FIRST AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.1
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT to the Credit Agreement referred to below, dated as of April 27, 2020 (this “First Amendment”), by and among International Seaways, Inc., a Xxxxxxxx Islands corporation (“Holdings”), International Seaways Operating Corporation, a Xxxxxxxx Islands corporation (the “Borrower”), the other Guarantors (as defined in the Credit Agreement referred to below) party hereto, the Lenders (as defined in the Credit Agreement referred to below) party hereto
constituting Required Lenders, and Nordea Bank Abp, New York Branch, as administrative agent (in such capacity, the “Administrative
Agent”) for the Lenders. Capitalized terms used herein but not otherwise defined in this First Amendment have the same meanings as specified in the Credit Agreement referenced below, as amended by this First Amendment.
RECITALS
WHEREAS, the Borrower, Holdings, the other Guarantors from time to time party thereto, the several Lenders from
time to time party thereto, the Administrative Agent and the other parties thereto have entered into that certain Credit Agreement, dated as of January 23, 2020 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”); and
WHEREAS, the
Borrower, Holdings, the other Guarantors, the Lenders party hereto constituting Required Lenders and the Administrative Agent have agreed to amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement.
Subject to the satisfaction of the conditions set forth in Section 3, the Required Lenders agree that the Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Adjusted LIBOR Rate” appearing in such
Section as follows:
““Adjusted LIBOR Rate” shall
mean, with respect to any Borrowing for any Interest Period, an interest rate per annum (rounded upward, if necessary, to the next 1/100th of 1.00%) determined by the Administrative Agent to be equal to the LIBOR Rate for such Borrowing in effect for
such Interest Period divided by the remainder of (i) 1 minus (ii) the Statutory Reserves (if any) for such Borrowing for such Interest Period.”.
(b) Section 1.01 of the Credit Agreement is hereby amended by amending and restating clause (a) of the definition of “Permitted Charter”
appearing in such Section as follows:
“(a) which is a time charter, voyage charter, consecutive voyage charter or contract of affreightment entered into on bona fide arm’s length terms; provided that any such charter with an initial term in excess of thirty-six (36) months, after giving effect to any extensions solely at the discretion of the charterer (collectively,
the “Initial Charter Term”) (but without including or giving effect to any specific or actual redelivery period extending past the Initial
Charter Term) shall only be a Permitted Charter if the Required Lenders have consented thereto (such consent not to be unreasonably withheld); and”.
(c) Section 11.06 of the Credit Agreement is hereby amended by (i) inserting the text “(a)” immediately prior to the text in such Section and (ii) inserting the following text as
new clause (b) immediately after such new paragraph (a):
“(b) Electronic Execution of Loan Documents.
The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Loan Documents including any Assignment and Assumption shall be deemed to include electronic signatures or electronic records, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature or the use of paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.”.
SECTION 2. Representations and Warranties.
In order to induce the Lenders party hereto to enter into this First Amendment and to amend the Credit Agreement in the manner provided herein, each Loan Party hereby represents and warrants that:
(a) the representations and warranties set
forth in Article III of the Credit Agreement and in each other Loan Document shall be true and correct in all material respects (or true and correct
in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the First Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and
warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date);
(b) both before and immediately upon giving effect to this First Amendment, no Default or Event of Default shall have occurred and be
continuing; and
(c) this First Amendment has been duly authorized,
executed and delivered by each Loan Party party hereto and each of this First Amendment and the Credit Agreement, as amended hereby, constitutes a legal, valid and binding obligation, enforceable against each Loan Party in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or
at law.
SECTION 3. Conditions of Effectiveness. The
effectiveness of this First Amendment (and the amendments contained in Section 1 hereof) is subject to the satisfaction of the following conditions
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) this First Amendment shall have been duly executed by the Borrower, Holdings, each other Guarantor, the Lenders constituting the
Required Lenders and the Administrative Agent (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Administrative Agent (or its counsel);
(b) the Borrower shall have paid all costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and any
other fee due and payable to the Administrative Agent or any affiliate thereof as may have been separately agreed to by the Borrower and the Administrative Agent or such affiliate in connection with this First Amendment, including the reasonable
fees and expenses of White & Case LLP; and
(c) (i) all representations and warranties set
forth in Section 2 of this First Amendment shall
be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the First Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such
earlier date), and (ii) no Default shall have occurred and be continuing or would occur immediately upon giving effect to this First Amendment.
SECTION 4. Effects on Loan Documents.
(a) Except as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.
(b) The execution, delivery and effectiveness of this First Amendment shall not operate as a waiver of any right, power or remedy of any
Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders or any Agent under the Loan Documents.
(c) (i) Each Loan Party acknowledges and agrees that, on and after the First Amendment Effective Date, this First Amendment shall
constitute a Loan Document for all purposes of the Credit Agreement (as amended by this First Amendment) and (ii) each Loan Party hereby (A) agrees that all Obligations shall be guaranteed pursuant to the Guarantees in accordance with the terms and
provisions thereof and shall be secured pursuant to the Security Documents in accordance with the terms and provisions thereof, and that, notwithstanding the effectiveness of this First Amendment, on and after the First Amendment Effective Date,
the Guarantees and the Liens created pursuant to the Security Documents for the benefit of the Secured Parties continue to be in full force and effect on a continuous basis and (B) affirms, acknowledges and confirms all of its obligations and
liabilities under the Credit Agreement and each other Loan Document to which it is a party, in each case after giving effect to this First Amendment, all as provided in such Loan Documents, and acknowledges and agrees that such obligations and
liabilities continue in full force and effect on a continuous basis in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents, in each case after giving effect to this First Amendment.
(d) On and after the First Amendment Effective Date, each reference in the Credit Agreement (as amended by this First Amendment) to
“this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this First Amendment, and this First Amendment and the Credit Agreement as amended by this First Amendment shall be read together and construed as a single
instrument.
(e) Nothing herein shall be deemed to entitle the Borrower, Holdings nor the other Guarantors to a further consent to, or a further
waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement as amended by this First Amendment or any other Loan Document in similar or different
circumstances.
SECTION 5. Amendments; Severability.
(a) This First Amendment may not be amended nor may any provision hereof be waived except in accordance with the provisions of Section 11.02 of the Credit Agreement. By its signature below written, each Lender authorizes and directs the Administrative Agent to execute and deliver
this First Amendment.
(b) To the extent any provision of this First Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this First Amendment in
any jurisdiction.
SECTION 6. Governing Law; Waiver of Jury Trial;
Jurisdiction. THIS FIRST AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS FIRST AMENDMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections
11.09(b), 11.09(c), 11.09(d) and
11.10 of the Credit Agreement as amended by this First Amendment are incorporated herein by reference, mutatis mutandis.
SECTION 7. Headings. Section headings in
First Amendment are included herein for convenience of reference only, are not part of this First Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this First Amendment.
SECTION 8. Counterparts. This First
Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF
or other electronic means shall have the same force and effect as manual signatures delivered in person. Each party confirms that the use of electronic signatures to execute the documents in question is a legally valid and binding method of
execution. Each party also confirms that the use of a digital signing platform is a legally valid and binding method of execution. Each party confirms that this method of signature is as conclusive of its intention to be bound by the documents in
question as if signed by manuscript signature.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their
respective proper and duly authorized officers as of the day and year first above written.
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HOLDINGS:
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By:
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/s/ Xxxxx X. Small III
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Name:
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Xxxxx X. Small III
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Title:
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Chief Administrative Officer, Senior Vice President, Secretary and General Counsel
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BORROWER:
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INTERNATIONAL SEAWAYS OPERATING CORPORATION
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By:
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/s/ Xxxxx X. Small III
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Name:
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Xxxxx X. Small III
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Title:
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Senior Vice President & Secretary
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GUARANTORS:
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1372 TANKER CORPORATION
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XXXXXX PRODUCT CORPORATION
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ATHENS PRODUCT TANKER CORPORATION
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BATANGAS TANKER CORPORATION
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CABO HELLAS LIMITED
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XXXX PRODUCT CORPORATION
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FRONT PRESIDENT INC.
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GOLDMAR LIMITED
HATTERAS TANKER CORPORATION |
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JADEMAR LIMITED
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KYTHNOS CHARTERING CORPORATION
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LEYTE PRODUCT TANKER CORPORATION
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MAPLE TANKER CORPORATION
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MILOS PRODUCT TANKER CORPORATION
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MINDANAO TANKER CORPORATION
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MONTAUK TANKER CORPORATION
OAK TANKER CORPORATION |
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OVERSEAS SHIPPING (GR) LTD.
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REYMAR LIMITED
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XXXXXXX TANKER CORPORATION
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ROSEMAR LIMITED
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RUBYMAR LIMITED
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SAMAR PRODUCT TANKER CORPORATION
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SEAWAYS SHIPPING CORPORATION
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SECOND KATSURA TANKER CORPORATION
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SILVERMAR LIMITED
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SKOPELOS PRODUCT TANKER CORPORATION
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TOKYO TRANSPORT CORP.
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By:
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/s/ Xxxxx X. Small III
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Name:
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Xxxxx X. Small III
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Title:
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Vice President & Secretary
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NORDEA BANK ABP, NEW YORK BRANCH, as Administrative Agent, Collateral Agent, Security Trustee and a Lender
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Managing Director
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By:
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/s/ Xxxxxx X. Xxxxxxxxxx
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Name:
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Xxxxxx X. Xxxxxxxxxx
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Title:
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EVP
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ABN AMRO CAPITAL USA LLC, as a Lender
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By:
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/s/ Xxxxx Xxxxx
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Name:
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Xxxxx Xxxxx
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Title:
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Director
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By:
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/s/ Xxxx Xxxxxxx
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Name:
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Xxxx Xxxxxxx
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Title:
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Executive Director
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CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, as a Lender
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By:
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/s/ Georgios Gkanasoulis
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Name:
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Georgios Gkanasoulis
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Title:
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Director
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxx Xxxxxx
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Title:
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Vice President
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DNB CAPITAL LLC, as a Lender
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By:
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/s/ Xxxxxxxx Xxxxx
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Name:
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Xxxxxxxx Xxxxx
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Title:
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Vice President
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx Xxxxx
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Title:
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Assistant Vice President
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SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL), as a Lender
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By:
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/s/ Xxxx Xxxxx-Skielse
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Name:
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Xxxx Xxxxx-Skielse
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Title:
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By:
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/s/ Olof Kajerdt
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Name:
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Olof Kajerdt
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Title:
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BNP PARIBAS, as a Lender
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By:
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/s/ Xxxx Dulcire
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Name:
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Xxxx Dulcire
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Title:
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Managing Director
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By:
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/s/ Xxxxxx Xxxxxxx
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Name:
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Xxxxxx Xxxxxxx
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Title:
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Managing Director
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DANISH SHIP FINANCE A/S, as a Lender
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By:
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/s/ Xxxxxxx Xxxxxx
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Name:
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Xxxxxxx Xxxxxx
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Title:
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CCO
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By:
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/s/ Xxxxx X. Xxxxxxxxxxx
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Name:
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Xxxxx X. Xxxxxxxxxxx
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Title:
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SLM
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