative Borrower so directs at the time of making such optional prepayment, be applied to the Revolving Loans of other Lenders in accordance with Section 2.09 as if such Defaulting Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were zero, and (B) any mandatory prepayment of the Revolving Loans pursuant to Section 2.09 shall, if the Administrative Borrower so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting Lender) in accordance with Section 2.09 as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being understood and agreed that the Borrowers shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (B); (iii) the amount of such Defaulting Lender’s Revolving Commitment, Revolving Loans and LC Exposure shall be excluded for purposes of calculating the Commitment Fee payable to Lenders pursuant to Section 2.05(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any Commitment Fee pursuant to Section 2.05(a) with respect to such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such Defaulting Lender; (iv) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then: (A) all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the Lenders that are not Defaulting Lenders in accordance with their respective Revolving Commitments but, in any case, only to the extent the sum of the Revolving Exposures of all Lenders that are not Defaulting Lenders does not exceed the total of the Revolving Commitments of all Lenders that are not Defaulting Lenders; (B) if the reallocation described in clause (A) above cannot, or can only partially, be effected (as reasonably determined by the Administrative Agent), the Borrowers, jointly and severally, shall within one Business Day following notice by the Administrative Agent (x) prepay such Swingline Exposure of such Defaulting Lender and (y) Cash Collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (A) above) in accordance with the procedures set forth in Section 2.17(i) for so long as such LC Exposure is outstanding; (C) if the Borrowers Cash Collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to this clause (iv), the Borrowers shall not be required to pay any LC Participation Fee to such Defaulting Lender pursuant to Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized; (D) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this clause (iv), then the fees payable to the Lenders pursuant to Section 2.05 shall be adjusted in accordance with such non-Defaulting Lenders’ reallocated LC Exposure; and (E) if any Defaulting Lender’s LC Exposure is neither Cash Collateralized nor reallocated pursuant to this clause (iv), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and LC Participation Fee payable under Section 2.05 with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is Cash Collateralized and/or reallocated; (v) the Revolving Exposure of all Lenders as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender; and (vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with clause (iv) of this Section 2.15(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with clause (iv)(A) of this Section 2.15(c) (and Defaulting Lenders shall not participate therein). In the event that each of the Administrative Agent, the Borrowers, the Issuing Bank and the Swingline Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure, LC Exposure and Revolving Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Revolving Commitment.

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

No amount of the Revolving Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in Section 2.15(c), performance by the Borrowers of their obligations under this Agreement and the other ABL Loan Documents shall not be excused or otherwise modified, as a result of any Funding Default or the operation of Section 2.15(c). The rights and remedies against a Defaulting Lender under Section 2.15(c) are in addition to other rights and remedies that the Borrowers may have against such Defaulting Lender with respect to any Funding Default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default.

Section 2.16 Swingline Loans.

(a) Swingline Commitment. Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrowers (on a joint and several basis) from time to time on any Business Day after the Closing Date and during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (and upon each such Borrowing of Swingline Loans, each Borrower shall be deemed to represent and warrant that such Borrowing will not result in) (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Commitment, or (ii) the Total Revolving Exposure exceeding the Total Availability at such time; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance, in whole or in part, any outstanding Swingline Loans. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, repay and reborrow Swingline Loans.

(b) Swingline Loans. To request a Swingline Loan, the Administrative Borrower shall deliver, by hand delivery, email through a “pdf” copy or telecopier, or facsimile transmission (or transmit by other electronic transmission if arrangements for doing so have been approved in writing by the Administrative Agent), a duly completed and executed Borrowing Request to the Administrative Agent and the Swingline Lender, not later than 1:00 p.m., New York City time, on the Business Day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan, the location and number of the respective Borrower’s account to which the funds are to be disbursed (which shall comply with the requirements of Section 2.02(c)), and that the conditions set forth in Sections 4.02(b)-(d) are satisfied as of the date of the notice. Each Swingline Loan shall be (and shall be maintained as) an ABR Loan. The Swingline Lender shall make each Swingline Loan available to the Borrowers by means of a credit to the general deposit account of the Administrative Borrower with the Swingline Lender, if any, or otherwise remitted to an account (which shall comply with the requirements of Section 2.02(c)) as directed by the Administrative Borrower in the applicable Borrowing Request (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.17(e), by remittance to the Issuing Bank). The Swingline Lender shall endeavor to fund each Swingline Loan by 3:00 p.m., New York City time and shall in all events fund each Swingline Loan by no later than 4:00 p.m., New York City time, on the requested date of such Swingline Loan. Swingline Loans shall be made in minimum amounts of $100,000 and integral multiples of $100,000 above such amount.

(c) Prepayment. The Borrowers shall have the right at any time and from time to time to repay any Swingline Loan, in whole or in part, upon the Administrative Borrower giving written notice to the Swingline Lender and the Administrative Agent before 1:30 p.m., New York City time, on the proposed date of repayment.

(d) Participations. The Swingline Lender (i) may at any time in its discretion and (ii) as directed by the Administrative Agent from time to time on not less than one Business Day’s written notice to the Swingline Lender shall, by written notice given to the Administrative Agent (provided such notice requirements shall not apply if the Swingline Lender and the Administrative Agent are the same entity) not later than 12:00 p.m., New York City time, on the Business Day immediately following such notice, require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this Section 2.16(d) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or a reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever (so long as such payment shall not cause such Lender’s Revolving Exposure to exceed such Lender’s Revolving Commitment). Each Lender shall comply with its obligation under this Section 2.16(d) by wire transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with respect to Revolving Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired by the Lenders pursuant to this Section 2.16(d), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other party on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent. Any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this Section 2.16(d), as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this Section 2.16(d) shall not relieve the Borrowers of any default in the payment thereof. Subject to Sections 2.09(c), 2.13(b) and 9.01, the Administrative Agent may apply payments on Revolving Loans to Swingline Loans, regardless of any designation by the Borrowers to the contrary. The provisions of this Section 2.16(d) are solely for the benefit of the Swingline Lender and the other Lenders, and none of the Loan Parties may rely on this Section 2.16(d) or have any standing to enforce its terms.

(e) Resignation or Removal of the Swingline Lender. The Swingline Lender may resign as Swingline Lender hereunder at any time upon at least 30 days’ prior written notice to the Lenders, the Administrative Agent and the Administrative Borrower. Following such notice of resignation from the Swingline Lender, the Swingline Lender may be replaced at any time by written agreement among the Administrative Borrower (with the Administrative Borrower’s agreement not to be unreasonably withheld, delayed or conditioned), the Administrative Agent and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Swingline Lender. At the time any such resignation or replacement shall become effective, the Borrowers, jointly and severally, shall repay the outstanding principal amount of all Swingline Loans and shall pay all interest and unpaid fees accrued for the account of the replaced Swingline Lender. From and after the effective date of any such resignation or replacement, (i) the successor Swingline Lender shall have all the rights and obligations of the Swingline Lender under this Agreement with respect to Swingline Loans to be made by it thereafter and (ii) references herein and in the other ABL Loan Documents to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the resignation or replacement of the Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of the Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such resignation or replacement, but shall not be required to make additional Swingline Loans. Notwithstanding anything to the contrary in this Section 2.16(e) or otherwise, the Swingline Lender may not resign until such time as a successor Swingline Lender has been appointed.

Section 2.17 Letters of Credit.

(a) General. Subject to the terms and conditions set forth herein, the Administrative Borrower may request the Issuing Bank, and the Issuing Bank agrees, to issue Letters of Credit for the Administrative Borrower’s account or the account of a Co-Borrower or another Wholly Owned Restricted Subsidiary of the Administrative Borrower, in each case to support payment and performance obligations incurred in the ordinary course of business by the Administrative Borrower and its Wholly Owned Restricted Subsidiaries (other than obligations in respect of any Restricted Indebtedness or Equity Interests) in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Revolving Availability Period (provided, that each Borrower shall be a co-applicant, and shall be jointly and severally liable, with respect to each Letter of Credit issued for the account of any Borrower or another Wholly Owned Restricted Subsidiary of the Administrative Borrower). The Issuing Bank shall have no obligation to issue, and the Administrative Borrower shall not request the issuance of, any Letter of Credit at any time if after giving effect to such issuance, (i) the Dollar Amount of the LC Exposure would exceed the LC Commitment, (ii) the Total Revolving Exposure would exceed the Total Availability at such time, or (iii) the expiry date of the proposed Letter of Credit is, subject to Section 2.17(c), on or after the close of business on the Letter of Credit Expiration Date. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Administrative Borrower to, or entered into by the Administrative Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Each Letter of Credit shall be denominated in Dollars or in an Alternative Currency.

(b) Request for Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit, the Administrative Borrower shall deliver by hand, email through a “pdf” copy or telecopies, or facsimile transmission (or transmit by other electronic communication if arrangements for doing so have been approved in writing by the Issuing Bank) an LC Request to the Issuing Bank and the Administrative Agent not later than 11:00 a.m., New York City time, on the fifth Business Day preceding the requested date of issuance, amendment, renewal or extension (or such later date and time as is acceptable to the Issuing Bank).

A request for an initial issuance of a Letter of Credit shall specify in form and detail reasonably satisfactory to the Issuing Bank:

(i) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day);

(ii) the face amount and currency (which must be Dollars or an Alternative Currency) thereof;

(iii) the expiry date thereof (which shall not be, subject to Section 2.17(c), later than the close of business on the Letter of Credit Expiration Date);

(iv) the name and address of the beneficiary thereof;

(v) whether the Letter of Credit is to be issued for the Administrative Borrower’s own account or for the account of one of its Co-Borrowers or other Wholly Owned Restricted Subsidiaries of the Administrative Borrower (provided, that each Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter of Credit issued for the account of any Borrower or a Wholly Owned Restricted Subsidiary of the Administrative Borrower);

(vi) the documents to be presented by such beneficiary in connection with any drawing thereunder;

(vii) the full text of any certificate to be presented by such beneficiary in connection with any drawing thereunder; and

(viii) such other matters as the Issuing Bank may reasonably require.

A request for an amendment, renewal or extension of any outstanding Letter of Credit shall specify in form and detail reasonably satisfactory to the Issuing Bank:

(i) the Letter of Credit to be amended, renewed or extended;

(ii) the proposed date of amendment, renewal or extension thereof (which shall be a Business Day);

(iii) the nature of the proposed amendment, renewal or extension;

(iv) the expiry date thereof (which shall not be, subject to Section 2.17(c), later than the close of business on the Letter of Credit Expiration Date); and

(v) such other matters as the Issuing Bank may reasonably require.

If requested by the Issuing Bank, the Administrative Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit; provided that the provisions of this Section 2.17 shall apply in respect of all such applications. A Letter of Credit shall be issued, amended, renewed or extended only if (and, upon issuance, amendment, renewal or extension of each Letter of Credit, the Administrative Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the Dollar Amount of the LC Exposure shall not exceed the LC Commitment, (ii) the Total Revolving Exposure shall not exceed the Total Availability at such time and (iii) the conditions set forth in Article IV in respect of such issuance, amendment, renewal or extension shall have been satisfied. Unless the Issuing Bank shall agree otherwise, no Letter of Credit shall be in an initial amount less than the Dollar Amount of $50,000.

(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date which is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the Letter of Credit Expiration Date; provided, that this Section 2.17(c) shall not prevent the Issuing Bank from agreeing that a Letter of Credit (x) will, upon the request of the Administrative Borrower, automatically be extended for one or more successive periods not to exceed one year each (and, in any case, not to extend beyond the Letter of Credit Expiration Date) unless the Issuing Bank elects not to extend for any such additional period or (y) may have an expiry date beyond the Letter of Credit Expiration Date so long as the requested Letter of Credit has been Cash Collateralized by the Borrowers in accordance with Section 2.17(i) at least five Business Days prior to the Letter of Credit Expiration Date.

(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby irrevocably grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to the Dollar Amount of such Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, the Dollar Amount of such Lender’s Pro Rata Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Borrowers on the date due as provided in Section 2.17(e), or of any reimbursement payment required to be refunded to the Borrowers for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.17(d) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever (so long as such payment shall not cause the Dollar Amount of such Lender’s Revolving Exposure to exceed such Lender’s Revolving Commitment).

(e) Reimbursement. (i) If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrowers, jointly and severally, shall reimburse such LC Disbursement by paying to the Issuing Bank an amount equal to the amount of such LC Disbursement (and in the same currency in which such LC Disbursement was made) not later than 1:00 p.m., New York City time, on the date that such LC Disbursement is made if the Administrative Borrower shall have received notice of such LC Disbursement prior to 1:00 p.m., New York City time, on such date, or, if such notice has not been received by the Administrative Borrower prior to such time on such date, then not later than 1:00 p.m., New York City time, on the Business Day immediately following the day that the Administrative Borrower receives such notice; provided, that the Administrative Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with ABR Loans in an equivalent Dollar Amount and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting ABR Loans.

(ii) If the Borrowers fail to make such payment when due, or if the amount is not financed pursuant to the proviso to Section 2.17(e)(i), the Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrowers in respect thereof and the Dollar Amount of such Lender’s Pro Rata Percentage thereof. Each Lender shall pay by wire transfer of immediately available funds to the Administrative Agent not later than 1:00 p.m., New York City time, on such date (or, if such Lender shall have received such notice later than 1:00 p.m., New York City time, on any day, not later than 1:00 p.m., New York City time, on the immediately following Business Day), an amount equal to the Dollar Amount of such Lender’s Pro Rata Percentage of the unreimbursed LC Disbursement in the same manner as provided in Section 2.02(c) with respect to Revolving Loans made by such Lender, and the Administrative Agent will promptly pay to the Issuing Bank the amounts so received by it from the Lenders. The Administrative Agent will promptly pay to the Issuing Bank any amounts received by it from the Borrowers pursuant to clause (i) of this Section 2.17(e) prior to the time that any Lender makes any payment pursuant to the preceding sentence and any such amounts received by the Administrative Agent from the Borrowers thereafter will be promptly remitted by the Administrative Agent to the Lenders that shall have made such payments and to the Issuing Bank, as appropriate.

(iii) If any Lender shall not have made the Dollar Amount of its Pro Rata Percentage of such LC Disbursement available to the Administrative Agent as provided above, each of the Borrowers (on a joint and several basis) and such Lender severally agrees to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with the foregoing to but excluding the date such amount is paid, to the Administrative Agent for the account of the Issuing Bank at (i) in the case of the Borrowers, the interest rate applicable to ABR Loans; provided, that, if the Borrowers fail to reimburse such LC Disbursement when due pursuant to clause (i) of this Section 2.17(e), then the Default Rate shall apply and (ii) in the case of such Lender, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.

(f) Obligations Absolute. The Reimbursement Obligations of the Borrowers as provided in Section 2.17(e) shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein; (ii) any draft or other document presented under a Letter of Credit being proved to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that fails to strictly comply with the terms of such Letter of Credit; (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.17, constitute a legal or equitable discharge of, or provide a right of setoff against, the obligations of any Borrower hereunder; (v) the fact that a Default shall have occurred and be continuing; (vi) any material adverse change in the condition (financial or otherwise), results of operations, assets, liabilities (contingent or otherwise), material agreements, properties, solvency, business, management, prospects or value of any Company; or (vii) any other fact, circumstance or event whatsoever. None of the Agents, the Lenders, the Issuing Bank or any of their respective Affiliates shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrowers to the extent of any direct damages (as opposed to consequential, exemplary, special, punitive or other indirect damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable Legal Requirements) suffered by the Borrowers that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as determined by a court of competent jurisdiction in a final non-appealable decision) with respect to such a determination, the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly give written notice to the Administrative Agent and the Administrative Borrower of such demand for payment (and the amount thereof stated in the applicable currency) and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve the Borrowers of their joint and several Reimbursement Obligations to the Issuing Bank and the Lenders with respect to any such LC Disbursement (other than with respect to the timing of such Reimbursement Obligation set forth in Section 2.17(e)).

(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the Dollar Amount of the unpaid amount thereof shall bear interest payable on demand, for each day from and including the date such LC Disbursement is paid or disbursed to but excluding the date the Issuing Bank was reimbursed by the Borrowers therefor at a rate per annum equal to the Alternate Base Rate as in effect from time to time plus the Applicable Margin as in effect from time to time for ABR Loans; provided, however, to the extent such amounts are not reimbursed prior to 1:00 p.m., New York City time, on the third Business Day following such payment or disbursement or following the occurrence of a Default or an Event of Default under Section 8.01(g) or (h), interest shall thereafter accrue on the Dollar Amount of the amounts so paid or disbursed by the Issuing Bank (and until reimbursed by the Borrowers) at a rate per annum equal to the Default Rate. Interest accrued pursuant to this Section 2.17(h) shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to Section 2.17(e) to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i) Cash Collateralization. If (x) any Event of Default shall occur and be continuing, on the Business Day that the Administrative Borrower receives notice from the Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this Section 2.17(i) or (y) if any other event occurs or condition exists requiring the Borrowers to Cash Collateralize Letters of Credit, the Borrowers, jointly and severally, shall deposit in the LC Sub-Account, in the name of the Collateral Agent and for the benefit of the Secured Parties, an amount in cash equal to 105% of the Dollar Amount of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided, that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to any of the Borrowers described in clause (g) or (h) of Section 8.01. Funds in the LC Sub-Account shall be applied by the Collateral Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of outstanding Reimbursement Obligations or, if the maturity of the Loans has been accelerated, be applied to satisfy other Secured Obligations of the Borrowers in accordance with Article IX. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount plus any accrued interest with respect to such amounts (to the extent not applied as aforesaid) shall, in accordance with Article IX, be returned to the Administrative Borrower within 10 Business Days after all Events of Default have been cured or waived. To secure the LC Exposure and the other Secured Obligations, the Borrowers and Subsidiary Guarantors hereby grant a security interest to the Collateral Agent in any cash collateral deposited with the Collateral Agent, including the LC Sub-Account.

(j) Additional Issuing Banks. The Administrative Borrower may, at any time and from time to time, designate one or more additional Lenders to act as an issuing bank under the terms of this Agreement, with the written consent of each of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), each then existing Issuing Bank (which consent shall not be unreasonably withheld or delayed) and such Lender(s). Any Lender designated as an issuing bank pursuant to this Section 2.18(j) shall be deemed (in addition to being a Lender) to be the Issuing Bank with respect to Letters of Credit issued or to be issued by such Lender, and all references herein and in the other ABL Loan Documents to the term “Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing Bank, as the context shall require.

(k) Resignation and Replacement of the Issuing Bank. The Issuing Bank may resign as Issuing Bank hereunder at any time upon at least 30 days’ prior written notice to the Lenders, the Administrative Agent and the Administrative Borrower. Following such resignation, the Issuing Bank may be replaced at any time by written agreement among the Administrative Borrower, the Administrative Agent and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank or any such additional Issuing Bank. At the time any such resignation or replacement shall become effective, the Borrowers, jointly and severally, shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.05(c). From and after the effective date of any such resignation or replacement or addition, as applicable, (i) the successor or additional Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein and in the other ABL Loan Documents to the term “Issuing Bank” shall be deemed to refer to such successor or such additional or to any previous Issuing Bank, or to such successor or such additional and all previous Issuing Banks, as the context shall require. After the resignation or replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit. If at any time there is more than one Issuing Bank hereunder, the Administrative Borrower may, in its discretion, select which Issuing Bank is to issue any particular Letter of Credit.

(l) Other. The Issuing Bank shall be under no obligation to issue (or increase or extend or otherwise amend) any Letter of Credit if:

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

(ii) the issuance of such Letter of Credit would violate one or more policies of general application of the Issuing Bank.

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

(m) Currency Equivalents. The Administrative Agent shall determine the Dollar Amount of each Letter of Credit denominated in an Alternative Currency and any Reimbursement Obligation in respect thereof (i) as of the day of any issuance of a Letter of Credit, (ii) as of the day of any increase in the amount of any Letter of Credit, (iii) as of the day of any drawing thereunder and (iv) as of the end of each fiscal month of the Administrative Borrower, and shall promptly notify the Administrative Borrower and the Lenders of each Dollar Amount so determined by it. Each such determination shall be based on the Exchange Rate (x) on the date of the related LC Request for purposes of the initial such determination for any Letter of Credit or any increase in the amount thereof, (y) as of the date of any drawing under any such Letter of Credit and (z) on the fourth Business Day prior to the date as of which such Dollar Amount is to be determined, for purposes of any subsequent determination (any such date pursuant to clause (x),(y) or (z) an “Exchange Rate Reset Date”).

Section 2.18 Nature of Obligations.

(a) Notwithstanding anything to the contrary contained elsewhere in this Agreement or any other ABL Loan Document, it is understood and agreed by the various parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to, all Loans, Letters of Credit and all other Obligations pursuant to this Agreement and each other ABL Loan Document (including all fees, indemnities, taxes and other Obligations in connection therewith or in connection with the related Revolving Commitments) shall constitute the joint and several obligations of each of the Borrowers. The Borrowers shall be jointly and severally liable for all Obligations regardless of which Borrower actually receives the proceeds of any Loan or the benefit of any Letter of Credit. In addition to the direct (and joint and several) obligations of the Borrowers with respect to Obligations as described above, all such Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantees.

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

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

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

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

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

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

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

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

(e) No Borrower shall exercise any rights of contribution or subrogation with respect to any other Borrower as a result of payments made by it hereunder at any time that an Event of Default exists and is continuing (or would result therefrom). This clause (e) is intended only to define the relative rights of the Borrowers, and nothing set forth in this clause (e) is intended or shall impair the joint and several obligations of each Borrower to pay the Obligations as and when the same shall become due and payable in accordance with the terms hereof.

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

Section 2.19 Protective Advances and Optional Overadvances.

(a) Any contrary provision of this Agreement or any other ABL Loan Document notwithstanding (including Sections 2.01 and 2.02), the Administrative Agent hereby is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion, (i) after the occurrence and during the continuance of a Default, or (ii) at any time that any of the other applicable conditions precedent set forth in Section 4.2 are not satisfied, to make Revolving Loans to, or for the benefit of, the Borrowers on behalf of the Lenders that the Administrative Agent, in its discretion deems necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, or (B) to enhance the likelihood of repayment of the Obligations (any of the Revolving Loans described in this Section 2.19(a) shall be referred to as “Protective Advances”) so long as (i) after giving effect to such Revolving Loans, the aggregate outstanding principal amount of all Protective Advances and Overadvances does not exceed an amount equal to 7.5% of the Total Revolving Commitments, and (ii) after giving effect to such Revolving Loans, the outstanding principal amount of the Total Revolving Exposure (including all outstanding Protective Advances and Overadvances) does not exceed an amount equal to the Total Revolving Commitments.

(b) Any contrary provision of this Agreement or any other ABL Loan Document notwithstanding, the Lenders hereby authorize the Administrative Agent or the Swingline Lender, as applicable, and either the Administrative Agent or the Swingline Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Revolving Loans and/or Swingline Loans to the Borrowers notwithstanding that, after giving effect thereto or at the time of making thereof, the Total Revolving Exposure exceeds the Borrowing Base (such Revolving Loans being referred to herein as “Overadvances”), so long as (i) after giving effect to such Revolving Loans or Swingline Loans, the aggregate outstanding amount of all Protective Advances and Overadvances does not exceed an amount equal to 7.5% of the Total Revolving Commitments, and (ii) after giving effect to such Revolving Loans or Swingline Loans, the outstanding principal amount of the Total Revolving Exposure (including all outstanding Protective Advances and Overadvances) does not exceed an amount equal to the Total Revolving Commitments. In the event the Administrative Agent obtains actual knowledge that the aggregate outstanding amount of the Total Revolving Exposure exceeds the amounts permitted by the immediately foregoing provisions, regardless of the amount of, or reason for, such excess, the Administrative Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to the loan account of the Borrowers for interest, fees or expenses) unless the Administrative Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case the Administrative Agent may make such Overadvances and provide notice as promptly as practicable thereafter), and the Lenders thereupon shall, together with the Administrative Agent, jointly determine the terms of arrangements that shall be implemented with the Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the Total Revolving Exposure to an amount permitted by the preceding sentence. In such circumstances, if any Lender objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. In any event: (A) if any unintentional Overadvance remains outstanding for more than 30 days, unless otherwise agreed to by the Required Lenders, the Borrowers shall immediately repay Revolving Loans in an amount sufficient to eliminate all such unintentional Overadvances, and (B) after the date all such Overadvances have been eliminated, there must be at least 30 consecutive days before intentional Overadvances are made. The foregoing provisions are meant for the benefit of the Lenders and the Administrative Agent and are not meant for the benefit of the Borrowers, which shall continue to be bound by the provisions of Section 2.01. Each Lender shall be obligated to settle with the Administrative Agent in accordance with the Administrative Agent’s customary procedures for the amount of such Lender’s Pro Rata Percentage of any unintentional Overadvances by the Administrative Agent reported to such Lender, any intentional Overadvances made as permitted under this Section 2.19(b), and any Overadvances resulting from the charging to the loan account of the Borrowers for interest, fees or expenses.

(c) Each Protective Advance and each Overadvance shall be deemed to be a Revolving Loan hereunder; except, that, no Protective Advance or Overadvance shall be eligible to be a Eurodollar Loan and, prior to settlement therefor, all payments on the Protective Advances shall be payable to the Administrative Agent solely for its own account. The Protective Advances and Overadvances shall be repayable on demand, secured by the Collateral, constitute Obligations hereunder, and bear interest at the rate applicable from time to time to Revolving Loans that are ABR Loans. The ability of the Administrative Agent to make Protective Advances is separate and distinct from its ability to make Overadvances and its ability to make Overadvances is separate and distinct from its ability to make Protective Advances. The provisions of this Section 2.19 are for the exclusive benefit of the Administrative Agent, the Swingline Lender and the Lenders and are not intended to benefit the Borrowers in any way.

Section 2.20 Extensions of Revolving Loans and Revolving Commitments.

(a) The Administrative Borrower may at any time and from time to time after the commencement of the Revolving Availability Period request that all of the Revolving Commitments existing at the time of such request (each, an “Existing Revolving Commitment” and any related Revolving Loans, “Existing Revolving Loans”; and each Existing Revolving Commitment and related Existing Revolving Loans together being referred to as the “Existing Revolving Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all of the principal amount of the Existing Revolving Loans related to such Existing Revolving Commitments (any such Existing Revolving Commitments which have been so extended, “Extended Revolving Commitments” and any related Existing Revolving Loans, “Extended Revolving Loans”; and each Extended Revolving Commitment and related Extended Revolving Loans together the “Extended Revolving Class”) and to provide for other terms consistent with this Section 2.20. Prior to entering into any Extension Amendment with respect to any Extended Revolving Commitments, the Administrative Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the Existing Revolving Class and which such request shall be offered equally to all such Lenders) (an “Extension Request”) setting forth the proposed terms of the Extended Revolving Commitments to be established thereunder, which terms shall be identical to those applicable to the Existing Revolving Commitments, except that (w) the final maturity date of such Extended Revolving Commitments may be delayed to a later date than the final maturity dates of the Existing Revolving Class, (x) (A) the interest rates, interest margins, interest rate floors, upfront fees, funding discounts, original issue discounts and premiums with respect to the Extended Revolving Commitments may be different than those for the Existing Revolving Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing such Extended Revolving Commitments in addition to or in lieu of any of the items contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment, (y) (A) the undrawn revolving commitment fee rate and letter of credit fees with respect to such Extended Revolving Class may be different than such rate for the Existing Revolving Class and (B) the Extension Amendment may provide for other covenants and terms that apply to any period after the Maturity Date and (z) the terms of any Extended Revolving Commitments may also contain other differences from the Existing Revolving Class as are approved by the Administrative Agent, acting reasonably, so long as such differences are not material and not adverse to the Lenders of such Existing Revolving Class; provided that, notwithstanding anything to the contrary in this Section 2.20 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Extended Revolving Loans with respect to the Extended Revolving Class shall be made on a pro rata basis with any borrowings and repayments of the Existing Revolving Loans of the Existing Revolving Class (the mechanics for which may be implemented through the applicable Extension Amendment and may include technical changes related to the borrowing, replacement Letter of Credit and Swingline Loan procedures of the Existing Revolving Class), (2) assignments and participations of Extended Revolving Commitments and Extended Revolving Loans shall be governed by the same assignment and participation provisions applicable to the Existing Revolving Class set forth in Section 11.04 and (3) subject to Section 2.07(b), permanent repayments of Extended Revolving Loans (and corresponding permanent reductions in the related Extended Revolving Commitments) shall be permitted as may be agreed between the Administrative Borrower and the Lenders thereof. No Lender shall have any obligation to agree to have any of its Revolving Loans or Revolving Commitments converted into Extended Revolving Loans or Extended Revolving Commitments pursuant to any Extension Request. Any Extended Revolving Commitments shall constitute a separate Class of Revolving Commitments from the Existing Revolving Commitments of the Existing Revolving Class from which they were converted.

(b) The Administrative Borrower shall provide the applicable Extension Request at least 15 Business Days (or such shorter period as the Administrative Agent may determine in its sole discretion) prior to the date on which Lenders under the applicable Existing Revolving Class or Existing Revolving Classes are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.20. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Existing Revolving Commitments subject to such Extension Request converted into Extended Revolving Commitments shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Existing Revolving Commitments subject to such Extension Request that it has elected to convert into Extended Revolving Commitments (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate amount of the Existing Revolving Commitments subject to Extension Elections exceeds the amount of Extended Revolving Commitments requested pursuant to the Extension Request, Existing Revolving Commitments shall be converted to Extended Revolving Commitments on a pro rata basis based on the amount of Existing Revolving Commitments included in each such Extension Election (subject to rounding required by the Administrative Agent). Notwithstanding the conversion of any Existing Revolving Commitment into an Extended Revolving Commitment, such Extended Revolving Commitment shall be treated identically to all other Revolving Commitments for purposes of the obligations of a Lender in respect of Swingline Loans under Section 2.16 and Letters of Credit under Section 2.17, except that the applicable Extension Amendment may provide that the date on which the Swingline Loan has to be repaid and/or the last day for issuing Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued (pursuant to mechanics to be specified in the applicable Extension Amendment) so long as the Swingline Lender and/or the Issuing Bank, as applicable, have consented to such extensions (it being understood that no consent of any other Lender shall be required in connection with any such extension).

(c) Extended Revolving Commitments, as applicable, shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement and, if reasonably required by the Administrative Agent, the other ABL Loan Documents (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.20(c) and notwithstanding anything to the contrary set forth in Section 11.02, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Revolving Commitments established thereby) executed by the Loan Parties, the Administrative Agent and the Extending Lenders. In addition to any terms and changes required or permitted by Section 2.20(a), each Extension Amendment may amend this Agreement to ensure ratable participation in Letters of Credit and Swingline Loans between Extended Revolving Commitments and Existing Revolving Commitments. It is understood and agreed that each Lender hereunder has consented, and shall at the effective time thereof be deemed to consent, to each amendment to this Agreement and the other ABL Loan Documents authorized by this Section 2.20 and the arrangements described above in connection therewith.

In connection with any Extension Amendment, the Administrative Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of such Extension Amendment, this Agreement as amended thereby, and such of the other ABL Loan Documents (if any) as may be amended thereby (in the case of such other ABL Loan Documents as contemplated by the immediately preceding sentence) and (ii) covering such other matters as the Administrative Agent may reasonably request in connection therewith.

(d) Notwithstanding anything to the contrary contained in this Agreement, (i) on any date on which any Existing Revolving Class is converted to extend the related scheduled maturity date(s) in accordance with clause (a) above (an “Extension Date”), the aggregate amount of such corresponding Existing Revolving Commitments shall be deemed reduced by an amount equal to the aggregate amount of Extended Revolving Commitments so converted by such Lender on such date (and any related participations shall be reduced proportionately), and such Extended Revolving Commitments shall be established as a separate Class of Revolving Commitments from the corresponding Existing Revolving Class, and (ii) if, on any Extension Date, any Revolving Loans of any Extending Lender are outstanding under an applicable Extended Revolving Commitment, such Revolving Loans shall be deemed to be allocated as Extended Revolving Loans and Existing Revolving Loans in the same proportion as such Extending Lender’s Existing Revolving Commitments to Extended Revolving Commitments.

(e) In the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Revolving Commitments to a given Lender was incorrectly determined as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such Lender in accordance with the procedures set forth in the applicable Extension Amendment, then the Administrative Agent, the Administrative Borrower and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment to this Agreement and the other ABL Loan Documents (each, a “Corrective Extension Amendment”) within 15 days following the effective date of such Extension Amendment, as the case may be, which Corrective Extension Amendment shall (i) provide for the conversion and extension of Existing Revolving Commitments (and related Revolving Exposure), as the case may be, in such amount as is required to cause such Lender to hold Extended Revolving Commitments (and related Revolving Exposure) in the amount such Lender would have held had such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which it was entitled under the terms of such Extension Amendment, in the absence of such error, (ii) be subject to the satisfaction of such conditions as the Administrative Agent, the Administrative Borrower and such Lender may agree (including conditions of the type required to be satisfied for the effectiveness of an Extension Amendment described in Section 2.20(c)), and (iii) effect such other amendments of the type (with appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.20(c).

(f) No exchange or conversion of Revolving Loans or Revolving Commitments pursuant to any Extension Amendment in accordance with this Section 2.20 shall (x) be made at any time an Event of Default shall have occurred and be continuing (and no Extension Request shall be delivered to the Lenders at any time an Event of Default shall have occurred and be continuing) and (y) constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.

Section 2.21 Increases of the Revolving Commitments.

(a) The Administrative Borrower may, from time to time after the Closing Date, request to increase the then effective aggregate principal amount of the Revolving Commitments; provided that:

(i) the aggregate principal amount of the increases in the Revolving Commitments pursuant to this Section 2.21 shall not exceed $25,000,000 and the aggregate principal amount of any requested increase shall be in a minimum amount of $1,000,000 (or such lower amount that represents all remaining availability pursuant to this Section 2.21);

(ii) the proceeds of such increases shall be used for the purposes permitted by Section 3.12(a);

(iii) the Borrowers and the Guarantors shall execute and deliver such agreements, instruments and documents and take such other actions as may be reasonably requested by the Administrative Agent in connection with such increases and at the time of any such proposed increase;

(iv) (x) no Default shall have occurred and be continuing or would occur after giving effect to such increase and the application of proceeds therefrom and (y) both immediately before and after giving effect to any such increase and the application of proceeds therefrom, each of the representations and warranties made by any Loan Party set forth in Article III or in any other ABL Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date of such increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date);

(v) both immediately before and after giving effect to any such Incremental Loan Amendment, Suppressed Availability shall be not less than $10,000,000;

(vi) the increased Revolving Commitments and the Revolving Loans made pursuant thereto shall have the same terms and conditions as the then existing Revolving Commitments and Revolving Loans;

(vii) the Revolving Loans to be made pursuant to such increased Revolving Commitments under this Section 2.21 (and the Guarantees thereof by the Guarantors) shall be permitted Indebtedness under the Term Loan Facility and shall constitute “ABL Obligations” (as defined in the Intercreditor Agreement) for purposes of the Intercreditor Agreement; and

(viii) the Liens granted pursuant to the Security Documents to secure the obligations in respect of the Revolving Loans made pursuant to this Section 2.21 shall be permitted Liens under the Term Loan Documents.

(b) Any request under this Section 2.21 shall be submitted by the Administrative Borrower in writing to the Administrative Agent (which shall promptly forward copies to the Lenders). The Administrative Borrower may also specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Commitment. No Lender shall have any obligation, express or implied, to offer to increase the aggregate amount of its Revolving Commitment. Only the consent of each Increasing Lender shall be required for an increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.21. No Lender which declines to increase the amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent.

(c) Each Increasing Lender shall as soon as reasonably practicable specify in writing the amount of the proposed increase of the Revolving Commitments that it is willing to assume (provided that any Lender not so responding within five Business Days (or such shorter period as may be specified by the Administrative Agent) shall be deemed to have declined such a request). The Administrative Borrower may accept some or all of the offered amounts or designate new lenders that are reasonably acceptable to the Administrative Agent, the Swingline Lender and the Issuing Bank as additional Lenders hereunder in accordance with this Section 2.21 (each such new lender being a “New Lender”), which New Lenders may assume all or a portion of the increase in the aggregate amount of the applicable Revolving Commitments. The Administrative Agent, in consultation with the Administrative Borrower, shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Revolving Commitments among Increasing Lenders and New Lenders.

(d) Subject to the foregoing, any increase requested by the Administrative Borrower shall be effective upon (A) delivery to the Administrative Agent of each of the following documents: (i) an originally executed copy of a joinder agreements in form and substance reasonably satisfactory to the Administrative Agent (each, an “Incremental Joinder Agreement”) signed by a duly authorized officer of each New Lender (if any); (ii) a notice to the Increasing Lenders and New Lenders, in form and substance reasonably acceptable to the Administrative Agent, signed by a Financial Officer of the Administrative Borrower; (iii) an Officer’s Certificate of the Administrative Borrower, in form and substance reasonably acceptable to the Administrative Agent; (iv) to the extent requested by any New Lender or Increasing Lender, executed Notes issued by the Borrowers in accordance with Section 2.04(e); (v) an amendment (an “Incremental Loan Amendment”) to this Agreement and, as appropriate, the other ABL Loan Documents, executed by each Borrower, each Guarantor, each Increasing Lender (if any), each New Lender (if any) and the Administrative Agent; and (vi) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent, and (B) satisfaction on the effective date of the Incremental Loan Amendment of (x) each of the conditions specified in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in Section 4.02 shall be deemed to refer to the effective date of the Incremental Loan Amendment), and (y) such other conditions as the parties thereto shall agree. Any such increase shall be in an aggregate amount equal to (A) the amount that Increasing Lenders are willing to assume as increases to the amount of their Revolving Commitments plus (B) the amount offered by New Lenders with respect to the Revolving Commitments, in either case as adjusted by the Administrative Borrower and the Administrative Agent pursuant to this Section 2.21. Notwithstanding anything to the contrary in Section 11.02, the Administrative Agent is expressly permitted, without the consent of the other Lenders, to amend the ABL Loan Documents to the extent necessary or appropriate in the reasonable opinion of the Administrative Agent to give effect to any increases pursuant to this Section 2.21.

(e) Upon each increase in the Revolving Commitments pursuant to this Section 2.21, (a) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of any increase in the Revolving Commitments pursuant to this Section 2.21 (any such increase, a “Revolving Commitment Increase” and each such Lender, a “Revolving Increasing Lender”) in respect of such increase, and each such Revolving Increasing Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Revolving Increasing Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Article III

REPRESENTATIONS AND WARRANTIES

Each Loan Party hereby represents and warrants to the Administrative Agent, the Collateral Agent, the Issuing Bank and each of the Lenders on the Closing Date and upon each Credit Extension thereafter that:

Section 3.01 Organization; Powers. Each Company (a) is duly incorporated or organized and validly existing under the laws of the jurisdiction of its incorporation or organization, as the case may be, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to carry on its business as now conducted and to own, lease and operate its property, except for such governmental licenses, authorizations, consents and approvals that the failure to obtain would not reasonably be expected to result in a Material Adverse Effect, and (c) is registered, qualified, licensed and in good standing to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so register, qualify, be licensed or be in good standing would not reasonably be expected to result in a Material Adverse Effect.

Section 3.02 Authorization; Enforceability. The ABL Loan Documents to be entered into by each Loan Party are within such Loan Party’s powers and have been duly authorized by all necessary corporate or other organizational action on the part of each such Loan Party. Each ABL Loan Document has been duly executed and delivered by each Loan Party party thereto and constitutes a legal, valid and binding obligation of each such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.03 No Conflicts; No Default. The ABL Loan Documents (a) do not require any consent, exemption, authorization or approval of, registration or filing with, or any other action by, any Governmental Authority (including, for the avoidance of doubt, the Bankruptcy Court) or other person, except (i) such as have been obtained or made and are in full force and effect, (ii) filings necessary to perfect or maintain the perfection or priority of the Liens created by the Security Documents and (iii) consents, approvals, exemptions, authorizations, registrations, filings, permits or actions the failure of which to obtain or perform would not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of any Company, (c) will not violate or result in a default or require any consent or approval under any indenture, instrument, agreement, or other document binding upon any Company or any of its property or to which any Company or any of its property is subject, or give rise to a right thereunder to require any payment to be made by any Company, except for violations, defaults or the creation of such rights that would not reasonably be expected to result in a Material Adverse Effect, (d) will not violate any Legal Requirement (including the Xxxxx Act), except for violations that would not reasonably be expected to result in a Material Adverse Effect, and (e) will not result in the creation or imposition of (or the obligation to create or impose) any Lien on any property of any Company, other than the Liens created by the Security Documents and the Term Loan Documents. No Default has occurred and is continuing.

Section 3.04 Financial Statements; Projections. (a) The Administrative Borrower has heretofore delivered to the Lenders (I) the audited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries as of the fiscal years ended December 31, 2011, December 31, 2012 and December 31, 2013, (II) the unaudited consolidated balance sheets and related consolidated statements of income of the Administrative Borrower and its Subsidiaries as of the fiscal years ended December 31, 2012 and December 31, 2013 and (III) (x) the unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries and (y) the unaudited consolidated balance sheets and related consolidated statements of income of the Administrative Borrower and its Subsidiaries, in each case, for the fiscal quarter ended March 31, 2014. Such financial statements, and all financial statements delivered pursuant to Sections 5.01(a), (b) and (c), have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of Holdings, the Administrative Borrower and its Subsidiaries, in each case, as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in such financial statements, as of the Closing Date, there are no liabilities of Holdings, the Administrative Borrower or any of its Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have a Material Adverse Effect.

(b) The Administrative Borrower has heretofore delivered to the Lenders an unaudited pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Administrative Borrower and its Subsidiaries as of and for the twelve-month period ended March 31, 2014 (including, in the case of the balance sheet, after giving effect to the Transactions as if they had occurred on June 30, 2014), in each case after giving effect to the Transactions as if they had occurred on such date in the case of the balance sheet and as of the beginning of such period in the case of the statement of income. Such pro forma financial statements (A) have been prepared in good faith by Holdings based upon (i) in each case, the assumptions stated therein (which assumptions are believed by Holdings on the Closing Date to be reasonable) and (ii) the best information available to Holdings as of the date of delivery thereof, (B) in the case of the balance sheet, accurately reflect all adjustments required to be made to give effect to the Transactions, and (C) present fairly in all material respects the pro forma consolidated financial position and results of operations of the Administrative Borrower and its Subsidiaries, as of such date and for such period.

(c) The Administrative Borrower has heretofore delivered to the Lenders the forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of (x) Holdings and its Subsidiaries and (y) the Administrative Borrower and its Subsidiaries, in each case, for the fiscal years 2014–2018 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).

(d) (i) In the case of Credit Extensions made on the Closing Date, since December 31, 2013, there has not occurred any event, change, effect, development, circumstance or condition that, either individually or in the aggregate, has caused or would reasonably be expected to cause a Closing Date Material Adverse Effect.

(ii) In the case of Credit Extensions made after the Closing Date, since the Closing Date, there has been no event, change, effect, circumstance, condition, development or occurrence that has had, or would reasonably be expected to result in, a Material Adverse Effect.

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Section 3.05 Properties. (a) Each Restricted Party has good and marketable title to, or valid leasehold interests in, all its tangible property material to its business, free and clear of all Liens and irregularities, deficiencies and defects in title except for Permitted Liens (or (x) in the case of Collateral Vessels, Permitted Collateral Vessel Liens and (y) in the case of Chartered Vessels, Permitted Charter Vessel Liens) and minor irregularities, deficiencies and defects in title that, individually or in the aggregate, do not, and would not reasonably be expected to, interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose. The tangible property of the Restricted Parties (x) taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted), but excluding, for purposes of this clause (i), the Vessels and Chartered Vessels (which are covered by Section 5.16) and (ii) constitutes all the tangible property which is required for the business and operations of the Restricted Parties as presently conducted and (y) with respect to Vessels and Chartered Vessels, satisfies the requirements set forth in Section 5.16.

(b) Schedule 3.05(b) contains a true and complete list of each ownership and leasehold interest in Real Property (including all modifications, amendments and supplements thereto with respect to leased Real Property) (i) owned by any Restricted Party as of the Closing Date and describes the use and type of interest therein held by such Restricted Party and (ii) leased or subleased or otherwise occupied or utilized by any Restricted Party, as lessee or sublessee, franchisee or licensee, as of the Closing Date and describes the use and type of interest therein held by such Restricted Party.

(c) No Mortgage encumbers improved Real Property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968, as amended, unless flood insurance available under such Act has been obtained in accordance with Section 5.04.

(d) Each Restricted Party owns or has rights to use all of its tangible property and all rights with respect to any of the foregoing used in, necessary for or material to such Restricted Party’s business as currently conducted, subject to Permitted Liens (or (x) in the case of Collateral Vessels, Permitted Collateral Vessel Liens and (y) in the case of Chartered Vessels, Permitted Chartered Vessel Liens). The use by each Restricted Party of its tangible property and all such rights with respect to the foregoing do not infringe on the rights or other interests of any person, other than any infringement that would not reasonably be expected to result in a Material Adverse Effect. No claim has been made upon any Restricted Party and remains outstanding that any Restricted Party’s use of any of its tangible property does or may violate the rights of any third party that has had, or would reasonably be expected to result in, a Material Adverse Effect.

Section 3.06 Intellectual Property. Each Restricted Party owns or is licensed to use, free and clear of all Liens (other than Permitted Liens) and pursuant to valid and enforceable agreements, all material Intellectual Property necessary in the operation of such Restricted Party’s business. The operation of the respective businesses of each Restricted Party as currently conducted does not infringe upon, misuse, misappropriate, or violate any Intellectual Property held by any Person, except to the extent that any such infringement, misuse, misappropriation or violation would not reasonably be expected to result in a Material Adverse Effect. There are no actions, suits, claims, disputes, proceedings or, to the knowledge of any Loan Party, investigations at law or in equity, by or before any Governmental Authority now pending or, to the knowledge of any Loan Party, threatened against or affecting any Restricted Party or any business property or rights of any Restricted Party regarding any of the Intellectual Property owned by any Restricted Party, except to the extent that any such actions, suits, claims, disputes, proceedings or investigations would not reasonably be expected to result in a Material Adverse Effect.

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Section 3.07 Equity Interests and Subsidiaries. (a) Schedule 3.07(a) sets forth, as of the Closing Date and after giving effect to the Transactions, a list of (i) each Company and each such Company’s jurisdiction of incorporation or organization, and (ii) the number of each class of each Company’s Equity Interests authorized, and the number outstanding, and the number of Equity Interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights. All Equity Interests of each Company are duly and validly issued and are fully paid and non-assessable, and all Equity Interests of the Administrative Borrower are owned by Holdings and all Equity Interests of each Co-Borrower and Subsidiary Guarantor are owned by the Administrative Borrower, directly or indirectly, through Co-Borrowers or Subsidiary Guarantors. Each Loan Party is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by (or purporting to be pledged by) it under the Security Documents, free of any and all Liens, rights or claims of other persons, except the security interests created by the Term Loan Security Documents (subject to the Intercreditor Agreement) and any Permitted Liens that arise by operation of applicable Legal Requirements and are not voluntarily granted. As of the Closing Date, except as set forth in Schedule 3.07(a), there are no outstanding warrants, options or other rights (including derivatives) to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any such Equity Interests (or any economic or voting interests therein).

(b) No consent of any person, including any general or limited partner, any other member or manager of a limited liability company, any shareholder, any other trust beneficiary or derivative counterparty, is necessary in connection with the creation, perfection or First Priority (or, to the extent constituting Term Loan Priority Collateral, Second Priority) Lien status (or the maintenance thereof) of the security interest of the Collateral Agent in any Equity Interests pledged to the Collateral Agent under the Security Documents or the exercise by the Collateral Agent or any Lender of the voting or other rights provided for in the Security Documents or the exercise of remedies in respect of such Equity Interests as provided therein.

(c) A complete and accurate organization chart, showing the ownership structure of the Restricted Parties as of the Closing Date, after giving effect to the Transactions, is set forth on Schedule 3.07(c).

(d) As of the Closing Date, (i) the Subsidiaries of the Administrative Borrower set forth on Schedule 3.07(d) are the only Immaterial Subsidiaries (and such Schedule 3.07(d) also lists the total assets and revenues for each such Immaterial Subsidiary) and (ii) (x) the Subsidiaries set forth on Schedule 1.01(i) are the only Unrestricted Subsidiaries (and such Schedule 1.01(i) also lists the total assets (excluding intercompany accounts and investments in Subsidiaries) as of March 31, 2014 and revenues for the three month period ending on March 31, 2014 for each such Unrestricted Subsidiary), (y) the aggregate assets of all such Unrestricted Subsidiaries (excluding intercompany accounts and investments in Subsidiaries) as of the Closing Date does not exceed 2.5% of Consolidated Total Assets (excluding intercompany accounts and investments in Subsidiaries) as of the Closing Date and (z) no such Unrestricted Subsidiary (I) owns or charters a vessel to or from a third party, (II) manages or operates a vessel or (III) is otherwise party to a vessel charter or hiring agreement with a third party.

Section 3.08 Litigation; Compliance with Legal Requirements. (a) There are no actions, suits, claims, disputes, proceedings or, to the knowledge of any Loan Party, investigations at law or in equity by or before any Governmental Authority now pending or, to the knowledge of any Loan Party, threatened against any Company or any business, property or rights of any Company (i) that purport to affect or involve any ABL Loan Document or, as of the Closing Date, any of the Transactions or (ii) that have resulted, or would reasonably be expected to result, in a Material Adverse Effect.

(b) Each Company is in compliance with all Legal Requirements (including the Xxxxx Act) of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property, except such non-compliance as would not reasonably be expected to result in a Material Adverse Effect.

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Section 3.09 Agreements. No Company is a party to or has violated any agreement, instrument or other document to which it is a party, or is subject to any corporate or other constitutional restriction, or any restriction (including under its Organizational Documents) to which it is subject, that has resulted, or would reasonably be expected to result, in a Material Adverse Effect.

Section 3.10 Federal Reserve Regulations. (a) No Company is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing, buying or carrying Margin Stock.

(b) No part of the proceeds of any Credit Extension will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, Regulation U or X. The pledge of the Securities Collateral pursuant to the Security Agreement or the Holdings Pledge Agreement, as applicable, does not violate such regulations.

Section 3.11 Investment Company Act; etc. No Company is an “investment company” or a company “controlled” by an “investment company,” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

Section 3.12 Use of Proceeds. (a) The Borrowers will use the proceeds of the Revolving Loans and Swingline Loans after the Closing Date solely for general corporate and working capital purposes (including for Capital Expenditures, Permitted Acquisitions, other Investments, Dividends and Restricted Debt Payments permitted hereunder); provided, however, (x) up to (but not more than) $25,000,000 in the aggregate of the proceeds of the Revolving Loans may be incurred on the Closing Date for the purposes set forth in clause (y) of the proviso to the first sentence of Section 2.01 and (y) proceeds of Swingline Loans may not be used to refinance any then outstanding Swingline Loans.

(b) The Borrowers will have Letters of Credit issued hereunder solely to support payment or performance obligations incurred by the Administrative Borrower and its Wholly Owned Restricted Subsidiaries in the ordinary course of business or for general corporate purposes (other than to support obligations in respect of Restricted Indebtedness or Equity Interests).

Section 3.13 Borrowing Base Calculation. The calculation by the Administrative Borrower of the Borrowing Base and the valuation thereunder as set forth in each Borrowing Base Certificate is complete and accurate in all material respects.

Section 3.14 Taxes. Each Company has (a) timely filed or caused to be timely filed all U.S. federal and material state, local and foreign Tax Returns required to have been filed by it and all such Tax Returns are true and correct in all material respects and (b) duly and timely paid or caused to be duly and timely paid all Taxes (whether or not shown on any Tax Return) due and payable by it and all assessments received by it, except (i) Taxes that are being contested in good faith by appropriate proceedings and for which such Company has set aside on its books adequate reserves in accordance with GAAP or (ii) Taxes the nonpayment of which would not reasonably be expected to result in a Material Adverse Effect. Each Company has made adequate provision in accordance with GAAP for all Taxes not yet due and payable. No Loan Party has knowledge of any proposed or pending tax assessments, deficiencies, audits or other proceedings and no proposed or pending tax assessments, deficiencies, audits or other proceedings have resulted, or would reasonably be expected to result in, a Material Adverse Effect. No Company has ever “participated” in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2). No Company is a party to any tax sharing or similar agreement other than any tax sharing agreement solely between Holdings and the Administrative Borrower. This Section 3.14 shall be qualified in all respects by the disclosures on Schedule 3.14.

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Section 3.15 No Material Misstatements. As of the Closing Date, the Loan Parties have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which they or any of their respective Subsidiaries are subject, and all other matters known to any Loan Party, that would reasonably be expected to result in a Material Adverse Effect. Neither the Confidential Information Memorandum nor any of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the Transactions or delivered hereunder (as modified or supplemented by other information so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information and other forward looking information, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time and, if such projected financial information was delivered prior to the Closing Date, as of the Closing Date, it being understood that any such projected financial information may vary from actual results and such variations could be material.

Section 3.16 Labor Matters. There are no strikes, lockouts or slowdowns against any Company pending or, to the knowledge of the Loan Parties, threatened that have resulted in, or would reasonably be expected to result in, a Material Adverse Effect. The hours worked by and payments made to employees of any Company have not been in violation of the Fair Labor Standards Act of 1938, as amended, or any other applicable Legal Requirement dealing with such matters in any manner that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect. All payments due from any Company, or for which any claim may be made against any Company, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Company, except to the extent that the failure to do so has not resulted in, and would not reasonably be expected to result in, a Material Adverse Effect.

Section 3.17 Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date and immediately following the making of each Credit Extension, and after giving effect to the application of the proceeds of each Credit Extension, the Companies, on a consolidated basis, and the Restricted Parties, on a consolidated basis, are, Solvent.

Section 3.18 Employee Benefit Plans. (a) Except as would not reasonably be expected to result in a Material Adverse Effect, (i) the Companies and each of their ERISA Affiliates are in compliance with all applicable Legal Requirements, including all applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder, with respect to all Employee Benefit Plans, (ii) each Employee Benefit Plan complies, and is operated and maintained in compliance, with its terms and all applicable Legal Requirements, including the applicable provisions of ERISA and the Code and the regulations thereunder, and (iii) each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service (or an opinion letter or determination letter will be applied for during the applicable remedial amendment period) and nothing has occurred which is reasonably likely to prevent, or cause the loss of, such qualification.

(b) No ERISA Event has occurred or is reasonably expected to occur that would reasonably be expected to result in a Material Adverse Effect. Within the last six years, no Pension Plan with an Unfunded Pension Liability been transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14) of ERISA) of any Company or any of its ERISA Affiliates. The aggregate liabilities of any Company or any of its ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom have not resulted in, and would not reasonably be expected to result in, a Material Adverse Effect, based on the amount of such liabilities discussed in Note 18 of Holdings’ annual report on Form 10-K for the year ended December 31, 2013.

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(c) There are no actions, suits or claims pending against or involving an Employee Benefit Plan (other than routine claims for benefits) or, to the knowledge of any Loan Party, threatened, which would reasonably be expected to result in a Material Adverse Effect.

(d) Except as would not reasonably be expected to result in a Material Adverse Effect, (i) each Non-U.S. Plan has been maintained in compliance with its terms and with the requirements of any and all applicable Legal Requirements and has been maintained, where required, in good standing with applicable regulatory authorities, (ii) no Company has incurred any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan, and (iii) the present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan which is funded, determined as of the end of the most recently ended fiscal year of each Company on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the property of such Non-U.S. Plan, and for each Non-U.S. Plan which is not funded, the obligations of such Non-U.S. Plan are properly accrued.

Section 3.19 Environmental Matters. Except as would not reasonably be expected to result in a Material Adverse Effect:

(i) the Companies and their businesses, operations, Real Property, Vessels and Chartered Vessels are in compliance with any applicable Environmental Law;

(ii) the Companies have obtained all Environmental Permits required for the conduct of their businesses and operations, and their ownership, operation and use of any Real Property, Vessel and Chartered Vessel, under all applicable Environmental Laws. The Companies are in compliance with the terms and conditions of such Environmental Permits, and all such Environmental Permits are valid and in good standing;

(iii) there has been no Release or threatened Release or any handling, management, generation, treatment, storage or disposal of Hazardous Materials by any Company or, to the knowledge of the Loan Parties, by any other person on, at, under or from any Real Property, Vessel or Chartered Vessel, or facility presently or formerly owned, leased or operated by any of the Companies or their predecessors in interest, or at any other location, that has resulted in, or is reasonably likely to result in, liability or investigatory or remediation obligations by any of the Companies under Environmental Law or in an Environmental Claim against any of the Companies or otherwise related to any Real Property or the operation of any Vessel or Chartered Vessel;

(iv) there is no Environmental Claim pending or, to the knowledge of the Loan Parties, threatened against any of the Companies relating to any Real Property, Vessel or Chartered Vessel currently or formerly owned, leased or operated by any of the Companies or relating to the operations of any of the Companies, and, to the knowledge of the Loan Parties, there are no actions, activities, circumstances, conditions, events or incidents that are reasonably likely to form the basis of such an Environmental Claim;

(v) no Real Property, Vessel, Chartered Vessel or facility owned, operated or leased by the Companies and, to the knowledge of the Loan Parties, no Real Property or facility formerly owned, operated or leased by any of the Companies or any of their predecessors in interest is (i) listed or, to the knowledge of the Loan Parties, proposed for listing on the National Priorities List as defined in and promulgated pursuant to CERCLA or (ii) included on any similar list maintained by any Governmental Authority that indicates that any Company has or may have an obligation to undertake investigatory or remediation obligations under applicable Environmental Laws; and

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(vi) no Lien has been recorded or threatened under any Environmental Law with respect to any Real Property, Vessel or any other property of the Companies.

Section 3.20 Insurance. Schedule 3.20 sets forth a true, complete and accurate description in reasonable detail of all Required Insurance. Each Restricted Party (i) has insurance in such amounts and covering such risks and liabilities as are customary for companies of a similar size engaged in similar businesses in similar locations and (ii) maintains the Required Insurance. All insurance (including Required Insurance) maintained by each Restricted Party is in full force and effect, all premiums due have been duly paid, no Restricted Party has received notice of violation, invalidity, or cancellation thereof. Each Collateral Vessel owned by a Restricted Party and the use and operation thereof comply in all material respects with the Required Insurance, and there exists no material default under any such Required Insurance.

Section 3.21 Security Documents. (a) Each of the Security Agreement and the Holdings Pledge Agreement, upon execution and delivery thereof by the parties thereto, is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) Liens on, and security interests in, the Security Agreement Collateral and (x) when financing statements in appropriate form are filed in the offices specified on Schedule 6 of the Perfection Certificate in respect of the Security Agreement Collateral with respect to which a security interest may be perfected by filing of a financing statement or (y) upon the taking of possession or control by the Collateral Agent of the Security Agreement Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by each Security Document), the Liens created by each of the Security Agreement and the Holdings Pledge Agreement in such Security Agreement Collateral shall constitute fully perfected First Priority (or, in the case of Term Loan Priority Collateral, Second Priority) Liens, in each case subject to no Liens other than Permitted Liens.

(b) With respect to United States registered Intellectual Property Collateral (as defined in the Security Agreement), if any, when the Security Agreement or a short form thereof is filed in the United States Patent and Trademark Office and the United States Copyright Office, respectively, the Liens created by such Security Agreement shall constitute fully perfected First Priority (or, in the case of Term Loan Priority Collateral, Second Priority) Liens on, and security interests in, all right, title and interest of the grantors thereunder in such United States registered Intellectual Property Collateral, in each case subject to no Liens other than Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered United States trademarks and United States patents, United States trademark and patent applications and United States registered copyrights acquired by the Borrowers and Subsidiary Guarantors after the date hereof).

(c) Each Mortgage (if any), when executed and delivered, will be effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, a legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) First Priority (or, in the case of the Term Loan Priority Collateral, Second Priority) Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Properties thereunder and the proceeds thereof, subject only to Permitted Liens, and when the Mortgages are filed in the offices specified on Schedule 1.01(b) (or, in the case of any Mortgage executed and delivered after the date thereof in accordance with the provisions of Section 5.10, when such Mortgage is filed in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Section 5.10), the Mortgages shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, in each case, subject to no Liens other than Permitted Liens.

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(d) Each Collateral Vessel Mortgage is effective to create, in favor of the Mortgage Trustee, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) a First Priority (or, in the case of each Term Loan Priority Collateral Vessel, Second Priority) preferred ship mortgage Lien on the Collateral Vessel subject to such Collateral Vessel Mortgage and the proceeds thereof, subject only to Permitted Collateral Vessel Liens, and when the Collateral Vessel Mortgage is recorded by the National Vessel Documentation Center (or, in the case of any Collateral Vessel Mortgage executed and delivered after the date thereof in accordance with the provisions of Section 5.10, when such Collateral Vessel Mortgage is recorded by the National Vessel Documentation Center), such Collateral Vessel Mortgage shall constitute a fully perfected preferred ship mortgage Lien on the Collateral Vessel subject to such Collateral Vessel Mortgage, in each case, subject to no Liens other than Permitted Collateral Vessel Liens.

(e) Each Security Document delivered pursuant to Sections 5.10, 5.11 and 5.14 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent (or, in the case of Collateral Vessel Mortgages, the Mortgage Trustee), for the benefit of the Secured Parties, a legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) Lien on, and security interest in, all of the Borrowers’ and Subsidiary Guarantors’ right, title and interest in and to the Collateral thereunder, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable Legal Requirements (including the Xxxxx Act) and (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which such possession or control shall be given to the Collateral Agent to the extent required by any Security Document), the Liens in favor of the Collateral Agent created under such Security Document will constitute perfected First Priority (or, in the case of Term Loan Priority Collateral, Second Priority) Liens on, and security interests in, all right, title and interest of the Borrowers and Subsidiary Guarantors in such Collateral, in each case subject to no Liens other than Permitted Liens.

Section 3.22 Anti-Terrorism Law; Foreign Corrupt Practices Act.

(a) No Company and, to the knowledge of the Loan Parties, none of its Affiliates, is in violation of any Legal Requirements relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “Patriot Act”)

(b) No Company, and to the knowledge of the Loan Parties, no Affiliate or broker or other agent of any Company acting or benefiting solely in such capacity in connection with the Credit Extensions, is a person with whom dealings are restricted or prohibited under any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or is included on the Specially Designated Nationals and Blocked Persons List maintained by OFAC or any list of Persons issued by OFAC or the Sanctions Authority at its official website or any replacement website or other replacement official publication of such list; no Company is in violation of any U.S. sanctions ; and the Borrowers will not directly or indirectly use the proceeds of the Credit Extensions or otherwise make available such proceeds to any person, for the purpose of financing the activities of any person with whom dealings are restricted or prohibited under any U.S. sanctions administered by OFAC, in each case as would result in a violation of U.S. sanctions.

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(c) No Company and, to the knowledge of the Loan Parties, no broker or other agent of any Company acting solely in any such capacity in connection with the Credit Extensions, (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in Section 3.22(b) or Section 6.19, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any executive order or any laws or regulations administered and enforced by any Sanctions Authority, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law or laws, regulations, and orders administered and enforced by any Sanctions Authority, in each case as would result in a violation of Sanctions Laws.

(d) No Company nor any director or officer, nor to the knowledge of the Loan Parties, any agent, employee or Affiliate, has, in the course of its actions for, or on behalf of, any Company, directly or indirectly (i) used any corporate funds for any material unlawful contribution, gift, entertainment or other material unlawful expenses relating to political activity or to influence official action, (ii) made any material unlawful payment to any foreign or domestic government official or employee from corporate funds, (iii) made any material unlawful bribe or kickback to any foreign or domestic government official or employee, (iv) is or has at any time since July 1, 2009 engaged in any activity, practice, or conduct proscribed under any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (“FCPA”) or the UKBA or (v) used the proceeds of any Loans or any Letter of Credit in a manner or for a purpose prohibited by the FCPA. The Companies have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, compliance therewith. The Companies have and will maintain in place adequate procedures designed to prevent any person who, directly or indirectly, performs or has performed services for or on behalf of any Company from undertaking any conduct that would give rise to an offence under section 7 of the UKBA. To the knowledge of any Loan Party, no Company is or has been the subject of any enforcement proceedings or any investigation or inquiry by any governmental, administrative, or regulatory body regarding any offense or alleged offense under the FCPA or UKBA, and, to the knowledge of any Loan Party, no such investigation, inquiry, or proceedings have been threatened or are pending.

(e) Each Company and its Affiliates, directors, officers and employees has been and is in compliance with Sanctions Laws.

Section 3.23 Concerning Vessels.

(a) The name, record owner (and whether or not such registered owner is a Loan Party), official number, jurisdiction of registration and flag of each Vessel and Chartered Vessel as of the Closing Date is set forth on Schedule 1.01(a). Each Vessel owned by a Restricted Party and each Chartered Vessel demise chartered by a Restricted Party is operated in compliance with all applicable Legal Requirements (including the Xxxxx Act), except where the failure to so comply would not reasonably be expected to result in a Material Adverse Effect.

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(b) Each Restricted Party which owns, charters by demise or operates one or more Vessels or Chartered Vessels is qualified in all material respects to own, lease or operate such Vessels or Chartered Vessels under the laws of its jurisdiction of incorporation and flag jurisdiction of such Vessel or Chartered Vessel.

(c) Each Vessel and Chartered Vessel owned, demise chartered or operated by a Restricted Party is classed with an Approved Classification Society, free of any overdue recommendations, other than as permitted under the Collateral Vessel Mortgages related thereto.

(d) As of the Closing Date, there is no pending or, to the knowledge of any Loan Party, threatened condemnation, confiscation, requisition, purchase, seizure or forfeiture of, or any taking of title to, any Vessel owned by a Restricted Party or any Chartered Vessel demise chartered by a Restricted Party.

(e) Each Vessel owned by a Restricted Party is free and clear of all Liens other than Permitted Collateral Vessel Liens.

Section 3.24 Form of Documentation; Citizenship.

(a) No Loan Party is organized in any jurisdiction, and none of the Vessels or Chartered Vessels owned or demise chartered by any Restricted Party is flagged in any jurisdiction other than United States, and none of the Security Documents are required to be filed or registered with any Governmental Authority outside the United States to ensure the validity of the Security Documents.

(b) Each Restricted Party that owns a Collateral Vessel or demise charters a Chartered Vessel operated in the coastwise trade of the United States is a Section 2 Citizen.

Section 3.25 Compliance with ISM Code and ISPS Code. Each Vessel and Chartered Vessel owned, leased or operated by a Restricted Party complies with the requirements of the ISM Code and the ISPS Code in all material respects, including the maintenance and renewal of valid certificates pursuant thereto.

Section 3.26 Threatened Withdrawal of DOC, SMC or ISSC. There is no actual or, to the knowledge of the Loan Parties, threatened withdrawal of (a) any document of compliance (DOC) issued to an Operator in accordance with rule 13 of the ISM Code in respect of any of the Restricted Parties’ Vessels or Chartered Vessels (and, for these purposes, the “Operator” of a vessel shall mean 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), (b) safety management certificate (SMC) issued in respect of any of the Restricted Parties’ Vessels or Chartered Vessels in accordance with rule 13 of the ISM Code or (c) the international ship security certificate (ISSC) issued pursuant to the ISPS Code in respect of any of the Restricted Parties’ Vessels or Chartered Vessels.

Section 3.27 Deposit Accounts and Securities Accounts. As of the Closing Date, (i) the Deposit Accounts and Securities Accounts listed on Part A of Schedule 3.27 constitute all of the Specified ABL Accounts and (ii) the Deposit Accounts listed on Part B of Schedule 3.27 constitute all of the Residual Bank Accounts.

Article IV

CONDITIONS TO CREDIT EXTENSIONS

Section 4.01 Conditions to Initial Credit Extension. The obligation of each Lender and, if applicable, the Issuing Bank to fund any initial Credit Extension on the Closing Date requested to be made by it shall be subject to the prior or concurrent satisfaction or waiver of each of the conditions precedent set forth in this Section 4.01.

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(a) ABL Loan Documents. There shall have been delivered to the Administrative Agent a properly executed counterpart of each of the ABL Loan Documents (including the Intercreditor Agreement, but excluding any such ABL Loan Documents that are to be permitted to be delivered after the date hereof in accordance with the terms of this Agreement) and the Perfection Certificate.

(b) Corporate Documents. The Administrative Agent shall have received:

(i) a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its incorporation or organization, as the case may be, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the ABL Loan Documents to which such person is a party and, in the case of the Borrowers, the making of the Credit Extensions hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any ABL Loan Document or any other document delivered in connection herewith and the other ABL Loan Documents on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate required by this clause (i)); and

(ii) a certificate as to the good standing of each Loan Party (in so-called “long-form” if available) as of a recent date and a “bring down” good standing certificate of each Loan Party as of the Closing Date (or, in each case, local equivalent thereof), in each case, from such Secretary of State.

(c) Officer’s Certificate. The Administrative Agent shall have received an Officer’s Certificate of the Administrative Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in this Section 4.01.

(d) Transactions, Etc.

(i) Any description of any ABL Loan Document, any OIN Loan Document or any fees, costs or expenses to be paid to the Agents or the Lenders in connection with the Transactions in any Amended Plan Document shall not have been filed or served without the Administrative Agent’s prior consent. All other portions of each Amended Plan Document shall be in form and substance consistent with the Commitment Letter and otherwise reasonably satisfactory to the Administrative Agent, and no provision of any Amended Plan Document shall have been waived, amended, supplemented or otherwise modified in any respect that is adverse to the rights or interests of any or all of the Agents and the Lenders in their capacities as such (as determined in good faith by the Administrative Agent) unless the Administrative Agent shall have so consented in writing. Holdings shall have provided to the Administrative Agent a copy of the Amended Plan Documents at least two Business Days prior to filing such Amended Plan Documents with the Bankruptcy Court.

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(ii) The Bankruptcy Court shall have entered an order confirming the Amended Reorganization Plan for the Debtors (the “Confirmation Order”), which Confirmation Order shall be in form and substance reasonably acceptable to the Administrative Agent, and shall have become a Final Order (provided, however, that the Administrative Agent may, in its sole discretion, waive or modify any requirement that the Confirmation Order be a Final Order). Among other things, the Confirmation Order (A) shall authorize and approve the incurrence of the Revolving Commitments hereunder, the funding under the Term Loan Documents and the funding of loans and incurrence of commitments under the OIN Loan Documents and all other transactions contemplated by the Commitment Letter and Fee Letter, (B) shall make specific findings that the Agents and the Lenders acted in good faith in connection with such transactions, shall be in full force and effect and shall not have been stayed, reversed or vacated, or otherwise amended or modified in any manner that the Administrative Agent determines in good faith is adverse to the rights or interests of any or all of the Agents and the Lenders or their respective Affiliates unless the Administrative Agent has so consented in writing. Without limiting the general applicability of the immediately preceding sentence, the Confirmation Order, together with such other orders as have been entered by the Bankruptcy Court on or prior to the Closing Date in aid of consummation of the Amended Reorganization Plan, shall provide in substance that (I) on or before the applicable Amended Reorganization Plan’s Effective Date (as defined in the Amended Reorganization Plan), the Loan Parties are authorized to enter into documentation evidencing the transactions contemplated by the ABL Loan Documents reasonably acceptable to the Administrative Agent and the Loan Parties and to grant Liens and security interests of the priority required by this Agreement to the applicable Secured Parties in substantially all of their assets, and such documents, liens and security interests are approved, (II) all fees and reasonable and documented costs and expenses paid or to be paid by Holdings, the Administrative Borrower and OIN to the Agents and the Lenders in connection with the transactions contemplated by the ABL Loan Documents, the Term Loan Documents and the OIN Loan Documents are ratified and approved as allowed administrative claims under Sections 503(b) and 507(a)(2) of the Bankruptcy Code and any such unpaid fees, costs and expenses shall be paid when due under the Commitment Letter, the Fee Letter, the ABL Loan Documents and the OIN Loan Documents, and may not be disgorged and (iii) notwithstanding anything in the Amended Reorganization Plan to the contrary, the Bankruptcy Court’s retention of jurisdiction under the Confirmation Order shall not extend to the enforcement of the documentation with respect to the ABL Loan Documents and the OIN Loan Documents or any rights or remedies relating thereto after the Amended Reorganization Plan’s Effective Date (as defined in the Amended Reorganization Plan). All conditions precedent to the effectiveness of the Amended Reorganization Plan (other than the occurrence of the Closing Date and any other conditions that are to be satisfied simultaneously with the occurrence of the Closing Date) shall have been satisfied or duly waived (provided that any such waiver does not adversely affect the rights or interests of any or all of the Agents and the Lenders in their capacities as such (as determined in good faith by the Administrative Agent) unless it shall have been consented to by the Administrative Agent), and contemporaneously with the initial Credit Extension, the Amended Reorganization Plan shall become effective, and all transactions contemplated by the Amended Reorganization Plan to be consummated on the Amended Reorganization Plan’s Effective Date shall be consummated.

(iii) (x) The Rights Offering shall have been (or will substantially contemporaneously be) consummated in full on the Closing Date and Holdings shall have received or shall concurrently receive the cash proceeds therefrom in an aggregate amount equal to at least $1,510,000,000 and the terms and conditions of the Rights Offering (and the documentation with respect thereto) shall be in form and substance reasonably acceptable to the Administrative Agent and (y) the Loan Parties shall have entered, or shall concurrently enter, into the Term Loan Documents, which Term Loan Documents shall be or shall concurrently be in full force and effect and all the conditions precedent to the initial borrowing under the Term Loan Documents shall be satisfied or waived substantially concurrently with any initial funding hereunder and the Administrative Borrower shall have received or shall concurrently receive the Term Loans thereunder in an aggregate principal amount equal to $603,000,000.

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(iv) (I) The proceeds from the Rights Offering, together with (i) the proceeds of the Loans permitted to be incurred hereunder on the Closing Date, (ii) the proceeds of loans permitted to be incurred under the OIN Credit Agreement on the Closing Date , (iii) the proceeds of the Term Loans permitted to be incurred under the Term Loan Credit Agreement on the Closing Date and (iv) existing cash on hand of Holdings and its Subsidiaries on the Closing Date, will have been used or shall be concurrently used to repay in full, satisfy and discharge all of the Indebtedness and other obligations to be refinanced as part of (a) the Refinancing (including the DSF Loan Documents, the CEXIM Loan Documents and the Unsecured Credit Agreement), (b) the payment of the Administrative Expense Claims, the Priority Claims and Professional Fees Claims (each as defined in the Amended Reorganization Plan) and (c) the refinancing of any other pre-existing Indebtedness of Holdings and its Subsidiaries, in each case, to the extent provided in the Amended Reorganization Plan or the Confirmation Order (and for the avoidance of doubt, except any Indebtedness contemplated to remain outstanding or to be reinstated, in any such case, as set forth in the Amended Reorganization Plan) and to pay fees, costs and expenses incurred in connection with the Transactions and the OIN Loan Documents, in each case, except as otherwise provided in the Amended Reorganization Plan, (II) all Liens and guarantees in connection with the Indebtedness to be refinanced as part of the Refinancing shall have been terminated and released (or arrangements made for such termination and release to occur promptly following the Closing Date), all to the reasonable satisfaction of the Administrative Agent, and (III) the Restricted Parties (on the Closing Date, after giving effect to the reorganization contemplated in the Amended Reorganization Plan) shall have no Indebtedness, Preferred Stock or other material liability issued or outstanding other than the Obligations and obligations under the Term Loan Documents, and other Indebtedness, Preferred Stock and liabilities permitted hereunder and under the Term Loan Documents, and, except for Permitted Liens, all Liens or security interests securing any Indebtedness or other liabilities of the Restricted Parties outstanding prior to the Closing Date, as applicable, shall have been terminated or released or shall be released in accordance with Section 5.15.

(v) The Administrative Agent shall have received true and correct copies of (x) the Transaction Documents and the OIN Loan Documents, (y) the Confirmation Order and (z) the “Notice of Projected Effective Date” (as required by Section 10.2(e) of the Amended Reorganization Plan).

(vi) The Collateral Agent, for the benefit of the Secured Parties, shall have been granted (to the extent required on the Closing Date) First Priority (or, in the case of Term Loan Priority Collateral, Second Priority) Liens and security interests in the Collateral.

(vii) Each of the Collateral Vessel Mortgages required to be recorded on the Closing Date shall have been executed and delivered to the Mortgage Trustee for submission to the National Vessel Documentation Center for filing and recording, and all actions reasonably necessary or advisable in connection therewith (and in connection with the other Collateral) shall have been taken.

(e) Financial Statements. The Administrative Agent shall have received the historical financial statements, pro forma financial statements and projections described in Section 3.04 (it being understood and agreed that the Administrative Agent has received such historical financial statements, pro forma financial statements and projections).

(f) Opinions of Counsel. The Administrative Agent shall have received, on behalf of itself, the other Agents, the Lenders and the Issuing Bank, favorable written opinions from each of (i) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, (ii) Xxxxx & Xxxxxxx, special maritime counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (iii) Morris, Nichols, Arsht & Xxxxxxx LLP, Delaware counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to the Agents, the Issuing Bank and the Lenders (and allowing for reliance by their permitted successors and assigns on customary terms) and (C) covering such matters relating to the ABL Loan Documents and the Transactions as the Administrative Agent shall reasonably request.

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(g) Solvency Certificate. The Administrative Agent shall have received (i) a solvency certificate in the form of Exhibit L (appropriately completed), dated the Closing Date and signed by the chief financial officer of the Administrative Borrower, certifying that the Restricted Parties on a consolidated basis after giving effect to the Transactions are Solvent, and (ii) a solvency certificate in the form of Exhibit L (appropriately completed), dated the Closing Date and signed by the chief financial officer of Holdings, certifying that the Companies on a consolidated basis after giving effect to the Transactions are Solvent.

(h) Fees. The Agents and the Lenders shall have received all amounts due and payable under any ABL Loan Document, the Commitment Letter and the Fee Letter on or prior to the Closing Date, including all Fees and reasonable and documented costs, expenses (including legal fees and expenses of White & Case LLP, Xxxxxx, Xxxxxx & Xxxxxxxx, Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP and other counsel to the Agents, appraisal and collateral field exam fees and expenses and charges and recording taxes and fees) and other compensation and amounts required to be reimbursed or paid by the Loan Parties hereunder, under any other ABL Loan Document, the Commitment Letter and the Fee Letter.

(i) Personal Property Requirements. The Collateral Agent shall have received:

(i) subject to Section 5.20, all certificates, agreements or instruments representing or evidencing the Securities Collateral accompanied by instruments of transfer and stock powers undated and endorsed in blank;

(ii) the Intercompany Subordination Agreement, executed by and among Holdings and the Restricted Parties;

(iii) subject to Section 5.20, all other certificates, agreements or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, Instruments, Deposit Accounts and Securities Accounts identified in Schedules 10, 12(a) and 12(b) to the Perfection Certificate and all Investment Property of each Loan Party (as each such term is defined in, and to the extent required by, the Security Agreement or the Holdings Pledge Agreement, as applicable);

(iv) UCC financing statements in appropriate form for filing under the UCC, in each U.S. jurisdiction as may be necessary or appropriate or, in the reasonable opinion of the Administrative Agent, desirable to perfect the First Priority (or, in the case of Term Loan Priority Collateral, Second Priority) Liens in all Collateral created, or purported to be created, by the Security Documents; and

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Dated as of August 5, 2014 ABL CREDIT AGREEMENT among OVERSEAS SHIPHOLDING GROUP, INC., as Holdings, OSG BULK SHIPS, INC., as the Administrative Borrower, CERTAIN SUBSIDIARIES OF OSG BULK SHIPS, INC., as Co-Borrowers, THE OTHER GUARANTORS PARTY...