8-K
false 0001525221 0001525221 2020-08-18 2020-08-18

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 18, 2020

 

 

BRISTOW GROUP INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-35701   72-1455213

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

3151 Briarpark Dr., Suite 700, Houston, Texas   77042
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (713) 267-7600

None

Former name or former address, if changed since last report

 

 

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

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock, $0.01 par value   VTOL   New York Stock Exchange

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

Emerging growth company  

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

 

 

 


Item 1.01.

Entry into a Material Definitive Agreement.

Amendment and Restatement of ABL

On August 18, 2020, Bristow Group Inc. (the “Company”) entered into a Deed of Amendment and Restatement, Accession, Transfer, Resignation and Confirmation Agreement (the “ABL Amendment”) relating to the ABL Facilities Agreement dated April 17, 2018 (as amended by the Amendment and Restatement, Confirmation and Waiver Agreement, dated as of October 31, 2019, and as otherwise previously amended, the “ABL” and as amended by the ABL Amendment described below, the “Amended ABL”), by and among the Company, Bristow Holdings U.S. Inc. (formerly known as Bristow Group Inc.) (“Old Bristow”), Bristow Norway AS, Bristow Helicopters Limited and Bristow U.S. LLC, as borrowers and guarantors, the financial institutions from time to time party thereto as lenders and Barclays Bank PLC, in its capacity as agent and security trustee. The ABL Amendment amends the ABL in order to, among other things, (i) make available to the borrowers an additional “last in, last out” tranche of revolving loan commitments available to the borrowers under the Amended ABL in an aggregate amount not to exceed $5,000,000, (ii) replace Old Bristow with the Company as the parent guarantor under the Amended ABL and (iii) permit the accession at a later date of certain domestic subsidiaries of the Company as borrowers under the Amended ABL and the addition of certain of their receivables to the borrowing base and the collateral for the Amended ABL. The interest rates applicable to loans made under the “last in, last out” tranche of revolving commitments under the Amended ABL are equal to either: (a) the ABR (as defined in the Amended ABL) plus 2.50% per annum or (b) LIBOR or NIBOR (each as defined in the Amended ABL) plus 3.50% per annum. Swingline loans made under the “last in, last out” tranche of revolving commitments under the Amended ABL bear interest at the ABR Rate (as defined in the Amended ABL) plus 2.50% per annum. As a result of the ABL Amendment, the Amended ABL provides for commitments in an aggregate amount of $80 million. As of the date of effectiveness of the ABL Amendment, current availability, in light of $10.0 million usage for letters of credit, is approximately $37.6 million. The Company retains the ability under the Amended ABL to increase the total commitments up to a maximum aggregate amount of $115 million, subject to the terms and conditions therein.

The foregoing description of the ABL Amendment does not purport to be complete and is qualified in its entirety by reference to the ABL Amendment, a copy of which is attached here as Exhibit 10.1 and incorporated by reference herein.

 

Item 2.03.

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

The information set forth under Item 1.01 above is incorporated by reference herein.

 

Item 9.01.

Financial Statements and Exhibits.

(d)    Exhibits

 

Exhibit

    No.    

  

Description

10.1    Deed of Amendment and Restatement, Accession, Transfer, Resignation and Confirmation relating to the ABL Facilities Agreement dated August 18, 2020, by and among Bristow Norway AS, Bristow Helicopters Limited and Bristow U.S. LLC, as borrowers and guarantors, Bristow Group Inc., as the acceding party, Bristow Holdings U.S. Inc., as the resigning parent, and Barclays Bank PLC, in its capacity as agent and security trustee.
104    Cover Page Interactive Data File – the cover page XBRL tags are embedded within the Inline XBRL document.

 

2


Signatures

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

 

    BRISTOW GROUP INC.
Date: August 24, 2020     By:  

/s/ Crystal L. Gordon

      Crystal L. Gordon
      Senior Vice President, General Counsel
EX-10.1

Exhibit 10.1

EXECUTION VERSION

Dated    18 August 2020

 

  (1)

BRISTOW HOLDINGS U.S. INC. (f/k/a BRISTOW GROUP INC.) as Resigning Parent

 

  (2)

THE ENTITIES LISTED IN SCHEDULE 1 PART 1 as Borrowers

 

  (3)

THE ENTITIES LISTED IN SCHEDULE 1, PART 2 as Guarantors

 

  (4)

THE ENTITIES LISTED IN SCHEDULE 1, PART 3 as Security Obligors

 

  (5)

BRISTOW GROUP INC. (f/k/a/ ERA GROUP INC.). as Acceding Party

 

  (6)

BARCLAYS BANK PLC as Agent

 

  (7)

BARCLAYS BANK PLC as Security Agent

 

 

DEED OF AMENDMENT AND RESTATEMENT,

ACCESSION, TRANSFER, RESIGNATION AND

CONFIRMATION

relating to

an ABL facilities agreement originally dated 17 April

2018

 

 

 

LOGO

LONDON


CONTENTS

 

Clause        Page  

1.

 

Definitions and interpretation

     2  

2.

 

Effective Date

     3  

3.

 

Amendment and restatement

     3  

4.

 

Accession by the Acceding Party

     3  

5.

 

Transfer of Role of Parent

     4  

6.

 

Resignation of Resigning Parent

     5  

7.

 

Confirmations

     6  

8.

 

Further assurance

     7  

9.

 

Representations

     7  

10.

 

Relationship with other Finance Documents

     7  

11.

 

Miscellaneous

     8  

12.

 

Law and jurisdiction

     8  

Schedules

 

1.      

 

Borrowers, Guarantors and Security Obligors

     9  
 

Part 1 Guarantors

     9  
 

Part 2 Security Obligors

     9  

2.

 

Conditions Precedent

     10  

3.

 

The Amended Agreement

     12  

 

i


THIS DEED OF AMENDMENT AND RESTATEMENT, ACCESSION, TRANSFER, RESIGNATION AND CONFIRMATION is dated 18 August 2020 and made between:

 

(1)

BRISTOW HOLDINGS U.S. INC. (f/k/a BRISTOW GROUP INC.) (the “Resigning Parent”);

 

(2)

THE PERSONS LISTED IN SCHEDULE 1, PART 1 (The Borrowers) (the “Borrowers”);

 

(3)

THE PERSONS LISTED IN SCHEDULE 1, PART 2 (The Guarantors) (the “Guarantors”);

 

(4)

THE PERSONS LISTED IN SCHEDULE 1, PART 3 (The Security Obligors) (the “Security Obligors”);

 

(5)

BRISTOW GROUP INC. (f/k/a ERA GROUP INC.) a company incorporated in Delaware (the “Acceding Party”);

 

(6)

BARCLAYS BANK PLC as agent of the other Finance Parties (the “Agent”); and

 

(7)

BARCLAYS BANK PLC as security trustee for the Secured Parties (the “Security Agent”).

BACKGROUND:

 

(A)

The Resigning Parent and the Agent, amongst others, entered into a facilities agreement dated 17 April 2018 (as amended from time to time up to the date of this Deed, the “Agreement”).

 

(B)

The Resigning Parent and the Acceding Party have consummated a merger pursuant to The Agreement and Plan of Merger, dated as of January 23, 2020, by and among the Acceding Party, Ruby Redux Merger Sub, Inc. and the Resigning Parent which has resulted in the Resigning Parent becoming a wholly owned Subsidiary of the Acceding Party (the “Merger”).

 

(C)

This Deed:

 

  (a)

puts into effect, by way of amendment and restatement, certain amendments to the Agreement, which have been agreed between the Resigning Parent, the Borrowers, the Guarantors and the Agent;

 

  (b)

contains confirmations in relation to guarantees given by the Guarantors;

 

  (c)

contains confirmations in relation to security interests granted by the Security Obligors;

 

  (d)

provides for the accession of the Acceding Party as a party to the Agreement as a Guarantor;

 

  (e)

provides for the transfer of the rights and obligations of the Resigning Parent in its role as Parent and Obligors’ Agent under the Finance Documents to the Acceding Party;

 

1


  (f)

provides for the resignation of the Resigning Parent from its role as a Guarantor under the Agreement; and

 

  (g)

deals with related matters.

THIS DEED WITNESSES that:

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Deed:

“Agreement” has the meaning given to it in Recital (A).

“Effective Date” has the meaning given to it in Clause 2 (Effective Date).

“Amended Agreement” means the Agreement in the form attached as Schedule 3 (The Amended Agreement), reflecting the amendment and restatement of the Agreement effected or proposed to be effected pursuant to this Deed.

“Long-stop Date” means 31 August 2020 or such later date as the Agent and the Resigning Parent may agree in writing from time to time.

“Merger” has the meaning given to it in Recital (B).

“New Finance Documents” means this Deed and any other Finance Document entered into, or to be entered into, on or about the date of this Deed or otherwise in connection with the transactions contemplated by this Deed (including the amendment and restatement of the Agreement) and “New Finance Document” means any of them.

“Obligor Party” means each Party which is an Obligor.

“Parties” means the parties to this Deed.

“Security Documents” means:

 

  (a)

the English law security agreement dated 17 April 2018 made between (1) Bristow Helicopters Limited as the chargor and (2) the Security Agent;

 

  (b)

the English law charge over bank accounts dated 17 April 2018 made between (1) Bristow Norway AS as the chargor and (2) the Security Agent;

 

  (c)

the Norwegian law security agreement dated 17 April 2018 made between (1) Bristow Norway AS as the chargor and (2) the Security Agent;

 

  (d)

the New York law security agreement dated 26 June 2020 made between (1) Bristow U.S. LLC as the grantor and (2) the Security Agent as the collateral agent; and

 

  (e)

the English law charge over receivables dated 26 June 2020 made between (1) Bristow U.S. LLC as the chargor and (2) the Security Agent.

 

2


1.2

Terms defined in the Amended Agreement

Terms defined in the Amended Agreement but not in this Deed shall have the same meaning in this Deed as in the Amended Agreement.

 

1.3

Construction

Clause 1.2 (Construction) of the Amended Agreement (other than paragraph (n) thereof) shall apply as if set out in full again here, with such changes as are appropriate to fit this context.

 

2.

EFFECTIVE DATE

 

2.1

Conditions precedent

The provisions of this Deed expressed to take effect from the Effective Date shall not come into effect until the date (the “Effective Date”) on which the Agent confirms that it has received all of the documents and other items listed in Schedule 2 (Conditions precedent) in form and substance satisfactory to it (other than any which it has waived). The Agent shall notify the other Parties promptly upon being so satisfied.

 

2.2

Long-stop Date

This Deed shall lapse and cease to have force and effect if, after the Long-stop Date but before the Effective Date has occurred, either the Agent or the Resigning Parent notifies the other in writing to that effect.

 

3.

AMENDMENT AND RESTATEMENT

 

3.1

Amendment and restatement

The Resigning Parent, the Acceding Party, the Borrowers, the Guarantors and the Agent agree that with effect from the Effective Date, the Agreement shall be amended and restated to read as set out in Schedule 3 (The Amended Agreement).

 

3.2

Consents

The Agent confirms that the consent of all Lenders has been obtained for the amendment and restatement of the Agreement effected by Clause 3.1, as required by Clause 42 (Amendments and waivers) of the Agreement.

 

4.

ACCESSION BY THE ACCEDING PARTY

 

  (a)

With effect from the Effective Date, the Acceding Party shall automatically accede and become party to the Agreement as the Parent, a Guarantor and the Obligors’ Agent.

 

  (b)

The Acceding Party acknowledges and confirms that:

 

  (i)

by its accession it becomes a Guarantor for the purposes of clause 23 (Guarantee and indemnity) of the Amended Agreement; and

 

3


  (ii)

by entering into this Deed it irrevocably appoints Bristow Helicopters Limited as its agent for service of process pursuant to clause 50.2 (Service of process) of the Amended Agreement.

 

  (c)

The Acceding Party is a corporation incorporated in the state of Delaware.

 

  (d)

The Acceding Party confirms that it has received a true and up-to-date copy of each of the Finance Documents.

 

  (e)

The Acceding Party confirms that no Default is continuing or would occur as a result of it becoming the Parent.

 

  (f)

The address and fax number of the Acceding Party for the purpose of clause 38.3 (Addresses) of the Amended Agreement are as follows:

Address: Bristow Group Inc.

3151 Briarpark Drive, Suite 700

7th Floor

Houston, Texas 77042

Attn: General Counsel

Fax number: +1 (713) 267-7670

 

5.

TRANSFER OF ROLES

 

5.1

Transfer

 

  (a)

On the Effective Date the Resigning Parent, in its capacity as Parent and the Obligors’ Agent under the Agreement, irrevocably transfers by way of novation its rights and obligations under the Agreement and the other Finance Documents to the Acceding Party and the Acceding Party irrevocably assumes such rights and obligations.

 

  (b)

The Acceding Party undertakes, from the Effective Date, to perform all obligations expressed to be undertaken in the Finance Documents by the Parent, a Guarantor and the Obligors’ Agent and agrees that it shall be bound by the terms of the Agreement, the Amended Agreement and the other Finance Documents as the Parent, a Guarantor and the Obligors’ Agent in all respects as if it had been an original party to the Agreement as the Parent, a Guarantor and the Obligors’ Agent. For the avoidance of doubt the Acceding Party agrees to bear any liabilities (whether actual or contingent) of the Resigning Parent, in its capacity as the Parent, a Guarantor and the Obligors’ Agent arising or relating to the period prior to the Effective Date.

 

  (c)

With effect from the Effective Date, each of the Agent (on behalf of the Finance Parties), the Borrowers and the Guarantors irrevocably releases, waives and discharges the Resigning Parent from all obligations liabilities, claims, warranties and demands of any kind (whether actual or contingent) which may be owing to the Finance Parties, the Borrowers or the Guarantors by the Resigning Parent in its capacity as the Parent, a Guarantor and the Obligors’ Agent under or in connection with the Finance Documents. From the Effective Date each of the Agent (acting upon the instructions of all the Lenders and on behalf of the Finance Parties), the Borrowers and the Guarantors accepts, in place of those obligations, liabilities, claims, warranties and demands, the undertaking of the Acceding Party set out in Clause 5.1(b) above.

 

4


  (d)

Each of the Agent (on behalf of the Finance Parties), the Borrowers and the Guarantors agrees that, with effect from the Effective Date, the Acceding Party will be entitled to all its rights, powers, interests and benefits of the Parent, a Guarantor and the Obligors’ Agent under the Finance Documents as if it had been the Parent, a Guarantor and the Obligors’ Agent under the Agreement in lieu of the Resigning Parent on the date on which it was made.

 

  (e)

Each Borrower and Guarantor acknowledges that, from the Effective Date, the Acceding Party will be entitled to act on its behalf as its agent in relation to the Finance Documents in accordance with clause 2.4(a) (Obligors’ Agent) of the Amended Agreement.

 

5.2

Consent

The Agent confirms that all Lenders have consented to the transfer referred to in Clause 4.1 (Transfer) above.

 

6.

RESIGNATION OF RESIGNING PARENT

 

6.1

Resignation

 

  (a)

With effect from the Effective Date:

 

  (i)

the Resigning Parent resigns from its capacity as a Guarantor under the Agreement;

 

  (ii)

the Agent (on behalf of the Finance Parties) releases, waives and discharges the Resigning Parent from all obligations, liabilities, claims, warranties and demands of any kind (whether actual or contingent) which may be owing to the Finance Parties by the Resigning Parent in its capacity as a Guarantor, under or in connection with clause 23 (Guarantee and indemnity) for the Agreement and all and any liability in respect of any breach or non-performance of such obligations; and

 

  (iii)

the Resigning Parent shall cease to be party to the Agreement.

 

  (b)

The Resigning Parent confirms that:

 

  (i)

no Default is continuing or would occur as a result of it resigning as a Guarantor under the Agreement; and

 

  (ii)

no payment is due from it under clause 23.1 (Guarantee and indemnity) of the Agreement.

 

5


6.2

Consent

The Agent confirms that all Lenders have consented to the resignation of the Resigning Parent in its capacity as a Guarantor under the Agreement as required by clause 42 (Amendments and waivers) of the Agreement.

 

7.

CONFIRMATIONS

 

7.1

Guarantee confirmations

Each of the Guarantors:

 

  (a)

consents to the amendment and restatement of the Agreement effected by Clause 3 (Amendment and restatement);

 

  (b)

confirms for the benefit of the Finance Parties that:

 

  (i)

its obligations as a Guarantor under Clause 23 (Guarantee and indemnity) of the Agreement (the “Guaranteed Obligations”) are not discharged or (except as set out in Clause 7.1(b)(ii)) otherwise affected by those amendments or the other provisions of this Deed and shall accordingly continue in full force and effect; and

 

  (ii)

the Guaranteed Obligations shall after the Effective Date extend to the obligations of each Obligor under the Amended Agreement and under any other Finance Documents, including the New Finance Documents.

 

  (c)

as an independent obligation, with effect from the Effective Date undertakes to each Finance Party to be bound by Clause 23 (Guarantee and indemnity) of the Amended Agreement as if it had been set out in full again here with such changes as are appropriate to fit this context, for the avoidance of doubt with references to the Finance Documents including the Amended Agreement and any New Finance Documents and references to the Obligors including the Acceding Guarantor; provided that a Guarantor shall automatically cease to be bound by this clause when it ceases to be an Obligor under the Amended Agreement, any demands or payments under this guarantee and indemnity shall be made in accordance with the terms of the Amended Agreement and no Obligor shall be required to make a payment in respect of the same liability under both this clause and the Amended Agreement.

 

7.2

Security Interest confirmations

Each of the Security Obligors:

 

  (a)

consents to the amendment and restatement of the Agreement effected by Clause 3 (Amendment and restatement); and

 

  (b)

confirms to the Security Agent for the benefit of the Secured Parties that:

 

6


  (i)

its obligations under, and the Security Interests granted by it in and pursuant to, the Security Document(s) to which it is a party are not discharged or (except as set out in Clause 7.2(b)(ii)) otherwise affected by those amendments or the other provisions of this Deed and shall accordingly remain in full force and effect; and

 

  (ii)

the Secured Obligations, including for the purposes of the Security Documents, shall after the Effective Date extend to the obligations of each Obligor under the Amended Agreement and under any other Finance Documents, including the New Finance Documents.

 

8.

FURTHER ASSURANCE

Each Guarantor and Security Obligor shall at the request of the Agent or the Security Agent and at its own expense promptly execute (in such form as the Agent or Security Agent may reasonably require) and do any document, act or thing which the Agent or Security Agent, acting reasonably, considers necessary or appropriate to preserve, perfect, protect or give effect to the consents, confirmations and undertakings provided for in this Deed.

 

9.

REPRESENTATIONS

 

  (a)

Each Obligor Party (excluding the Acceding Party and on the Effective Date excluding the Resigning Party) makes the Repeating Representations:

 

  (i)

on the date of this Deed; and

 

  (ii)

on the Effective Date, immediately after the amendment and restatement of the Agreement pursuant to Clause 3 (Amendment and restatement) has taken effect.

 

  (b)

The Acceding Party (by reference to the facts and circumstances then existing and in relation to itself and its Subsidiaries) makes each of the Repeating Representations and the representations in clauses 24.9 (Solvency), 24.11 (Deduction of Tax), paragraphs (a) and (d) of Clause 24.14 (Financial Statements), 24.15 (No proceedings), 24.16 (No breach of laws) and 24.18 (Taxation) of the Amended Agreement on the Effective Date , immediately after the amendment and restatement of the Agreement pursuant to Clause 3 (Amendment and restatement) has taken effect.

 

10.

RELATIONSHIP WITH OTHER FINANCE DOCUMENTS

 

10.1

Status

This Deed is designated by the Agent and the Resigning Parent (in its capacity as the Obligors’ Agent) as a Finance Document.

 

10.2

Continuing effect

Except to the extent of the amendments effected by Clause 3 (Amendment and restatement) the Agreement shall continue in full force and effect.

 

7


10.3

No waiver

Except as expressly set forth in Clauses 5.1(c) (Transfer) and 6.1(a)(ii) (Resignation), this Deed is not to be construed as waiving any right or remedy of any Finance Party. The Agent, on behalf of each Finance Party, reserves any other rights and remedies which any Finance Party may have from time to time under any Finance Document.

 

11.

MISCELLANEOUS

The provisions of Clauses 1.4 (Third Party Rights), 38 (Notices), 40 (Partial invalidity), 41 (Remedies and waivers) and 48 (Counterparts) of the Amended Agreement shall apply to this Deed as if set out in full again here, with such changes as are appropriate to fit this context.

 

12.

LAW AND JURISDICTION

 

12.1

Governing law

This Deed and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.

 

12.2

Jurisdiction

 

  (a)

The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence, validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “Dispute”).

 

  (b)

The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

 

  (c)

This Clause 12.2 is for the benefit of the Finance Parties and Secured Parties only. As a result, no Finance Party or Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concurrent proceedings in any number of jurisdictions.

EXECUTION:

The parties have shown their acceptance of the terms of this Deed by executing it at the end of the Schedules.

 

8


SCHEDULE 1

BORROWERS, GUARANTORS AND SECURITY OBLIGORS

[Omitted]

 

9


SCHEDULE 2

CONDITIONS PRECEDENT

Authorisations and legal opinions

 

1.

A copy of the constitutional documents of Bristow Norway AS (No: vedtekter, firmaattest) and a copy of the constitutional documents of each of the other Borrowers and Guarantors or confirmation that there have been no changes to its constitutional documents from those last delivered by it to the Agent.

 

2.

A copy of the constitutional documents (the certificate of incorporation and the bylaws) of the Acceding Party as in effect on the date of this Deed, certified as of a date reasonably near to the Effective Date as being a true and complete copy thereof by the Secretary of State of the State of Delaware.

 

3.

A copy of a certificate of good standing of the Acceding Party, dated on or around the Effective Date from the Secretary of State of the State of Delaware.

 

4.

A copy of a resolution of the board of directors of each of the Borrowers, the Guarantors (other than the Resigning Parent) and the Acceding Party:

 

  (a)

approving the terms of, and the transactions contemplated by, the New Finance Documents to which it is a party and resolving that it execute, deliver and perform those documents to which it is a party;

 

  (b)

authorising a specified person or persons to execute those documents on its behalf; and

 

  (c)

authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, in relation to the Acceding Party, any Utilisation Request) to be signed and/or despatched by it under or in connection with the New Finance Documents.

 

5.

A copy of a resolution signed by all the holders of the issued shares in Bristow Helicopter Limited, approving the terms of, and the transactions contemplated by the New Finance Documents to which Bristow Helicopters Limited is a party.

 

6.

A specimen of the signature of each person authorised by the resolution referred to in Paragraph 4 which has signed a New Finance Document or a certificate referred to in paragraph 7 below.

 

7.

A certificate of a director or authorised signatory of each of the Borrowers, the Resigning Parent and the Acceding Party that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Deed.

 

8.

A certificate of the Acceding Party (signed by a director or equivalent officer or an authorised signatory) confirming that, subject to applicable local law qualifications, guaranteeing the Total Commitments would not cause any guarantee or similar limit binding on the Acceding Party to be exceeded.

 

10


Finance Document

 

9.

A copy of this Deed executed by each Obligor Party.

Legal Opinions

 

10.

The following legal opinions, each addressed to the Agent, the Security Agent, the Arrangers, the Bookrunners, the Issuing Banks, the Swingline Lender and the Lenders and in the form provided prior to the date of this Agreement:

 

  (a)

a legal opinion of Mayer Brown International LLP, legal advisors to the Agent as to matters of English law;

 

  (b)

a legal opinion of Advokatfirmaet BAHR AS, legal advisors to the Agent, as to matters of Norwegian law;

 

  (c)

a legal opinion of Phelps Dunbar, L.L.P, as legal advisors to the Obligor Parties, as to matters of the law of the State of Louisiana; and

 

  (d)

a legal opinion of Baker Botts L.L.P., legal advisors to the Obligor Parties, as to matters of Delaware general corporate law.

Other documents and evidence

 

11.

If available, the latest audited financial statements of the Acceding Party.

 

12.

A Certificate of Merger confirming the Merger has been completed.

 

13.

In respect of the Acceding Party, the Agent and the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including the US PATRIOT Act.

 

14.

To the extent the Acceding Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Acceding Party.

 

11


SCHEDULE 3

THE AMENDED AGREEMENT

 

12


Dated 17 April 2018

(as amended and restated by an amendment and restatement, confirmation and waiver

agreement dated 31 October 2019 and a deed amendment and restatement, accession, transfer

and confirmation dated 18 August 2020)

ABL FACILITIES AGREEMENT

in respect of

USD 75,000,000

for

BRISTOW NORWAY AS and BRISTOW HELICOPTERS LIMITED

as Original Borrowers

arranged by

BARCLAYS BANK PLC and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

as Arrangers and Bookrunners

with

BARCLAYS BANK PLC

acting as Agent

BARCLAYS BANK PLC

acting as Issuing Bank

BARCLAYS BANK PLC

acting as Security Agent

and

BARCLAYS BANK PLC

acting as Swingline Lender

 

LOGO

 


CONTENTS

 

Clause        Page  

1.

 

Definitions and interpretation

     1  

2.

 

The Facilities

     70  

3.

 

Purpose

     76  

4.

 

Conditions of Utilisation

     76  

5.

 

Utilisation - Loans

     79  

6.

 

Utilisation – Letters of Credit

     84  

7.

 

Letters of Credit

     89  

8.

 

Swingline Loans

     94  

9.

 

Agreed Currencies

     95  

10.

 

Repayment

     97  

11.

 

Illegality, voluntary prepayment and cancellation

     105  

12.

 

Mandatory prepayment and cancellation

     107  

13.

 

Restrictions

     108  

14.

 

Interest

     110  

15.

 

Interest Periods

     112  

16.

 

Changes to the calculation of interest

     112  

17.

 

Fees

     115  

18.

 

Tax gross up and indemnities

     117  

19.

 

Increased costs

     128  

20.

 

Other indemnities

     130  

21.

 

Mitigation by the Lenders

     133  

22.

 

Costs and expenses

     133  

23.

 

Guarantee and indemnity

     135  

24.

 

Representations

     143  

25.

 

Information undertakings

     153  

26.

 

Financial Covenants

     158  

27.

 

General undertakings

     169  

28.

 

Events of Default

     181  

29.

 

Changes to the Lenders

     189  

30.

 

Restriction on Debt Purchase Transactions

     195  

31.

 

Changes to the Obligors

     197  

32.

 

Role of the Agent, the Arrangers, the Issuing Bank and others

     201  

33.

 

The Security Agent

     212  

34.

 

Conduct of business by the Finance Parties

     223  

35.

 

Sharing among the Finance Parties

     224  

36.

 

Payment mechanics

     226  

37.

 

Set-off

     231  

38.

 

Notices

     231  


CONTENTS

 

Clause        Page  

39.

 

Calculations and certificates

     236  

40.

 

Partial invalidity

     236  

41.

 

Remedies and waivers

     236  

42.

 

Amendments and waivers

     237  

43.

 

Confidential Information

     244  

44.

 

Confidentiality of Funding Rates

     248  

45.

 

Disclosure of Lender details by Agent

     250  

46.

 

USA Patriot Act

     250  

47.

 

Contractual recognition of bail-in

     250  

48.

 

Acknowledgement regarding any supported QFCs

     251  

49.

 

Counterparts

     252  

50.

 

Governing law

     253  

51.

 

Enforcement

     253  

Schedules

 

1.

 

The Original Parties

         

2.

 

Conditions precedent

  

3.

 

Requests and notices

  

4.

 

Form of Transfer Certificate

  

5.

 

Form of Assignment Agreement

  

6.

 

Form of Accession Deed

  

7.

 

Form of Resignation Letter

  

8.

 

Form of Substitute Affiliate Lender Designation Notice

  

9.

 

Form of Compliance Certificate

  

10.

 

LMA Form of Confidentiality Undertaking

  

11.

 

Timetables

  

12.

 

Form of Increase Confirmation

  

13.

 

Forms of Notifiable Debt Purchase Transaction Notice

  

14.

 

Form of Aggregate Borrowing Base Certificate

  

15.

 

Existing Financial Indebtedness

  

16.

 

Initial Collection Accounts

  

17.

 

Eligible Account Debtors

  


THIS AGREEMENT (the “Agreement”) is dated 17 April 2018 (as amended and restated by an amendment and restatement, confirmation and waiver agreement dated 31 October 2019 and a deed of amendment and restatement, accession, transfer, resignation and confirmation dated 18 August 2020 (the “Second Amendment Agreement Date”) and made between:

 

(1)

BRISTOW GROUP INC. (FORMERLY KNOWN AS ERA GROUP INC.) (the “New Parent”);

 

(2)

THE COMPANIES listed in Schedule 1, Part 1 (The Original Parties) as original borrowers (the “Original Borrowers”);

 

(3)

THE COMPANIES listed in Schedule 1, Part 1 (The Original Parties) as original guarantors (together with the Parent, the “Original Guarantors”);

 

(4)

BARCLAYS BANK PLC and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (the “Arrangers” and “Bookrunners”);

 

(5)

THE FINANCIAL INSTITUTIONS listed in Schedule 1, Part 2 (The Original Lenders) as lenders (the “Original Lenders”);

 

(6)

BARCLAYS BANK PLC as agent of the other Finance Parties (the “Agent”);

 

(7)

BARCLAYS BANK PLC as security trustee for the Secured Parties (the “Security Agent”);

 

(8)

BARCLAYS BANK PLC (the “Original Issuing Bank”); and

 

(9)

BARCLAYS BANK PLC as swingline lender (the “Swingline Lender”).

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Agreement:

“ABR” means, in relation to any Loan denominated in US dollars, the higher of:

 

  (a)

the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the US;

 

  (b)

US federal funds effective rate from time to time plus 0.50 percent; and

 

  (c)

LIBOR for a one month interest period (to be initially determined two Business Days prior to the requested Utilisation) plus 1.00 percent,

in each case changing as and when the applicable rate changes;

 

1


“ABR Rate Loan” means a Loan, requested to be made as an ABR Rate Loan in the relevant Utilisation Request;

“Acceptable Bank” means the Original Lenders and each of their Affiliates and:

 

  (a)

a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency or an Affiliate of such a bank or financial institution; or

 

  (b)

any other bank or financial institution approved by the Agent;

“Accession Deed” means a document substantially in the form set out in Schedule 6 (Form of Accession Deed);

“Account Debtor” means any person (other than a member of the Group) who is obliged to discharge a payment obligation to a Borrower arising under a Contract of Services in relation to a Receivable;

“Accounting Principles” means generally accepted accounting principles in the United States of America;

“Accounting Reference Date” means the last day of the Parent’s Financial Year, being as of the Second Amendment Date, 31 March;

“Additional Borrower” means a company which becomes an Additional Borrower in accordance with Clause 31 (Changes to the Obligors);

“Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with Clause 31 (Changes to the Obligors) or pursuant to the Second Amendment and Restatement Agreement;

“Additional Obligor” means an Additional Borrower or an Additional Guarantor;

“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company;

“Agent Spot Rate of Exchange” means:

 

  (a)

the Agent’s spot rate of exchange; or

 

  (b)

(if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably),

for the purchase of the relevant currency with the Base Currency in the New York foreign exchange market at or about 11.00 a.m. on a particular day;

“Aggregate Availability” means, with respect to the Borrowers, at any time, an amount equal to the sum of:

 

2


  (a)

the Aggregate First Out Availability; and

 

  (b)

the Aggregate LILO Availability;

“Aggregate Borrowing Base” means the aggregate of the First Out Borrowing Bases and the LILO Borrowing Bases of the English Borrower, the Norwegian Borrower and the US Borrowers;

“Aggregate Borrowing Base Certificate” means a certificate, signed and certified as accurate and complete by an authorised signatory of the Obligors’ Agent, in substantially the form agreed scheduled to this Agreement at Schedule 14 (Form of Aggregate Borrowing Base Certificate) or another form which is acceptable to the Agent in its reasonable discretion;

“Aggregate First Out Availability” means, with respect to the Borrowers, at any time, an amount equal to:

 

  (a)

the lesser of:

 

  (i)

the US/UK Tranche Commitments plus the Norwegian Tranche Commitments; and

 

  (ii)

the Aggregate First Out Borrowing Base;

minus

 

  (b)

the Aggregate First Out Revolving Exposure in respect of all the Borrowers, provided that, in relation to any proposed Utilisation, any First Out Loans that are due to be repaid by any Borrower at the end of their Interest Period (in accordance with Clause 10.1(a)(Repayment of Loans and Letters of Credit)) and any First Out Letters of Credit the Term of which are due to expire (or in relation to which the Issuing Bank is otherwise satisfied that it will have no further liability), in each case on or before the proposed Utilisation Date (unless and to the extent that such Utilisation due to be repaid is a Rollover Loan in relation to which a Utilisation Request has been submitted prior to the date on which the calculation as to Aggregate First Out Availability is made) shall be deducted from the Aggregate First Out Revolving Exposure (in the case of a First Out Letter of Credit to the extent it would otherwise be included) for the purposes of determining Aggregate First Out Availability in relation to that Utilisation;

“Aggregate First Out Borrowing Base” means the aggregate of the First Out Borrowing Bases of the English Borrower, the Norwegian Borrower and the US Borrowers;

“Aggregate First Out Revolving Exposure” means, at any time, the aggregate Base Currency Amount of the First Out Revolving Facility Exposure of all the First Out Lenders at such time;

 

3


“Aggregate Individual Borrowing Base” means:

 

  (a)

in relation to the English Borrower, the aggregate of its First Out Borrowing Base and its LILO Borrowing Base;

 

  (b)

in relation to the Norwegian Borrower, the aggregate of its First Out Borrowing Base and its LILO Borrowing Base; and

 

  (c)

in relation to the US Borrowers, the aggregate of the US Borrowers’ First Out Borrowing Base and their LILO Borrowing Base;

“Aggregate LILO Availability” means, with respect to the Borrowers, at any time, an amount equal to:

 

  (a)

the lesser of:

 

  (i)

the LILO Tranche Commitments; and

 

  (ii)

the Aggregate LILO Borrowing Base;

minus

 

  (b)

the Aggregate LILO Revolving Exposure in respect of all the Borrowers, provided that, in relation to any proposed Utilisation, any LILO Loans that are due to be repaid by any Borrower at the end of their Interest Period (in accordance with Clause 10.1(a) (Repayment of Loans and Letters of Credit)) and any LILO Letters of Credit the Term of which are due to expire (or in relation to which the Issuing Bank is otherwise satisfied that it will have no further liability), in each case on or before the proposed Utilisation Date (unless and to the extent that such Utilisation due to be repaid is a Rollover Loan in relation to which a Utilisation Request has been submitted prior to the date on which the calculation as to Aggregate LILO Availability is made) shall be deducted from the LILO Revolving Exposure (in the case of a LILO Letter of Credit to the extent it would otherwise be included) for the purposes of determining Aggregate LILO Availability in relation to that Utilisation;

“Aggregate LILO Revolving Exposure” means, at any time, the aggregate Base Currency Amount of the LILO Revolving Facility Exposure of all the LILO Lenders at such time;

“Aggregate Revolving Exposure” means, at any time, the aggregate Base Currency Amount of the Revolving Facility Exposure of all the Lenders at such time;

“Agreed Currency” means each of sterling, euro and Norwegian Kroner;

“Annual Financial Statements” has the meaning given to that term in Clause 25 (Information undertakings);

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption including the Bribery Act 2010 and the United States Foreign Corrupt Practices Act of 1977;

“Applicable Governmental Percentage” means 25 percent;

 

4


“Applicable Non-Governmental Percentage” means 20 percent;

“Applicable Percentage” means, with respect to any Lender, a percentage equal to a fraction the numerator of which is such Lender’s US/UK Tranche Commitment, Norwegian Tranche Commitment and/or the LILO Tranche Commitment (as applicable) and the denominator of which is the aggregate US/UK Tranche Commitments, the aggregate Norwegian Tranche Commitments and/or the aggregate LILO Tranche Commitment (as applicable) (provided that, if the Revolving Facility Commitments have terminated or expired, the Applicable Percentage shall be determined based upon such Lender’s share of the applicable Aggregate Revolving Exposure at that time), provided that so long as any Lender is a Defaulting Lender, such Defaulting Lender’s Revolving Facility Commitment shall be disregarded in the calculations above;

“Article 55 BRRD” means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms;

“Assignment Agreement” means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee;

“Audit Laws” means the EU Regulation (537/2014) on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EC and the EU Directive (2014/56/EU) amending Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts and any law or regulation which implements that EU Directive (2014/56/EU);

“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration;

“Availability” means:

 

  (a)

in relation to the English Borrower, the aggregate of its First Out Availability and its LILO Availability;

 

  (b)

in relation to the Norwegian Borrower, the aggregate of its First Out Availability and its LILO Availability; and

 

  (c)

in relation to each US Borrower, the aggregate of the US Borrowers’ First Out Availability and the US Borrowers’ LILO Availability;

“Availability Block” means an amount of USD 15,000,000;

“Availability Period” means the period from and including the date of this Agreement to and including the Termination Date;

 

5


“Availability Shortfall” means a breach of any of the Utilisation Limits;

“Available Commitment” means a Lender’s US/UK Tranche Commitments, Norwegian Tranche Commitments and/or LILO Tranche Commitments (as applicable) minus (subject as set out below):

 

  (a)

the Base Currency Amount of its participation in any outstanding Utilisations under the US/UK Tranche, the Norwegian Tranche and/or the LILO Tranche (as applicable); and

 

  (b)

in relation to any proposed Utilisation, the Base Currency Amount of its participation in any other Utilisations under the US/UK Tranche, the Norwegian Tranche and/or the LILO Tranche (as applicable) that are due to be made on or before the proposed Utilisation Date,

provided that for the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation that Lender’s participation in any relevant Loans that are due to be repaid by a Borrower at the end of their Interest Period (in accordance with Clause 10.1(a) (Repayment of Loans and Letters of Credit)) and any relevant Letters of Credit the Term of which are due to expire (or in relation to which the Issuing Bank is otherwise satisfied that it will have no further liability), in each case on or before the proposed Utilisation Date shall not be deducted from that Lender’s Revolving Facility Commitment;

“Available Facility” means the aggregate of each Lender’s Available Commitment;

“Average Quarterly First Out Availability” means, for any Financial Quarter of the Parent, an amount equal to the average daily (calculated as at the end of each Business Day by reference to the then most recent Aggregate Borrowing Base Certificate) Aggregate First Out Availability during such Financial Quarter;

“Bail-In Action” means the exercise of any Write-down and Conversion Powers;

“Bail-In Legislation” means:

 

  (a)

in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and

 

  (b)

in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation;

“Banking Services” means each and any of the following bank services provided to any Borrower by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services, and (d) treasury management services (including controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services);

 

6


“Banking Services Obligations” means any and all obligations of the Borrowers, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services;

“Base Currency” means US dollars;

“Base Currency Amount” means, in relation to a Utilisation, the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement) and, in the case of a Letter of Credit, as adjusted under Clause 6.8 (Revaluation of Letters of Credit) and in the case of a Loan denominated in an Agreed Currency as adjusted under Clause 5.8 (Revaluation of Loans), in each case as adjusted to reflect any subsequent repayment, prepayment, consolidation or division of a Utilisation;

Benchmark Replacement” means the sum of:

 

  (a)

the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected by the Agent and the Obligors’ Agent giving due consideration to:

 

  (i)

any selection or recommendation of a replacement rate or the mechanism for determining such a rate by a Governmental Authority; or

 

  (ii)

any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR or NIBOR for syndicated loans in the US; and

 

  (b)

the Benchmark Replacement Adjustment,

provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement; provided further that any such Benchmark Replacement shall be administratively feasible as determined by the Agent in its reasonable discretion;

“Benchmark Replacement Adjustment” means with respect to any replacement of LIBOR or NIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Agent and the Obligors’ Agent giving due consideration to:

 

  (a)

any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR or NIBOR with the applicable Unadjusted Benchmark Replacement by a Governmental Authority; or

 

7


  (b)

any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for syndicated loans in the US at such time;

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Agent and the Obligors’ Agent decide may be appropriate to reflect the technical adoption and operational implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Agent and the Obligors’ Agent decide is reasonably necessary in connection with the administration of this Agreement);

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to LIBOR or NIBOR (as applicable):

 

  (a)

in the case of paragraph (a) or (b) of the definition of “Benchmark Transition Event” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of LIBOR or NIBOR or a Governmental Authority permanently or indefinitely ceases to provide LIBOR or NIBOR; or

 

  (b)

in the case of paragraph (c) of the definition of “Benchmark Transition Event” the date of the public statement or publication of information referenced therein;

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBOR or, as applicable, NIBOR:

 

  (a)

a public statement or publication of information by or on behalf of the administrator of LIBOR or NIBOR announcing that such administrator has ceased or will cease to provide LIBOR or NIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR or NIBOR;

 

  (b)

a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR or NIBOR, a Governmental Authority, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR or NIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or NIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR or NIBOR, which states that the administrator of LIBOR or NIBOR has ceased or will cease to provide LIBOR or NIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR or NIBOR; or

 

8


  (c)

a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR or NIBOR announcing that LIBOR or NIBOR is no longer representative;

“Benchmark Transition Start Date” means, in the case of:

 

  (a)

a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the date falling 90 days prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication); and

 

  (b)

in the case of an Early Opt-in Election, the date specified by the Agent or the Majority Lenders, as applicable, by notice to the Obligors’ Agent, the Agent (in the case of such notice by the Majority Lenders) and the Lenders;

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR or NIBOR and solely to the extent that LIBOR or NIBOR (as applicable) has not been replaced with a Benchmark Replacement, the period (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR or NIBOR for all purposes hereunder in accordance with Clause 16 (Unavailability of Screen Rate) and (b) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to Clause 16 (Unavailability of Screen Rate);

Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation;

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230;

“Borrower” means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 31 (Changes to the Obligors);

“Borrowing Base” means, with respect to (i) the English Borrower, (ii) the Norwegian Borrower, and (iii) the US Borrowers, the First Out Borrowing Base and/or the LILO Borrowing Base of such Borrower (or in the case of the US Borrowers, the US Borrowers) (as applicable);

“Borrowing Base Data Failure” shall mean the Borrowers (or the Obligors’ Agent (as applicable)) failing to provide any of the information required to be provided pursuant to Clause 25.5 (Borrowing Base Certificate and related information) on the due date for the provision of such information;

“Break Costs” means the amount (if any) by which:

 

  (a)

the interest (excluding the First Out Applicable Margin or the LILO Applicable Margin (as applicable)) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

 

9


exceeds:

 

  (b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period;

“Budget” means any annual budget for the Group substantially in the form provided to the Arrangers prior to the date of this Agreement or, after the date of this Agreement, any other form agreed by the Parent and the Agent, each acting reasonably, and delivered by the Parent to the Agent pursuant to Clause 25.4 (Budget);

“BUS LLC Accession Deed” means the accession deed dated 26 June 2020 made between (1) Bristow US LLC, (2) the Old Parent, (3) the Agent and (4) the Security Agent;

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, New York, Oslo and:

 

  (a)

(in relation to any date for payment or purchase of euro) any TARGET Day; and

 

  (b)

(in relation to any date for payment or purchase of a currency other than US dollars, euro, Norwegian Kroner or sterling) the principal financial centre of the country of that currency;

“Capital Expenditure” has the meaning given to that term in Clause 26.1 (Financial definitions);

“Cash Dominion Period” shall mean the period from the occurrence of a Cash Dominion Triggering Event until the date of a subsequent Cash Dominion Rescission Triggering Event;

“Cash Dominion Rescission Triggering Event” shall mean the occurrence of both of the following:

 

  (a)

no Event of Default exists; and

 

  (b)

Aggregate Availability being (for thirty consecutive days) equal to or greater than the greater of (i) USD 10,000,000 and (ii) 15 percent of the lesser of the (A) Aggregate Borrowing Base and (B) Total Commitments less the aggregate Availability Block;

“Cash Dominion Triggering Event” shall mean the occurrence of either of the following:

 

  (a)

an Event of Default, which is continuing; or

 

10


  (b)

Aggregate Availability being less than the greater of (i) USD 10,000,000 and (ii) 15 percent of the lesser of the (A) Aggregate Borrowing Base and (B) Total Commitments less the aggregate Availability Block;

“Cash Equivalent Investments” means at any time:

 

  (a)

certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;

 

  (b)

any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

  (c)

commercial paper not convertible or exchangeable to any other security:

 

  (i)

for which a recognised trading market exists;

 

  (ii)

issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

  (iii)

which matures within one year after the relevant date of calculation; and

 

  (iv)

which has a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

  (d)

sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

 

  (e)

any investment in money market funds which:

 

  (i)

have a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited; and

 

  (ii)

invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above to the extent that investment can be turned into cash on not more than 30 days’ notice; or

 

  (f)

any other debt security approved by the Majority Lenders,

in each case, denominated in US dollars, sterling, euro or Norwegian Kroner and to which any Obligor is alone (or together with other Obligors beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents));

 

11


“Change of Control” means:

 

  (a)

the Parent ceases to own, directly or indirectly, legal and beneficial title to at least 49 percent of the issued share capital of any Borrower;

 

  (b)

any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Parent and its Subsidiaries, taken as a whole, to any “person” or “group” (each within the meaning of the Exchange Act and the rules of the Commission thereunder in effect on the date hereof);

 

  (c)

the acquisition of ownership, directly or indirectly, beneficially or of record, by any “person” or “group” (within the meaning of the Exchange Act and the rules of the Commission thereunder as in effect on the date hereof), other than a Permitted Holder, of 50% or more of the outstanding shares of the voting stock of the Parent; or

 

  (d)

occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by persons who were neither: (i) members of the board of directors immediately following consummation of the Merger (as defined in the Second Amendment and Restatement Agreement), (ii) nominated, appointed or approved by the board of directors nor (iii) appointed by directors so nominated, appointed or approved,

provided, however, that, with respect to clause (c) above a transaction in which the Parent becomes a Subsidiary of another person (other than a person that is an individual) shall not constitute a Change in Control if:

 

  (i)

the stockholders of the Parent immediately prior to such transaction “beneficially own” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly through one or more intermediaries, at least a majority of the voting power of the outstanding voting stock of the Parent immediately following the consummation of such transaction; and

 

  (ii)

immediately following the consummation of such transaction, no “person” (as such term is defined above), other than such other person (but including the holders of the equity interests of such other person), “beneficially owns” (as such term is defined above), directly or indirectly through one or more intermediaries, more than 50% of the voting power of the outstanding voting stock of the Parent;

“Charged Property” means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security;

“Closing Date” means 17 April 2018;

“Code” means the United States Internal Revenue Code of 1986, as amended;

 

12


“Collection Account” means the Initial Collection Accounts and any other bank accounts that may be maintained by any Borrower into which Receivables of any Eligible Account Debtor are, or are to be, paid or credited from time to time and which have been designated in writing as “Collection Accounts” by the Obligors’ Agent;

“Commission” means the Securities and Exchange Commission;

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

“Compliance Certificate” means a certificate substantially in the form set out in Schedule 9 (Form of Compliance Certificate);

Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by the Agent in accordance with:

 

  (a)

the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; or

 

  (b)

if, and to the extent that, the Agent determines that Compounded SOFR cannot be determined in accordance with paragraph (a) above, then the rate, or methodology for this rate, and conventions for this rate that the Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for U.S. dollar-denominated syndicated loans at such time,

provided that if the Agent decides that any such rate, methodology or convention determined in accordance with paragraphs (a) or (b) above is not administratively feasible for the Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “Benchmark Replacement”;

“Confidential Information” means all information relating to the Parent, any Obligor, the Group, any Receivables, any Contract of Services, the Finance Documents and/or the Facility which is provided to a Finance Party in relation to the Finance Documents or a Facility from any member of the Group or any of its advisers (a “Providing Party”) in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

  (a)

information that:

 

  (i)

is or becomes public information other than as a direct or indirect result of any breach by the Finance Party of a confidentiality agreement to which that Finance Party is party or Clause 43 (Confidential Information); or

 

13


  (ii)

is identified in writing at the time of delivery as non-confidential by the relevant Providing Party; or

 

  (iii)

is known by the Finance Party before the date the information is disclosed to the Finance Party by any Providing Party or is lawfully obtained by the Finance Party after that date, from a source which is, as far as the Finance Party is aware, unconnected with the Group and which, in either case, as far as the Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

  (b)

any Funding Rate;

“Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 10 (LMA form of Confidentiality Undertaking) or in any other form agreed between the Obligors’ Agent and the Agent;

“Confirmation Order” means that certain Order (I) Approving the Disclosure Statement, (II) Confirming the Amended Joint Chapter 11 Plan of Reorganization of Bristow Group Inc. and Its Debtor Affiliates as Further Modified and (III) Granting Related Relief, entered by the Bankruptcy Court on 8 October 2019 as Docket No. 825 in Case No. 19-32713 (DRJ);

“Constitutional Documents” means:

 

  (i)

in relation to the English Borrower, the certificate of incorporation, certificate of incorporation on change of name and articles of association of the English Borrower;

 

  (ii)

in relation to the Norwegian Borrower, the certificate of incorporation (in Norwegian: firmaattest) and articles of association (in Norwegian: vedtekter) of the Norwegian Borrower; and

 

  (iii)

in relation to a US Borrower, the articles of organisation, certificate of formation or incorporation or equivalent and (if applicable) the operating agreement of that US Borrower,

and any other constitutional document applicable to any of them;

“Contract of Services” means a contract for the provision of, or including the provision of, aircraft transportation services and any lease or similar agreement for one or more aircraft where a Borrower retains operational control of the relevant aircraft;

“Contribution Notice” means a contribution notice issued by the Pensions Regulator under s38 or s47 Pensions Act 2004;

Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable Interest Period;

 

14


“CTA” means the Corporation Tax Act 2009;

“Debt Purchase Transaction” means, in relation to a person, a transaction where such person:

 

  (a)

purchases by way of assignment or transfer;

 

  (b)

enters into any sub-participation in respect of; or

 

  (c)

enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,

any Revolving Facility Commitment or amount outstanding under this Agreement;

“Default” means:

 

  (a)

an Event of Default or any event or circumstance specified in Clause 28 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default; and

 

  (b)

a Borrowing Base Data Failure;

“Defaulting Lender” means any Lender:

 

  (a)

which has failed to make its participation in a Loan available (or has notified the Agent or the Parent (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation) or which has failed to provide cash collateral (or has notified the Issuing Bank or the Parent (which has notified the Agent) that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover);

 

  (b)

which has otherwise rescinded or repudiated a Finance Document;

 

  (c)

which is an Issuing Bank which has failed to issue a Letter of Credit (or has notified the Agent or the Parent (which has notified the Agent) that it will not issue a Letter of Credit) in accordance with Clause 6.5 (Issue of Letters of Credit) or which has failed to pay a claim (or has notified the Agent or the Parent (which has notified the Agent) that it will not pay a claim) in accordance with (and as defined in) Clause 7.2 (Claims under a Letter of Credit); or

(d) with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of paragraphs (a) and (c) above:

 

  (i)

its failure to pay, or to issue a Letter of Credit is caused by:

 

  (A)

administrative or technical error; or

 

15


  (B)

a Disruption Event; and

payment is made within five Business Days of its due date; or

 

  (ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question;

“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent in respect of the Charged Property pursuant to the Finance Documents;

“Deposit Account Control Agreement” means any agreement or other documentation (including a notice and acknowledgement in substantially the form (if any) scheduled to any applicable Transaction Security Document) entered into between the Security Agent, any Borrower and the relevant account holding bank, necessary to perfect the Security of the Security Agent in relation to the Collection Accounts and, in the case of bank accounts of the English Borrower, to effect control over bank accounts;

“Discontinued Indebtedness” means any Financial Indebtedness which is repaid, prepaid, converted or otherwise discharged pursuant to the Plan of Reorganization;

“Disruption Event” means either or both of:

 

  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i)

from performing its payment obligations under the Finance Documents; or

 

  (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted;

“Divided Person” means, any limited liability company, limited partnership or other entity which has been formed upon the consummation of a Division;

“Division” means the statutory division of any limited liability company, limited partnership or other entity into two or more limited liability companies, limited partnerships or other applicable entities pursuant to Section 18-217 of the Delaware Limited Liability Company Act or similar statute in Delaware or any other US state;

 

16


  “Early

Opt-in Election” means the occurrence of:

 

  (a)

(i) a determination by the Agent or (ii) a notification by the Majority Lenders to the Agent (with a copy to the Obligors’ Agent) that the Majority Lenders have determined that syndicated loans in the US being executed at such time, or that include language similar to that contained in Clause 16.1 (Unavailability of Screen Rate), are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR or NIBOR, and

 

  (b)

(i) the election by the Agent or (ii) the election by the Majority Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Agent of written notice of such election to the Obligors’ Agent and the Lenders or by the Majority Lenders of written notice of such election to the Agent;

“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the Securities and Exchange Commission of the US;

“EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway;

“Eligible Account Debtor” means the Account Debtors listed in Schedule 17 (Eligible Account Debtors) and any other Account Debtor designated as such from time to time in writing by the Obligors’ Agent or whose Receivables are included as Eligible Receivables in an Aggregate Borrowing Base Certificate provided the Obligors’ Agent informs the Agent that such Receivables have been included on the same day as that Aggregate Borrowing Base Certificate is delivered;

“Eligible Investment Grade Receivables” means Eligible Receivables of an Investment Grade Account Debtor;

“Eligible Non Investment Grade Receivables” means Eligible Receivables of Account Debtors which are not Investment Grade Account Debtors;

“Eligible Receivables” means, unless otherwise agreed between the Agent and the Obligors’ Agent, any Receivable owed to a Borrower which the Agent determines in its Permitted Discretion is eligible as the basis for the extension of Revolving Facility Loans and Swingline Loans and the issuance of Letters of Credit and provided that any Receivable previously agreed to be eligible (or arising under a Contract of Services in respect of which Receivables have been previously agreed to be eligible) by the Agent in its Permitted Discretion (and which is not otherwise ineligible pursuant to the provisions set out in paragraphs (a) to (w) below) may be assumed to remain eligible for the purposes of any Aggregate Borrowing Base Certificate and Borrowing Base unless advised otherwise by the Agent in its Permitted Discretion to the Obligors’ Agent in writing with at least three Business Days prior notice (with any such change taking effect as and from the delivery of the next Aggregate Borrowing Base Certificate following expiry of such notice). Without limiting the Agent’s

 

17


Permitted Discretion, Eligible Receivables shall not, unless otherwise agreed by the Agent in its Permitted Discretion, include any Receivable of a Borrower:

 

  (a)

which is not subject to a first priority perfected (other than with respect to the need to serve notices on Account Debtors, unless such service is required under the terms of the Finance Documents) Security in favour of the Security Agent;

 

  (b)

which is not owed by an Eligible Account Debtor;

 

  (c)

which is subject to any Security other than (i) Security in favour of the Security Agent and (ii) Permitted Security which does not have priority over the Security in favour of the Security Agent;

 

  (d)

which is unpaid more than 90 days after the date of the original invoice therefor or more than 60 days after the original due date therefor;

 

  (e)

which is owing by an Account Debtor for which more than 50 percent in aggregate of the Receivables owing from such Account Debtor and its Affiliates are ineligible under paragraph (d);

 

  (f)

which is owing by an Account Debtor to the extent the aggregate amount of Eligible Receivables owing from such Account Debtor and its Affiliates to all Borrowers exceeds the Applicable Non-Governmental Percentage (or the Applicable Governmental Percentage in the case of Receivables owing from the UK’s Department of Transport (and its Affiliates and any other Governmental Authority of the UK) and Equinor Energy AS (formerly known as Statoil Petroleum AS) (and its Affiliates and any other Governmental Authority of Norway)) of the aggregate amount of Eligible Receivables of all Borrowers;

 

  (g)

with respect to which any covenant, representation or warranty contained in this Agreement or in any Transaction Security Document has been breached (in the case of a covenant) or is not true (in the case of a representation or warranty) in each case in any material respect (except that such materiality qualifier shall not be applicable to any such covenant, representation or warranty that are already qualified or modified by materiality in the text thereof) unless and until no Default or Event of Default is continuing in respect of such breach or incorrect representation or warranty;

 

  (h)

which (i) is not evidenced by an invoice (or other documentation satisfactory to the Agent) which has been sent to the Account Debtor, (ii) represents a progress billing or retainage, (iii) is contingent upon such Borrower’s completion of any further performance, (iv) relates to services for which a performance, surety or completion bond or similar assurance has been issued by or on behalf of a Borrower and which remains outstanding, (but only to the extent of the amount of such performance surety or completion bond or similar assurance), (v) relates to payments of interest, fees or late charges (but only to the extent of such interest, fees or late charges), or (vi) which constitutes customer prepayments or unearned revenue;

 

18


  (i)

for which the services giving rise to such Receivable have not been performed by such Borrower or if such Receivable is invoiced having been previously invoiced without a valid credit note having subsequently been raised in relation to the earlier invoice;

 

  (j)

which is owed by an Account Debtor which has (i) sold all or substantially all of its assets, (ii) applied for, suffered, or consented to the appointment of any receiver, custodian, trustee, administrator, monitor, or liquidator of its assets, (iii) had possession of all or a material part of its property taken by any receiver, custodian, trustee or liquidator, (iv) obtained, ordered, filed, or had filed against it, any request or petition for administration, moratorium, liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or voluntary or involuntary case under any national, state or federal bankruptcy laws, (v) admitted in writing its inability, or is generally unable to, pay its debts as they become due, (vi) become insolvent under the laws of its jurisdiction of incorporation, or (vii) ceased operation of its business (in each case for so long as such circumstances are continuing);

 

  (k)

which is owed by an Account Debtor which is not incorporated in the United Kingdom, any state of the United States of America or the District of Columbia, Australia, Norway, the Falkland Islands or any member state of the European Union as at the date of this Agreement unless, in any such case (unless the Agent otherwise agrees in its Permitted Discretion), such Receivable is backed by (a) a letter of credit acceptable to the Agent, acting reasonably, which is in the possession of (which includes letters of credit delivered by electronic means), and is directly drawable by, the Agent or (b) credit insurance in form and substance acceptable in all respects to the Agent, acting reasonably, provided always that Receivables, up to a maximum amount of USD 7,500,000, owed to Bristow U.S. LLC by members of the Exxon group of companies incorporated, established and/or carrying out business in the Co-operative Republic of Guyana (or any other jurisdiction the Agent may agree to in its Permitted Discretion) shall be permitted to be eligible pursuant to this paragraph (k) (but subject to the other paragraphs of this definition) without the requirement for a letter of credit or credit insurance provided that (A) the contract underlying any such Receivable is governed by the laws of a State of the US and (B) to the extent that (and for so long as) Exxon Mobil Corporation has and maintains a credit rating of BBB or higher by Standard & Poor Rating Services and Baa2 or higher by Moody’s Investors Service Limited;

 

  (l)

which is owed by an Account Debtor (i) located in any jurisdiction which requires filing of a “Notice of Business Activities Report” or other similar report in order to permit such Borrower to seek judicial enforcement in such jurisdiction of payment of such Receivable, unless such Borrower has filed such report or qualified to do business in such jurisdiction or (ii) which is a Sanctioned Person;

 

  (m)

as to which the contract or agreement underlying such Receivable is governed by (or, if no governing law is expressed therein, is deemed to be governed by) the laws of any jurisdiction other than the United Kingdom, any state of the United States of America or the District of Columbia, Australia, Norway, the Falkland Islands or any member state of the European Union as at the date of this Agreement;

 

19


  (n)

which is owed in any currency other than US dollars, sterling, euro or Norwegian Kroner;

 

  (o)

which is owed by any Governmental Authority of any country (other than the United Kingdom, any state of the United States of America or the District of Columbia (or any department, agency, public corporation, or instrumentality thereof), Australia, Norway, the Falkland Islands or any member state of the European Union as at the date of this Agreement; provided that that all steps necessary to perfect the security interest of the Security Agent in such Receivable (and with respect to the United States of America, also the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.)) has been complied with to the Agent’s reasonable satisfaction);

 

  (p)

which is owed by any member of the Group or any employee, officer or director of any member of the Group;

 

  (q)

which is subject to any counterclaim, deduction, defence, setoff, rejection by the relevant Account Debtor or dispute but only to the extent of any such counterclaim, deduction, defence, setoff, rejection or dispute;

 

  (r)

which is evidenced by any promissory note, chattel paper or analogous instrument unless all necessary steps to perfect the security interest of the Security Agent in such Receivable have been taken to the satisfaction of the Agent, acting reasonably;

 

  (s)

with respect to which such Borrower has made any agreement with the Account Debtor for any reduction thereof (other than discounts and adjustments given in the ordinary course of business) but only to the extent of any such reduction, any Receivable in relation to which the payment terms have been extended beyond the dates for payment required pursuant to paragraph (d) above or any Receivable which represents the unpaid portion of a previously invoiced Receivable (to the extent it so represents);

 

  (t)

which does not comply in all material respects with the requirements of all applicable laws and regulations;

 

  (u)

which constitutes rent or revenue from leases of aircraft where a Borrower retains operational control of the relevant aircraft but only to the extent that such Receivables constitute more than 15% of the Aggregate Borrowing Base;

 

  (v)

which is subject to any limitation on charging or assignment or other restriction (whether arising by operation of law, by agreement or otherwise) which would, under the local governing law of the contract creating such Receivable, have the effect of prohibiting or restricting the creation of security and/or a trust over such Receivable in the manner required under the applicable Transaction Security Documents, in each case unless any required permission or consent to enable such creation of security or trust has been obtained to the satisfaction of the Agent, acting reasonably; or

 

20


  (w)

which is excluded from the scope of any Transaction Security Document by virtue of the definition of “Excluded Property” (or equivalent terminology in any such Transaction Security Document).

Subject to the requirement for the consent of the Super Majority Lenders set out in Clause 42.3 (Other exceptions), the Agent and the Obligors’ Agent shall enter into good faith negotiations as requested by the respective other party to adjust the definition of Eligible Receivables if, in any jurisdiction, the legal or factual circumstances in relation to the Eligible Receivables have changed.

In the case of the acquisition of a new business or undertaking by a Borrower as permitted under this Agreement (“New Assets”), the Agent shall have the right to require in its Permitted Discretion, at the cost of the relevant Borrower, a field examination of the Receivables acquired as a result of such acquisition of New Assets, from an appraiser selected and engaged by the Agent, acting reasonably, and until such time as the field examination shall have been completed (which the Agent shall use reasonable endeavours to effect within 90 days of being informed about the relevant New Assets by a Borrower or the Obligors’ Agent) the New Assets shall only be included as Eligible Receivables to the extent that the value of the New Assets does not exceed 10 percent of the Aggregate Borrowing Base (subject to all the other eligibility criteria set out in this definition)

Following any field examination in connection with the New Assets, the Agent may, in its Permitted Discretion, request additional or amended eligibility criteria to apply to such New Assets, based on the results of such field examination provided that, until such time as the Agent may request adjusted eligibility criteria, the New Assets will be subject to the same eligibility criteria for Eligible Receivables as currently applied by the Agent to the other Receivables;

“Eligible Unbilled Receivables” means any Eligible Receivables to which all of paragraphs (a) to (w) of that definition apply, save for paragraph (h)(i) and any other requirement of the eligibility criteria that requires such amounts to be invoiced to an Account Debtor provided that any such Receivable is billed to the Account Debtor no later than the end of the calendar month following the calendar month in which (a) the relevant service was provided to such Account Debtor or (b) the relevant rental or leasing period (in relation to which the relevant Eligible Receivable has accrued) has ended;

“English Borrower” means Bristow Helicopters Limited and each other Borrower resident for tax purposes in England and Wales;

“English Designated Amount” means the amount of the First Out Borrowing Base of the US Borrowers which has been designated in writing by the Obligors’ Agent to the Agent from time to time (or specified in the then most recent Aggregate Borrowing Base Certificate) as being available for utilisation by the English Borrower (provided always that the sum of the English Designated Amount and the Norwegian Designated Amount may not exceed the amount of the First Out Borrowing Base of the US Borrowers);

 

21


“English Obligor” means the English Borrower and any other Obligor incorporated and existing in England and Wales;

“English Qualifying Lender” means:

 

  (a)

a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

  (i)

a Lender:

 

  (A)

which is a bank (as defined for the purpose of s879 ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from s18A CTA; or

 

  (B)

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of s879 ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

  (ii)

a Lender which is:

 

  (A)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (B)

a partnership each member of which is:

 

  (1)

a company so resident in the United Kingdom; or

 

  (2)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of s19 CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 CTA;

 

  (C)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of s19 CTA) of that company; or

 

  (iii)

an English Treaty Lender; or

 

  (b)

a Lender which is a building society (as defined for the purposes of s880 ITA) making an advance under a Finance Document;

 

22


“English Treaty Lender” means a Lender which:

 

  (a)

is treated as resident of an English Treaty State for the purposes of the English Treaty; and

 

  (b)

does not carry on business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected;

“English Treaty State” means a jurisdiction having a double taxation agreement with the United Kingdom (an “English Treaty”) which makes provision for full exemption from tax imposed by the United Kingdom on interest;

“Environment” means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

  (a)

air (including air within natural or man-made structures, whether above or below ground);

 

  (b)

water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

  (c)

land (including land under water);

“Environmental Claim” means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law;

“Environmental Law” means any applicable law or regulation which relates to:

 

  (a)

the pollution or protection of the Environment;

 

  (b)

the conditions of the workplace; or

 

  (c)

the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including any waste;

“Environmental Permits” means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group;

“Era Helicopters” means Era Helicopters, LLC, a Delaware limited liability company;

“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder;

“ERISA Affiliate” means any person treated as a single employer with any Obligor for the purpose of ss414(b), (c), (m) and (o) of the Code;

 

23


“ERISA Event” means:

 

  (a)

a reportable event specified as such in s4043 of ERISA and the regulations issued thereunder with respect to any Plan, other than an event in relation to which the requirement to give notice of that event is waived by any regulation;

 

  (b)

the failure to meet the minimum funding standard under ss412 of the Code with respect to any Plan, whether or not waived in accordance with s412(c) of the Code;

 

  (c)

the provision by the administrator of any Plan pursuant to s4041(a)(2) of ERISA of a notice of intent to terminate such Plan;

 

  (d)

the institution of proceedings under s4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Plan;

 

  (e)

the incurrence by any Obligor or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan or withdrawal from any Plan (other than premiums due and not delinquent under s4007 of ERISA);

 

  (f)

the incurrence by any Obligor or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan, or the withdrawal from a Plan subject to s4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in s4001(a)(2) of ERISA) or the cessation of operations by such Obligor or ERISA Affiliate that would be treated as a withdrawal from a Plan under s4062(e) of ERISA;

 

  (g)

the receipt by any Obligor or any ERISA Affiliate of any notice that a Multiemployer Plan is insolvent, within the meaning of Title IV of ERISA; or

 

  (h)

the determination that any Plan is in “at risk status” or that a Multiemployer Plan is “endangered” or is in “critical status” (within the meaning of ss430 or 432 of the Code and ss303 or 305 of ERISA);

 

  (i)

the requirement that a Plan provide security pursuant to s436(f) of the Code;

 

  (j)

engagement in a non-exemptprohibited transaction” within the meaning of Section 406 of ERISA and s4975 of the Code with respect to any Plan; or

 

  (k)

the institution of a proceeding by a fiduciary of any Multiemployer Plan to enforce s515 of ERISA which proceeding is not dismissed within 30 days;

“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time;

“Event of Default” means any event or circumstance specified as such in Clause 28 (Events of Default);

“Exchange Act” means the US Securities Exchange Act of 1934, as amended;

 

24


“Excluded Receivables” means any Receivable in respect of which the relevant security contemplated in the relevant Transaction Security Document is prohibited (except to the extent any such prohibition is ineffective under applicable law or the relevant consent for the granting of the applicable security under the relevant Transaction Security Document has been granted and such security can be effectively created as contemplated therein without causing a breach of the relevant Contract of Services);

“Excluded Swap Obligation” means, with respect to any Obligor, any Swap Obligation if, and to the extent that, all or a portion of any guarantee of such Obligor of, or the grant by such Obligor 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 Obligor’s failure for any reason to constitute an ECP at the time of any guarantee of such Obligor or the grant of such security interest becomes or would become effective with respect to such Swap Obligation. 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 any such guarantee or security interest is or becomes illegal;

“Existing Financial Indebtedness” means any agreement providing for or making available (i) any Financial Indebtedness of any Borrower or Subsidiary of any Borrower as set out in Part 1 of Schedule 15 (Existing Financial Indebtedness) and existing as at the date of this Agreement and (ii) any Financial Indebtedness of a US Borrower or a Subsidiary of that US Borrower (other than the Original Borrowers and their Subsidiaries) existing as of the applicable US Borrower Accession Date as set out in Part 2 of Schedule 15 (Existing Financial Indebtedness) in the case of Bristow U.S. LLC and in the case of any other US Borrower as set out in a list (in the same form as the lists set out in Schedule 15 (Existing Financial Indebtedness)) provided to the Agent on (or immediately prior to) the applicable US Borrower Accession Date and existing as at that date;

“Expiry Date” means, for a Letter of Credit, the last day of its Term;

“Facility” means the Revolving Facility;

“Facility Office” means:

 

  (a)

in respect of a Lender or Issuing Bank, the office or offices notified by that Lender or Issuing Bank to the Agent in writing on or before the date it becomes a Lender or the Issuing Bank (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or

 

  (b)

in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes;

“FATCA” means:

 

  (a)

sections 1471 to 1474 of the Code or any associated regulations;

 

25


  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the IRS, the US government or any governmental or taxation authority in any other jurisdiction;

“FATCA Application Date” means:

 

  (a)

in relation to a “withholdable payment” described in s1473(1)(A)(i) Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

  (b)

in relation to a “passthru payment” described in s1471(d)(7) Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA;

“FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA;

“FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction;

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source;

“Fee Letter” means:

 

  (a)

a fee letter dated 17 April 2018 signed by Barclays Bank PLC and accepted by the Old Parent, Bristow Helicopters Limited and Bristow Norway AS;

 

  (b)

any other letter or letters (including letters dated on or about the date of this Agreement and/or on or about the date of the First Amendment Date) between the Arrangers and the Parent or any other Obligor (or the Agent and the Parent or any other Obligor or the Security Agent and the Parent or any other Obligor) setting out any of the fees referred to in Clause 17 (Fees); and

 

  (c)

any agreement between an Obligor and a Finance Party setting out fees payable to a Finance Party referred to in Clause 2.2(h) (Increase) or Clause 17.3 (Fees payable in respect of Letters of Credit) of this Agreement or under any other Finance Document;

“Finance Document” means this Agreement, any Accession Deed, any Compliance Certificate, any Fee Letter, any Resignation Letter, any Transaction Security Document, any Utilisation Request and any other document designated as a “Finance Document” by the Agent and the Obligors’ Agent;

“Finance Lease” has the meaning given to the term in Clause 26.1 (Financial definitions);

 

26


“Finance Party” means the Agent, the Arrangers, the Security Agent, a Lender, an Issuing Bank and the Swingline Lender;

“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of an entity or any person performing similar duties as the foregoing persons (including director acting in such capacity);

“Financial Indebtedness” means any indebtedness for or in respect of:

 

  (a)

moneys borrowed and debit balances at banks or other financial institutions;

 

  (b)

any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);

 

  (c)

any note purchase facility or the issue of bonds (but not Trade Instruments), notes, debentures, loan stock or any similar instrument;

 

  (d)

the amount of any liability in respect of Finance Leases;

 

  (e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under the Accounting Principles);

 

  (f)

any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

 

  (g)

any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of (i) an underlying liability (but not, in any case, Trade Instruments) of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition or (ii) any liabilities of any member of the Group relating to any post-retirement benefit scheme;

 

  (h)

any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Accounting Principles;

 

  (i)

any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply;

 

  (j)

any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under the Accounting Principles; and

 

27


  (k)

the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (j) above;

“Financial Quarter” has the meaning given to that term in Clause 26.1 (Financial definitions);

“Financial Support Direction” means a financial support direction issued by the Pensions Regulator under s43 Pensions Act 2004;

“Financial Year” has the meaning given to that term in Clause 26.1 (Financial definitions);

“First Amendment and Restatement Agreement” means the amendment and restatement, confirmation and waiver agreement dated 31 October 2019 between the Old Parent, Bristow Helicopters Limited, Bristow Norway AS, the Agent and the Security Agent in respect of this Agreement;

“First Amendment Date” has the meaning given to the term “Effective Date” in the First Amendment and Restatement Agreement;

“First Out Applicable Margin” means, in relation to any ABR Rate Loan or Swingline Loan that is a First Out Loan, 1.25 percent per annum or, in relation to any LIBOR Rate Loan, NIBOR Rate Loan or Foreign Base Rate Loan that is a First Out Loan and any Unpaid Sum (other than any such Unpaid Sum which is an ABR Rate Loan or part thereof or a Swingline Loan or part thereof) owed to a First Out Lender in its capacity as such, 2.25 percent per annum, but, from the end of the first full Financial Quarter following the Closing Date, if Average Quarterly First Out Availability in respect of the most recently completed Financial Quarter is within a range set out below, then the First Out Applicable Margin for each First Out Loan will be the percentage per annum set out below in the applicable column opposite that range:

 

Average Quarterly First Out Availability

   LIBOR Rate Loans, NIBOR
Rate Loans and Foreign
Base Rate Loans (percent p.a.).
     ABR Rate Loans
and Swingline
Loans (percent
p.a.)
 

Greater than 6623 percent

     2.00        1.00  

Greater than 3323 percent but less than or equal to 6623 percent

     2.25        1.25  

Less than or equal to 3323 percent

     2.50        1.50  

 

28


However:

 

  (i)

any increase or decrease in the First Out Applicable Margin for a First Out Loan shall take effect on the date (the “reset date”) which is the first Business Day of the first month of each Financial Quarter (or, if paragraph (ii) below applies, the first Business Day of the calendar month following the calendar month in which the relevant Aggregate Borrowing Base Certificate is received), by reference to the relevant Aggregate Borrowing Base Certificates; and

 

  (ii)

in the event that the Agent is not able to calculate the First Out Applicable Margin on the first Business Day of any month as a result of the Borrowers failing to provide an Aggregate Borrowing Base Certificate at the applicable time, then if required by the Agent (acting on the instructions of the Majority First Out Lenders) the First Out Applicable Margin for each First Out Loan shall be the highest percentage per annum set out in the table above for the relevant First Out Loan until the first day of the calendar month following the calendar month in which the relevant Aggregate Borrowing Base Certificate is received;

“First Out Availability” means, with respect to (i) the English Borrower, (ii) the Norwegian Borrower; and (iii) the US Borrowers, at any time, an amount equal to:

 

  (a)

the lesser of:

 

  (i)

the US/UK Tranche Commitments (in the case of the English Borrower and the US Borrowers) or the Norwegian Tranche Commitments (in the case of the Norwegian Borrower); and

 

  (ii)

in the case of;

 

  1.

the English Borrower the sum of (x) the First Out Borrowing Base of the English Borrower and (y) the English Designated Amount from time to time;

 

  2.

the Norwegian Borrower, the sum of (x) the First Out Borrowing Base of the Norwegian Borrower and (y) the Norwegian Designated Amount from time to time; or

 

  3.

the US Borrowers, the First Out Borrowing Base of the US Borrowers, less the English Designated Amount and the Norwegian Designated Amount from time to time, minus

 

  (b)

the Aggregate First Out Revolving Exposure in respect of such Borrower, provided that, in relation to any proposed Utilisation, any First Out Loans that are due to be repaid by that Borrower at the end of their Interest Period (in accordance with Clause 10.1(a) (Repayment of Loans and Letters of Credit)) and any First Out Letters of Credit the Term of which are due to expire (or in relation to which the Issuing Bank is otherwise satisfied that it will have no further liability), in each case on or before the proposed Utilisation Date (unless and to the extent that such Utilisation due to be repaid is a Rollover

 

29


  Loan in relation to which a Utilisation Request has been submitted prior to the date on which the calculation as to First Out Availability is made) shall be deducted from the Aggregate First Out Revolving Exposure (in the case of a First Out Letter of Credit to the extent it would otherwise be included) in respect of such Borrower for the purposes of determining First Out Availability in relation to that Utilisation;

“First Out Borrowing Base” means, at any time, with respect to each of (i) the English Borrower, (ii) the Norwegian Borrower and (iii) the US Borrowers:

 

  (a)

the sum of:

 

  (i)

90 percent (the “First Out Investment Grade Receivables Advance Rate”) of that Borrower’s (or in the case of the US Borrowers, the US Borrowers’) Eligible Investment Grade Receivables; plus

 

  (ii)

85 percent (the “First Out Non-Investment Grade Receivables Advance Rate”) of that Borrower’s (or in the case of the US Borrowers, the US Borrowers’) Eligible Non-Investment Grade Receivables; plus

 

  (iii)

the lesser of (A) USD 10,000,000 and (B) 75 percent (the “First Out Unbilled Receivables Advance Rate”) of that Borrower’s (or in the case of the US Borrowers, the US Borrowers’) Eligible Unbilled Receivables; minus

 

  (b)

Reserves (if any) related to such Borrower (or in the case of the US Borrowers, the US Borrowers) or its (or their, as applicable) assets as advised to the Obligors’ Agent by the Agent in its Permitted Discretion in accordance with this Agreement with at least five Business Days’ prior written notice (with any changes taking effect from the expiry of such notice period) to the extent not already deducted in the calculation of the amounts in paragraph (a) in the manner provided in the Aggregate Borrowing Base Certificate delivered pursuant to Schedule 2 (Conditions precedent) or as otherwise agreed by the Obligors’ Agent and the Agent; minus

 

  (c)

the Availability Block applicable to such Borrower (or in the case of the US Borrowers, the US Borrowers),

(without double counting in relation to any Reserves or portion of the Availability Block deducted from the LILO Borrowing Base) and provided always that the First Out Borrowing Base shall be zero upon the occurrence of a Borrowing Base Data Failure for so long as such Borrowing Base Data Failure is continuing and provided further that, until the completion of field examinations and appraisals in relation to a US Borrower satisfactory to the Agent (acting reasonably and which the Agent shall promptly notify to the Obligors’ Agent on completion of such examinations and appraisals), no assets of that US Borrower shall be included in the First Out Borrowing Base;

 

30


“First Out Lender” means:

 

  (a)

any Original First Out Lender;

 

  (b)

any bank or financial institution, trust, fund or other entity which has become a Party as a First Out Lender in accordance with Clause 2.2 (Increase) or Clause 29 (Changes to the Lenders); and

 

  (c)

any relevant Substitute Affiliate Lender,

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement;

“First Out Letter of Credit” means a Letter of Credit (wholly or in part) issued pursuant to a First Out Tranche;

“First Out Loan” means a First Out Revolving Facility Loan and where the context requires a Swingline Loan advanced pursuant to a First Out Tranche;

“First Out Revolving Facility Commitment” means with respect to any Lender at any time, the sum of such Lender’s US/UK Tranche Commitments and Norwegian Tranche Commitments;

“First Out Revolving Facility Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s US/UK Tranche Exposure and Norwegian Tranche Exposure at such time;

“First Out Revolving Facility Loan” means a US/UK Tranche Loan and/or a Norwegian Tranche Loan or the principal amount outstanding for the time being of that loan (and shall not include any Swingline Loan);

“First Out Tranche” means either or both of the Norwegian Tranche and the US/US Tranche as the context may require;

“First Out Utilisation” means a First Out Letter of Credit or a First Out Loan;

“Foreign Base Rate” means, in relation to any Loan denominated in sterling, euro or Norwegian Kroner, LIBOR or in the case of Norwegian Kroner, NIBOR for a one-month interest period (as in effect on the first day of the then-current calendar month) for the applicable currency, calculated daily, provided that if that rate is less than zero for any currency, the Foreign Base Rate shall be deemed to be zero;

“Foreign Base Rate Loan” means a Loan requested to be made as a Foreign Base Rate Loan in the relevant Utilisation Request;

“Funding Rate” means any individual rate notified by a Lender to the Agent pursuant to Clause 16.3(a)(ii) (Cost of funds);

“Governmental Authority” means the government of any nation or any political subdivision thereof, whether state or local, the European Central Bank, the Council of Ministers of the European Union, the Federal Reserve Board and/or the Federal Reserve Bank of New York, a committee officially endorsed or convened by the

 

31


Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity (including any European supranational body) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government;

“Group” means the Parent, each of its Subsidiaries and any other corporation, partnership, joint venture, limited liability company, trust, association or other entity, 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 the Accounting Principles applicable to the Parent as of such date;

“Group Structure Chart” means the group structure chart delivered to the Agent pursuant to Schedule 2, Part 1 (Conditions precedent to signing of the Agreement and initial Utilisation);

“Guarantor” means an Original Guarantor, the Parent or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 31 (Changes to the Obligors) or in accordance with the Second Amendment and Restatement Agreement;

“Holding Company” means, in relation to a person, any other person in respect of which it is a Subsidiary;

“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements;

“Impaired Agent” means the Agent at any time when:

 

  (a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

  (b)

the Agent otherwise rescinds or repudiates a Finance Document;

 

  (c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a), (b) or (c) of the definition of “Defaulting Lender”; or

 

  (d)

an Insolvency Event has occurred and is continuing with respect to the Agent; unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event; and

payment is made within ten Business Days of its due date; or

 

  (ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question;

 

32


“Increase Confirmation” means a confirmation substantially in the form set out in Schedule 12 (Form of Increase Confirmation);

“Increase Lender” has the meaning given to that term in Clause 2.2 (Increase);

“Information Package” means all written information (other than any Contracts of Services or information or statements contained therein) provided by the Obligors’ Agent or any other Obligor to the Agent in connection with the Facility prior to the date of this Agreement and/or uploaded prior to the date of this Agreement to a virtual dataroom to which the Agent and the Lenders have been provided access;

“Initial Collection Accounts” means those bank accounts set out in Schedule 16 (Initial Collection Accounts);

“Insolvency Event” in relation to an entity means that the entity:

 

  (a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  (i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

  (ii)

is not dismissed, discharged, stayed or restrained in each case within 14 days of the institution or presentation thereof;

 

  (f)

has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1, Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2, Banking Act 2009 or a bank administration proceeding pursuant to Part 3, Banking Act 2009;

 

33


  (g)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (h)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, monitor or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

  (i)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

  (j)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

 

  (k)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;

“Intellectual Property” means:

 

  (a)

any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and

 

  (b)

the benefit of all applications and rights to use such assets of each Obligor (which may now or in the future subsist);

“Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 15 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 14.3 (Default interest);

“Interpolated Screen Rate” means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

  (b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

 

34


each as of the Specified Time for the currency of that Loan;

“Investment Grade Account Debtor” means any Account Debtor which is, or is a Subsidiary of an entity which is, rated BBB- or higher by Standard & Poor’s or Baa3 or higher by Moody’s;

“Issuing Bank” means:

 

  (a)

the Original Issuing Bank; and

 

  (b)

any Lender which has become a Party as an “Issuing Bank” pursuant to Clause 6.10 (Appointment of additional Issuing Banks),

(and if there is more than one such Issuing Bank, such Issuing Banks shall be referred to, whether acting individually or together, as the “Issuing Bank”), provided that:

 

  (w)

in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the “Issuing Bank” shall be the Issuing Bank which has issued or, subject to paragraphs (y) and (z) below is designated by the Obligor’s Agent or relevant Borrower to issue, that Letter of Credit;

 

  (x)

Barclays Bank PLC as Issuing Bank will only issue standby Letters of Credit;

 

  (y)

each Original Issuing Bank shall only issue Letters of Credit up to the maximum amount listed next to their name in Schedule 1, Part 2 (The Original Lenders); and

 

  (z)

only Barclays Bank PLC or another LILO Lender may be an Issuing Bank in relation to Letters of Credit pursuant to the LILO Tranche;

“IRS” means the United States Internal Revenue Service;

“ITA” means the Income Tax Act 2007;

“Joint Venture” means any joint venture entity that is not a member of the Group, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity;

“L/C Proportion” means in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s relevant Available Commitment to the relevant Available Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender;

“Legal Opinion” means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 31 (Changes to the Obligors);

“Legal Reservations” means:

 

  (a)

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

35


  (b)

the time barring of claims under the Limitation Acts the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

 

  (c)

the principle that security expressed to be fixed may nevertheless be held to be floating depending on factual circumstances;

 

  (d)

the principle that assignments of rights which are prohibited to be assigned may not be effective;

 

  (e)

similar principles, rights and defences under the laws of any Relevant Jurisdiction; and

 

  (f)

any other matters which are set out as qualifications or reservations as to matters of law of general application in any Legal Opinion;

“Lender” means the First Out Lenders and the LILO Lenders. Where the context requires, the term “Lenders” includes the Swingline Lender;

“Letter of Credit” means:

 

  (a)

a letter of credit in any form requested by the Obligors’ Agent and agreed by the Agent with the prior consent of the Majority Lenders and the Issuing Bank, each acting reasonably; or

 

  (b)

any guarantee, indemnity or other instrument in a form requested by a Borrower (or the Obligors’ Agent on its behalf) and agreed by the Agent with the prior consent of the Majority Lenders and the Issuing Bank, each acting reasonably;

“LIBOR” means, in relation to any Loan denominated in US dollars, sterling or euro:

 

  (a)

the applicable Screen Rate (rounded up to the nearest 1/8th of 1 percent) as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

 

  (b)

as otherwise determined pursuant to Clause 16.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero;

“LIBOR Rate Loan” means a Loan requested to be made as a LIBOR Rate Loan in the relevant Utilisation Request;

“LILO Advance Rate” means:

 

  (a)

in respect of Eligible Investment Grade Receivables, 95 percent minus the First Out Investment Grade Receivables Advance Rate;

 

  (b)

in respect of Eligble Non-Investment Grade Receivables, 95 percent minus the First Out Non-Investment Grade Receivables Advance Rate; and

 

36


  (c)

in respect of Eligible Unbilled Receivables, 95 percent minus the First Out Unbilled Receivables Advance Rate;

“LILO Applicable Margin” means, in relation to any ABR Rate Loan or Swingline Loan that is a LILO Loan, 2.50 percent per annum or, in relation to any LIBOR Rate Loan, NIBOR Rate Loan or Foreign Base Rate Loan that is a LILO Loan and any Unpaid Sum owed to a LILO Lender in its capacity as such (other than any such Unpaid Sum which is an ABR Rate Loan or part thereof or a Swingline Loan or part thereof), 3.50 percent per annum;

“LILO Availability” means, with respect to each Borrower, at any time, an amount equal to:

 

  (a)

the lesser of:

 

  (i)

the LILO Tranche Commitments; and

 

  (ii)

in the case of:

 

  1.

the English Borrower, the LILO Borrowing Base of the English Borrower plus the LILO English Designated Amount from time to time;

 

  2.

the Norwegian Borrower, the LILO Borrowing Base of the Norwegian Borrower plus the LILO Norwegian Designated Amount from time to time; or

 

  3.

the US Borrowers, the LILO Borrowing Base of the US Borrowers less the LILO English Designated Amount and the LILO Norwegian Designated Amount from time to time, minus

 

  (b)

the Aggregate LILO Revolving Exposure in respect of such Borrower, provided that, in relation to any proposed Utilisation, any LILO Loans that are due to be repaid by that Borrower at the end of their Interest Period (in accordance with Clause 10.1(a) (Repayment of Loans and Letters of Credit)) and any LILO Letters of Credit the Term of which are due to expire (or in relation to which the Issuing Bank is otherwise satisfied that it will have no further liability), in each case on or before the proposed Utilisation Date (unless and to the extent that such Utilisation due to be repaid is a Rollover Loan in relation to which a Utilisation Request has been submitted prior to the date on which the calculation as to LILO Availability is made) shall be deducted (in the case of a LILO Letter of Credit to the extent it would otherwise be included) from the Aggregate LILO Revolving Exposure in respect of such Borrower for the purposes of determining LILO Availability in relation to that Utilisation;

 

37


“LILO Borrowing Base” means, at any time, with respect to each of (i) the English Borrower, (ii) the Norwegian Borrower and (iii) the US Borrowers:

 

  (a)

the sum of:

 

  (i)

the LILO Advance Rate of that Borrower’s (or in the case of the US Borrowers, the US Borrowers’) Eligible Investment Grade Receivables; plus

 

  (ii)

the LILO Advance Rate of that Borrower’s (or in the case of the US Borrowers, the US Borrowers’) Eligible Non-Investment Grade Receivables; plus

 

  (iii)

the lesser of (A) USD 1,000,000 and (B) the LILO Advance Rate of that Borrower’s (or in the case of the US Borrowers, the US Borrowers’) Eligible Unbilled Receivables; minus

 

  (b)

Reserves (if any) related to such Borrower (or in the case of the US Borrowers, the US Borrowers) or its (or their, as applicable) assets as advised to the Obligors’ Agent by the Agent in its Permitted Discretion in accordance with this Agreement with at least five Business Days’ prior written notice (with any changes taking effect from the expiry of such notice period) to the extent not already deducted in the calculation of the amounts in paragraph (a) in the manner provided in the Aggregate Borrowing Base Certificate delivered pursuant to Schedule 2 (Conditions precedent) or as otherwise agreed by the Obligors’ Agent and the Agent to the extent they are to be applied to the LILO Borrowing Base of that Borrower (or in the case of the US Borrowers, the US Borrowers) in accordance with Clause 4.6; minus

 

  (c)

the Availability Block applicable to such Borrower (or in the case of the US Borrowers, the US Borrowers) to the extent it is to be applied to the LILO Borrowing Base of that Borrower (or in the case of the US Borrowers, the US Borrowers) pursuant to Clause 4.5,

(without double counting in relation to any Reserves or portion of the Availability Block deducted from the First Out Borrowing Base) and provided always that the LILO Borrowing Base shall be zero upon the occurrence of a Borrowing Base Data Failure for so long as such Borrowing Base Data Failure is continuing and provided further that, until the completion of field examinations and appraisals in relation to a US Borrower satisfactory to the Agent (acting reasonably and which the Agent shall promptly notify to the Obligors’ Agent on completion of such examinations and appraisals), no assets of that US Borrower shall be included in the LILO Borrowing Base;

LILO English Designated Amount” means the amount of the LILO Borrowing Base of the US Borrowers which has been designated in writing by the Obligors’ Agent to the Agent from time to time (or specified in the then most recent Aggregate Borrowing Base Certificate) as being available for utilisation by the English Borrower (provided always that the sum of the LILO English Designated Amount and the LILO Norwegian Designated Amount may not exceed the amount of the LILO Borrowing Base of the US Borrowers);

“LILO Lender” means:

 

  (a)

the Original LILO Lender;

 

38


  (b)

any bank or financial institution, trust, fund or other entity which has become a Party as a LILO Lender in accordance with Clause 2.2 (Increase) or Clause 29 (Changes to the Lenders); and

 

  (c)

any relevant Substitute Affiliate Lender,

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement;

“LILO Letter of Credit” means a Letter of Credit issued (wholly or in part) pursuant to the LILO Tranche;

“LILO Loan” means a LILO Revolving Facility Loan and where the context applies a Swingline Loan advanced by a LILO Lender under the LILO Tranche;

“LILO Norwegian Designated Amount” means the amount of the LILO Borrowing Base of the US Borrowers which has been designated in writing by the Obligors’ Agent to the Agent from time to time (or specified in the then most recent Aggregate Borrowing Base Certificate) as being available for utilisation by the Norwegian Borrower (provided always that the sum of the LILO Norwegian Designated Amount and the LILO English Designated Amount may not exceed the amount of the LILO Borrowing Base of the US Borrowers);

“LILO Revolving Facility Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s participations in LILO Tranche Loans, LILO Letters of Credit and Swingline Exposure in relation to the LILO Tranche at such time;

“LILO Revolving Facility Loan” means a LILO Tranche Loan or the principal amount outstanding for the time being of that loan (and shall not include any Swingline Loan);

“LILO Tranche” means the revolving credit facility made available under this Agreement as described in Clause 2.1(a)(ii) (The Facilities);

“LILO Tranche Commitments” means:

 

  (a)

in relation to an Original LILO Lender, the amount in the Base Currency set opposite its name under the heading “LILO Tranche Commitment” in Schedule 2, Part 2 (The Original Lenders) and the amount of any other LILO Tranche Commitment transferred to it under this Agreement or assumed by it pursuant to the terms of Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any LILO Tranche Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement;

“LILO Tranche Loan” means a loan made or to be made under the LILO Tranche or the principal amount outstanding for the time being of that loan (and shall not include any Swingline Loan);

 

39


“LILO Utilisation” means a LILO Letter of Credit or a LILO Loan;

“Limitation Acts” means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984;

“LMA” means the Loan Market Association;

“Loan” means a First Out Loan or a LILO Loan;

“Majority First Out Lenders” means:

 

  (a)

if at any time there are three or more First Out Lenders, a First Out Lender or First Out Lenders whose First Out Tranche Commitments aggregate more than 50 percent of the Total First Out Commitments (or, if the Total First Out Commitments have been reduced to zero, aggregated more than 50 percent of the Total First Out Commitments immediately prior to that reduction); or

 

  (b)

if at any time there are two or fewer First Out Lenders, a First Out Lender or First Out Lenders whose First Out Tranche Commitments aggregate 100 percent of the Total First Out Commitments (or, if the Total First Out Commitments have been reduced to zero, aggregated 100 percent of the Total First Out Commitments immediately prior to that reduction).

“Majority Lenders” means:

 

  (a)

if at any time there are three or more Lenders, a Lender or Lenders whose Revolving Facility Commitments aggregate more than 50 percent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 50 percent of the Total Commitments immediately prior to that reduction); or

 

  (b)

if at any time there are two or fewer Lenders, a Lender or Lenders whose Revolving Facility Commitments aggregate 100 percent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 100 percent of the Total Commitments immediately prior to that reduction).

“Majority LILO Lenders” means:

 

  (a)

if at any time there are three or more LILO Lenders, a LILO Lender or LILO Lenders whose LILO Tranche Commitments aggregate more than 50 percent of the Total LILO Commitments (or, if the Total LILO Commitments have been reduced to zero, aggregated more than 50 percent of the Total LILO Commitments immediately prior to that reduction); and

 

  (b)

if at any time there are two or fewer LILO Lenders, a LILO Lender or LILO Lenders whose LILO Tranche Commitments aggregate 100 percent of the Total LILO Commitments (or, if the Total LILO Commitments have been reduced to zero, aggregated 100 percent of the Total LILO Commitments immediately prior to that reduction).

 

40


“Material Adverse Effect” means a material adverse effect on:

 

  (a)

the business, operations, property or financial condition of (i) the Parent, (ii) each Obligor individually and/or (iii) the Parent and the Restricted Subsidiaries taken as a whole; or

 

  (b)

the ability of an Obligor to perform its obligations pursuant to Clause 10.2(a) (Restrictions on Receivables and Cash Dominion), Clause 25.5 (Borrowing Base Certificate and related information), Clause 27.28(a) (Access, Maintenance of records and field examinations) and its payment obligations under the Finance Documents; or

 

  (c)

the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents (not including any recategorisation of any fixed charge over Collection Accounts of a Borrower other than the English Borrower as a floating charge);

“Material Indebtedness” means:

 

  (a)

the term loan credit agreement dated as of 1 February 2017 among Bristow U.S. LLC, the lenders party thereto and Macquarie Bank Limited, as agent;

 

  (b)

the credit agreement dated as of 17 July 2017 among Bristow Equipment Leasing, the financial institutions named therein and PK AirFinance S.à r.l., as agent;

 

  (c)

any indebtedness of the Borrowers and their consolidated Subsidiaries in excess of USD 50,000,000; and

 

  (d)

any indenture or other agreement governing Financial Indebtedness of the Parent or any Restricted Subsidiary under which an aggregate principal amount in excess of USD 50,000,000 is outstanding at such time;

“Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

  (a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

  (b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

  (c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period;

 

41


“Multiemployer Plan” means a “multiemployer plan” within the meaning of s4001(a)(3) of ERISA which is covered by Title IV of ERISA and which is contributed to (or to which there is an obligation to contribute) by any Obligor or ERISA Affiliate;

“New Lender” has the meaning given to that term in Clause 29 (Changes to the Lenders);

“NIBOR” means, in relation to any Loan denominated in Norwegian Kroner:

 

  (a)

the applicable Screen Rate (rounded upwards to five decimal places) as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

 

  (b)

as otherwise determined pursuant to Clause 16.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, NIBOR shall be deemed to be zero;

“NIBOR Rate Loan” means a Loan requested to be made as a NIBOR Rate Loan in the relevant Utilisation Request;

“Non-Acceptable L/C Lender” means a Lender under the Revolving Facility which:

 

  (a)

is not an Acceptable Bank;

 

  (b)

is a Defaulting Lender; or

 

  (c)

has failed to make (or has notified the Agent that it will not make) a payment to be made by it under Clause 7.3 (Indemnities) or Clause 32.11 (Lenders’ indemnity to the Agent) or any other payment to be made by it under the Finance Documents to or for the account of any other Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at paragraphs (i) and (ii) of the definition of “Defaulting Lender”;

“Non-Consenting Lender” has the meaning given to that term in Clause 42.6 (Replacement of Lender);

“Non-US Subsidiary” means any direct or indirect Subsidiary that is not organised or formed under the laws of the United States or any state or territory thereof or the District of Columbia;

“Norway” means the Kingdom of Norway;

“Norwegian Borrower” means Bristow Norway AS and each other Borrower resident for tax purposes in Norway;

“Norwegian Designated Amount” means the amount of the First Out Borrowing Base of the US Borrowers which has been designated in writing by the Obligors’ Agent to the Agent from time to time (or specified in the then most recent Aggregate Borrowing Base Certificate) as being available for utilisation by the Norwegian Borrower (provided always that the sum of the Norwegian Designated Amount and the English Designated Amount may not exceed the amount of the First Out Borrowing Base of the US Borrowers);

 

42


“Norwegian Obligor” means the Norwegian Borrower and any other Obligor incorporated and existing in Norway;

“Norwegian Qualifying Lender” means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and which is:

 

  (a)

a Lender which is:

 

  (i)

a company resident in Norway for Norwegian tax purposes; or

 

  (ii)

a company not so resident in Norway which carries on a trade in Norway through a permanent establishment and which brings into account interest payable in respect of that advance in computing its taxable income in Norway; or

 

  (b)

a Norwegian Treaty Lender;

“Norwegian Tranche” means the revolving credit facility made available under this Agreement as described in Clause 2.1(a)(i)(B) (The Facilities);

“Norwegian Tranche Commitments” means:

 

  (a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Norwegian Tranche Commitment” in Schedule 2, Part 2 (The Original Lenders) and the amount of any of its US/UK Tranche Commitment reallocated as a Norwegian Tranche Commitment pursuant to Clause 5.7 (Adjustment of Tranches) and the amount of any other Norwegian Tranche Commitment transferred to it under this Agreement or assumed by it pursuant to the terms of Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Norwegian Tranche Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) and the amount of any of its US/UK Tranche Commitment reallocated as a Norwegian Tranche Commitment pursuant to Clause 5.7 (Adjustment of Tranches),

to the extent not cancelled, reduced or transferred by it under this Agreement or reallocated as a US/UK Tranche Commitment pursuant to Clause 5.7 (Adjustment of Tranches);

“Norwegian Tranche Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s participations in Norwegian Tranche Loans, Swingline Exposure and Letters of Credit in relation to the Norwegian Tranche at such time;

 

43


“Norwegian Tranche Loan” means a loan made or to be made under the Norwegian Tranche or the principal amount outstanding for the time being of that loan (and shall not include any Swingline Loan);

“Norwegian Treaty Lender” means a Lender which:

 

  (a)

is treated as resident of a Norwegian Treaty State for the purposes of the Norwegian Treaty; and

 

  (b)

does not carry on business in Norway through a permanent establishment with which that Lender’s participation in the Loan is effectively connected;

“Norwegian Treaty State” means a jurisdiction having a double taxation agreement with Norway (a “Norwegian Treaty”) which makes provision for full exemption from tax imposed by Norway on interest;

“Notifiable Debt Purchase Transaction” has the meaning given to that term in Clause 30.2(b) (Disenfranchisement on Debt Purchase Transactions entered into by Group Companies);

“Obligor” means a Borrower or a Guarantor;

“Obligors’ Agent” means the Parent, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.4 (Obligors’ Agent);

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury;

“Old Parent” means Bristow Holdings U.S. Inc. (formerly known as Bristow Group Inc.);

“Original Financial Statements” means:

 

  (a)

in relation to the Old Parent, its audited financial statements for its Financial Year ended 31 March 2017;

 

  (b)

in relation to each Original Obligor other than the Old Parent, its unaudited financial statements for its Financial Quarter ended 31 December 2017; and

 

  (c)

in relation to any other Obligor:

 

  (i)

its audited financial statements (if available, in the case of an Obligor which has been acquired by the Group after the date of this Agreement); or

 

  (ii)

its unaudited financial statements (in the case of any other member of the Group or any Obligor acquired by the Group after the date of this Agreement which does not have audited financial statements),

in each case delivered to the Agent as required by Clause 31 (Changes to the Obligors) or the Second Amendment and Restatement Agreement;

 

44


“Original Jurisdiction” means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement or, in the case of an Additional Obligor, as at the date on which that Additional Obligor becomes Party as a Borrower or a Guarantor (as the case may be);

“Original First Out Lender” means Barclays Bank PLC or Credit Suisse AG, Cayman Islands Branch;

“Original LILO Lender” means Barclays Bank PLC;

“Original Obligor” means an Original Borrower or an Original Guarantor;

“Parent” means (i) at all times up to the Second Amendment Date, the Old Parent; and (ii) at all times from and including the Second Amendment Date, the New Parent;

“Parent’s Auditors” means such nationally or internationally recognised firm appointed by the Parent to act as its independent auditors from time to time;

“Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union;

“Party” means a party to this Agreement;

“PBGC” means the United States Pension Benefit Guaranty Corporation or any successor to it;

“Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I Pensions Act 2004;

“Permitted Acquisition” means:

 

  (a)

an acquisition by a Borrower or Subsidiary of a Borrower of an asset sold, leased, transferred or otherwise disposed of by a member of the Group if such acquisition is made: (i) at a time when no Default is continuing or (ii) in circumstances otherwise constituting a Permitted Disposal (other than pursuant to paragraph (a) of the definition thereof);

 

  (b)

an acquisition of shares or securities pursuant to a Permitted Share Issue;

 

  (c)

an acquisition of securities which are Cash Equivalent Investments or an acquisition of other securities in the ordinary course of business;

 

  (d)

any acquisition of shares or securities in satisfaction of trade payables pursuant to any reorganisation of or any bankruptcy or insolvency proceedings in relation to any debtor;

 

  (e)

the incorporation of a company which on incorporation becomes a member of the Group;

 

  (f)

an acquisition, of issued share capital of a limited liability company or partnership but only if:

 

45


  (i)

no Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition;

 

  (ii)

the acquired company, business or undertaking is engaged in a business substantially the same as that carried on by the Borrowers or other members of the Group; and

 

  (g)

any acquisition to which has been consented to by the Majority Lenders;

“Permitted Discretion” means a commercially reasonable determination made in good faith in accordance with customary business practice (from the perspective of a secured asset based lender in a comparable transaction) and any exercise or non-exercise of any right or any determination or any similar action expressed in the Finance Documents to be exercisable, made, or taken in the Agent’s Permitted Discretion shall not require any consent or discretion from any other Finance Party;

“Permitted Disposal” means any sale, lease, licence, transfer or other disposal (including by way of merger or any disposition of property to a Divided Person pursuant to a Division) which, except in the case of paragraphs (a), (c) or (d), is on arm’s length terms:

 

  (a)

of any asset (other than the Charged Property) by a Borrower or Subsidiary of a Borrower to a member of the Group if such disposal is made at a time when no Default is continuing;

 

  (b)

of aircraft, engines, parts, equipment, trading stock or other assets (other than the Charged Property) or cash, made by a member of the Group in the ordinary course of business of the disposing entity;

 

  (c)

of any asset by a Borrower to another Borrower including a Permitted Intra-Borrower Transfer;

 

  (d)

of any asset by a Subsidiary of a Borrower to a Borrower or another Subsidiary of a Borrower;

 

  (e)

of assets in exchange for other assets comparable or superior as to type, value and quality (other than an exchange of a non-cash asset for cash);

 

  (f)

of obsolete or redundant aircraft, parts, vehicles, plant and equipment and other assets;

 

  (g)

of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;

 

  (h)

constituted by a licence of intellectual property rights permitted by Clause 27.29 (Intellectual Property);

 

  (i)

to a Joint Venture, to the extent permitted by Clause 27.12 (Joint ventures);

 

  (j)

arising as a result of any Permitted Security or arising as a result of any security or Quasi Security granted in connection with any Permitted Financial Indebtedness;

 

46


  (k)

of real estate for cash on arm’s length terms;

 

  (l)

of aircraft, engines, parts or equipment to another member of the Group which is not otherwise permitted pursuant to any other paragraph of this definition of “Permitted Disposal” and is made in exchange for cash, intercompany loans and/or notes and/or Stock in a member of the Group equal to the approximate value of such aircraft, engines, parts or equipment provided that any such disposal by either the English Borrower or the Norwegian Borrower does not exceed (A) USD 15,000,000 (or its equivalent) in total during the term of this Agreement and/or (B) USD 5,000,000 (or its equivalent) in any Financial Year of the Parent;

 

  (m)

has been consented to by the Majority Lenders; and

 

  (n)

of assets for cash where the higher of the market value and net consideration receivable (when aggregated with the higher of the market value and net consideration receivable for any other sale, lease, licence, transfer or other disposal by any Borrower or Subsidiary of any Borrower not allowed under the preceding paragraphs) does not exceed USD 15,000,000 (or its equivalent) in total during the term of this Agreement and does not exceed USD 10,000,000 (or its equivalent) in any Financial Year of the Parent provided that if any such assets are, immediately prior to their disposal, Charged Property, in the event that any such disposal exceeds an aggregate amount of USD 5,000,000 (or its equivalent) during the term of this Agreement the Obligors’ Agent shall, promptly following such disposal, provide the Agent with an updated Aggregate Borrowing Base Certificate taking account of such disposal;

“Permitted Financial Indebtedness”means Financial Indebtedness:

 

  (a)

owed by any Borrower or Subsidiary of a Borrower to another member of the Group as of the First Amendment Date (or in the case of a US Borrower and its Subsidiaries (other than the Original Borrowers and their Subsidiaries), as of the applicable US Borrower Accession Date), or incurred by any Borrower or Subsidiary of a Borrower from any other member of the Group on or after the First Amendment Date (or in the case of a US Borrower and its Affiliates (other than the Original Borrowers and their Subsidiaries), after the applicable US Borrower Accession Date) at a time when no Default is continuing, and any premiums, expenses, interest or fees accrued thereon (for the avoidance of doubt, this excludes the Discontinued Indebtednesss to the extent that it is not repaid, prepaid, converted or otherwise discharged in accordance with the Plan of Reorganization);

 

  (b)

arising under Existing Financial Indebtedness including any further borrowings thereunder up to the maximum amount permitted to be available to be borrowed under such Existing Financial Indebtedness as of the First Amendment Date in the case of Existing Financial Indebtedness of the Original Borrowers and their Subsidiaries and as of the applicable US Borrower Accession Date in the case of the Existing Financial Indebtedness of the relevant US Borrower acceding on that date and its Subsidaries (other than the Original Borrowers and their Subsidiaries and any US Borrower which is

 

47


  already party to this Agreement at such time) and any Financial Indebtedness incurred or applied to refinance or otherwise repay or prepay any such Existing Financial Indebtedness to the extent so applied and not exceeding the principal amount of such refinanced or repaid Existing Financial Indebtedness and any premiums, expenses, interest or fees accrued on any of the foregoing;

 

  (c)

to the extent covered by a Letter of Credit;

 

  (d)

arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade or in respect of Utilisations made in Agreed Currencies, but not a foreign exchange transaction for investment or speculative purposes;

 

  (e)

arising under a Permitted Loan or a Permitted Guarantee or as permitted by Clause 27.32 (Treasury Transactions);

 

  (f)

of any person acquired by a Borrower or Subsidiary of a Borrower after the First Amendment Date which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of three months following the date of acquisition;

 

  (g)

under Finance Leases of aircraft, parts, engines, vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by the Borrowers does not exceed USD 100,000,000 (or its equivalent in other currencies) at any time;

 

  (h)

arising under the Finance Documents;

 

  (i)

which are Banking Services Obligations or Swap Agreement Obligations;

 

  (j)

the incurrence of which has been consented to by the Majority Lenders; and

 

  (k)

not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed USD 100,000,000 (or its equivalent) in aggregate for the Borrowers and their Subsidiaries at any time;

“Permitted Guarantee” means:

 

  (a)

any guarantee of the obligations of any member of the Group existing on the date of this Agreement (or in the case of a US Borrower and its Affiliates (other than the Original Borrowers and their Subsidiaries), as of the applicable US Borrower Accession Date) or given or otherwise entered into for or on behalf of any member of the Group after the date of this Agreement (or in the case of a US Borrower and its Affiliates (other than the Original Borrowers and their Subsidiaries), after the applicable US Borrower Accession Date) at a time when no Default is continuing;

 

  (b)

the endorsement of negotiable instruments in the ordinary course of trade;

 

48


  (c)

any performance or similar bond guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of trade;

 

  (d)

any guarantee of a Joint Venture to the extent permitted by Clause 27.12 (Joint ventures);

 

  (e)

any guarantee permitted under Clause 27.24 (Financial Indebtedness);

 

  (f)

any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (b) of the definition of “Permitted Security”;

 

  (g)

any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations;

 

  (h)

any indemnity given in favour of a person who is not a member of the Group in the ordinary course of business;

 

  (i)

any guarantee under the Finance Documents;

 

  (j)

any guarantee of Banking Services Obligations or Swap Agreement Obligations; and

 

  (k)

any guarantee which has been consented to by the Majority Lenders;

“Permitted Holder” means each of (a) Solus Alternative Asset Management, LP, South Dakota Investment Council, Empyrean Capital Partners, LP, Bain Capital, LP, Cove Key Management LP, Mill Hill Capital, LLC, Oak Hill Capital Management, LLC, Highbridge Capital Management, LLC, Whitebox Advisors, LLC, DW Partners, LP and Blackrock, Inc., or any of their Affiliates (other than any Affiliate that is an operating company) and (b) any funds or managed accounts advised or managed by any of the entities listed in the preceding clause (a);

“Permitted Intra-Borrower Transfer” means a sale, transfer or other disposal of Receivables or Charged Property from Bristow U.S. LLC to Era Helicopters;

“Permitted Joint Venture” means any investment in any Joint Venture where:

 

  (a)

the Joint Venture is a limited liability company, limited liability corporation or partnership or any other entity consented to by the Majority Lenders;

 

  (b)

the Joint Venture is engaged in a business substantially the same as that carried on by the Borrowers or any of their Subsidiaries or any other business consented to by the Majority Lenders; and

 

  (c)

in any financial year of the Parent, the aggregate of:

 

  (i)

all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any Borrower or Subsidiary of a Borrower;

 

49


  (ii)

the contingent liabilities of any Borrower or Subsidiary of a Borrower under any guarantee given in respect of the liabilities of any such Joint Venture; and

 

  (iii)

the book value of any assets transferred by any Borrower or Subsidiary of a Borrower to any such Joint Venture,

does not exceed USD 25,000,000 (or its equivalent in other currencies or such other amounts as may be approved by the Majority Lenders);

“Permitted Loan” means:

 

  (a)

any Financial Indebtedness owed to any Borrower or Subsidiary of a Borrower by another member of the Group as of the date of this Agreement (or in the case of a US Borrower and its Affiliates (other than the Original Borrowers and their Subsidiaries), as of the applicable US Borrower Accession Date) or granted by any Borrower or Subsidiary of a Borrower to any member of the Group after the date of this Agreement (or in the case of a US Borrower and its Affiliates (other than the Original Borrowers and their Subsidiaries), after the applicable US Borrower Accession Date) if no Default is continuing at the time of such grant, and any interest or fees accrued thereon;

 

  (b)

any trade credit extended by any Borrower or Subsidiary of a Borrower to its customers on normal commercial terms and in the ordinary course of its trading activities and any interest or fees accrued thereon;

 

  (c)

Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (except under paragraph (e) of that definition) and any interest or fees accrued thereon;

 

  (d)

any loan made to a Joint Venture to the extent permitted under Clause 27.12 (Joint ventures) and any interest or fees accrued thereon;

 

  (e)

any loan made by a Borrower or Subsidiary of a Borrower to another Borrower or a Subsidiary of a Borrower and any interest or fees accrued thereon;

 

  (f)

any loan made by a Borrower or Subsidiary of a Borrower to an employee or director of any Borrower or Subsidiary of a Borrower and any interest or fees accrued thereon if the principal amount of that loan when aggregated with the amount of all loans to employees and directors by Borrowers and their Subsidiaries does not exceed USD 1,000,000 (or its equivalent) at any time;

 

  (g)

any Financial Indebtedness consented to by the Majority Lenders; and

 

  (h)

any loan made by a Borrower or Subsidiary of a Borrower and any interest or fees accrued thereon so long as the aggregate principal amount of the Financial Indebtedness owed to the Borrowers and their Subsidiaries under any such loans does not exceed USD 25,000,000 (or its equivalent) at any time;

 

50


“Permitted Security” means:

 

  (a)

any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any Borrower;

 

  (b)

any netting or set-off arrangement entered into by any Borrower or Subsidiary of a Borrower in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances but only so long as (i) such arrangement does not permit either (x) credit balances of any Borrower on Collection Accounts or (y) the proceeds of Receivables of Eligible Account Debtors (other than Excluded Receivables) to be netted or set off against debit balances of members of the Group which are not Borrowers and (ii) such arrangement does not give rise to other Security over the Charged Property of Borrowers;

 

  (c)

any payment or close out netting or set-off arrangement pursuant to any Treasury Transaction or foreign exchange transaction entered into by a Borrower which constitutes Permitted Financial Indebtedness, excluding any Security or Quasi-Security under a credit support arrangement;

 

  (d)

any Security or Quasi-Security over or affecting any asset of any Borrower or Subsidiary of a Borrower other than Charged Property of the Borrowers; and

 

  (e)

any Security or Quasi-Security created or expressed to be created pursuant to the Finance Documents;

“Permitted Share Issue” means an issue of shares by a Borrower or Subsidiary of a Borrower to another member of the Group or any of their Affiliates or any other person provided it does not cause a Change of Control;

“Plan” means an employee pension benefit plan, as defined in s3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of Title IV of ERISA or s412 of the Code that is maintained or contributed to, or required to be contributed to, by any Obligor or any ERISA Affiliate, or with respect to which any Obligor or any ERISA Affiliate may have any liability;

“Plan of Reorganization” means the Amended Joint Chapter 11 Plan of Reorganization of Bristow Group Inc. and Its Debtor Affiliates as Further Modified, dated 30 September 2019, as annexed as Exhibit A to the Confirmation Order;

“Priority Banking Services Obligations” means any Banking Services Obligations designated as such for the purposes of this Agreement by the Obligors’ Agent to the Agent in writing from time to time and in relation to which, the Agent has established an appropriate Reserve in its Permitted Discretion;

“Priority Swap Agreement Obligations” means any Swap Agreement Obligations designated as such for the purposes of this Agreement by the Obligors’ Agent to the Agent in writing from time to time and in relation to which, the Agent has established an appropriate Reserve in its Permitted Discretion;

 

51


“Qualifying Lender” has the meaning given to that term in Clause 18 (Tax gross up and indemnities);

“Quasi Security” has the meaning given to that term in Clause 27.15 (Negative pledge);

“Quotation Day” means, in relation to any period for which an interest rate is to be determined two Business Days (or, if the currency is euro, two TARGET Days) before the first day of that period, (unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days));

“Receivable” means all book debts, both present and future, due or owing or which may become due or owing to any Borrower arising under any Contract of Services from any person who is not a member of the Group for the provision or sale of aircraft transportation services (including the proceeds thereof) and the benefit of all related rights, documents and remedies (including under negotiable or non-negotiable instruments, guarantees, indemnities, legal or equitable charges, reservation of proprietary rights, rights of tracing and liens) and all payments and proceeds representing or made in respect of the same but not including any termination payments, amounts for the purchase of any equipment or aircraft, any indemnity or damages payments, any insurance proceeds or payments in respect of insurances. In relation to a Borrower, “its Receivables” means all Receivables in which it has any rights or which are owed to it;

“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property appointed in accordance with the Finance Documents;

“Related Fund” in relation to a fund (the “first fund”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund;

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

“Relevant Jurisdiction” means, in relation to an Obligor:

 

  (a)

its Original Jurisdiction;

 

  (b)

the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it; and

 

  (c)

in the case of a US Obligor the jurisdiction where it maintains its principal place of business;

 

52


“Relevant Market” means the London interbank market;

“Relevant Period” has the meaning given to that term in Clause 26.1 (Financial definitions);

“Renewal Request” means a written notice delivered to the Agent in accordance with Clause 6.6 (Renewal of a Letter of Credit);

“Repeating Representations” means each of the representations set out in Clause 24.2 (Status) to Clause 24.7 (Governing law and enforcement), Clause 24.12 (No default), paragraphs (e) and (f) of Clause 24.13 (No misleading information), paragraphs (e) and (f) of Clause 24.14 (Financial Statements), Clause 24.19 (Anti Corruption Laws and Sanctions), Clause 24.21 (Ranking) to Clause 24.24 (Legal and beneficial ownership) (other than paragraph (b) of Clause 24.24), Clause 24.28 (Centre of main interests and establishments) and Clause 24.31 (ERISA Plans) to 24.33 (Margin Stock);

“Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee, custodian or monitor;

“Reserves” means any and all reserves which the Agent deems necessary, in its Permitted Discretion (including (i) reserves for FX volatility, (ii) reserves for dilution of Receivables in excess of 2 percent, (iii) reserves for value added taxes with respect to the Charged Property and payroll withholding taxes for English Borrowers (including PAYE), (iv) reserves required to provide for the statutory lien as set out in the Norwegian Mortgage Act, Section 6-4 and (v) reserves in relation to any Priority Banking Services Obligations and any Priority Swap Agreement Obligations, if applicable;

“Restricted Subsidiary” of a person means any Subsidiary of such person that is not an Unrestricted Subsidiary. Unless the context otherwise requires, references to a Restricted Subsidiary shall be to a Restricted Subsidiary of the Parent;

“Resignation Letter” means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter);

“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers;

“Revolving Facility” means the revolving credit facilities made available under this Agreement as described in Clause 2.1(a)(i) (The Facilities);

“Revolving Facility Commitment” means the US/UK Tranche Commitments, the Norwegian Tranche Commitments and the LILO Tranche Commitments;

“Revolving Facility Exposure” means with respect to any Lender at any time, the sum of such Lender’s First Out Revolving Facility Exposure and its LILO Revolving Facility Exposure at such time;

“Revolving Facility Loan” means a First Out Revolving Facility Loan and a LILO Revolving Facility Loan;

 

53


“Rollover Loan” means one or more Revolving Facility Loans:

 

  (a)

made or to be made on the same day that:

 

  (i)

a maturing Revolving Facility Loan is due to be repaid; or

 

  (ii)

a demand by the Agent pursuant to a drawing in respect of a Letter of Credit is due to be met;

 

  (b)

the aggregate amount of which is equal to or less than the amount of the maturing Revolving Facility Loan or the relevant claim in respect of that Letter of Credit as of the date of the relevant Utilisation Request before giving effect to any prepayments on such date;

 

  (c)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 9.2 (Unavailability of a currency)) or the relevant claim in respect of that Letter of Credit;

 

  (d)

made or to be made under the same Tranche under which the maturing Revolving Facility Loan was made; and

 

  (e)

made or to be made to the same Borrower for the purpose of:

 

  (i)

refinancing in whole or in part that maturing Revolving Facility Loan; or

 

  (ii)

satisfying the relevant claim in respect of that Letter of Credit;

“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any comprehensive Sanctions (including, as of the date of this Agreement, Cuba, Iran, North Korea and Syria but which does not include, as of the date of this Agreement, the Russian Federation);

“Sanctioned Person” means, at any time, (a) any person listed in any Sanctions-related list of designated persons maintained by the OFAC, the U.S. Department of State or by the United Nations Security Council, the European Union or any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority (including designation on OFAC’s Specially designated Nationals and Blocked Persons List), (b) any person located, operating, organized or resident in a Sanctioned Country, (c) any person that is the subject or target of any Sanctions, or (d) any person owned or controlled by any such person or persons described in the foregoing paragraphs (a), (b) or (c);

“Sanctions” means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority of the U.S.A., the United Kingdom or any European Union member state;

 

54


“Screen Rate” means:

 

  (a)

in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

 

  (b)

in relation to NIBOR, the displayed rates for the relevant period appearing under the heading page “NIBOR” on the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) administered by Norske Finansielle Referanser AS and calculated in cooperation with Oslo Stock Exchange acting as calculation agent (or any other person which takes over the administration and/or calculation of that rate);

“Second Amendment and Restatement Agreement” means the deed of amendment and restatement, accession, transfer, resignation and confirmation dated the Second Amendment Agreement Date between, Bristow Group Inc., Bristow Helicopters Limited, Bristow Norway AS, Bristow U.S. LLC, Bristow Holdings U.S. Inc., the Agent and the Security Agent in respect of this Agreement;

“Second Amendment Date” has the meaning given to the term “Effective Date” in the Second Amendment and Restatement Agreement;

“Secured Finance Document Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all amounts outstanding under Letters of Credit, all accrued and unpaid fees owed by the Obligors under the Finance Documents and all expenses, reimbursements, indemnities and other obligations and indebtedness of the Obligors under the Finance Documents (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities under the Finance Documents of any of the Obligors to any of the Lenders, the Agent, the Issuing Bank or any indemnified party, individually or collectively, existing on the Closing Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Finance Documents or in respect of any of the Loans made or reimbursement under the Finance Documents or other obligations under the Finance Documents incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof;

“Secured Obligations” means:

 

  (a)

all Secured Finance Document Obligations, together with all (i) Banking Services Obligations and (ii) Swap Agreement Obligations in each case owing to one or more Lenders or (in the case of (i) and (ii)) their respective Affiliates; and

 

55


  (b)

(for the purposes of the US Transaction Security only) also includes all (i) Third Party Banking Services Obligations and (ii) Third Party Swap Agreement Obligations, provided however that the maximum aggregate amount of such Third Party Banking Services Obligations and/or Third Party Swap Agreement Obligations (as applicable) that shall constitute Secured Obligations and benefit from the US Transaction Security shall not exceed USD 10,000,000,

provided, however, (i) that the definition of “Secured Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor and (ii) the limitation in paragraph (b) above shall operate to limit the aggregate amount of the Third Party Banking Services Obligations and Third Party Swap Obligations that may benefit from the US Transaction Security but shall not prevent such Third Party Banking Services Obligations and Third Party Swap Obligations exceeding USD 10,000,000 provided that to the extent they do exceed USD 10,000,000 any proceeds of the US Transaction Security up to such USD 10,000,000 limit that are to be applied to Third Party Banking Services Obligations and Third Party Swap Obligations shall be applied pro rata to such Third Party Banking Services Obligations and Third Party Swap Obligations;

“Secured Parties” means each Finance Party from time to time party to this Agreement, each provider of Banking Services, to the extent the Banking Services Obligations constitute Secured Obligations, each counterparty to any Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations, each provider of Third Party Banking Services, to the extent the obligations thereunder constitute Secured Obligations, each counterparty to any Third Party Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations and any Receiver or Delegate;

“Security” means a mortgage, land charge, charge, pledge, assignment by way of security, lien, transfer of title, retention of title arrangement, or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect;

“Separate Loan” has the meaning given to that term in Clause 10.1 (Repayment of Loans);

“Settlement” has the meaning given to that term in Clause 8(g) (Swingline Loans);

“Settlement Date” has the meaning given to that term in Clause 8(g) (Swingline Loans);

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website;

“SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR;

“Specified Time” means a day or time determined in accordance with Schedule 11 (Timetables);

 

56


“Stock” shall mean shares of capital stock or shares in the capital, as the case may be (whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as the case may be), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company, unlimited liability company or equivalent entity, whether voting or non-voting;

“Structural Intra-Group Loans” means a loan by the Parent to any of its Subsidiaries, and loans made by one member of the Group to another member of the Group;

“Subsidiary” means an entity over which a person has direct or indirect control or owns directly or indirectly more than 50 percent of the voting capital or similar right of ownership and “control” for the purpose of this Agreement means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract and include a subsidiary undertaking within the meaning of s1162 Companies Act 2006 and a subsidiary within the meaning of s1159 Companies Act 2006 or the Norwegian Private Limited Liability Companies Act of 13 June 1997 No. 44 as applicable provided that for the purposes of determining the Subsidiaries of any Obligor or other member of the Group, Turkmenistan Helicopters Limited shall be deemed not to be a “Subsidiary” of an Obligor or other member of the Group unless its accounts have been consolidated with those of the Parent in the most recent consolidated financial statements of the Parent delivered to the Agent pursuant to Clause 25.1 (Financial statements);

“Super Majority First Out Lenders” means:

 

  (a)

if at any time there are three or more First Out Lenders, a First Out Lender or First Out Lenders whose First Out Revolving Commitments aggregate more than 662/3 percent of the Total First Out Commitments (or, if the Total First Out Commitments have been reduced to zero, aggregated more than 662/3 percent of the Total First Out Commitments immediately prior to that reduction); or

 

  (b)

if at any time there are two or fewer First Out Lenders, a First Out Lender or First Out Lenders whose First Out Revolving Commitments aggregate 100 percent of the Total First Out Commitments (or, if the Total First Out Commitments have been reduced to zero, aggregated 100 percent of the Total First Out Commitments immediately prior to that reduction)

“Super Majority Lenders” means:

 

  (a)

if at any time there are three or more Lenders, a Lender or Lenders whose Revolving Facility Commitments aggregate more than 662/3 percent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3 percent of the Total Commitments immediately prior to that reduction); or

 

  (b)

if at any time there are two or fewer Lenders, a Lender or Lenders whose Revolving Facility Commitments aggregate 100 percent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 100 percent of the Total Commitments immediately prior to that reduction).

 

57


“Super Majority LILO Lenders” means:

 

  (a)

if at any time there are three or more LILO Lenders, a LILO Lender or LILO Lenders whose LILO Tranche Commitments aggregate more than 662/3 percent of the Total LILO Commitments (or, if the Total LILO Commitments have been reduced to zero, aggregated more than 662/3 percent of the Total LILO Commitments immediately prior to that reduction); or

 

  (b)

if at any time there are two or fewer LILO Lenders, a LILO Lender or LILO Lenders whose LILO Tranche Commitments aggregate 100 percent of the Total LILO Commitments (or, if the Total LILO Commitments have been reduced to zero, aggregated 100 percent of the Total LILO Commitments immediately prior to that reduction).

“Swap Agreement” means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrowers or their Subsidiaries shall be a Swap Agreement;

“Swap Agreement Obligations” means any and all obligations of the Borrowers, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction;

“Swap Obligation” means, with respect to any 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 or any rules or regulations promulgated thereunder;

“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender under the US/UK Tranche, Norwegian Tranche and/or the LILO Tranche (as applicable) at any time shall be its Applicable Percentage of the total Swingline Exposure under the relevant Tranche at such time;

“Swingline Loan” has the meaning given to such term in Clause 8 (Swingline Loans);

 

58


“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007;

“TARGET Day” means any day on which TARGET2 is open for settlement of payment in euro;

“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);

“Term” means each period determined under this Agreement for which the Issuing Bank is under a liability under a Letter of Credit;

“Term SOFR” means, for the applicable Corresponding Tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body;

“Termination Date” means the earlier of:

 

  (a)

17 April 2023;

 

  (b)

the date being 91 days prior to the then earliest scheduled final maturity of any Material Indebtedness (other than any Discontinued Indebtedness) the principal amount of which exceeds USD 50,000,000 on such date; and

 

  (c)

the date on which more than an aggregate amount of USD 50,000,000 of Material Indebtedness (excluding any Discontinued Indebtedness and any scheduled repayment installments, mandatory prepayments and/or any permitted voluntary prepayments (in each case as required and/or as permitted (as applicable) pursuant to the documentation evidencing the relevant Material Indebtedness as at the date hereof (or if later, the date the relevant documentation is entered into) or as amended in a manner that does not accelerate or increase any such payments or has been approved by the Agent)) has become due and payable;

“Third Party Banking Services” means each and any of the following bank services provided to any Borrower by any person other than any Lender or an Affiliate of any Lender: (a) credit cards for commercial customers (including “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services, and (d) treasury management services (including controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services);

“Third Party Banking Services Obligations” means any and all obligations of the Borrowers, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Third Party Banking Services which have been designated by the Obligors’ Agent pursuant to Clause 2.5(b) (Banking Services, Third Party Banking Services, Swap Agreement and Third Party Swap Agreements) as being Third Party Banking Services Obligations for the purposes of this Agreement and the Finance Documents;

 

59


“Third Party Disposal” means the disposal of a Guarantor (other than the Parent) to a person which is not a member of the Group where that disposal is permitted under Clause 27.16 (Disposals) or made with the approval of the Majority Lenders (and the Obligors’ Agent has confirmed this is the case);

“Third Party Swap Agreement” means a Swap Agreement permitted hereunder with any person other than any Lender or an Affiliate of any Lender

“Third Party Swap Agreement Obligations” means any and all obligations of the Borrowers, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Third Party Swap Agreements and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Third Party Swap Agreement transaction which have, in each case, been designated by the Obligors’ Agent pursuant to Clause 2.5(b) (Banking Services, Third Party Banking Services, Swap Agreement and Third Party Swap Agreements) as being Third Party Swap Agreement Obligations for the purposes of this Agreement and the Finance Documents;

“Total Commitments” means the aggregate of the Revolving Facility Commitments from time to time;

“Total First Out Commitments” means the aggregate of the First Out Revolving Facility Commitments from time to time;

“Total LILO Commitments” means the aggregate of the LILO Tranche Commitments from time to time;

“Trade Instruments” means any performance bonds, or advance payment bonds or documentary letters of credit issued in respect of the obligations of any member of the Group arising in the ordinary course of business of that member of the Group;

“Tranche” means a First Out Tranche or the LILO Tranche (as applicable);

“Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents;

“Transaction Security Documents” means each of the documents listed as being a Transaction Security Document in Schedule 2, Part 1, Paragraph 19 (Conditions precedent to signing of the Agreement and initial Utilisation) and any document required to be delivered to the Agent under Schedule 2, Part 2, (Conditions precedent required to be delivered by Additional Obligors) together with any other document to be entered into on or after the date of this Agreement by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents;

 

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“Transfer Certificate” means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Obligors’ Agent;

“Transfer Date” means, in relation to an assignment or a transfer, the later of:

 

  (a)

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

  (b)

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate;

“Treasury Transactions” means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price;

“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings);

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment;

“Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents;

“Unrestricted Cash” means, at any time, any Unrestricted Cash Equivalent Investment and any cash in hand or at bank and (in the latter case) credited to an account in the name of a member of the Group with an Acceptable Bank and that a member of the Group is alone (or together with other members of the Group) beneficially entitled and for so long as:

 

  (a)

in respect of cash, that cash is repayable on demand and in respect of any Unrestricted Cash Equivalent Investment, that Unrestricted Cash Equivalent Investment is readily convertible or able to be liquidated into cash that is repayable on demand;

 

  (b)

repayment of cash referred to in (a) is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;

 

  (c)

there is no Security over that cash or that Unrestricted Cash Equivalent Investment except for Transaction Security or any netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements and which in the case of a Borrower or a Subsidiary of a Borrower is Permitted Security; and

 

  (d)

cash referred to in (a) is freely and immediately available to be applied in repayment or prepayment of the Facility;

 

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“Unrestricted Cash Equivalent Investment” means, a Cash Equivalent (as defined in Clause 26.1) to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group;

Unrestricted Subsidiary” means a Subsidiary of the Parent that has been designated as an “Unrestricted Subsidiary” pursuant to Clause 26.4 (Unrestricted Subsidiaries) and for the avoidance of doubt does not include any Subsidiary of the Parent which is or becomes a Borrower and/or a Guarantor;

“US” means the United States of America;

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001;

“US Bankruptcy Code” means Title 11 of The United States Code (entitled Bankruptcy”), as amended from time to time and as now or hereafter in effect, or any successor thereto;

“US Borrower” means any Borrower organised or formed under the law of any state or territory of the US or the District of Columbia;

“US Borrower Accession Date” means, in respect of each US Borrower, the date on which it accedes to this Agreement as an Additional Borrower;

“US Debtor Relief Laws” means the US Bankruptcy Code and all other federal and state liquidation, bankruptcy, assignment for the benefit of creditors, conservatorship, moratorium, receivership, insolvency, rearrangement, reorganisation or similar debtor relief laws in effect from time to time;

“US FCCR Voluntary Prepayment Conditions” means the following conditions:

 

  (a)

no Event of Default exists; and

 

  (b)

Aggregate Availability is equal to or greater than the greater of (i) USD 12,500,000 and (ii) 15 percent of the lesser of the (A) Aggregate Borrowing Base and (B) Total Commitments less the aggregate Availability Block; and

 

  (c)

the Group is in compliance with the financial covenant set out in Clause 26.2 (Financial condition) (ignoring the requirement for the financial covenant only to be tested during a Cash Dominion Period);

“US Guarantor” means any Guarantor organised or formed under the laws of any state or territory of the United States of America or the District of Columbia;

“US Non-FCCR Voluntary Prepayment Conditions” means the following conditions:

 

  (a)

no Event of Default exists;

 

  (b)

Aggregate Availability is equal to or greater than USD 20,000,000; and

 

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  (c)

the sum of the aggregate Unrestricted Cash available to the Group and the Aggregate Availability is equal to or greater than USD 100,000,000;

“US Obligor” means any US Borrower and any US Guarantor;

“US Tax Obligor” means:

 

  (a)

a Borrower which is resident for tax purposes in the US; or

 

  (b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes;

“US Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents governed by the laws of any state of the US;

“US/UK Tranche” means the revolving credit facility made available under this Agreement as described in Clause 2.1(a)(i)(A) (The Facilities);

“US/UK Tranche Commitments” means:

 

  (a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “US/UK Tranche Commitment” in Schedule 2, Part 2 (The Original Lenders) and the amount of any of its Norwegian Tranche Commitment reallocated as a US/UK Tranche Commitment to it pursuant to Clause 5.7 (Adjustment of Tranches) and the amount of any other US/UK Tranche Commitment transferred by it under this Agreement or assumed by it pursuant to the terms of Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any US/UK Tranche Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) and the amount of any of its Norwegian Tranche Commitment reallocated as a US/UK Tranche Commitment pursuant to Clause 5.7 (Adjustment of Tranches),

to the extent not cancelled, reduced or transferred by it under this Agreement or reallocated as a Norwegian Tranche Commitment pursuant to Clause 5.7 (Adjustment of Tranches);

“US/UK Tranche Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s participations in US/UK Tranche Loans, Swingline Exposure and Letters of Credit in relation to the US/UK Tranche at such time;

“US/UK Tranche Loan” means a loan made or to be made under the US/UK Tranche or the principal amount outstanding for the time being of that loan (and shall not include any Swingline Loan);

“Utilisation” means a Loan or a Letter of Credit and includes, where applicable, any Swingline Loan;

 

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“Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is to be made or the relevant Letter of Credit is to be issued;

“Utilisation Limits” means, in relation to:

 

  (a)

a Lender’s Revolving Facility Exposure, such Lender’s Revolving Facility Commitment; or

 

  (b)

a Lender’s US/UK Tranche Exposure, such Lender’s US/UK Tranche Commitments; or

 

  (c)

a Lender’s Norwegian Tranche Exposure, such Lender’s Norwegian Tranche Commitments; or

 

  (d)

a Lender’s LILO Revolving Facility Exposure, such Lender’s LILO Tranche Commitments;

 

  (e)

the Aggregate Revolving Exposure, the lesser of (x) the Total Commitments and (y) the Aggregate Borrowing Base; or

 

  (f)

the Lenders’ Revolving Facility Exposure, US/UK Tranche Exposure, Norwegian Tranche Exposure or the LILO Revolving Facility Exposure (as applicable) relating to a Borrower, the lesser of:

 

  (i)

the US/UK Tranche Commitments, the Norwegian Tranche Commitments or the LILO Tranche Commitments (as applicable);

 

  (ii)

in the case of a First Out Utilisation to:

 

  (A)

the English Borrower, the sum of (x) the First Out Borrowing Base of the English Borrower and (y) the English Designated Amount at such time;

 

  (B)

the Norwegian Borrower, the sum of (x) the First Out Borrowing Base of the Norwegian Borrower and (y) the Norwegian Designated Amount at such time; or

 

  (C)

the US Borrowers, the First Out Borrowing Base of the US Borrowers, less the English Designated Amount and the Norwegian Designated Amount at such time; or

 

  (iii)

in the case of a LILO Utilisation to:

 

  (A)

the English Borrower, the sum of (x) the LILO Borrowing Base of the English Borrower and (y) the LILO English Designated Amount at such time;

 

  (B)

the Norwegian Borrower, the sum of (x) the LILO Borrowing Base of the Norwegian Borrower and (y) the LILO Norwegian Designated Amount at such time; or

 

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  (C)

the US Borrowers, the LILO Borrowing Base of the US Borrowers less the LILO English Designated Amount and the LILO Norwegian Designated Amount at such time;

“Utilisation Request” means a notice substantially in the relevant form set out in Schedule 3 (Utilisation Request);

“VAT” means:

 

  (a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a), or imposed elsewhere; and

“Write-down and Conversion Powers” means:

 

  (a)

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

 

  (b)

in relation to any other applicable Bail-In Legislation:

 

  (i)

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

 

  (ii)

any similar or analogous powers under that Bail-In Legislation; and

 

  (c)

in relation to any UK Bail-In Legislation:

 

  (i)

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

 

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  (ii)

any similar or analogous powers under that UK Bail-In Legislation.

 

1.2

Construction

 

  (a)

Unless a contrary indication appears, a reference in this Agreement to:

 

  (i)

the “Agent”, the “Arrangers”, any “Finance Party”, any “Issuing Bank”, any “Lender”, any “Obligor”, any “Party”, any “Secured Party”, the “Security Agent” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

  (ii)

the “Agent” includes Barclays Bank PLC acting through any branch as it may designate for the purposes of this Agreement from time to time provided that unless the Parent otherwise agrees any such branch must be in the United Kingdom or the United States of America;

 

  (iii)

a document in “agreed form” is a document which is previously agreed in writing by or on behalf of the Obligors’ Agent and the Agent or, if not so agreed, is in the form specified by the Agent;

 

  (iv)

“assets” includes present and future properties, revenues and rights of every description;

 

  (v)

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

  (vi)

a “group of Lenders” includes all the Lenders;

 

  (vii)

“guarantee” means (other than in Clause 23 (Guarantee and indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

  (viii)

“including” means including without limitation;

 

  (ix)

“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (x)

the “Interest Period” of a Letter of Credit shall be construed as a reference to the Term of that Letter of Credit;

 

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  (xi)

a Lender’s “participation” in relation to a Letter of Credit shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that Letter of Credit;

 

  (xii)

a “person” includes any individual, firm, company, limited liability company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other enterprise (whether or not having separate legal personality) or any Governmental Authority;

 

  (xiii)

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

  (xiv)

a Utilisation made and to be made to a Borrower includes a Letter of Credit issued on its behalf;

 

  (xv)

a provision of law is a reference to that provision as amended or re-enacted;

 

  (xvi)

unless otherwise stated, a time of day is a reference to New York time;

 

  (xvii)

a “limited liability company” includes a corporation whose shareholders have, in the absence of any guarantee or surety, limited liability for such corporation’s obligations;

 

  (xviii) “aircraft”

includes fixed wing aircraft and helicopters; and

 

  (xix)

“aircraft transportation services” includes utility and search and rescue services.

 

  (b)

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

  (c)

Section, Clause and Schedule headings are for ease of reference only.

 

  (d)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

  (e)

A Borrower providing “cash cover” for a Letter of Credit means a Borrower paying an amount in the currency of the Letter of Credit to an interest-bearing account in the name of the Borrower and the following conditions being met:

 

  (i)

the account is with the Issuing Bank for which that cash cover is to be provided;

 

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  (ii)

subject to Clause 7.6(b) (Regulation and consequences of cash cover provided by Borrower), until no amount is or may be outstanding under that Letter of Credit (at which time all of such cash cover may be withdrawn by the Borrower), withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit; and

 

  (iii)

the Borrower has executed a security document over that account, in form and substance satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account.

 

  (f)

A Default or an Event of Default is “continuing” if it has not been remedied or waived.

 

  (g)

Unless a contrary indication appears, a reference to an amount, threshold or limit expressed in US dollars includes the equivalent of such amount, threshold or limit in other currencies at the Agent’s Spot Rate of Exchange.

 

  (h)

A Borrower “repaying” or “prepaying” a Letter of Credit means:

 

  (i)

that Borrower providing cash cover for that Letter of Credit;

 

  (ii)

the maximum amount payable under the Letter of Credit being reduced or cancelled in accordance with its terms; or

 

  (iii)

the Issuing Bank being satisfied that it has no further liability under that Letter of Credit,

and the amount by which a Letter of Credit is repaid or prepaid under Clause 1.2(h)(i) and Clause 1.2(h)(ii) is the amount of the relevant cash cover, reduction or cancellation.

 

  (i)

An amount borrowed includes any amount utilised by way of Letter of Credit.

 

  (j)

A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.

 

  (k)

Amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit.

 

  (l)

An outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the relevant Borrower in respect of that Letter of Credit at that time.

 

  (m)

A Borrower’s obligation on Utilisations becoming “due and payable” includes the Borrower repaying any Letter of Credit in accordance with Clause 1.2(g).

 

  (n)

References in this agreement to “the date of this Agreement” shall refer to 17 April 2018.

 

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1.3

Currency symbols and definitions

 

  (a)

“$”, “USD” and “US dollars” denote the lawful currency of the United States of America;

 

  (b)

£, “GBP” and “sterling” denote the lawful currency of the United Kingdom;

 

  (c)

, “EUR” and “euro” denote the single currency of the Participating Member States; and

 

  (d)

“NOK” and “Norwegian Kroner” denote the lawful currency of Norway.

 

1.4

Third party rights

 

  (a)

Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or enjoy the benefit of any term of this Agreement.

 

  (b)

Subject to paragraph (c) below, Secured Parties which are not Parties shall be entitled to enforce and enjoy the benefit of this Agreement to the extent applicable to them as Secured Parties.

 

  (c)

Subject to Clause 42.3(a) (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

1.5

Division

For all purposes under any Finance Document, in connection with any Division or plan of Division: (i) if any asset, right, obligation or liability or any person becomes the asset, right, obligation or liability of a different person, then it shall be deemed to have been transferred from the original person to the subsequent person, and (ii) if any new person comes into existence, such new person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.

 

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SECTION 2

THE FACILITIES

 

2.

THE FACILITIES

 

2.1

The Facilities

 

  (a)

Subject to the terms of this Agreement:

 

  (i)

the First Out Lenders make available:

 

  (A)

a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the US/UK Tranche Commitments; and

 

  (B)

a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the Norwegian Tranche Commitments; and

 

  (ii)

the LILO Lenders make available a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the LILO Tranche Commitments.

 

  (b)

The Norwegian Tranche will be available to the Norwegian Borrower, the US/UK Tranche will be available to the English Borrower and any US Borrower and the LILO Tranche will be available to all the Borrowers.

 

2.2

Increase

 

  (a)

The Obligors’ Agent may, by giving prior written notice to the Agent:

 

  (i)

within forty-five Business Days after the effective date of a cancellation of:

 

  (A)

any Available Commitments of a Defaulting Lender in accordance with Clause 11.6 (Right of cancellation in relation to a Defaulting Lender); or

 

  (B)

any Revolving Facility Commitments of a Lender in accordance with:

 

  (1)

Clause 11.1 (Illegality); or

 

  (2)

Clause 11.5 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank);

request that the Revolving Facility Commitments be increased (and the Revolving Facility Commitments shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Revolving Facility Commitments relating to that Facility so cancelled; and

 

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  (ii)

from time to time, request that the Revolving Facility Commitments be increased (and the Revolving Facility Commitments shall be so increased) in an aggregate amount not exceeding USD 35,000,000 over and above the amount of the Revolving Facility Commitments as at the Second Amendment Date (being USD 80,000,000) up to a maximum amount of USD 115,000,000.

Any such increase pursuant to either paragraph (i) or paragraph (ii) above shall be effected as follows:

 

  (A)

the increased US/UK Tranche Commitments, Norwegian Tranche Commitments, LILO Tranche Commitments and/or increased Total Commitments will be assumed by one or more relevant Lenders or other banks or financial institutions (each an “Increase Lender”) selected by the Obligors’ Agent (none of which shall be a member of the Group), which shall (taking into account any Substitute Affiliate Lenders to be appointed at the time of such Increase Lender becoming a Lender) be legally able to comply with its obligations under this Agreement in respect of lending to the jurisdictions in which the Borrowers are incorporated and which are acceptable to the Agent and each Issuing Bank (such consent not to be unreasonably withheld or delayed) and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Revolving Facility Commitments which it is to assume (including in relation to the allocation of commitments between the US/UK Tranche, the Norwegian Tranche and the LILO Tranche as specified by the Obligors’ Agent pursuant to Clause 2.2(b) (which proposed allocation shall be disclosed to all Lenders (including any Increase Lender) as part of the request to increase the US/UK Tranche Commitments, the Norwegian Tranche Commitments, LILO Tranche Commitments and/or the Total Commitments (as applicable))), as if it had been an Original Lender in respect of those Revolving Facility Commitments;

 

  (B)

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Revolving Facility Commitments which it is to assume;

 

  (C)

each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Revolving Facility Commitments which it is to assume;

 

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  (D)

the Revolving Facility Commitments of the other Lenders shall continue in full force and effect; and

 

  (E)

any increase in the Revolving Facility Commitments shall take effect on the date specified by the Obligors’ Agent in the notice referred to above or any later date on which the conditions set out in Clause 2.2(b) are satisfied.

 

  (b)

Any increase requested pursuant to the provision of Clause 2.2(a)(ii) shall be in a minimum amount of USD 5,000,000 and shall be allocated between the US/UK Tranche, the Norwegian Tranche and the LILO Tranche as specified by the Obligors’ Agent (which Tranches shall be increased accordingly), provided always that the Borrowers shall not increase the aggregate Norwegian Tranche Commitments pursuant to this Clause 2.2 to an amount which would cause, at the time such increase takes effect, the aggregate Norwegian Tranche Commitments to exceed the greater of (i) USD 40,000,000 and (ii) 55 percent of the Total First Out Commitments, after giving effect to the proposed increase pursuant to this Clause 2.2.

 

  (c)

An increase in the Revolving Facility Commitments will only be effective on the Agent executing a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement which the Agent shall do as soon as practicable after receipt and it being satisfied, acting reasonably, that the following conditions are satisfied;

 

  (i)

in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Agent has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Revolving Facility Commitments by that Increase Lender; and

 

  (ii)

the execution of any deeds of extension, confirmation agreement or equivalent documentation with respect to existing Transaction Security, reasonably required by the Agent or the Increase Lender, or required as a matter of applicable local law ensuring that the Increase Lender will benefit from all existing Transaction Security and any other documentation reasonably requested by the Agent in connection with the increase;

 

  (iii)

no Default is existing or will occur immediately following or as a result of such increase;

 

  (iv)

the Repeating Representations are true and correct in all material respects and will be so true and correct on the date on which any such increase will become effective (or, if any Repeating Representation is expressed to be given as of an earlier date, on such earlier date);

 

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  (v)

receipt of all previously invoiced and documented reasonable out of pocket fees and expenses owing in respect of such increase to the Agent and the agreed upon fees of the Increase Lender(s) (other than any fees which are only payable after such increase); and

 

  (vi)

the Agent has received evidence satisfactory to the Agent (acting reasonably) that any such increase of the Total Commitments (if fully drawn) will not be in breach of the terms of any documentation evidencing the Material Indebtedness.

 

  (d)

The Agent may rely on any certification from an Obligor as to the matters referred to in paragraphs (iii), (iv) and (vi) above unless it has actual knowledge or reasonable belief that any such certification is incorrect.

 

  (e)

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

 

  (f)

Bristow Helicopters Limited shall promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Revolving Facility Commitments under this Clause 2.2.

 

  (g)

The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 29.3 (Assignment or transfer fee) if the increase was a transfer pursuant to Clause 29.5 (Procedure for transfer) and if the Increase Lender was a New Lender.

 

  (h)

The relevant Obligor(s) may pay to the Increase Lender a fee in the amount and at the times agreed to be paid by such Obligor in a Fee Letter between the Obligors’ Agent (or the relevant Obligor(s)) and the Increase Lender.

 

  (i)

Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Revolving Facility Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

 

  (j)

Clause 29.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

  (i)

an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;

 

  (ii)

the “New Lender” were references to that “Increase Lender”; and

 

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  (iii)

a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.

 

2.3

Finance Parties’ rights and obligations

 

  (a)

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

  (b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.3(c). The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

  (c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.4

Obligors’ Agent

 

  (a)

Each Obligor (other than the Parent) by its execution of this Agreement or an Accession Deed irrevocably appoints the Parent to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i)

the Parent on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Deed, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

  (ii)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Parent,

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

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  (b)

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

 

2.5

Banking Services, Third Party Banking Services, Swap Agreements and Third Party Swap Agreements

 

  (a)

Each Lender providing (or which has an Affiliate providing) Banking Services for, or having (or which has an Affiliate having) Swap Agreements with, any Borrower shall deliver to the Agent and the Obligors’ Agent on the date of this Agreement and, promptly after entering into (or an Affiliate entering into) such Banking Services or Swap Agreements, written notice setting out the aggregate amount of all Banking Services Obligations and Swap Agreement Obligations of such Borrower to such Lender and its Affiliates (whether matured or unmatured, absolute or contingent) and containing a confirmation from the relevant Affiliate (if applicable) that it agrees to the Transaction Security being held on the terms set out in the Finance Documents. In addition, each such Lender shall deliver to the Agent and the Obligors’ Agent, following the end of each calendar month, a summary of the amounts due or expected to become due in respect of such Banking Services Obligations and Swap Agreement Obligations to such Lender and its Affiliates. The most recent information provided to the Agent shall be used in determining the amounts to be applied in respect of such Banking Services Obligations and/or Swap Agreement Obligations pursuant to Clause 36.6 (Partial payments).

 

  (b)

Promptly after or before a Borrower enters into arrangements in relation to Third Party Banking Services and/or a Third Party Swap Agreement that the Parent wishes to comprise Third Party Banking Services Obligations and/or Third Party Swap Agreement Obligations for the purposes of this Agreement and the Finance Documents, the Obligors’ Agent shall deliver to the Agent written notice setting out the aggregate amount of such Third Party Banking Services Obligations and/or Third Party Swap Agreement Obligations of such Borrower (whether absolute or contingent) and containing a confirmation that the relevant provider of the Third Party Banking Services and/or counterparty to the Third Party Swap Agreement: (i) has agreed to the US Transaction Security being held on the terms set out in the relevant Finance Documents, (ii) has been informed, and has acknowledged, its position in the payment waterfall set out in Clause 36.6 (Partial payments) and (iii) has been informed that only an aggregate amount of USD 10,000,000 of Third Party Banking Services Obligations and Third Party Swap Agreement Obligations will be secured pursuant to the Transaction Security Documents. In addition, the Obligors’ Agent shall deliver to the Agent, following the end of each calendar month, a summary of the amounts due or expected to become due in respect of

 

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  such Third Party Banking Services Obligations and/or Third Party Swap Agreement Obligations to such provider and/or counterparty (as applicable). The most recent information provided to the Agent shall be used in determining the amounts to be considered to be Secured Obligations and any amounts to be applied in respect of such Third Party Banking Services Obligations and/or Third Party Swap Agreement Obligations pursuant to Clause 36.6 (Partial payments).

 

3.

PURPOSE

 

3.1

Purpose

 

  (a)

Each Borrower shall apply all amounts borrowed by it towards the working capital needs and the general corporate purposes of the Borrowers and their Subsidiaries.

 

  (b)

No Borrower (or the Obligors’ Agent) will request any Utilisation, and no Borrower shall use, and each Borrower shall procure that its Subsidiaries, the other members of the Group and its and their respective directors, officers, employees and agents shall not use, the proceeds of any Revolving Facility Loan or Swingline Loan:

 

  (i)

in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws;

 

  (ii)

for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country; or

 

  (iii)

in any manner that would result in the violation by any such person or entity or any party to this Agreement of any Sanctions.

 

3.2

Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.

CONDITIONS OF UTILISATION

 

4.1

Initial conditions precedent

 

  (a)

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Schedule 2, Part 1 (Conditions precedent to signing of the Agreement and initial Utilisation) in form and substance satisfactory to the Agent. The Agent shall notify the Obligors’ Agent and the Lenders promptly upon being so satisfied.

 

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  (b)

Other than to the extent that the Majority First Out Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1(a), the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

4.2

Further conditions precedent

Subject to Clause 4.1, the Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation), if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a)

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Utilisation, no Default or Event of Default is continuing or would result from the proposed Utilisation;

 

  (b)

after the making of the proposed Utilisation, the Facility would be in compliance with the limits set out in Clause 5.3(b)(v) (Currency and amount) and/or Clause 6.4(b)(v) (Currency and amount);

 

  (c)

the Repeating Representations to be made by each Obligor are true and correct in all material respects (save where such Repeating Representation already incorporates the concept of materially).

 

4.3

Maximum number of Utilisations

 

  (a)

A Borrower (or the Obligors’ Agent) may not deliver a Utilisation Request if, as a result of the proposed Utilisation, 12 or more Revolving Facility Loans or Swingline Loans would be outstanding or such higher number as the Agent may agree in its discretion.

 

  (b)

Any Separate Loan shall not be taken into account in this Clause 4.3.

 

4.4

Limitations on LILO Loans

A Borrower may only deliver a Utilisation Request for a LILO Loan if, on the proposed Utilisation Date (after giving effect to all Loans and Letters of Credit scheduled to be made, issued, repaid or expired by such date as if so made, issued, repaid or expired):

 

  (a)

each First Out Tranche is or is scheduled to be on the proposed Utilisation Date to have been utilised in full; or

 

  (b)

the Aggregate First Out Revolving Exposure is or is scheduled to be on the proposed Utilisation Date equal to the Aggregate First Out Borrowing Base.

 

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4.5

Availability Block

The Availability Block shall:

 

  (a)

be apportioned pro rata between (i) the English Borrower, (ii) the Norwegian Borrower and (iii) the US Borrowers from time to time, proportionate to their Aggregate Individual Borrowing Bases (adjusted, as applicable, to reflect any application of English Designated Amounts, Norwegian Designated Amounts, LILO English Designated Amounts and LILO Norwegian Designated Amounts that is then applicable) as of the date of the then most recent Aggregate Borrowing Base Certificate or in such other proportion as the Agent may determine in its Permitted Discretion and notify to the Borrowers, with any such reallocation taking effect from the date of the next Aggregate Borrowing Base Certificate issued on or after the date which is three Business Days after the date of such notice. In the event of an increase of the Facility pursuant to Clause 2.2 (Increase), the Agent and the Obligors’ Agent shall discuss in good faith increasing the Availability Block proportionately to any such increase in the Total Commitments; and

 

  (b)

be deducted first from the relevant First Out Borrowing Base and only to the extent that the deduction of the Availability Block from the relevant First Out Borrowing Bases would cause such Borrowing Base(s) to be less than zero (the amount by which such First Out Borrowing Bases would be less than zero being the “Excess Availability Block”), the amount of the Excess Availability Block shall be deducted from the relevant LILO Borrowing Base(s) in the applicable proportions.

 

4.6

Reserves

Reserves in relation to a Borrower which, in accordance with this Agreement, are to be deducted from a Borrowing Base of a Borrower (or the US Borrowers) shall be deducted first from the relevant First Out Borrowing Base and only to the extent such deduction would cause the relevant First Out Borrowing Base(s) to be less than zero (the amount by which such First Out Borrowing Bases would be less than zero being the “Excess Reserve”), the amount of the Excess Reserve shall be deducted from the relevant LILO Borrowing Base(s) in the applicable proportions.

 

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SECTION 3

UTILISATION

 

5.

UTILISATION - LOANS

 

5.1

Delivery of a Utilisation Request

A Borrower (or the Obligors’ Agent on its behalf) may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

5.2

Completion of a Utilisation Request for Loans

 

  (a)

Each Utilisation Request for a Loan is irrevocable (except as otherwise provided in Clause 16.1) and will not be regarded as having been duly completed unless:

 

  (i)

it identifies the Borrower and the Tranche;

 

  (ii)

it identifies whether requested Loan is to be a LIBOR Rate Loan, a NIBOR Rate Loan, an ABR Rate Loan or a Foreign Base Rate Loan;

 

  (iii)

the proposed Utilisation Date is a Business Day within the Availability Period;

 

  (iv)

the currency and amount of the Utilisation comply with Clause 5.3; and

 

  (v)

the proposed Interest Period (if applicable) complies with Clause 15 (Interest Periods).

 

  (b)

Only one Utilisation may be requested in each Utilisation Request.

 

5.3

Currency and amount

 

  (a)

The currency specified in a Utilisation Request must be the Base Currency Amount or an Agreed Currency (provided that loans denominated in Norwegian Kroner will not be available to the US Borrowers). LIBOR Rate Loans may be denominated in sterling, euro or US dollars, NIBOR Rate Loans must be denominated in Norwegian Kroner, ABR Rate Loans must be denominated in US dollars, and Foreign Base Rate Loans may be denominated in sterling, euro or Norwegian Kroner.

 

  (b)

The amount of the proposed Utilisation must be:

 

  (i)

if the currency selected is the Base Currency, a minimum of USD 250,000 or, if less, the lesser of (A) the Availability for the relevant Borrower and (B) the Aggregate Availability and (C) the maximum amount available to be borrowed by the relevant Borrower in compliance with paragraph (v) below; or

 

  (ii)

if the currency selected is sterling, a minimum of £250,000 or, if less, the lesser of (A) the Availability for the relevant Borrower and (B) the Aggregate Availability and (C) the maximum amount available to be borrowed by the relevant Borrower in compliance with paragraph (v) below;

 

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  (iii)

if the currency selected is euro, a minimum of €250,000 or, if less, the lesser of (A) the Availability for the relevant Borrower and (B) the Aggregate Availability; or

 

  (iv)

if the currency selected is Norwegian Kroner, a minimum of NOK 2,000,000 or, if less, the lesser of (A) the Availability for the relevant Borrower and (B) the Aggregate Availability and (C) the maximum amount available to be borrowed by the relevant Borrower in compliance with paragraph (v) below; and

 

  (v)

in an aggregate principal amount that will not result in a breach of any of the Utilisation Limits.

 

5.4

Lenders’ participation

 

  (a)

If the conditions set out in this Agreement have been met, and subject to Clause 10.1 (Repayment of Loans), each relevant Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

  (b)

The amount of each relevant Lender’s participation in each Loan will be equal to its Applicable Percentage of the US/UK Tranche Commitments in the case of a US/UK Tranche Loan, the Norwegian Tranche Commitments in the case of a Norwegian Tranche Loan or the LILO Tranche Commitments in the case of a LILO Tranche Loan, in each case, immediately prior to making the Loan.

 

  (c)

The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Agreed Currency and notify each relevant Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 36.1 (Payments to the Agent) by the Specified Time.

 

5.5

Lender Affiliates and Facility Office

 

  (a)

In respect of a Loan or Loans to a particular Borrower and/or in relation to a particular Tranche (“Designated Loans”) a Lender (a “Designating Lender”) may at any time and from time to time, acting reasonably, designate (by three Business Days’ prior written notice to the Agent and the Obligors’ Agent or such shorter period as they may agree):

 

  (i)

a substitute Facility Office from which it will make Designated Loans (a “Substitute Facility Office”); or

 

  (ii)

nominate an Affiliate to act as the Lender of Designated Loans (a “Substitute Affiliate Lender”),

 

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provided that a Designating Lender may only designate a Substitute Facility Office or nominate a Substitute Affiliate Lender pursuant to this Clause to the extent that the relevant Substitute Facility Office or the Substitute Affiliate Lender is legally able to lend to the relevant Borrower.

 

  (b)

A notice to nominate a Substitute Affiliate Lender must be in the form set out in Schedule 8 (Form of Substitute Affiliate Lender Designation Notice) and be countersigned by the relevant Substitute Affiliate Lender confirming it will be bound as a Lender under this Agreement in respect of the Designated Loans in respect of which it acts as Lender.

 

  (c)

The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement. The Obligors, the Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made (by the Agent, except as otherwise provided in this Agreement) in respect of Designated Loans to the Facility Office of the Substitute Affiliate Lender. In particular the Revolving Facility Commitments of the Designating Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents nor will the participations of such Substitute Affiliate Lender in Designated Loans entitle it to any rights or otherwise be treated as Revolving Facility Commitments for voting purposes under this Agreement or the other Finance Documents, provided that if the Substitute Affiliate Lender is a Defaulting Lender the Designating Lender shall be deemed to be a Defaulting Lender for voting purposes under this Agreement.

 

  (d)

Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Lender for all purposes under the Finance Documents and having a Revolving Facility Commitment equal to the principal amount of its outstanding participations in all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement.

 

  (e)

A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Agent and the Obligors’ Agent provided that such notice may only take effect when there are no Designated Loans outstanding to the Substitute Affiliate Lender. Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender.

 

  (f)

If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this clause:

 

  (i)

any Substitute Affiliate Lender shall be treated for the purposes of Clause 18.2(d)(i) (Tax gross-up) as having become a Lender on the date of this Agreement;

 

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  (ii)

the Designating Lender shall ensure that the relevant Substitute Affiliate Lender funds its participations in Loans to be funded by such Substitute Affiliate Lender and performs each obligation it would be required to perform if it was a Party; and

 

  (iii)

as a result of circumstances existing at the date the designation occurs, an Obligor would be obliged to make a payment to the Substitute Affiliate Lender or Designating Lender acting through a Substitute Facility Office under Clause 19 (Increased costs), then, the Substitute Affiliate Lender or Designating Lender acting through a Substitute Facility Office is only entitled to receive payment under those Clauses to the same extent as the Designating Lender would have been if the designation had not occurred.

 

5.6

Cancellation of Commitment

The Revolving Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

 

5.7

Adjustment of Tranches

 

  (a)

The Agent may:

 

  (i)

in any Transfer Certificate or Assignment Agreement in relation to a New Lender; and/or

 

  (ii)

from time to time with three Business Days’ prior notice to the Obligors’ Agent,

designate an amount of the Lenders’ US/UK Tranche Commitments as “Exclusive US/UK Tranche Commitments” provided that the aggregate US/UK Tranche Commitments of all Lenders designated as Exclusive US/UK Tranche Commitments at the time it signs such Transfer Certificate or Assignment Agreement or the date it provides the relevant notification (as applicable) does not exceed in aggregate one third of the Total First Out Commitments. The Agent shall, in any applicable Transfer Certificate or Assignment Agreement and/or in any notice delivered pursuant to this paragraph (a), specify the Exclusive US/UK Tranche Commitments applicable to the relevant Lender(s). If reasonably requested by the Obligors’ Agent for the purposes of exercising a reallocation pursuant to this Clause 5.7, the Agent will confirm to the Obligors’ Agent the Exclusive US/UK Tranche Commitments applicable to the relevant Lender(s).

 

  (b)

Once so designated, the Exclusive US/UK Tranche Commitments of a Lender may not be adjusted without the consent of that Lender. Any cancellation of the US/UK Tranche Commitments of a Lender shall reduce pro rata the Exclusive US/UK Tranche Commitments of that Lender

 

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  (c)

Not more than once in any three month period (and provided that no Default or Event of Default is continuing or would result therefrom), the Obligors’ Agent may make a request to the Agent in writing (an “Adjustment Request”) that an amount of the US/UK Tranche Commitments of the Lenders with US/UK Tranche Commitments be reallocated as Norwegian Tranche Commitments of those Lenders or that an amount of the Norwegian Tranche Commitments of the Lenders with Norwegian Tranche Commitments be reallocated as US/UK Tranche Commitments of those Lenders (in each case a “Tranche Adjustment”). Any such Tranche Adjustment shall specify the amount of each Lender’s US/UK Tranche Commitment or Norwegian Tranche Commitment (as applicable) that is to be reallocated as a Norwegian Tranche Commitment or US/UK Tranche Commitment (as applicable) of that Lender (which amounts may be selected by the Obligors’ Agent and shall not be required to be pro rata amongst the relevant Lenders) provided always that: (i) the Obligors’ Agent may not request any Tranche Adjustment that would result in any Lender’s US/UK Tranche Commitment being less than its Exclusive US/UK Tranche Commitments; (ii) the sum of the US/UK Tranche Commitments and the Norwegian Tranche Commitments shall not exceed the Total First Out Commitments; and (iii) the Norwegian Tranche Commitments shall at no time exceed the greater of (i) USD 40,000,000 and (ii) 55 percent of the Total First Out Commitments

 

  (d)

For the avoidance of doubt any Tranche Adjustment that is made in accordance with paragraph (c) above may not increase any Lender’s aggregate Revolving Facility Commitments. A Tranche Adjustment that is not made in accordance with paragraph (c) above or this paragraph (d) requires the consent of all the Lenders. A Tranche Adjustment that is made in accordance with paragraph (c) above and this paragraph (d) shall not require the consent of any of the Lenders.

 

  (e)

Following the receipt of an Adjustment Request, the Agent shall inform the applicable Lenders accordingly and, if required, request their consent to the relevant Tranche Adjustment.

 

  (f)

The applicable Lenders may, acting reasonably, request any information from the Obligors’ Agent in relation to such Tranche Adjustment, which the Obligors’ Agent shall use reasonable endeavours to provide.

 

  (g)

If the consent of the Lenders is required pursuant to Clause 5.7(d) and has not been received within ten Business Days of receipt by the Lenders from the Agent of the Adjustment Request, the Adjustment Request shall be deemed to be rejected by such Lender(s) and no such Tranche Adjustment shall be made in relation to such Lender(s).

 

  (h)

If consent is required, the relevant Lenders may give their consent to any Adjustment Request subject to such conditions as they may reasonably request but no such conditions shall be effective unless agreed by the Borrowers (provided always if the Obligors do not satisfy such conditions, the Lenders shall not be under any obligation to agree to the Adjustment Request).

 

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  (i)

If the applicable Lenders give their consent to the Adjustment Request (or if no consent is required) then the US/UK Tranche Commitments and the Norwegian Tranche Commitments of each applicable Lender shall be adjusted accordingly as requested with effect from the date set out in the Adjustment Request (or, if consent of the Lenders is required, the date such consent is provided or, in any case, any later date agreed between the Agent and the Obligors’ Agent) and on such date, if applicable the Agent shall effect such changes (if any) to the outstanding First Out Loans which are necessary to ensure compliance with the adjusted US/UK Tranche Commitments and Norwegian Tranche Commitments, and the Obligors’ Agent and the Borrowers shall be deemed to have made such prepayment requests and shall be deemed to have submitted such Utilisation Requests as may be necessary to effect such changes.

 

5.8

Revaluation of Loans

If any Loans are denominated in an Agreed Currency, the Agent shall, at the end of each calendar month, recalculate the Base Currency Amount of each such Loan by notionally converting into the Base Currency the outstanding amount of that Loan on the basis of the Agent’s Spot Rate of Exchange on the date of calculation and notify the Obligors’ Agent of such recalculation within seven Business Days of the end of each calendar month. The Obligors’ Agent shall use the most recently notified amounts of such Loans for the purposes of the next Aggregate Borrowing Base Certificate following the date of such notification.

 

6.

UTILISATION – LETTERS OF CREDIT

 

6.1

The Revolving Facility

 

  (a)

The Revolving Facility may be utilised by way of Letters of Credit.

 

  (b)

Clause 5 (Utilisation - Loans) does not apply to utilisations by way of Letters of Credit.

 

  (c)

In determining the amount of the Available Facility and a Lender’s L/C Proportion of a proposed Letter of Credit for the purposes of this Agreement the Available Commitment of a Lender will be calculated ignoring any cash cover provided for outstanding Letters of Credit.

 

6.2

Delivery of a Utilisation Request for Letters of Credit

A Borrower (or the Obligors’ Agent on its behalf) may request a Letter of Credit to be issued by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time. A Letter of Credit may be requested to be issued on behalf of another member of the Group by a Borrower (or the Obligors’ Agent on behalf of a Borrower) and the requesting Borrower shall be the Borrower of that Letter of Credit.

 

6.3

Completion of a Utilisation Request for Letters of Credit

Each Utilisation Request for a Letter of Credit is irrevocable and will not be regarded as having been duly completed unless:

 

  (a)

it specifies that it is for a Letter of Credit;

 

  (b)

it identifies the Borrower of the Letter of Credit and the relevant Tranche;

 

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  (c)

it identifies the Issuing Bank which is to issue the Letter of Credit and such Issuing Bank is permitted to be an Issuing Bank for the relevant Letter of Credit in accordance with this Agreement;

 

  (d)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to the Revolving Facility;

 

  (e)

the currency and amount of the Letter of Credit comply with Clause 6.4;

 

  (f)

the form of Letter of Credit is attached;

 

  (g)

the Expiry Date of the Letter of Credit falls on or before five Business Days prior to the then scheduled Termination Date pursuant to paragraphs (a) and (b) of the definition thereof;

 

  (h)

the Term of the Letter of Credit is 12 months or less;

 

  (i)

the delivery instructions for the Letter of Credit are specified; and

 

  (j)

the identity of the beneficiary of the Letter of Credit is approved by the Issuing Bank acting reasonably.

6.4 Currency and amount

 

  (a)

The currency specified in a Utilisation Request must be the Base Currency or an Agreed Currency.

 

  (b)

The amount of the proposed Letter of Credit must be an amount whose Base Currency Amount is not more than the Available Facility and which is:

 

  (i)

if the currency selected is the Base Currency, a minimum of USD 100,000 or, if less, the lesser of (a) the Availability for the relevant Borrower and (b) the Aggregate Availability and (c) the maximum amount available to be utilised as a Letter of Credit by the relevant Borrower in compliance with paragraph (v) below; or

 

  (ii)

if the currency selected is sterling, a minimum of £100,000 or, if less, the lesser of (a) the Availability for the relevant Borrower and (b) the Aggregate Availability and (c) the maximum amount available to be utilised as a Letter of Credit by the relevant Borrower in compliance with paragraph (v) below; or

 

  (iii)

if the currency selected is euro, a minimum of €100,000 or, if less, the lesser of (a) the Availability for the relevant Borrower and (b) the Aggregate Availability and (c) the maximum amount available to be utilised as a Letter of Credit by the relevant Borrower in compliance with paragraph (v) below; or

 

  (iv)

if the currency selected is Norwegian Kroner, a minimum of NOK 1,000,000 or, if less, the lesser of (a) the Availability for the relevant Borrower and (b) the Aggregate Availability and (c) the maximum amount available to be utilised as a Letter of Credit by the relevant Borrower in compliance with paragraph (v) below;

 

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  (v)

in an aggregate principal amount that will not result in a breach of any of the Utilisation Limits.

 

  (c)

The maximum aggregate Base Currency Amount of all Letters of Credit shall not exceed USD 30,000,000 at any time.

 

6.5

Issue of Letters of Credit

 

  (a)

If the conditions set out in this Agreement have been met, the Issuing Bank shall issue the Letter of Credit on the Utilisation Date.

 

  (b)

Subject to Clause 4.1 (Initial conditions precedent), the Issuing Bank will only be obliged to comply with Clause 6.5(a), if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:

 

  (i)

in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 no Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and

 

  (ii)

the Repeating Representations to be made by each Obligor are true in all material respects.

 

  (c)

The amount of each Lender’s participation in each Letter of Credit will be equal to its L/C Proportion provided always, for the avoidance of doubt, that only the LILO Lenders will participate in a Letter of Credit wholly issued pursuant to the LILO Tranche.

 

  (d)

A Letter of Credit may be requested and issued using a First Out Tranche and the LILO Tranche in which case it will be deemed to constitute separate Letters of Credit (in the relevant proportions) for the purposes of this Agreement notwithstanding issued in a single Letter of Credit.

 

  (e)

The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Agreed Currency and shall notify the Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.

 

  (f)

The Issuing Bank has no duty to enquire of any person whether or not any of the conditions set out in Clause 6.5(b) have been met. The Issuing Bank may assume that those conditions have been met unless it is expressly notified to the contrary by the Agent. The Issuing Bank will have no liability to any person for issuing a Letter of Credit based on such assumption.

 

  (g)

The Issuing Bank is solely responsible for the form of the Letter of Credit that it issues. The Agent has no duty to monitor the form of that document.

 

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  (h)

Subject to Clause 32.7(i) (Rights and discretions), each of the Issuing Bank and the Agent shall provide the other with any information reasonably requested by the other that relates to a Letter of Credit and its issue.

 

  (i)

The Issuing Bank may issue a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to do so.

 

6.6

Renewal of a Letter of Credit

 

  (a)

A Borrower (or the Obligors’ Agent on its behalf) may request that any Letter of Credit issued at the request of that Borrower be renewed by delivery to the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time.

 

  (b)

The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit except that the condition set out in Clause 6.3(f) shall not apply.

 

  (c)

The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:

 

  (i)

its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and

 

  (ii)

its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

  (d)

Subject to Clause 6.6(e), if the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.

 

  (e)

Where a new Letter of Credit is to be issued to replace by way of renewal an existing Letter of Credit, the Issuing Bank is not required to issue that new Letter of Credit until the Letter of Credit being replaced has been returned to the Issuing Bank or the Issuing Bank is satisfied, acting reasonably, either that it will be returned to it or otherwise that no liability can arise under it.

 

6.7

Reduction of a Letter of Credit

 

  (a)

If, on the proposed Utilisation Date of a Letter of Credit, any Lender under the Revolving Facility is a Non-Acceptable L/C Lender and:

 

  (i)

that Lender has failed to provide cash collateral to the Issuing Bank in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover); and

 

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  (ii)

the Borrower of that proposed Letter of Credit has not exercised its right to provide cash cover to the Issuing Bank in accordance with Clause 7.4(g) (Cash collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover), the Issuing Bank may, subject to paragraph (d) below, reduce the amount of that Letter of Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Letter of Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the Issuing Bank) in respect of that Letter of Credit for the purposes of the Finance Documents.

 

  (b)

The Issuing Bank shall notify the Agent and the Obligors’ Agent of each reduction made pursuant to this Clause 6.7.

 

  (c)

This Clause 6.7 shall not affect the participation of each other Lender in that Letter of Credit except for any increase in their participation pursuant to paragraph (d) below.

 

  (d)

If paragraph (a) applies and there are sufficient applicable Available Commitments of other Lenders who are not Non-Acceptable L/C Lenders the Issuing Bank shall not reduce a Letter of Credit but instead the relevant Non-Acceptable L/C Lender shall cease to have any participation in respect of that Letter of Credit and its participations will be reallocated to such other Lenders pro rata to their applicable Available Commitments.

 

6.8

Revaluation of Letters of Credit

If any Letters of Credit are denominated in an Agreed Currency, the Agent shall, at the end of each calendar month, recalculate the Base Currency Amount of each such Letter of Credit by notionally converting into the Base Currency the outstanding amount of that Letter of Credit on the basis of the Agent’s Spot Rate of Exchange on the date of calculation and notify the Obligors’ Agent of such recalculation within seven Business Days of the end of each calendar month. The Obligors’ Agent shall use the most recently notified amounts of such Letters of Credit for the purposes of the next Aggregate Borrowing Base Certificate following the date of such notification.

 

6.9

Reduction or expiry of Letter of Credit

If the amount of any Letter of Credit is wholly or partially reduced or it is repaid or prepaid or it expires prior to its Expiry Date, the relevant Issuing Bank and the Borrower that requested (or on behalf of which the Obligors’ Agent requested) the issue of that Letter of Credit shall promptly notify the Agent of the details upon becoming aware of them.

 

6.10

Appointment of additional Issuing Banks

Any Lender which has agreed to the Obligors’ Agent’s request to be an Issuing Bank for the purposes of this Agreement shall become a Party as an “Issuing Bank” upon notifying the Agent and the Obligors’ Agent that it has so agreed to be an Issuing Bank.

 

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7.

LETTERS OF CREDIT

 

7.1

Immediately payable

If a Letter of Credit or any amount outstanding under a Letter of Credit is expressed to be immediately payable, the Borrower that requested (or on behalf of which the Obligors’ Agent requested) the issue of that Letter of Credit shall repay or prepay that amount immediately.

 

7.2

Claims under a Letter of Credit

 

  (a)

Each Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it (or requested by the Obligors’ Agent on its behalf) and which appears on its face to be in order (in this Clause 7, a “claim”).

 

  (b)

Each Borrower shall immediately on demand pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.

 

  (c)

Each Borrower acknowledges that the Issuing Bank:

 

  (i)

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

  (ii)

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

  (d)

The obligations of a Borrower under this Clause 7 will not be affected by:

 

  (i)

the sufficiency, accuracy or genuineness of any claim or any other document; or

 

  (ii)

any incapacity of, or limitation on the powers of, any person signing a claim or other document.

 

7.3

Indemnities

 

  (a)

Each Borrower shall immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit requested by (or on behalf of) that Borrower.

 

  (b)

Each Lender shall (according to its L/C Proportion) immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit (unless the Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).

 

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  (c)

The Borrower which requested (or on behalf of which the Obligors’ Agent requested) a Letter of Credit shall immediately on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit.

 

  (d)

The obligations of each Lender or Borrower under this Clause are continuing obligations and will extend to the ultimate balance of sums payable by that Lender or Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

 

  (e)

If a Borrower has provided cash cover in respect of a Lender’s participation in a Letter of Credit, the Issuing Bank shall seek reimbursement from that cash cover before making a demand of that Lender under Clause 7.3(b). Any recovery made by an Issuing Bank pursuant to that cash cover will reduce that Lender’s liability under Clause 7.3(b).

 

  (f)

The obligations of any Lender or Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:

 

  (i)

any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;

 

  (ii)

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

 

  (iii)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Letter of Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (iv)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;

 

  (v)

any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit or any other document or security;

 

  (vi)

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

 

  (vii)

any insolvency or similar proceedings.

 

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7.4

Cash collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover

 

  (a)

If, at any time, a Lender under the Revolving Facility is a Non-Acceptable L/C Lender, the Issuing Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling two Business Days after the request by the Issuing Bank, an amount equal to that Lender’s L/C Proportion of:

 

  (i)

the outstanding amount of a Letter of Credit; or

 

  (ii)

in the case of a proposed Letter of Credit, the amount of that proposed Letter of Credit,

and in the currency of that Letter of Credit to an interest-bearing account held in the name of that Lender with the Issuing Bank.

 

  (b)

The Non-Acceptable L/C Lender to whom a request has been made in accordance with Clause 7.4(a) shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the Issuing Bank, as collateral for any amounts due and payable under this Agreement by that Lender to the Issuing Bank in respect of that Letter of Credit.

 

  (c)

Subject to Clause 7.4(f), withdrawals from such an account may only be made to pay the Issuing Bank amounts due and payable to it under this Agreement by the Non-Acceptable L/C Lender in respect of that Letter of Credit until no amount is or may be outstanding under that Letter of Credit.

 

  (d)

Each Lender shall notify the Agent and the Obligors’ Agent:

 

  (i)

on the date of this Agreement or on any later date on which it becomes a Lender in accordance with Clause 2.2 (Increase) or Clause 29 (Changes to the Lenders) whether it is a Non-Acceptable L/C Lender; and

 

  (ii)

as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,

and an indication in Schedule 1 (The Original Parties), in a Transfer Certificate, in an Assignment Agreement or in an Increase Confirmation to that effect will constitute a notice under Clause 7.4(d)(i) to the Agent and, upon delivery in accordance with Clause 29.7 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Obligors’ Agent), to the Obligors’ Agent.

 

  (e)

Any notice received by the Agent pursuant to Clause 7.4(d) shall constitute notice to the Issuing Bank of that Lender’s status and the Agent shall, upon receiving each such notice, promptly notify the Issuing Bank of that Lender’s status as specified in that notice.

 

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  (f)

Notwithstanding Clause 7.4(c), a Lender which has provided cash collateral in accordance with this Clause 7.4 may, by notice to the Issuing Bank, request that an amount equal to the amount provided by it as collateral in respect of the relevant Letter of Credit (together with any accrued interest) be returned to it:

 

  (i)

to the extent that such cash collateral has not been applied in satisfaction of any amount due and payable under this Agreement by that Lender to the Issuing Bank in respect of the relevant Letter of Credit;

 

  (ii)

if:

 

  (A)

it ceases to be a Non-Acceptable L/C Lender;

 

  (B)

its obligations in respect of the relevant Letter of Credit are transferred to a New Lender in accordance with the terms of this Agreement; or

 

  (C)

an Increase Lender has agreed to undertake that Lender’s obligations in respect of the relevant Letter of Credit in accordance with the terms of this Agreement; and

 

  (iii)

if no amount is due and payable by that Lender in respect of a Letter of Credit,

and the Issuing Bank shall pay that amount to the Lender within three Business Days of that Lender’s request (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).

 

  (g)

To the extent that a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the Issuing Bank that it will not provide cash collateral) in accordance with this Clause 7.4 in respect of a proposed Letter of Credit, the Issuing Bank shall promptly notify the Obligors’ Agent (with a copy to the Agent) and the Borrower of that proposed Letter of Credit may, at any time before the proposed Utilisation Date of that Letter of Credit, provide cash cover to an account with the Issuing Bank in an amount equal to that Lender’s L/C Proportion of the amount of that proposed Letter of Credit.

 

7.5

Requirement for cash cover from Borrower

If:

 

  (a)

a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover) in respect of a Letter of Credit that has been issued;

 

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  (b)

the Issuing Bank notifies the Obligors’ Agent (with a copy to the Agent) that it requires the Borrower of the relevant Letter of Credit to provide cash cover to an account with the Issuing Bank in an amount equal to that Non-Acceptable L/C Lender’s L/C Proportion of the outstanding amount of that Letter of Credit (or if less, the amount of cash cover the Non-Acceptable L/C Lender has failed to provide);

 

  (c)

that Borrower has not already provided such cash cover which is continuing to stand as collateral; and

 

  (d)

a Cash Dominion Period is continuing,

then that Borrower shall provide such cash cover within 10 Business Days of the notice referred to in Clause 7.5(b) (unless the relevant Non-Acceptable L/C Lender has been replaced as a Lender).

 

7.6

Regulation and consequences of cash cover provided by Borrower

 

  (a)

Any cash cover provided by a Borrower pursuant to Clause 7.4 or Clause 7.5 may be funded out of a Revolving Facility Loan.

 

  (b)

Notwithstanding Clause 1.2(e) (Construction), the relevant Borrower may request that an amount equal to the cash cover (together with any accrued interest) provided by it pursuant to Clause 7.4 or Clause 7.5 be returned to it:

 

  (i)

to the extent that such cash cover has not been applied in satisfaction of any amount due and payable under this Agreement by that Borrower to the Issuing Bank in respect of a Letter of Credit;

 

  (ii)

if:

 

  (A)

the relevant Lender ceases to be a Non-Acceptable L/C Lender;

 

  (B)

the relevant Lender’s obligations in respect of the relevant Letter of Credit are transferred to a New Lender in accordance with the terms of this Agreement; or

 

  (C)

an Increase Lender has agreed to undertake the relevant Lender’s obligations in respect of the relevant Letter of Credit in accordance with the terms of this Agreement; and

 

  (iii)

if no amount is due and payable by the relevant Lender in respect of the relevant Letter of Credit,

and the Issuing Bank shall pay that amount to that Borrower within 3 Business Days of that Borrower’s request.

 

  (c)

To the extent that a Borrower has provided cash cover pursuant to Clause 7.4 or Clause 7.5, the relevant Lender’s L/C Proportion in respect of that Letter of Credit will remain (but that Lender’s obligations in relation to that Letter of Credit may be satisfied in accordance with Clause 1.2(e)(ii) (Construction)). However the relevant Borrower’s obligation to pay any Letter of Credit fee in relation to the relevant Letter of Credit to the Agent (for the account of that Lender) in accordance with Clause 17.3(b) (Fees payable in respect of Letters of Credit) will be reduced proportionately as from the date on which it provides that cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).

 

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  (d)

The relevant Issuing Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to Clause 7.4 or Clause 7.5 and of any change in the amount of cash cover so provided.

 

7.7

Rights of contribution

No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7 (other than a Defaulting Lender which has failed to comply with this Clause 7, provided always that in no event shall any right of contribution or indemnity attach to, or adversely affect, any other Finance Party).

 

8.

SWINGLINE LOANS

 

  (a)

The Agent, the Swingline Lender and the Lenders agree that a Borrower (or the Obligors’ Agent on behalf of a Borrower) may request a Swingline Loan under either a First Out Tranche or the LILO Tranche by submitting a duly completed Utilisation Request by the Specified Time. Following such request, the terms of this Clause 8 apply and the Swingline Lender will, on behalf of the relevant Lenders and in the amount requested, advance same day funds to the relevant Borrower, on the date of the applicable Utilisation to the bank account nominated by the relevant Borrower for the purpose of receiving such amounts from time to time (each such loan made solely by the Swingline Lender pursuant to this Clause 8 is referred to in this Agreement as a “Swingline Loan”), with settlement among the relevant Lenders as to the Swingline Loans to take place on a periodic basis as set out in this Clause 8.

 

  (b)

Except as otherwise provided in this Clause 8, each Swingline Loan shall be subject to all the terms and conditions applicable to other Loans funded by the Lenders, except that all payments thereon shall be payable to the Swingline Lender solely for its own account.

 

  (c)

The aggregate amount of Swingline Loans outstanding at any time shall not exceed USD 7,500,000.

 

  (d)

The Swingline Lender shall not make any Swingline Loan if the requested Swingline Loan exceeds:

 

  (i)

Aggregate Availability;

 

  (ii)

First Out Availability (in the case of Swingline Loans under a First Out Tranche;

 

  (iii)

LILO Availability (in the case of Swingline Loans under the LILO Tranche); or

 

  (iv)

the relevant Borrower’s Availability,

 

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in each case before or after giving effect to such Swingline Loan.

 

  (e)

Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement (as defined below) has been requested with respect to such Swingline Loan), each Lender under the relevant Tranche shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender, without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of its US/UK Tranche Commitments, Norwegian Tranche Commitments or LILO Tranche Commitments (as applicable).

 

  (f)

The Swingline Lender may, at any time, require the relevant Lenders to fund their participations referred to in paragraph (e). From and after the date, if any, on which any Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Charged Property received by the Agent in respect of such Swingline Loan.

 

  (g)

The Agent, on behalf of the Swingline Lender, may request settlement (a “Settlement”) with the Lenders on at least a weekly basis or on any date that the Agent elects, by notifying the relevant Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 11.00 a.m. London time on the date of such requested Settlement (the “Settlement Date”). Each relevant Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Lender’s Applicable Percentage of the outstanding principal amount of the applicable Swingline Loan with respect to which Settlement is requested to the Agent, to such account of the Agent as the Agent may designate, not later than 3.00 p.m., on such Settlement Date.

 

  (h)

Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set out in Clause 4.2 (Further conditions precedent) have then been satisfied. Such amounts transferred to the Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and, together with the Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute ABR Rate Loans of such Lenders, respectively. If any such amount is not transferred to the Agent by any Lender on such Settlement Date, the Swingline Lender shall be entitled to recover from such Lender on demand such amount, together with interest thereon.

 

  (i)

All Swingline Loans will be denominated in US dollars.

 

9.

AGREED CURRENCIES

 

9.1

Selection of currency

A Borrower (or the Obligors’ Agent on its behalf) shall select the currency of a Utilisation in a Utilisation Request.

 

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9.2

Unavailability of a currency

If before the Specified Time on any Quotation Day:

 

  (a)

a Lender notifies the Agent that the Agreed Currency requested is not readily available to it in the amount required; or

 

  (b)

a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Agreed Currency would contravene a law or regulation applicable to it,

the Agent will give notice to the relevant Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 9.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount, or in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

 

9.3

Agent’s calculations

Each Lender’s participation in a Loan will be determined in accordance with Clause 5.4(b) (Lenders’ participation).

 

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

 

10.

REPAYMENT

 

10.1

Repayment of Loans and Letters of Credit

 

  (a)

Subject to Clause 10.1(d), each Borrower which has drawn a Revolving Facility Loan shall repay that Loan:

 

  (i)

on the last day of its Interest Period (in the case of LIBOR Rate Loans and NIBOR Rate Loans); and

 

  (ii)

on the Termination Date (in the case of ABR Rate Loans and Foreign Base Rate Loans).

 

  (b)

Notwithstanding the above, all Loans (including Swingline Loans) shall be repaid in full on the Termination Date.

 

  (c)

Without prejudice to each Borrower’s obligation under Clause 10.1(a), if:

 

  (i)

one or more Revolving Facility Loans are to be made available to a Borrower:

 

  (A)

on the same day that a maturing Revolving Facility Loan is due to be repaid by that Borrower;

 

  (B)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 9.2 (Unavailability of a currency));

 

  (C)

under the same Tranche under which the maturing Revolving Facility Loan was made; and

 

  (D)

in whole or in part for the purpose of refinancing the maturing Revolving Facility Loan; and

 

  (ii)

the proportion borne by each relevant Lender’s participation in the maturing Revolving Facility Loan to the amount of that maturing Revolving Facility Loan is the same as the proportion borne by that Lender’s participation in the new Revolving Facility Loans to the aggregate amount of those new Revolving Facility Loans,

the aggregate amount of the new Revolving Facility Loans shall, unless the relevant Borrower or the Obligors’ Agent notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Revolving Facility Loan so that:

 

  (A)

if the amount of the maturing Revolving Facility Loan exceeds the aggregate amount of the new Revolving Facility Loans:

 

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  (1)

the relevant Borrower will only be required to make a payment under Clause 36.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

 

  (2)

each relevant Lender’s participation in the new Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Revolving Facility Loan and that Lender will not be required to make a payment under Clause 36.1 (Payments to the Agent) in respect of its participation in the new Revolving Facility Loans; and

 

  (B)

if the amount of the maturing Revolving Facility Loan is equal to or less than the aggregate amount of the new Revolving Facility Loans:

 

  (1)

the relevant Borrower will not be required to make a payment under Clause 36.1 (Payments to the Agent); and

 

  (2)

each relevant Lender will be required to make a payment under Clause 36.1 (Payments to the Agent) in respect of its participation in the new Revolving Facility Loans only to the extent that its participation in the new Revolving Facility Loans exceeds that Lender’s participation in the maturing Revolving Facility Loan and the remainder of that Lender’s participation in the new Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Revolving Facility Loan.

 

  (d)

At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Revolving Facility Loans then outstanding will be automatically extended to the Termination Date and will be treated as separate Revolving Facility Loans (the “Separate Loans”) denominated in the currency in which the relevant participations are outstanding.

 

  (e)

A Borrower may repay any Separate Loan by giving not less than three Business Days’ prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this Clause 10.1(e) to the Defaulting Lender concerned as soon as practicable on receipt.

 

  (f)

Interest in respect of a Separate Loan will accrue on the same basis as the relevant Revolving Facility Loan and if the relevant Revolving Facility Loan was a LIBOR Rate Loan or NIBOR Rate Loan for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan.

 

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  (g)

The terms of this Agreement relating to Revolving Facility Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with Clause 10.1(d) to (f) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

  (h)

Each Borrower on whose behalf a Letter of Credit has been issued which is outstanding on the Termination Date shall repay that Letter of Credit on the Termination Date.

 

10.2

Restrictions on Receivables and Cash Dominion

 

  (a)

Each Borrower covenants with the Agent that it will:

 

  (i)

not (without the prior written consent of the Agent) create Security over (otherwise than pursuant to the Transaction Security Documents), dispose of, release, set off, compound or otherwise deal with the Receivables of Eligible Account Debtors otherwise than by getting in and realising them in the ordinary and proper course of its business (and for this purpose the realisation of the Receivables of Eligible Account Debtors by means of block discounting, factoring or the like shall not be regarded as dealing in the ordinary and proper course of its business) or a Permitted Intra-Borrower Transfer;

 

  (ii)

pay or procure the payment of the proceeds of Receivables of Eligible Account Debtors (other than Excluded Receivables) into a Collection Account governed by a mandate and/or other agreement in each case in form and substance satisfactory to the Agent (including a Deposit Account Control Agreement) and conferring control over such account on the Security Agent in the use of any Collection Account of the English Borrower and each Borrower hereby declares itself trustee of proceeds of any such Receivables not from time to time so paid to hold the same upon trust (or, in jurisdictions where the concept of trust is not recognised, as agent) for the Security Agent to pay the same to the Agent in or towards payment and discharge of the Secured Obligations in such order and manner as the Agent may in its absolute and unfettered discretion from time to time conclusively determine, it being understood and agreed that if the proceeds of Receivables of Eligible Account Debtors invoiced as of the date of this Agreement (or in the case of a US Borrower, as of the applicable US Borrower Accession Date) are paid into the accounts indicated on the relevant invoices and promptly transferred to the relevant Collection Account (and until such time as such amounts are so transferred, they shall be held on trust by the relevant Borrower for the Agent) any such payment shall not be a breach of any provisions of any Finance Document or render any such Receivable as not being an Eligible Receivable and any prompt payment by a Borrower of an amount which should have been received in a Collection Account into a Collection Account shall cure any Default arising from such receipt into another account;

 

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  (iii)

provide any instruction or authorisation to the relevant account bank reasonably required by the Agent for the Agent and Security Agent to ensure that the provisions of Clause 10.2(b) to Clause 10.2(e) are capable of being complied with;

 

  (iv)

promptly upon opening a Collection Account, enter into a Deposit Account Control Agreement duly executed by such Borrower and the account bank with which the relevant account is maintained; and

 

  (v)

in the event that the Deposit Account Control Agreement takes the form of a notice and acknowledgement with the applicable account bank, use its reasonable endeavours to procure that such account bank delivers to the Agent a written acknowledgement substantially in the form of the acknowledgement and agreement attached to the notice provided that such account shall not be a Collection Account for the purposes of the Finance Documents unless a Deposit Account Control Agreement has been entered into or such acknowledgement received.

 

  (b)

Subject to Clause 10.2(e), on each Business Day all funds standing to the credit of each Collection Account of the English Borrower shall be transferred by the Security Agent into a bank account of the Agent in the relevant currency nominated by the Agent for the purposes of this clause (each such bank account being an “English Payment Account”) and the Agent shall apply all funds standing to the credit of each English Payment Account:

 

  (i)

first, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Lenders other than Defaulting Lenders then owed by the English Borrower (in such order as is selected by the English Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected, on a pro-rata basis);

 

  (ii)

second, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Defaulting Lenders then owed by the English Borrower (in such order as is selected by the English Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected, on a pro-rata basis);

 

  (iii)

third, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due from and owing by the English Borrower under any First Out Tranche but unpaid under the Finance Documents;

 

  (iv)

fourth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Lenders other than Defaulting Lenders then owed by the English Borrower (in such order as is selected by the English Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected, on a pro-rata basis);

 

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  (v)

fifth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Defaulting Lenders then owed by the English Borrower (in such order as is selected by the English Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected, on a pro-rata basis);

 

  (vi)

sixth, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due from and owing by the English Borrower but unpaid under the Finance Documents; and

 

  (vii)

seventh, the balance, if any, in the Permitted Discretion of the Agent, to either be (A) returned by the Agent to the relevant Collection Account of the English Borrower or (B) paid by the Agent to a bank account (not being a Collection Account) of the English Borrower.

 

  (c)

Subject to Clause 10.2(e), on each Business Day during a Cash Dominion Period all funds standing to the credit of each Collection Account of the Norwegian Borrower shall be transferred by the Security Agent into a bank account of the Agent in the relevant currency nominated by the Agent for the purposes of this clause (each such bank account being a “Norwegian Payment Account”) and the Agent shall apply all funds standing to the credit of each Norwegian Payment Account:

 

  (i)

first, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Lenders other than Defaulting Lenders then owed by the Norwegian Borrower (in such order as is selected by the Norwegian Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (ii)

second, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Defaulting Lenders then owed by the Norwegian Borrower (in such order as is selected by the Norwegian Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (iii)

third, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due from and owing by the Norwegian Borrower under any First Out Tranche but unpaid under the Finance Documents;

 

  (iv)

fourth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Lenders other than Defaulting Lenders then owed by the Norwegian Borrower (in such order as is selected by the Norwegian Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

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  (v)

fifth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Defaulting Lenders then owed by the Norwegian Borrower (in such order as is selected by the Norwegian Borrower on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (vi)

sixth, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due from and owing by the Norwegian Borrower but unpaid under the Finance Documents; and

 

  (vii)

seventh, the balance, if any, to be paid by the Agent to a bank account (not being a Collection Account) of the Norwegian Borrower.

 

  (d)

Subject to Clause 10.2(e), on each Business Day during a Cash Dominion Period all funds standing to the credit of each Collection Account of each US Borrower shall be transferred by the Security Agent into a bank account of the Agent in the relevant currency nominated by the Agent for the purposes of this clause (each such bank account being a “US Payment Account”) and the Agent shall apply all funds standing to the credit of each US Payment Account:

 

  (i)

first, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Lenders other than Defaulting Lenders then owed by the US Borrowers (in such order as is selected by the Parent on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (ii)

second, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Defaulting Lenders then owed by the US Borrowers (in such order as is selected by the Parent on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (iii)

third, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due from and owing by the US Borrowers under any First Out Tranche but unpaid under the Finance Documents;

 

  (iv)

fourth; to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Lenders then owed by the English Borrower and/or the Norwegian Borrower to the extent that such amounts have been advanced in reliance on the First Out Borrowing Base of the US Borrowers as part of the English Designated Amount and/or the Norwegian Designated Amount (as applicable) (in such order as is selected by the Parent on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (v)

fifth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Lenders other than Defaulting Lenders then owed by the US Borrowers (in such order as is selected by the Parent on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

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  (vi)

sixth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Defaulting Lenders then owed by the US Borrowers (in such order as is selected by the Parent on the giving of not less than three Business Days’ prior written notice to the Agent or if not so selected on a pro-rata basis);

 

  (vii)

seventh in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due from and owing by the US Borrowers but unpaid under the Finance Documents; and

 

  (viii)

eighth, the balance, if any, to be paid by the Agent to a bank account or bank accounts (not being a Collection Account) of the US Borrowers (as notified and in the proportions notified the Parent).

 

  (e)

While an Event of Default is continuing all funds standing to the credit of each Collection Account, each English Payment Account, each Norwegian Payment Account and each US Payment Account shall be applied by the Agent (and transferred to the Agent by the Security Agent for such purpose):

 

  (i)

first, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Lenders other than Defaulting Lenders then outstanding (on a pro-rata basis) and to provide cash cover of up to (A) 101 percent of the aggregate amount of any outstanding First Out Letters of Credit denominated in Agreed Currencies and (B) 100 percent of the aggregate amount of any outstanding First Out Letters of Credit denominated in US dollars (in each case to the extent not already cash covered);

 

  (ii)

second, to prepay the First Out Loans (including any Swingline Loans under any First Out Tranche) of Defaulting Lenders then outstanding (on a pro-rata basis);

 

  (iii)

third, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due and owing but unpaid under any First Out Tranche under the Finance Documents

 

  (iv)

fourth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) of Lenders other than Defaulting Lenders then outstanding (on a pro-rata basis) and to provide cash cover of up to (A) 101 percent of the aggregate amount of any outstanding LILO Letters of Credit denominated in Agreed Currencies and (B) 100 percent of the aggregate amount of any outstanding LILO Letters of Credit denominated in US dollars (in each case to the extent not already cash covered);

 

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  (v)

fifth, to prepay the LILO Loans (including any Swingline Loans under the LILO Tranche) or Defaulting Lenders then outstanding (on a pro-rata basis);

 

  (vi)

sixth, in and towards payment pro rata of any outstanding amounts of interest, fees, costs and expenses and any other amounts due and owing but unpaid under the Finance Documents; and

 

  (vii)

seventh, the balance, if any, in the Permitted Discretion of the Agent, to either be (A) returned by the Agent to the relevant Collection Account or (B) paid to a bank account (not being a Collection Account) of the relevant Borrower (as notified and in the proportions notified by the Parent).

In connection with Clause 10.2(e)(i), (ii), (iii) and (iv), amounts standing to the credit of (A) any English Payment Account shall first be used to prepay the Loans made to the English Borrower and provide cash cover in relation to Letters of Credit issued for the benefit of the English Borrower before being applied in relation to the Loans made to any other Borrower and provide cash cover in relation to Letters of Credit issued for the benefit of any other Borrower, (B) any Norwegian Payment Account shall first be used to prepay the Loans made to the Norwegian Borrower and provide cash cover in relation to Letters of Credit issued for the benefit of the Norwegian Borrower before being applied in relation to the Loans made to any other Borrower and provide cash cover in relation to Letters of Credit issued for the benefit of any other Borrower, and (C) any US Payment Account shall first be used to prepay the Loans made to the US Borrowers and provide cash cover in relation to Letters of Credit issued for the benefit of the US Borrowers before being applied in relation to the Loans made to any other Borrower and provide cash cover in relation to Letters of Credit issued for the benefit of any other Borrower .

 

  (f)

In the event and to the extent that any applicable Revolving Facility Loans and/or Swingline Loans remain unpaid following the application set out in any of Clause 10.2(b)(i), (ii), (iv) and (v), Clause 10.2(c)(i), (ii), (iv) and (v), Clause 10.2(d)(i), (ii), (iv), (v) and (vi) and/or Clause 10.2(e)(i), (ii), (iv) and (v) as a result of a mismatch between the currencies of the amounts in the relevant Collection Accounts and/or English Payment Account, Norwegian Payment Account or US Payment Account (as applicable) and the currencies in which the applicable outstanding Revolving Facility Loans and/or Swingline Loans and/or Letters of Credit are denominated, the Borrowers shall be deemed to have requested the Agent to convert any such excess funds to the currency or currencies of the applicable outstanding Revolving Facility Loans, Swingline Loans and/or Letters of Credit at the Agent’s Spot Rate of Exchange and apply such converted amounts to such applicable outstanding Revolving Facility Loans, Swingline Loans and/or Letters of Credit.

 

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11.

ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

11.1

Illegality

If, in any applicable jurisdiction, it becomes unlawful for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation as required under this Agreement or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

  (a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Obligors’ Agent, the Available Commitment of that Lender will be immediately cancelled; and

 

  (c)

to the extent that the Lender’s participation has not been transferred pursuant to Clause 42.6 (Replacement of Lender), each Borrower shall repay that Lender’s participation in each Utilisation made to that Borrower on the last day of the Interest Period for that Utilisation occurring after the Agent has notified the Obligors’ Agent or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Revolving Facility Commitment(s) shall be cancelled in the amount of the participations repaid.

 

11.2

Illegality in relation to Issuing Bank

If it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit or it becomes unlawful for any Affiliate of an Issuing Bank for that Issuing Bank to do so then:

 

  (a)

that Issuing Bank shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Obligors’ Agent, the Issuing Bank shall not be obliged to issue any Letter of Credit;

 

  (c)

the Obligors’ Agent shall procure that the relevant Borrower shall use its best endeavours to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time on or before the date specified by the Issuing Bank in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

  (d)

unless any other Lender is or has become an Issuing Bank pursuant to the terms of this Agreement, the Revolving Facility shall cease to be available for the issue of Letters of Credit.

 

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11.3

Voluntary cancellation

The Obligors’ Agent may, if it gives the Agent not less than three Business Days’ (or such shorter period as (in the case of any First Out Tranche) the Majority First Out Lenders and (in the case of the LILO Tranche) the Majority LILO Lenders may agree)

prior notice, cancel the whole or any part (being a minimum aggregate amount of USD 5,000,000) of the Available Commitments in respect of the US/UK Tranche, the Norwegian Tranche and/or the LILO Tranche (as selected by the Obligors’ Agent). Any cancellation under this Clause 11.3 shall reduce the US/UK Tranche Commitments, Norwegian Tranche Commitments and/or the LILO Tranche Commitments (as applicable) of the Lenders rateably.

11.4 Voluntary prepayment of Utilisations

A Borrower to which a Utilisation has been made may, if it or the Obligors’ Agent gives the Agent not less than three Business Days’ (or such shorter period as (in the case of any First Out Tranche) the Majority First Out Lenders and (in the case of the LILO Tranche) the Majority LILO Lenders may agree) prior notice, prepay the whole or any part of a Utilisation (but if in part, being an amount that reduces the Base Currency Amount of the Utilisation by a minimum amount of USD 500,000), provided always that a Borrower may not voluntarily prepay a Utilisation in relation to the LILO Tranche in the event that any Utilisations in relation to any First Out Tranche remain outstanding. However, a Borrower may voluntarily prepay a LILO Letter of Credit provided that if any First Out Loans are then outstanding the Aggregate Availability is equal to or greater than USD 20,000,000 immediately prior to and immediately following such voluntary prepayment.

 

11.5

Right of cancellation and repayment in relation to a single Lender or Issuing Bank

 

  (a)

If:

 

  (i)

any sum payable to any Lender by an Obligor is required to be increased under Clause 18.2(c) (Tax gross-up); or

 

  (ii)

any Lender or Issuing Bank claims indemnification from the Obligors’ Agent or an Obligor under Clause 18.3 (Tax indemnity) or Clause 19.1 (Increased costs),

the Obligors’ Agent may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice:

 

  (iii)

(if such circumstances relate to a Lender) of cancellation of the Revolving Facility Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations; or

 

  (iv)

(if such circumstances relate to the Issuing Bank) of repayment of any outstanding Letter of Credit issued by it and cancellation of its appointment as an Issuing Bank under this Agreement in relation to any Letters of Credit to be issued in the future.

 

  (b)

On receipt of a notice referred to in Clause 11.5(a) in relation to a Lender, the Revolving Facility Commitment(s) of that Lender shall immediately be reduced to zero.

 

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  (c)

On the last day of each Interest Period which ends after the Obligors’ Agent has given notice under Clause 11.5(a) in relation to a Lender (or, if earlier, the date specified by the Obligors’ Agent in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.

 

11.6

Right of cancellation in relation to a Defaulting Lender

 

  (a)

If any Lender becomes a Defaulting Lender or Non-Acceptable L/C Lender, the Obligors’ Agent may, at any time whilst the Lender continues to be a Defaulting Lender or Non-Acceptable L/C Lender, give the Agent five Business Days’ notice of cancellation of the Available Commitment of that Lender.

 

  (b)

On the notice referred to in Clause 11.6(a) above becoming effective, the Available Commitment of the Defaulting Lender or Non-Acceptable L/C Lender shall immediately be reduced to zero.

 

  (c)

The Agent shall as soon as practicable after receipt of a notice referred to in Clause 11.6(a), notify all the Lenders.

 

12.

MANDATORY PREPAYMENT AND CANCELLATION

 

12.1

Availability Shortfall

Upon the occurrence of an Availability Shortfall (other than one arising as a result of a Borrowing Base Data Failure), the Borrowers shall (and the Obligors’ Agent shall ensure that the Borrowers shall) prepay a Base Currency Amount of the Loans in an aggregate amount equal to the Base Currency Amount required to be prepaid to ensure there is no Availability Shortfall (or if lower the aggregate amount of the Loans) and if requested by the Agent (on the instructions of the relevant Issuing Banks) repay Letters of Credit in an aggregate amount equal to Base Currency Amount of the relevant Availability Shortfall less the Base Currency Amount of the Loans prepaid pursuant to this Clause 12.1 required to be prepaid to ensure there is no Availability Shortfall (provided that if such calculation results in a negative number no such prepayment of Letters of Credit shall be required) within one Business Day of the earlier of any Obligor becoming aware of the existence of an Availability Shortfall and receipt of written notice from the Agent in relation to the same (provided that unless and until a written notice is received from the Agent, the requirement to prepay shall be in relation to outstanding Loans only and the Borrowers shall only be obliged to prepay Letters of Credit in the event that the Obligors’ Agent receives written notice from the Agent in relation to the same (such notice to include details of the prepayment of Letters of Credit required)).

 

12.2

Borrowing Base Data Failure

If a Borrowing Base Data Failure is continuing, the Borrowers shall (and the Obligors’ Agent shall ensure that the Borrowers shall) prepay all outstanding amounts under the Facility (including any outstanding amounts of interest, fees, costs and expenses), other than Letters of Credit, and prepay all outstanding Letters of Credit which the

 

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Agent (on the instructions of the relevant Issuing Banks) notifies the Obligors’ Agent are to be prepaid within three Business Days of the earlier of any Obligor becoming aware of the existence of a Borrowing Base Data Failure or receipt of written notice from the Agent in relation to the same (provided that unless and until a written notice is received from the Agent, the requirement to prepay shall be in relation to outstanding Loans only and the Borrowers shall only be obliged to prepay Letters of Credit in the event that the Obligors’ Agent receives written notice from the Agent in relation to the same (such notice to include details of the prepayment of Letters of Credit required)).

 

12.3

Application of mandatory prepayments

A prepayment of Utilisations made under Clause 12.1 shall be applied in the following order:

 

  (a)

first, in prepayment of any Swingline Loans under any First Out Tranche which are outstanding;

 

  (b)

second, in prepayment of any Utilisations under any First Out Tranche whose Interest Period ends on the date of prepayment;

 

  (c)

third, in prepayment of any other Utilisations under any First Out Tranche such that: (A) any such outstanding First Out Revolving Facility Loans shall be prepaid on a pro rata basis; and (B) such outstanding First Out Revolving Facility Loans shall be prepaid before any outstanding First Out Letters of Credit (which shall then prepaid on a pro rata basis);

 

  (d)

fourth, in prepayment of any Swingline Loans under the LILO Tranche which are outstanding;

 

  (e)

fifth, in prepayment of any Utilisations under the LILO Tranche whose Interest Period ends on the date of prepayment; and

 

  (f)

sixth, in prepayment of any other Utilisations under the LILO Tranche such that: (A) any such outstanding LILO Revolving Facility Loans shall be prepaid on a pro rata basis; and (B) such outstanding LILO Revolving Facility Loans shall be prepaid before any outstanding LILO Letters of Credit (which shall then prepaid on a pro rata basis).

 

13.

RESTRICTIONS

 

13.1

Notices of cancellation or prepayment

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 11 (Illegality, voluntary prepayment and cancellation) or Clause 12.3 (Application of mandatory prepayments and cancellations) shall (subject to the terms of those Clauses) be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

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13.2

Interest and other amounts

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty, provided that no Break Costs shall be due in connection with any prepayment made pursuant to Clause 10.2 (Restrictions on Receivables and Cash Dominion) nor shall any Break Costs be due in connection with any prepayment of a Separate Loan or any Loan that is not a LIBOR Rate Loan or NIBOR Rate Loan.

 

13.3

Reborrowing of Revolving Facility

Unless a contrary indication appears in this Agreement, any part of the Revolving Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

13.4

Prepayment in accordance with Agreement

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Revolving Facility Commitments except at the times and in the manner expressly provided for in this Agreement.

 

13.5

No reinstatement of Commitments

Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

13.6

Agent’s receipt of notices

If the Agent receives a notice under Clause 11 (Illegality, voluntary prepayment and cancellation) it shall promptly forward a copy of that notice or election to either the Obligors’ Agent or the affected Lender, as appropriate.

 

13.7

Application of prepayments

Any prepayment of a Utilisation (other than a prepayment pursuant to Clause 11.1 (Illegality) or Clause 11.5 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank) or any other prepayment under this Agreement which is expressly stated as being due to a particular Lender or Lenders(s) (including the Swingline Lender)) shall be applied pro rata to each Lender’s participation in that Utilisation.

 

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SECTION 5

COSTS OF UTILISATION

 

14.

INTEREST

 

14.1

Calculation of interest

 

  (a)

The rate of interest on each First Out Loan (other than a Swingline Loan) for each Interest Period is the percentage rate per annum which is the aggregate of the relevant First Out Applicable Margin and:

 

  (i)

LIBOR (in the case of LIBOR Rate Loans); or

 

  (ii)

NIBOR (in the case of NIBOR Rate Loans); or

 

  (iii)

ABR (in the case of ABR Rate Loans); or

 

  (iv)

the Foreign Base Rate (in the case of Foreign Base Rate Loans).

 

  (b)

The rate of interest on each Swingline Loan under any First Out Tranche shall be the percentage rate per annum which is the aggregate of:

 

  (i)

the relevant First Out Applicable Margin; and

 

  (ii)

ABR.

 

  (c)

The rate of interest on each LILO Loan (other than a Swingline Loan) for each Interest Period is the percentage rate per annum which is the aggregate of the relevant LILO Applicable Margin and:

 

  (i)

LIBOR (in the case of LIBOR Rate Loans); or

 

  (ii)

NIBOR (in the case of NIBOR Rate Loans); or

 

  (iii)

ABR (in the case of ABR Rate Loans); or

 

  (iv)

the Foreign Base Rate (in the case of Foreign Base Rate Loans).

 

  (d)

The rate of interest on each Swingline Loan under the LILO Tranche shall be the percentage rate per annum which is the aggregate of:

 

  (i)

the relevant LILO Applicable Margin; and

 

  (ii)

ABR.

 

  (e)

The rate of interest for each ABR Rate Loan, Swingline Loan and each Foreign Base Rate Loan shall be calculated and applied on a daily basis.

 

14.2

Payment of interest

 

  (a)

In the case of LIBOR Rate Loans and NIBOR Rate Loans, the Borrower to which such a Loan has been made shall pay accrued interest on that Loan in arrears on the last day of each Interest Period (and, if the Interest Period is longer than three Months, on the dates falling at three Monthly intervals after the first day of the Interest Period) and on the Termination Date.

 

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  (b)

In the case of ABR Rate Loans, Swingline Loans and Foreign Base Rate Loans, the Borrower to which such a Loan has been made shall pay accrued interest on that Loan in arrears on the first Business Day of each Financial Quarter and on the Termination Date.

 

14.3

Default interest

 

  (a)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date (other than any overdue amount which consists of all or part of a Loan), interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is two percent per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a LIBOR Rate Loan or NIBOR Rate Loan in the same currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).

 

  (b)

If any overdue amount consists of all or part of a Loan, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is two percent per annum higher than the rate which would otherwise have applied to that Loan.

 

  (c)

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

  (i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

  (ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be two percent per annum higher than the rate which would have applied if the overdue amount had not become due.

 

  (d)

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

  (e)

Any interest accruing under this Clause 14.3 shall be immediately payable by the Obligor on demand by the Agent.

 

14.4

Notification of rates of interest

 

  (a)

The Agent shall promptly notify the relevant Lenders and the Obligors’ Agent of the determination of a rate of interest under this Agreement.

 

  (b)

The Agent shall promptly notify the Obligors’ Agent of each Funding Rate relating to a Loan.

 

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15.

INTEREST PERIODS

 

15.1

Selection of Interest Periods

 

  (a)

A Borrower (or the Obligors’ Agent on behalf of a Borrower) may select an Interest Period for a Revolving Facility Loan which is a LIBOR Rate Loan or a NIBOR Rate Loan in the Utilisation Request for that Loan.

 

  (b)

Subject to this Clause 15, a Borrower (or the Obligors’ Agent) may select an Interest Period of one, two or three Months or of any other period agreed between the Obligors’ Agent, the Agent and all the Lenders in relation to the relevant Loan.

 

  (c)

An Interest Period for a Loan shall not extend beyond the Termination Date.

 

  (d)

A Revolving Facility Loan which is a LIBOR Rate Loan or a NIBOR Rate Loan has one Interest Period only.

 

  (e)

An Interest Period for a Loan other than a LIBOR Rate Loan or NIBOR Rate Loan shall end on the Termination Date.

 

15.2

Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

16.

CHANGES TO THE CALCULATION OF INTEREST

 

16.1

Unavailability of Screen Rate

 

  (a)

Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, NIBOR for the Interest Period of a Loan, the applicable LIBOR or NIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

 

  (b)

Effect of Benchmark Transition Event:

 

  (i)

Notwithstanding anything to the contrary herein or in any other Finance Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Agent and the Obligors’ Agent may amend this Agreement to replace LIBOR and, if applicable, NIBOR with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the date falling five (5) Business Day after the Agent has posted such proposed amendment to all Lenders and the Obligors’ Agent so long as the Agent has not received, by such time, written notice of objection to such amendment from the Majority Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election

 

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  will become effective on the date that the Majority Lenders have delivered to the Agent written notice that such Majority Lenders accept such amendment. No replacement of LIBOR or, if applicable, NIBOR with a Benchmark Replacement pursuant to this Clause 16.1(b) will occur prior to the applicable Benchmark Transition Start Date.

 

  (ii)

In connection with the implementation of a Benchmark Replacement, the Agent and the Obligors’ Agent together will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Finance Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

 

  (iii)

The Agent will promptly notify the Obligors’ Agent and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.

 

  (iv)

Any determination, decision or election that may be made by the Agent or Lenders pursuant to this Clause 16.1(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Clause 16.1(b).

 

  (v)

During any Benchmark Unavailability Period, the component of ABR based upon LIBOR will not be used in any determination of ABR and the Obligors’ Agent may revoke any Utilisation Request for any Loan that is not an ABR Rate Loan and which Loan has not already been made.

 

  (c)

Cost of funds: In the event that Clause 16.1(b) applies but the Majority Lenders have objected to the comparable or successor rate Clause 16.3 shall apply to that Loan for that Interest Period.

 

16.2

Market disruption

If, before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a LIBOR Rate Loan or NIBOR Rate Loan exceed 50 percent of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR in the case of a LIBOR Rate Loan, or NIBOR in the case of a NIBOR Rate Loan (or if the Majority Lenders cannot agree a substitute rate in accordance with Clause 16.1(b)) then Clause 16.3 shall apply to that Loan for the relevant Interest Period.

 

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16.3

Cost of funds

 

  (a)

If this Clause 16.3 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i)

in the case of:

 

  (A)

a First Out Loan, the relevant First Out Applicable Margin; or

 

  (B)

a LILO Loan, the relevant LILO Applicable Margin; and

 

  (ii)

the rate notified to the Agent by that Lender as soon as practicable and in any event within two Business Days of the first day of that Interest Period (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

  (b)

If this Clause 16.3 applies and the Agent or the Obligors’ Agent so requires, the Agent and the Obligors’ Agent shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

  (c)

Any alternative basis agreed pursuant to Clause 16.3(b) shall, with the prior consent of all the Lenders and the Obligors’ Agent, be binding on all Parties.

 

  (d)

If this Clause 16.3 applies pursuant to Clause 16.2 and:

 

  (i)

a Lender’s Funding Rate is less than LIBOR in the case of a LIBOR Rate Loan or, in relation to any NIBOR Rate Loan, NIBOR; or

 

  (ii)

a Lender does not supply a quotation by the time specified in Clause 16.3(a)(ii),

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of Clause 16.3(a), to be LIBOR or, in relation to a Loan in Norwegian Kroner, NIBOR.

 

16.4

Notification to Obligors’ Agent

If Clause 16.3 applies the Agent shall, as soon as is practicable, notify the Obligors’ Agent.

 

16.5

Break Costs

 

  (a)

Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a LIBOR Rate Loan or NIBOR Rate Loan (in each case other than a Separate Loan) or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum provided that no Break Costs shall be due in connection with any prepayment pursuant to Clause 10.2 (Restrictions on Receivables and Cash Dominion).

 

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  (b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

17.

FEES

 

17.1

Commitment fee

 

  (a)

Bristow Helicopters Limited shall pay to the Agent (for the account of each Lender in proportion to their Available Commitments subject to Clause 17.1(c)) a fee in the Base Currency computed at the rate of:

 

  (i)

0.375 percent per annum at any time when the Aggregate Revolving Exposure exceeds 50 percent of the lower of (x) Total Commitments minus the aggregate Availability Block and (y) the Aggregate Borrowing Base; and

 

  (ii)

0.50 percent per annum at all other times,

in each case on the average daily Aggregate Availability for each relevant period.

 

  (b)

The accrued commitment fee as of the end of each Financial Quarter is payable quarterly in arrears on the day falling five Business Days after the end of that Financial Quarter, and, if cancelled in full, on the cancelled amount of the relevant Lender’s Revolving Facility Commitment at the time the cancellation is effective.

 

  (c)

No commitment fee is payable to the Agent (for the account of a Lender) for any day on which that Lender is a Defaulting Lender. The aggregate commitment fee otherwise payable to the Agent shall be reduced by the amount to which a Defaulting Lender is not entitled pursuant to this Clause 17.1(c) and provided that such reduction shall only reduce the proportion of the fee that would otherwise have been payable for the account of the relevant Defaulting Lender.

 

17.2

Fee Letter

The relevant Obligors who have agreed to pay such fees shall pay to the Finance Parties any additional fees in the amount and at the times agreed in a Fee Letter.

 

17.3

Fees payable in respect of Letters of Credit

 

  (a)

The Borrower which has requested a Letter of Credit shall pay to the Issuing Bank a fronting fee at the rate of 0.125 percent per annum on the outstanding amount of each Letter of Credit for the period from the issue of that Letter of Credit until its Expiry Date.

 

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  (b)

The relevant Borrower shall pay to the Agent (for the account of each Lender) a Letter of Credit fee in the Base Currency (computed at the rate equal to (i) in the case of First Out Letters of Credit, the First Out Applicable Margin applicable to LIBOR Rate Loans that are First Out Loans and (ii) in the case of LILO Letters of Credit, the LILO Applicable Margin applicable to LIBOR Rate Loans that are LILO Loans) on the outstanding amount of each Letter of Credit (or the relevant part of the outstanding amount of that Letter of Credit in the case of a Letter of Credit issued pursuant to both a First Out Tranche and the LILO Tranche) (after taking into account any cash cover in accordance with paragraph (d)) requested by it for the period from the issue of that Letter of Credit until its Expiry Date. Subject to Clause 7.6(c) (Regulation and consequences of cash cover provided by Borrower), this fee shall be distributed according to each Lender’s L/C Proportion of that Letter of Credit.

 

  (c)

The accrued fronting fee and Letter of Credit fee on a Letter of Credit shall be payable on the first Business Day of each Financial Quarter (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of this Agreement.

 

  (d)

If a Borrower provides cash cover in respect of any Letter of Credit:

 

  (i)

the fronting fee payable to the Issuing Bank and (subject to Clause 7.6(c) (Regulation and consequences of cash cover provided by Borrower)), the Letter of Credit fee payable for the account of each Lender shall continue to be payable until the expiry of the Letter of Credit but taking into account the cash cover provided; and

 

  (ii)

each Borrower shall be entitled to withdraw interest accrued on the cash cover to pay the fees described in Clause 17.3(d)(i) if applicable.

 

  (e)

The applicable Borrower that has requested a Letter of Credit shall pay to the Issuing Bank (for its own account) an issuance/administration fee (i) in the case of Barclays Bank PLC in its capacity as Issuing Bank, in the amount and at the times specified in a Fee Letter and (ii) in the case of any other Issuing Bank, in the amount and at such times as may be notifed to the relevant Borrower by the relevant Issuing Bank before the issuance of each Letter of Credit.

 

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SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

 

18.

TAX GROSS UP AND INDEMNITIES

 

18.1

Definitions

In this Agreement:

“Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant English Borrower, which:

 

  (i)

where it relates to an English Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1, Part 2 (The Original Parties), and

 

  (A)

where the English Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

 

  (B)

where the English Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or

 

  (ii)

where it relates to an English Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender; and

 

  (A)

where the English Borrower is a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

 

  (B)

where the English Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

“Protected Party” means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

“Qualifying Lender” means:

 

  (a)

in respect of amounts payable by the English Borrower, an English Qualifying Lender; and