AMENDMENT NO. 1 TO LOAN, SECURITY AND GUARANTY AGREEMENT

EXHIBIT 4.1

​

AMENDMENT NO. 1 TO LOAN, SECURITY AND GUARANTY AGREEMENT

This AMENDMENT NO. 1 TO LOAN, SECURITY AND GUARANTY AGREEMENT (this “Amendment”), dated as of July 1, 2022, is entered into by HELIX ENERGY SOLUTIONS GROUP, INC., a Minnesota corporation (“Helix”), HELIX WELL OPS INC., a Texas corporation (“Well Ops”), HELIX ROBOTICS SOLUTIONS, INC., a Texas corporation (“Robotics”), DEEPWATER ABANDONMENT ALTERNATIVES, INC., a Texas corporation (“Deepwater”, and together with Helix, Well Ops, and Robotics, each an “Initial U.S. Borrower” and collectively, “Initial U.S. Borrowers”), HELIX WELL OPS (U.K.) LIMITED, a company incorporated in Scotland with company number SC231293 and having its registered office address at 13 Queen’s Road, Aberdeen, AB15 4YL (“Well Ops U.K.”), HELIX ROBOTICS SOLUTIONS LIMITED, a company incorporated in Scotland with number SC210524 and having its registered office address at 13 Queen’s Road, Aberdeen, AB15 4YL (“Robotics U.K.”, and together with Well Ops U.K., each an “Initial U.K. Borrower” and collectively, “Initial U.K. Borrowers”; the Initial U.K. Borrowers and the Initial U.S. Borrowers are collectively, the “Borrowers”), the guarantors party hereto (the “Guarantors”, and together with the Borrowers, the “Obligors”), the lenders party hereto (the “Lenders”) and Bank of America, N.A., as agent and as security trustee for the Lenders (in such capacity, “Agent”).

WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agent are parties to that certain Loan, Security and Guaranty Agreement dated as of September 30, 2021 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Loan Agreement”, and the Loan Agreement as amended hereby, the “Amended Loan Agreement”);

WHEREAS, the Borrowers have requested that the Lenders increase the U.S. Commitment from $45,000,000 to $65,000,000 pursuant to Section 2.1.7 of the Loan Agreement and certain other amendments to the Loan Agreement; and

WHEREAS, the Agent and the Lenders are willing to provide such increase and amend the Loan Agreement on the terms and conditions set forth in this Amendment.

NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.Definitions. All terms used herein that are defined in the Amended Loan Agreement and not otherwise defined herein shall have the meanings assigned to them in the Amended Loan Agreement.

2.Amendments.  Effective as of the First Amendment Effective Date (as defined below):

(a)the Loan Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Loan Agreement attached hereto as Exhibit A, and any such term or provision of the Loan Agreement which is different from that set

​

​

​

​

forth in the Amended Loan Agreement shall be replaced and superseded in all respects by the terms and provisions of the Amended Loan Agreement.

(b)Schedule 1.1(a) to the Loan Agreement shall be amended and restated in its entirety as set forth on Schedule 1.1(a) attached hereto.

3.Conditions to Effectiveness. This Amendment shall become effective as of the date first written above only upon satisfaction in full (or written waiver by the Agent) of the following conditions precedent (the “First Amendment Effective Date”):

(a)Delivery of Documents. Agent shall have received on or before the First Amendment Effective Date the following, each in form and substance reasonably satisfactory to Agent and, unless indicated otherwise, dated the First Amendment Effective Date:

(i)this Amendment, duly executed by the Obligors, Agent and Lenders;

(ii)an executed copy of the purchase agreement entered into with respect to the Subject Acquisition;

(iii)certificates, in form and substance reasonably satisfactory to it, from a Senior Officer of the Obligors (or another officer or director reasonably acceptable to Agent) certifying that, after giving effect to the increase and other transactions hereunder, (i) the Obligors, taken as a whole, are Solvent; (ii) no Default or Event of Default shall have occurred and be continuing on the First Amendment Effective Date or result from the Amendment becoming effective in accordance with its terms; and (iii) the representations and warranties of each Obligor in this Amendment, the Amended Loan Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifications therein), except for representations and warranties that expressly apply only on an earlier date, which shall be true and correct in all material respects (without duplication of any materiality qualifications therein) as of such date;

(iv)a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents (and, in the case of Helix Offshore Ltd., such Obligor's statutory registers) are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions (in the case of any U.K. Domiciled Obligor, of both its board of directors and its members) authorizing execution and delivery of this Amendment (and all other documents and notices or intimations connected hereto) is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this Amendment; (iii) with respect to any Obligor incorporated under Luxembourg law, that attached copies of (A) a “certificat de non-inscription d’une décision judiciaire” (negative certificate) issued by the Luxembourg Register of Commerce and Companies relating to the Obligor incorporated under Luxembourg law as at a date no earlier than 1 Business Day prior to the execution of the certificate and (B) an excerpt issued by the Luxembourg Register of Commerce and Companies relating to the Obligor incorporated under Luxembourg law as at a date no earlier than 1 Business Day prior to the execution of the certificate, are true, complete, updated and in full

​

2

​

​

force and effect; and (iv) to the title, name and signature of each Person authorized to sign this Amendment. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing;

(v)good standing certificates as of a recent date for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and clear insolvency and winding up searches in respect of non-U.S. Obligors; and

(vi)a written opinion of ▇▇▇▇▇ Lord, LLP, counsel to U.S. Obligors and Maslon LLP, local Minnesota counsel to Helix, each in form and substance reasonably satisfactory to Agent and addressed to Agent and each Lender.

(b)Fees and Expenses. The Obligors shall have paid all fees and expenses to be paid to Agent and Lenders on the First Amendment Effective Date, including fees and expenses of counsel and other advisors.

4.Representations and Warranties. As of the First Amendment Effective Date, each Obligor hereby represents and warrants to Agent and Lenders as follows:

(a)Representations and Warranties. After giving effect to this Amendment, the representations and warranties of each Obligor in this Amendment and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifications therein), except for representations and warranties that expressly apply only on an earlier date, which shall be true and correct in all material respects (without duplication of any materiality qualifications therein) as of such date.

(b)No Default. No Default or Event of Default has occurred and is continuing as of the First Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

(c)Authorization, Etc. Each Obligor is duly authorized to execute, deliver and perform this Amendment and has duly executed and delivered this Amendment. The execution, delivery and performance of this Amendment have been duly authorized by all necessary action, and do not (i) require any consent or approval of any holders of Equity Interests of any Obligor, except those already obtained; (ii) violate the Organic Documents of any Obligor; (iii) violate or cause a default under any Applicable Law or any Material Contract; or (iv) result in or require the imposition of a Lien (other than a Permitted Lien) on any Obligor’s Property.

(d)Enforceability. This Amendment is a legal, valid and binding obligation of each Obligor party hereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.

5.Continued Effectiveness of the Loan Agreement and Other Loan Documents. Each Obligor hereby (a) acknowledges and consents to this Amendment, (b) confirms and agrees that the Amended Loan Agreement and each other Loan Document to which it is a party, in each case, to the extent amended hereby, is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the First Amendment

​

3

​

​

Effective Date, all references in any such Loan Document to the “Loan and Security Agreement”, the “Loan Agreement”, the “Credit Agreement”, the “Agreement”, “thereto”, “thereof’, “thereunder” or words of like import referring to the Loan Agreement shall mean the Amended Loan Agreement, (c) confirms and agrees that, to the extent that any such Loan Document purports to assign or pledge to Agent, for the benefit of it and the Lenders, or to grant to Agent, for the benefit of it and the Lenders, a security interest in or Lien on any Collateral as security for the Obligations of the Obligors from time to time existing in respect of the Amended Loan Agreement and the other Loan Documents, such pledge, assignment and/or grant of the security interest or Lien is not discharged or otherwise affected by the amendment hereunder or the other provisions of this Amendment (other than as expressly provided herein) and shall remain in full force and effect and is hereby ratified and confirmed in all respects and shall continue to secure and extend to the Obligations as increased hereby, (d) confirms that its guaranty of the Obligations contained in the Loan Agreement and as increased hereby is not discharged or otherwise affected by the amendments hereunder or the other provisions of this Amendment (other than as expressly provided herein) and shall continue in full force and effect and (e) confirms the Obligations, including for the purposes of each Loan Document and the guaranty contained in the Loan Agreement, shall (to the extent applicable) extend to the relevant Obligations (both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity) of each Obligor under the Amended Loan Agreement and the other Loan Documents. This Amendment does not discharge or otherwise affect any of the obligations of the Obligors, other than as expressly provided herein, including the Obligors’ obligations to repay the Loans in accordance with the terms of the Amended Loan Agreement or the obligations of the Obligors under any Loan Document to which they are a party, all of which obligations, as amended hereby, shall remain in full force and effect and are hereby ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or any Lender under the Amended Loan Agreement or any other Loan Document nor constitute a waiver of any provision of the Amended Loan Agreement or any other Loan Document.

▇.▇▇ Novation. Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Loan Agreement or instruments securing the same, which shall remain in full force and effect, except as modified hereby.

▇.▇▇ Representations by Agent or Lenders. Each Obligor hereby acknowledges that it has not relied on any representation, written or oral, express or implied, by Agent or any Lender, other than those expressly contained herein, in entering into this Amendment.

8.Further Assurances. The Obligors shall execute any and all further documents, agreements and instruments, and take all further actions, as may be required under Applicable Law or as Agent may reasonably request, in order to effect the purposes of this Amendment.

9.Release. Each Obligor hereby acknowledges and agrees that, as of the First Amendment Effective Date, neither it nor any of its Subsidiaries has any Claim (as defined below) against Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing). Notwithstanding the foregoing, Agent and the Lenders wish (and the Obligors agree) to eliminate any possibility that any conditions, acts, omissions, events or circumstances arising prior to the First Amendment Effective Date directly out of, connected

​

4

​

​

with or related to this Amendment, the Loan Agreement or any other Loan Document, would impair or otherwise adversely affect any of their rights, interests, security and/or remedies under the Loan Documents. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Obligor (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “Releasors”) does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge Agent and the Lenders, together with their respective Affiliates, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “Released Parties”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys' fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the First Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Loan Agreement or any other Loan Document, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral (each of the foregoing, a “Claim”). Each Obligor represents and warrants, as of the First Amendment Effective Date, that it has no knowledge of any Claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a Claim by any Releasor against any Released Party which would not be released hereby.

10.Miscellaneous.

(a)This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by PDF or electronic mail shall be equally effective as delivery of an original executed counterpart of this Amendment.

(b)Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c)The provisions of Section 1.4 (Certain Matters of Construction) and Section 14.14 (Consent to Forum) of the Loan Agreement shall apply to this Amendment as if set out in full herein, with such changes as are appropriate to fit this context.

(d)UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AMENDMENT, THE OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES THAT WOULD SELECT THE LAWS OF A DIFFERENT STATE EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.

(e)Each Obligor hereby acknowledges and agrees that this Amendment constitutes a “Loan Document” under the Amended Loan Agreement.

​

5

​

​

(f)Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

[Remainder of page intentionally left blank.]

​

​

​

6

​

​

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first page hereof.

BORROWERS:

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

​

​

​

Signature Page to Amendment No. 1
to Loan, Security and Guaranty Agreement

​

​

SCHEDULE 1.1(a)

to

Loan, Security and Guaranty Agreement

COMMITMENTS OF LENDERS

​

​

​

​

​

​

Exhibit A

​

AMENDED LOAN AGREEMENT

​

​

​

​

​

LOAN, SECURITY AND GUARANTY AGREEMENT

Dated as of September 30, 2021

​

HELIX ENERGY SOLUTIONS GROUP, INC.,

HELIX WELL OPS INC.,

HELIX ROBOTICS SOLUTIONS, INC.,

DEEPWATER ABANDONMENT ALTERNATIVES, INC.

as Initial U.S. Borrowers,

HELIX WELL OPS (U.K.) LIMITED,

HELIX ROBOTICS SOLUTIONS LIMITED,

as Initial U.K. Borrowers,

​

BANK OF AMERICA, N.A.,

as Agent

​

BANK OF AMERICA, N.A.,

as Lead Arranger and Bookrunner

and

▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,

as Joint Lead Arranger and Joint Bookrunner

​

​

​

​

​

TABLE OF CONTENTS

Page

​

i

​

​

​

ii

​

​

​

​

​

iii

​

​

​

​

iv

​

​

LOAN, SECURITY AND GUARANTY AGREEMENT

THIS LOAN, SECURITY AND GUARANTY AGREEMENT is dated as of September 30, 2021 (as amended, modified or supplemented from time to time, this “Agreement”), among HELIX ENERGY SOLUTIONS GROUP, INC., a Minnesota corporation (“Helix”), HELIX WELL OPS INC., a Texas corporation (“Well Ops”), HELIX ROBOTICS SOLUTIONS, INC., a Texas corporation (“Robotics”), DEEPWATER ABANDONMENT ALTERNATIVES, INC., a Texas corporation (“Deepwater”, and together with Helix, Well Ops, and Robotics, each an “Initial U.S. Borrower” and collectively, “Initial U.S. Borrowers”), HELIX WELL OPS (U.K.) LIMITED, a company incorporated in Scotland with company number SC231293 and having its registered office address at 13 Queen’s Road, Aberdeen, AB15 4YL (“Well Ops U.K.”), HELIX ROBOTICS SOLUTIONS LIMITED, a company incorporated in Scotland with number SC210524 and having its registered office address at 13 Queen’s Road, Aberdeen, AB15 4YL (“Robotics U.K.”, and together with Well Ops U.K., each an “Initial U.K. Borrower” and collectively, “Initial U.K. Borrowers”), the financial institutions party to this Agreement from time to time as Lenders, and BANK OF AMERICA, N.A., a national banking association (“Bank of America”), as agent and as security trustee for the Lenders (in such capacity, “Agent”).

R E C I T A L S:

Borrowers have requested that Lenders provide a credit facility to Borrowers to finance their mutual and collective business enterprise. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:

Section 1.DEFINITIONS; RULES OF CONSTRUCTION.

1.1Definitions

. As used herein, the following terms have the meanings set forth below:

2022 Notes: Helix’s 4.25% Convertible Senior Notes due May 2022 in a remaining principal amount of $35 million issued pursuant to the 2022 Notes Indenture.

2022 Notes Indenture: the Indenture dated as of November 1, 2016 between Helix and The Bank of New York Mellon Trust Company, N.A., as amended and supplemented by that certain first supplemental indenture, dated as of November 1, 2016.

2023 Notes: Helix’s 4.125% Convertible Senior Notes due September 2023 in a remaining principal amount of $30 million issued pursuant to the 2023 Notes Indenture.

2023 Notes Indenture: the Indenture dated as of November 1, 2016 between Helix and The Bank of New York Mellon Trust Company, N.A., as amended and supplemented by that certain second supplemental indenture, dated as of March 20, 2018.

​

1

​

​

2026 Notes: Helix’s 6.75% Convertible Senior Notes due February 2026 in the original principal amount of $200 million issued pursuant to the 2026 Notes Indenture.

2026 Notes Indenture: the Indenture dated as of August 14, 2020 between Helix and The Bank of New York Mellon Trust Company, N.A., as amended and supplemented by that certain first supplemental indenture, dated as of August 14, 2020.

Account: as defined in the UCC or other Applicable Law, including (a) all rights to payment for goods sold or leased, or for services rendered and (b) all amounts payable under any master service agreement or customer contract for the provision of services through the operation of a Vessel or other equipment (including remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers).

Acquisition: a transaction or series of transactions resulting in (a) acquisition of a business, division or substantially all assets of a Person; (b) record or beneficial ownership of 50% or more of the Equity Interests of a Person; (c) merger, consolidation or combination of an Obligor or Subsidiary with another Person; (d) the acquisition of a Vessel (other than by way of lease or charter); or (e) the acquisition by Deepwater of oil and gas reserves and related assets.

Affected Financial Institution: any EEA Financial Institution or U.K. Financial Institution.

Affiliate: with respect to a specified Person, any other Person that directly, or indirectly through intermediaries, Controls, is Controlled by or is under common Control with the specified Person.

Agent: as defined in the introductory paragraph hereof.

Agent Indemnitees: Agent and its officers, directors, employees, Affiliates and Agent Professionals.

Agent Professionals: attorneys, accountants, appraisers, auditors, advisors, consultants, agents, service providers, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals, experts and representatives retained or used by Agent.

Agreed Currency: Dollars and Sterling.

Agreement: as defined in the introductory paragraph hereof.

Alliance Companies:  collectively, (a) Helix Alliance Decom, LLC, a Delaware limited liability company, the purchaser under the Alliance Purchase Agreement, (b) each of Alliance Maritime Holdings, LLC, a Louisiana limited liability company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings, LLC, a Louisiana limited liability company, Heavy Lift Holdings, LLC, a Louisiana limited liability company, Whitney Maritime Holdings, LLC, a Louisiana limited liability company, and Alliance Vessel Leasing, LLC, a Louisiana limited liability company, and their respective Subsidiaries on the date that the Subject Acquisition closes, and (c) the Delaware limited liability company formed by the “Seller” under the Alliance Purchase Agreement as a holding company to facilitate the sale of the entities described in the foregoing clause (b).

​

2

​

​

Alliance Purchase Agreement:  that certain Equity Purchase Agreement, dated as of May 16, 2022, by and among Helix Alliance Decom, LLC, a Delaware limited liability company, as purchaser, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual resident of the State of Louisiana, as seller, and solely for purposes of Section 1.05(d) and Section 6.14 therein, Helix, as the same may be amended, supplemented or otherwise modified from time to time, subject to Section 10.2.7.

Allocable Amount: as defined in Section 5.10.3.

Alternative Currency: Sterling.

Alternative Currency Conforming Changes: with respect to the use, administration of or any conventions associated with any Relevant Rate (other than LIBORSOFR) or any proposed Alternative Currency Successor Rate for an Alternative Currency, any conforming changes to the definitions of “U.K. Base Rate”, “▇▇▇▇▇”, “▇▇▇▇▇ Adjustment”, “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Agent in a manner substantially consistent with market practice for such Alternative Currency (or, if Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for such Alternative Currency exists, in such other manner of administration as Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

Alternative Currency Scheduled Unavailability Date: as defined in Section 3.6.3.

Alternative Currency Successor Rate: as defined in Section 3.6.3.

Anti-Corruption Law: any Applicable Law relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and Patriot Act.

Anti-Terrorism Law: any law relating to terrorism or money laundering, or any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including the Patriot Act.

Applicable Law: all laws, rules, regulations and governmental guidelines applicable to the Person or matter in question, including statutory law, common law and equitable principles, as well as provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.

Applicable Lenders: (a) with respect to U.K. Borrowers, the U.K. Lenders, and (b) with respect to U.S. Borrowers, the U.S. Lenders.

Applicable Margin: the margin set forth below, as determined by the average daily Global Availability as a percentage of the Global Borrowing Base for the last Fiscal Quarter:

​

3

​

​

​

Until December 31, 2021 margins shall be determined as if Level I were applicable. Thereafter, margins shall be subject to increase or decrease by Agent on the first day of the calendar month following each Fiscal Quarter end. If Agent is unable to calculate average daily Global Availability for a Fiscal Quarter due to Borrowers’ failure to deliver any Borrowing Base Report when required hereunder, then, at the option of Agent or Required Lenders, margins shall be determined as if Level III were applicable until the first day of the calendar month following its receipt.

Approved Fund: any entity owned or Controlled by a Lender or Affiliate of a Lender, if such entity is engaged in making or investing in commercial loans in its ordinary course of activities.

Assignment: an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit A or otherwise reasonably satisfactory to Agent.

Available Tenor: as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

Availability: U.K. Availability or U.S. Availability, as the context requires.

Availability Reserve: the U.K. Availability Reserve or the U.S. Availability Reserve, as the context requires.

Bail-In Action: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.

Bail-In Legislation: with respect to (a) any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, or (b) the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Bank of America: as defined in the introductory paragraph hereof.

​

4

​

​

Bank of America Indemnitees: Bank of America and its officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.

Bank Product: any of the following products or services extended to an Obligor or Affiliate of an Obligor by a Lender or any of its Affiliates: (a) Cash Management Services; (b) Swaps; (c) commercial credit card and merchant card services; and (d) other banking products or services, other than Letters of Credit.

Bankruptcy Code: Title 11 of the United States Code.

Base Rate: the U.K. Base Rate and/or the U.S. Base Rate, as the context requires.

Base Rate Loan: the U.K. Base Rate Loans and/or U.S. Base Rate Loans, as the context requires.

Benchmark: initially, LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 3.6.2 then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

Benchmark Replacement:

(a) for purposes of Section 3.6.2(a), the first alternative set forth below that can be determined by Agent:

(i)the sum of: (x) Term SOFR and (y) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration; or

(ii)the sum of: (x) Daily Simple SOFR and (y) 0.11448% (11.448 basis points);

provided that, if initially LIBOR is replaced with the rate contained in clause (a)(ii) above (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such replacement, Agent determines that Term SOFR has become available and is administratively feasible for Agent in its sole discretion, and Agent notifies U.S. Borrower Agent and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than 30 days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (a)(i) above;

(b)for purposes of Section 3.6.2(b), the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by Agent and U.S. Borrower Agent as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;

​

5

​

​

provided that, if the Benchmark Replacement would be less than zero the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by Agent.

Benchmark Replacement Conforming Changes: with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “U.S. Base Rate,” the definition of “U.K. Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

Benchmark Transition Event: with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

Beneficial Ownership Certification: a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, in form and substance reasonably satisfactory to Agent and each Lender.

Beneficial Ownership Regulation: 31 C.F.R. §1010.230

Benefit Plan: any (a) employee benefit plan (as defined in ERISA) subject to Title I of ERISA, (b) plan (as defined in and subject to Section 4975 of the Code), or (c) Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such employee benefit plan or plan.

Bloomberg: Bloomberg Index Services Limited.

Borrowed Money: with respect to any Obligor or Subsidiary, without duplication, (a) any obligation that (i) arises from the lending of money by any Person to such Obligor or Subsidiary, (ii) is evidenced by notes, loan agreements, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid, or

​

6

​

​

(iv) was issued or assumed as full or partial payment for Property or services (other than (w) trade payables and accrued expenses in the Ordinary Course of Business, (x) earn out obligations and deferred compensation until such obligations become a liability on the balance sheet of such Person in accordance with GAAP, (y) agreements providing for indemnification, purchase price adjustments or similar obligations in connection with acquisitions and dispositions, and (z) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller); (b) Capital Leases; (c) letter of credit reimbursement obligations; and (d) guaranties of any of the foregoing owing by another Person, but, in each case, specifically excluding to the extent otherwise applicable (1) Debt in the form of performance, warranty and decommissioning bonds, (2) trade payables and accrued expenses owing in the Ordinary Course of Business, and (32) Decommissioning Liabilities.

Borrower Agent: the U.K Borrower Agent and/or the U.S. Borrower Agent, as the context requires.

Borrower Group: U.K. Borrowers or U.S. Borrowers, as the context requires.

Borrower Group Commitment: with respect to the Commitment of (a) a U.K. Lender, its U.K. Commitment and (b) a U.S. Lender, its U.S. Commitment. The term “Borrower Group Commitments” means (i) the Borrower Group Commitment of all U.K. Lenders or (ii) the Borrower Group Commitment of all U.S. Lenders, as the context requires. To the extent any Lender has more than one Borrower Group Commitment, each such Commitment shall be considered as a separate Commitment for purposes of this definition.

Borrower Materials: Borrowing Base Reports, Compliance Certificates, Notices of Borrowing, Notices of Conversion/Continuation, and other information, reports, financial statements and materials delivered by Obligors under the Loan Documents, as well as Reports and other information provided by Agent to Lenders in connection with the credit facility established by this Agreement.

Borrowers: the U.S. Borrowers and the U.K. Borrowers.

Borrowing: Loans made or converted together on the same day, with the same interest option and, if applicable, Interest Period.

Borrowing Base: the U.K. Borrowing Base or the U.S. Borrowing Base, as the context requires.

Borrowing Base Report: a report with respect to the U.S. Borrowing Base, the U.K. Borrowing Base and the Global Borrowing Base, each determined separately therein and in such form as is reasonably satisfactory to Agent, by which Borrowers certify the calculation of their respective Borrowing Base and the Global Borrowing Base.

Borrowing Base Reporting Trigger Period: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Global Availability is less than the greater of $10,000,00012,500,000 or 12.5% of the Global Borrowing Base for three consecutive Business Days, and (b) continuing until, during each of the preceding 30 consecutive days, no Event of Default has existed and Global Availability has been more than the greater of

​

7

​

​

$10,000,00012,500,000 or 12.5% of the Global Borrowing Base, in each case measured at the close of business on each such day.

Business Day: any day except (a) a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, North Carolina or New York City and (b) with respect to a U.K. Loan, any day on which banks are not open for the transaction of banking business in London, England.

Cal Dive:  Cal Dive I – Title XI, Inc., a Texas corporation.

CAM Exchange: the exchange of the U.S. Lenders’ interests and the U.K. Lenders’ interests provided for in Section 13.5.

CAM Exchange Date: the date which Agent in its discretion designates as the “CAM Exchange Date” by notice to the Lenders as a result of the occurrence of (a) any Event of Default under Section 11.1(j) or (b) an acceleration of Loans and termination of the Commitments pursuant to Section 11.2.

CAM Percentage: as to each Lender, a fraction (expressed as a percentage), (a) the numerator of which shall be the aggregate amount of such Lender’s Commitment immediately prior to the CAM Exchange Date, and (b) the denominator of which shall be the amount of the Commitments of all the Lenders immediately prior to the CAM Exchange Date.

Capital Expenditures: any expenditures made by an Obligor or Subsidiary for an asset which will be used in a year or years subsequent to the year in which the expenditure is made and which asset is properly classifiable in relevant financial statements of such Person as property, equipment or improvements, fixed assets, or a similar type of capital asset in accordance with GAAP (for purpose of this definition, a “capital asset”).  For purposes of this definition, (i) the aggregate purchase price of capital assets purchased in the relevant period shall be included in Capital Expenditures only to the extent of the amount by which such aggregate purchase price exceeds the aggregate amount of net proceeds received by an Obligor or Subsidiary for the sale of capital assets during such period, and (ii) the purchase price of a capital asset acquired, constructed, improved, enlarged, developed, re-constructed or repaired with proceeds from insurance shall be included in Capital Expenditures only to the extent of the net amount by which such purchase price exceeds the amount of such proceeds; provided, that such amounts shall not be less than zero.

Capital Lease: any lease required to be capitalized or treated as a financing lease for financial reporting purposes in accordance with GAAP; provided, that, notwithstanding the foregoing, any lease that would have been characterized as an operating lease in accordance with GAAP prior to the date of Helix’s adoption of ASC 842 (whether or not such lease was in effect on such date) shall not be a Capital Lease, and any such lease shall be, for all purposes of this Agreement (including, for the avoidance of doubt, financial covenant calculations), treated as though it were reflected on Helix’s consolidated financial statements in the same manner as an operating lease would have been reflected prior to Helix’s adoption of ASC 842.

Cash Collateral: cash delivered to Agent (or an Issuing Bank or Secured Bank Product Provider, as applicable) to Cash Collateralize any Obligations, and all interest, dividends, earnings and other proceeds relating thereto.

​

8

​

​

Cash Collateralize: the delivery of cash to Agent (or an Issuing Bank or Secured Bank Product Provider, as applicable), as security for the payment of Obligations, in an amount equal to (a) 105% of LC Obligations denominated in Dollars or Sterling, (b) 110% of LC Obligations denominated in any other currency, and (c) with respect to any inchoate, contingent or other Obligations (including fees, expenses, indemnification obligations and Secured Bank Product Obligations), Agent’s (or the Secured Bank Product Provider’s, as applicable) good faith estimate of the amount due or to become due. “Cash Collateralization” has a correlative meaning. For the avoidance of doubt, U.S. Eligible Pledged Cash shall not be deemed to have Cash Collateralized any Obligations.

Cash Equivalents: (a) marketable obligations issued or unconditionally guaranteed by, and backed by the full faith and credit of, the U.S. government, maturing within 12 months of the date of acquisition or up to $5,000,000 with maturities up to five years after the date of the acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case which are issued by (i) Bank of America, (ii) any other commercial bank that is a Lender or an Affiliate of a Lender, or (iii) any commercial bank that is (A) organized under the laws of the United States or any state or district thereof or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, and (B) (1) rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇’▇ at the time of acquisition, (2) if it or its parent issues commercial paper such commercial paper is rated as described in clause (iii)(B)(1) of this definition, or (iii) has combined capital and surplus of at least $500,000,000; (c) repurchase obligations with a term of not more than 30 days for underlying investments of the types described in clauses (a) and (b) entered into with any bank described in clause (b); (d) commercial paper issued by Bank of America, another Lender or any other Person rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇’▇, and maturing within nine months of the date of acquisition; (e) shares of any money market fund or investment program that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either ▇▇▇▇▇’▇ or S&P; and (f) in the case of any Subsidiary that is not organized in the United States, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Subsidiary for cash management purposes.

Cash Management Services: services relating to operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, blocked account, lockbox and stop payment services.

CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42 ▇.▇.▇. §▇▇▇▇ et seq.).

Change in Law: the occurrence, after the date hereof, of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by a Governmental Authority; or (c) the making or issuance of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, that “Change in Law” shall

​

9

​

​

include, regardless of the date enacted, adopted or issued, all requests, rules, guidelines, requirements or directives (i) under or relating to the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act or any European equivalent regulation (such as the European Market and Infrastructure Regulation), or (ii) promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any similar authority) including CRR and CRR II or any other Governmental Authority.

Change of Control: (a) any Person or group of Persons (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 promulgated by the Commission under said Act), either directly or indirectly, of 35% or more of the total voting power of the outstanding voting stock of Helix; (b) Helix ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in all Borrowers; (c) a change in the majority of directors of Helix during any 12 month period, unless approved by the majority of directors serving at the beginning of such period; (d) the sale or transfer of all or substantially all assets of an Obligor, except to another Obligor or as expressly provided in Section 10.2.5; or (e) a “change of control”, “fundamental change” or similar event occurs under any Senior Notes or any other Borrowed Money with a principal amount exceeding $25,000,000.

Claims: all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations or replacement of Agent or any Lender) incurred by any Indemnitee or asserted against any Indemnitee by any Obligor or other Person, in any way relating to any (a) Loans, Letters of Credit, Loan Documents, Borrower Materials, or the use thereof or transactions relating thereto, (b) action taken or omitted in connection with any Loan Documents, (c) existence or perfection of any Liens, or realization on any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, (e) failure by any Obligor to perform or observe any terms of any Loan Document, or (f) reliance by any Indemnitee on a Communication executed using an Electronic Signature or in the form of an Electronic Record, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.

Closing Date: as defined in Section 6.1.

CME: CME Group Benchmark Administration Limited.

Code: the Internal Revenue Code of 1986.

Collateral: all Property described in Section 7.1, all Property described in any Security Documents as security for any Obligations, and all other Property that now or hereafter secures (or is intended to secure) any Obligations, except to the extent released from such security interests in accordance with the terms of such Security Documents.

Commitment: for any Lender, the aggregate amount of such Lender’s Borrower Group Commitments. “Commitments” means the aggregate amount of all Borrower Group

​

10

​

​

Commitments, which amount shall as of the ClosingFirst Amendment Effective Date be equal to $80,000,000100,000,000.

Commodity Exchange Act: the Commodity Exchange Act (7 U.S.C. §1 et seq.).

Communication: any notice, intimation, request, election, representation, certificate, report, disclosure, statement, authorization, approval, consent, waiver, document, amendment or transmittal of information of any kind in connection with a Loan Document, including any Borrower Materials or Modification of a Loan Document.

Compliance Certificate: a certificate, in the form of Exhibit B or otherwise reasonably satisfactory to Agent, by which Obligors certify (a) compliance with Section 10.3 (which is required to be calculated whether or not a Covenant Trigger Period is in effect even if not tested at such time), (b) that no Default or Event of Default has occurred and is continuing, and (c) certain financial statements.

Conforming Changes: Alternative Currency Conforming Changes and Term SOFR Conforming Changes, as applicable.

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

Contingent Obligation: any obligation of a Person arising from a guaranty, guarantee, indemnity or other assurance of payment or performance of any obligation (“primary obligation”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, guarantee, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; or (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.

Control: possession, directly or indirectly, of the power to direct or cause direction of a Person’s management or policies, whether through the ability to exercise voting power, by contract or otherwise.

Covenant Trigger Period: the period (a) commencing on any day that Global Availability is less than the greater of $8,000,00010,000,000 or 10% of the Global Borrowing Base and (b) continuing until, during each of the preceding 30 consecutive days, Global Availability exceeded the greater of $8,000,00010,000,000 or 10% of the Global Borrowing Base, in each case measured at the close of business on each such day.

​

11

​

​

Covered Entity: (a) a “covered entity,” as defined and interpreted in accordance with 12 C.F.R. §252.82(b); (b) a “covered bank,” as defined in and interpreted in accordance with 12 C.F.R. §47.3(b); or (c) a “covered FSI,” as defined in and interpreted in accordance with 12 C.F.R. §382.2(b).

CPR: means either CRR-EU or, as the context may require, CRR-UK.

CRR: means either CRR-EU or, as the context may require, CRR-UK.

CRR-EU: means regulation 575/2013 of the European Union on prudential requirements for credit institutions and investment firms and regulation 2019/876 of the European Union amending Regulation (EU) No 575/2013 and all delegated and implementing regulations supplementing that Regulation.

CRR-UK: means CRR-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) ▇▇▇ ▇▇▇▇ and the European Union (Withdrawal Agreement) ▇▇▇ ▇▇▇▇ and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.

CRR II: means either CRR II-EU or, as the context may require, CRR II-UK.

CRR II-EU: means regulation 2019/876 amending CRR-EU as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/2012 and all delegated and implementing regulations supplementing that Regulation.

CRR II-UK: means CRR II-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) ▇▇▇ ▇▇▇▇ and the European Union (Withdrawal Agreement) ▇▇▇ ▇▇▇▇ and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.

Daily Simple SOFR: with respect to any applicable determination date, the secured overnight financing rate (“SOFR”) published on such date 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’sthe FRBNY website (or any successor source satisfactory to Agent).

Dayrate Billing: any billing for services provided by a Borrower that is calculated by multiplying the number of days (pro rata) for such services by one or more agreed daily rates respecting such services, including without limitation the related mobilization and demobilization fees, if any, and materials and services charges from third party vendors (but excluding milestone, progress or task-based ▇▇▇▇▇▇▇▇).

Decommissioning Liabilities: with respect to a Person, its liabilities for plugging and abandonment of oil and gas ▇▇▇▇▇.

Debt: as applied to any Person, without duplication, (a) all Borrowed Money; (b) all performance, warranty, decommissioning, importation and surety bonds for the benefit of such

​

12

​

​

Person; (c) in the case of an Obligor, the Obligations; (d) all obligations to pay the deferred purchase price of property or services (other than (x) trade payables and accrued expenses in the Ordinary Course of Business, (y) earn out obligations and deferred compensation until such obligations become a liability on the balance sheet of such Person in accordance with GAAP, and (z) agreements providing for indemnification, purchase price adjustments or similar obligations in connection with acquisitions and dispositions); (e) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property; (f) all obligations, whether or not contingent, in respect of Disqualified Equity Interests valued at, in the case of redeemable preferred Equity Interests, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Equity Interests plus accrued and unpaid dividends; (g) all payments that would be required to be made in respect of any Swap after giving effect to any netting agreement with respect thereto in the event of a termination (including an early termination) on the date of determination; and (h)  all Contingent Obligations of such Person in respect of any of the foregoing; provided, that Debt shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, and (iii) endorsements of instruments for deposit or collection in the Ordinary Course of Business. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer.

Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.

Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate or fee (including margin) otherwise applicable thereto.

Defaulting Lender: any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days; (b) has notified Agent or any Borrower that such Lender does not intend to comply with its funding obligations hereunder or under any other credit facility, or has made a public statement to that effect; (c) has failed, within three Business Days following request by Agent or any Borrower, to confirm in a manner reasonably satisfactory to Agent and Borrowers that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding (including reorganization, liquidation, or appointment of a receiver, custodian, administrator or similar Person by the Federal Deposit Insurance Corporation or any other regulatory authority) or Bail-In Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an equity interest in such Lender or parent company unless the ownership provides immunity for such Lender from jurisdiction of courts within the United States or the U.K., as applicable, or from enforcement of judgments or writs of attachment on its assets, or permits such Lender or Governmental Authority to repudiate or otherwise to reject such Lender’s agreements; and provided further, that a Lender shall not be deemed to be a Defaulting Lender under clause (a) or (b) if it has notified Agent and Borrowers in writing that it will not make a funding because a condition to funding (specifically identified in the notice) is not or cannot be satisfied.

​

13

​

​

Deposit Account: (a) any “deposit account” as such term is defined in Article 9 of the UCC and including all sub-accounts relating thereto and (b) outside of the U.S., any bank account with a deposit function.

Deposit Account Control Agreement: control agreement reasonably satisfactory to Agent executed by an institution maintaining a Deposit Account for an Obligor, to perfect Agent’s Lien on such account.

Designated Jurisdiction: a country or territory, or a government or agency of a government of a country or territory, that is the target of a Sanction.

Dilution Percent: the percent, determined for Borrowers’ most recent Fiscal Quarter, equal to (a) without duplication, the aggregate amount of bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other non-cash dilutive items with respect to Accounts (excluding (x) discounts and reduced pricing offered to customers for adding additional ▇▇▇▇▇ to their order and (y) to the extent any Accounts owed by HWCG LLC constitute Eligible Accounts, credits provided to HWCG LLC in respect of members’ utilization of a Vessel), divided by (b) gross sales.

Disposition: the sale, license, lease (for Vessels, pursuant to which possession of a Vessel or equipment is transferred to another Person), consignment, conveyance, transfer or other disposition (in one transaction, a series of transactions or otherwise) of property of a Person, including a sale-leaseback transaction, synthetic lease, issuance of Equity Interests by a subsidiary, Division, or sale, assignment, assignation, conveyance, transfer or other disposal, with or without recourse, of any notes, accounts receivable or related rights; provided, that in no event shall the non-exclusive licensing of intellectual property or the execution, delivery and performance of service contracts, in each case, in the Ordinary Course of Business constitute a “Disposition” hereunder.

Disqualified Equity Interests: any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to 91 days after the Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt or (ii) any Equity Interests referred to in clause (a) above, in each case at any time on or prior to 91 days after the Maturity Date, or (c) contains any mandatory repurchase obligation which may come into effect prior to Full Payment of all Obligations; provided, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the 91 days after the Maturity Date shall not constitute Disqualified Equity Interests if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the Full Payment of the Obligations; provided, that if such Equity Interests are issued to any employees, directors, officers or members of management pursuant to a plan for the benefit of employees, directors, officers or members of management of Borrowers or Subsidiaries,

​

14

​

​

such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Borrowers or Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employees’, directors’, officers’ or management members’ termination, death or disability.

Distribution: any (a) declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or (b) purchase, redemption, or other acquisition or retirement for value of any Equity Interest.

Division: the division of assets, liabilities and/or obligations of a Person among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the original dividing Person and pursuant to which the original dividing Person may or may not survive.

Dollar Equivalent: on any date, with respect to any amount denominated in Dollars, such amount in Dollars, and with respect to any stated amount in a currency other than Dollars, the amount of Dollars that Agent determines (which determination shall be conclusive and binding absent manifest error) would be necessary to be sold on such date at the applicable Spot Rate to obtain the stated amount of the other currency.

Dollars: lawful money of the United States.

Domestic Subsidiary: any Subsidiary of Helix organized in the U.S., any state thereof or the District of Columbia.

Dominion Account: the U.K. Dominion Account and/or the U.S. Dominion Account, as the context may require.

Dominion Trigger Period: the period (a) commencing on any day that (i) an Event of Default described in Section 11.1(a) or (j) occurs, (ii) an Event of Default other than those described in clause (a)(i) above occurs and Agent or Required Lenders in their discretion so elect to implement cash dominion, or (iii) Global Availability is less than the greater of $10,000,00012,500,000 or 12.5% of the Global Borrowing Base, and (b) continuing until, during each of the preceding 30 consecutive days, no Event of Default has existed and Global Availability has been more than the greater of $10,000,00012,500,000 or 12.5% of the Global Borrowing Base, in each case measured at the close of business on such day.

Early Opt-in Effective Date: with respect to any Early Opt-in Election, the 6^th Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Agent has not received, by 5:00 p.m. (New York City time) on the 5^th Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

Early Opt-in Election: the occurrence of:

(a)a determination by Agent, or a notification by U.S. Borrower Agent to Agent that U.S. Borrower Agent has made a determination, that U.S. dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that

​

15

​

​

contained in Section 3.6.2, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

(b)the joint election by Agent and U.S. Borrower Agent to replace LIBOR with a Benchmark Replacement and the provision by Agent of written notice of such election to the Lenders.

EBITDA: for any fiscal period and determined on a consolidated basis for Obligors and Subsidiaries in accordance with GAAP, the result of (a) net income, plus (b) without duplication, the sum of the following to the extent deducted from net income: (i) interest expense, plus (ii) income tax expense (net of any tax benefits but not to exceed tax expense), plus (iii) depreciation and amortization expense, plus (iv) losses arising from the sale of capital assets, plus (v) any documented out-of-pocket fees, costs and expenses incurred in connection with negotiating and documenting the Loan Documents and any amendments or other modifications thereto, plus (vi) any extraordinary or non-recurring non-cash losses, plus (vii) non-cash expenses associated with share-based compensation, minus (c) without duplication, the sum of the following to the extent included in net income: (i) gains arising from the sale of capital assets, plus (ii) any extraordinary or non-recurring gains, plus (iii) the amount of all non-cash gains increasing net income for such period. Notwithstanding the foregoing, EBITDA shall not include (to the extent otherwise included therein and whether by consolidation, the equity method of accounting or otherwise) the results of any joint venture (except that net income may include the amount of dividends or distributions actually paid in cash during such period by such joint venture to a wholly-owned Subsidiary).

EEA Financial Institution: (a) any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses and is subject to consolidated supervision with its parent.

EEA Member Country: any of the member states of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority: any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Electronic Copy: as defined in Section 14.8.

Electronic Record and Electronic Signature: as defined in 15 U.S.C. §7006.

Eligible Account Debtor Jurisdictions: (a) with respect to U.S. Borrowers, the United States, Canada, Australia, New Zealand, the U.K. and such other jurisdictions determined by Agent in its discretion, in each case together with any state or province thereof (as applicable) and (b) with respect to U.K. Borrowers, the U.K., the Federal Republic of Germany, the Kingdom of the Netherlands, Norway, France, Luxembourg, Italy, Belgium, Sweden, Switzerland, Denmark, Finland, Ireland, Singapore and such other jurisdictions determined by Agent in its discretion, in each case together with any state, nation or province thereof (as applicable). Notwithstanding the

​

16

​

​

foregoing, Borrowers shall deliver such instruments and agreements, and shall take such actions, as Agent may reasonably request from time to time under Applicable Law of the foregoing jurisdictions to evidence or perfect its Lien on any Accounts in order for such jurisdictions to remain Eligible Account Debtor Jurisdictions.

Eligible Accounts: the U.K. Eligible Accounts and/or the U.S. Eligible Accounts, as the context requires.

Eligible Assignee: (a) a Lender, Affiliate of a Lender or Approved Fund that satisfies Section 12.13; (b) an assignee approved by Borrower Agent (which approval shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten Business Days after notice of the proposed assignment) and Agent; or (c) during an Event of Default, any Person acceptable to Agent in its discretion.

Enforcement Action: any action to enforce any Obligations (other than Secured Bank Product Obligations) or Loan Documents or to exercise any rights or remedies relating to any Collateral, whether by judicial action, expropriation, attachment, sequestration, distress, arrestment, inhibition, diligence, self-help, notification of Account Debtors, setoff or recoupment, credit bid, deed in lieu of foreclosure, action in an Insolvency Proceeding or otherwise in relation to analogous process in any other relevant jurisdiction.

Environmental Laws: Applicable Laws (including programs, permits and guidance promulgated by regulators) relating to public health (other than occupational safety and health regulated by OSHA) or the protection or pollution of the environment, including the Resource Conservation and Recovery Act (42 U.S.C. §§6991-6991i), Clean Water Act (33 U.S.C. §1251 et seq.) and CERCLA.

Environmental Notice: a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise.

Environmental Release: a release as defined in CERCLA or under any other Environmental Law.

Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in a partnership (whether general, limited, limited liability or joint venture); (c) member in a limited liability company; or (d) other Person having any other form of equity security or ownership interest, including without limitation, warrants, options, or other rights to purchase or acquire, an equity security or ownership interest; provided, that the term Equity Interests shall exclude any Debt or debt security convertible into, or exchangeable for, Equity Interests prior to the conversation or exchange thereof (including the Senior Notes and the Subject Earnout).

ERISA: the Employee Retirement Income Security Act of 1974.

​

17

​

​

ERISA Affiliate: any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) withdrawal of an Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) complete or partial withdrawal of an Obligor or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) filing of a notice of intent to terminate, treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or institution of proceedings by the PBGC to terminate a Pension Plan; (e) determination that a Pension Plan is considered an at-risk plan or a plan in critical or endangered status under the Code or ERISA; (f) an event or condition that constitutes grounds under Section 4042 of ERISA for termination of, or appointment of a trustee to administer, any Pension Plan; (g) imposition of any liability on an Obligor or ERISA Affiliate under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA; or (h) failure by an Obligor or ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or to make a required contribution to a Multiemployer Plan.

ESG-Related Pricing Adjustment: any pricing adjustment requested by U.S. Borrower Agent and its sustainability coordinator (or equivalent) to be made to the Applicable Margin, U.S. Unused Line Fee Rate and U.K. Unused Line Fee Rate, based on specific metrics and performance targets to be determined by U.S. Borrower Agent and Agent, related to Environmental, Social and Governance changes implemented by U.S. Borrower Agent and its Subsidiaries in their respective businesses, such pricing adjustment to be reflected in an amendment to this Agreement, which amendment will become effective at 5:00 p.m. on the fifth (5th) Business Day after Agent shall have submitted such amendment to the Lenders unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent (who shall promptly notify U.S. Borrower Agent) written notice that such Required Lenders object to such amendment, and to be limited to an aggregate adjustment of up to a 0.05% increase or decrease to the Applicable Margin and a 0.01% increase or decrease to each of the U.S. Unused Line Fee Rate and U.K. Unused Line Fee Rate. In the event that the Required Lenders deliver a written notice objecting to any such ESG-Related Pricing Adjustment amendment, an alternative ESG-Related Pricing Adjustment amendment may be effectuated with the consent of the Required Lenders, U.S. Borrower Agent and Agent.

EU Bail-In Legislation Schedule: the EU Bail-In Legislation Schedule published by the Loan Market Association, as in effect from time to time.

Event of Default: as defined in Section 11.

Examination Trigger Period: at any time during any calendar year, if Global Availability is less than the greater of $12,000,00015,000,000 or 15% of the Global Borrowing Base.

Excluded Account: any (a) Deposit Account (i) exclusively used for payroll, payroll taxes or employee benefits, (ii) constituting a zero-balance disbursement account reasonably acceptable

​

18

​

​

to Agent, (iii) exclusively holding deposits made by any purchaser of a Vessel in contemplation of the sale of such Vessel otherwise permitted under this Agreement (until the closing of such sale), (iv) constituting a fiduciary, escrow or trust account or an account holding third party deposits, in each case solely for the benefit of an unaffiliated third party in connection with a transaction permitted under this Agreement, until the closing of the related transaction (for the avoidance of doubt, other than customer deposits in the Ordinary Course of Business which are not excluded hereunder), (v) exclusively constituting a tax account (including a sales tax account), and (vi) constituting a ▇▇▇▇▇ cash account containing not more than $250,000 on deposit therein at any time (but no more than $750,000 for all such accounts in the aggregate), (b) that certain escrow/settlement account maintained by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates Inc. with account number ▇▇▇▇▇▇▇▇, so long as (i) such account is only used to hold funds to repurchase shares of Helix, (ii) funds deposited therein do not remain in such account for more than two Business Days, and (iii) such repurchases constitute Distributions otherwise permitted under Section 10.2.3, and (c) any Deposit Account described in and required by Section 8.2.5(e).

Excluded Guarantors: (a) Cal Dive, for so long as the Vessel Q4000 is under a bareboat charter from Cal Dive to an Obligor and Cal Dive is subject to the MARAD Debt, (b) HOSL or any other Subsidiary that owns the Vessel Q7000 until such time as a Borrower Agent requests to include Accounts in the U.K. Borrowing Base with respect to the Vessel Q7000 and (c) Helix Offshore International Holdings S.á ▇.▇.

Excluded Property:  (a) any ‎permit or license or any contractual obligation entered into by any Obligor (i) that prohibits or ‎requires the consent of any Person other than the Obligors or Subsidiaries which has not been obtained as a ‎condition to the creation by such Obligor of a Lien on any right, title or interest in such permit, ‎license or contractual obligation (other than customer contracts, master services agreements or work orders and Accounts which shall constitute part of the Collateral regardless) or (ii) to the extent that Applicable Law prohibits the creation of a Lien thereon, but only, with ‎respect to the prohibition in (i) and (ii), to the extent, and for as long as, such prohibition is not ‎terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other ‎Applicable Law and any such consent has not been obtained, provided, that the foregoing shall cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of such permit, license or contract not subject to the prohibitions specified in clauses (i) or (ii) above, (b) any Property owned by any ‎Obligor that is subject to a Purchase Money Lien or a Capital Lease permitted under this Agreement ‎to the extent a security interest therein would violate such Permitted Purchase Money Debt or Capital Lease or create a right of termination in favor of the ‎other party thereto (other than another Obligor or Subsidiary) after giving effect to the applicable anti-assignment ‎provisions of the UCC or other Applicable Law, (c) any other assets the ‎pledge of which or grant of a security interest in which is prohibited by Applicable Law (to the extent effective after giving effect to the anti-assignment ‎provisions of the UCC and other Applicable Law), provided, that the foregoing shall cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of Property not subject to the prohibitions, and (d) Excluded Accounts (other than of a type described in clause (a)(vi) of the definition thereof); provided, that, notwithstanding the foregoing in each case, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded

​

19

​

​

Property, including monies due or to become due to an Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).

Excluded Subsidiary:  any of (a) the Excluded Guarantors, (b) any Subsidiary organized under the laws of a state other than the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, and (c) with respect to Subsidiaries organized under the laws of the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, Subsidiaries (other than Excluded Guarantors) that, as of the last day of the Fiscal Quarter of Helix most recently ended, had both revenues and assets that constitute less than 5.0% of the consolidated revenues and assets of Helix and its Subsidiaries in such jurisdiction (determined on a jurisdiction by jurisdiction basis).

Excluded Swap Obligation: with respect to an Obligor, each Swap Obligation as to which, and only to the extent that, such Obligor’s guaranty of or grant of a Lien as security for such Swap Obligation is or becomes illegal under the Commodity Exchange Act because the Obligor does not constitute an “eligible contract participant” as defined in the act (determined after giving effect to any keepwell, support or other agreement for the benefit of such Obligor and all guarantees of Swap Obligations by other Obligors) when such guaranty or grant of Lien becomes effective with respect to the Swap Obligation. If a hedging agreement governs more than one Swap Obligation, only the Swap Obligation(s) or portions thereof described in the foregoing sentence shall be Excluded Swap Obligation(s) for the applicable Obligor.

Excluded Taxes: (a) Taxes imposed on or measured by a Recipient’s net income (however denominated), franchise Taxes and branch profits Taxes (i) as a result of such Recipient being organized under the laws of, or having its principal office or applicable Lending Office located in, the jurisdiction imposing such Tax, or (ii) constituting Other Connection Taxes; (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to its interest in a Loan or Commitment pursuant to a law in effect when the Lender acquires such interest (except pursuant to an assignment request by Borrower Agent under Section 13.4) or changes its Lending Office, unless the Taxes were payable to its assignor immediately prior to such assignment or to the Lender immediately prior to its change in Lending Office; (c) Taxes attributable to a Recipient’s failure to comply with Section 5.9; and (d) U.S. federal withholding Taxes imposed pursuant to FATCA. In no event shall “Excluded Taxes” include any withholding Tax imposed on amounts paid by or on behalf of a foreign Obligor to a Recipient that has complied with Section 5.9.1.

Existing Credit Agreement: that certain Amended and Restated Credit Agreement dated as of June 30, 2017, among Helix, as borrower, Bank of America, as administrative agent, and the other Persons party thereto, as amended prior to the Closing Date.

Existing Letters of Credit: those certain Letters of Credit outstanding on the Closing Date described on Schedule 1.1(b).

Existing Term Loan: the term loan outstanding under the Existing Credit Agreement prior to the Closing Date.

Extraordinary Expenses: all costs, expenses or advances incurred by any Agent Indemnitee during a Default, Event of Default or Obligor’s Insolvency Proceeding, including those relating to

​

20

​

​

any (a) audit, inspection, repossession, storage, repair, appraisal, insurance, processing, preparation or advertising for sale, sale, collection, or other preservation of or realization upon Collateral; (b) action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any creditor(s) of an Obligor or any other Person) in any way relating to any Collateral, Agent’s Liens, Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) Enforcement Action or exercise of any rights or remedies in, or the monitoring of, an Insolvency Proceeding; (d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; and (e) negotiation and documentation of any Modification, workout, restructuring, forbearance, liquidation or collection with respect to any Loan Document, Collateral or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage and insurance costs, permit fees, utility expenses, legal and accounting fees and expenses, appraisal costs, brokers’ and auctioneers’ commissions, environmental study costs, wages and salaries paid to employees of any Obligor or independent contractors in liquidating Collateral, and travel expenses.

FATCA: Sections 1471 through 1474 of the Code (including any amended or successor version if substantively comparable and not materially more onerous to comply with), and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

FATCA Deduction: a deduction or withholding from a payment under a Loan Document required by FATCA.

Federal Funds Rate: for any day, the per annum rate calculated by FRBNY based on such day’s federal funds transactions by depository institutions (as determined in such manner as FRBNY shall set forth on its public website from time to time) and published on the next Business Day by FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Rate be less than zero.

Financial Statement Reporting Trigger: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Global Availability is less than the greater of $12,000,00015,000,000 or 15% of the Global Borrowing Base and (b) continuing until, during each of the preceding 30 consecutive days, (i) no Event of Default has existed and (ii) Global Availability has exceeded the greater of $12,000,00015,000,000 or 15% of the Global Borrowing Base, in each case measured at the close of business of any day (provided that, if a Financial Statement Reporting Period has commenced, Agent shall receive at least one set of monthly financial statements under Section 10.1.2(c)).

First Amendment Effective Date: July 1, 2022.

Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal Year.

Fiscal Year: the fiscal year of Obligors and Subsidiaries for accounting and tax purposes, ending on December 31 of each year.

Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for Obligors and Subsidiaries for the most recent 12 months, of (a) EBITDA minus the sum of (i) Capital Expenditures (except those financed with Borrowed Money other than Loans) and (ii) cash taxes

​

21

​

​

paid net of any tax refunds received in cash during such period (but this clause (ii) shall not be less than zero), to (b) Fixed Charges.

Fixed Charges: the sum of (a) interest expense paid or required to be paid in cash (other than payment-in-kind), (b) scheduled principal payments paid or required to be paid in cash on Borrowed Money (other than the Loans and excluding repayments of intercompany Debt), (c) Distributions paid in cash (other than Distributions solely among Obligors) and (d) cash contributions to any Pension Plan (to the extent not accounted for in the calculation of EBITDA); provided, that clause (b) above shall not include (i) the final lump sum principal payments made on or prior to the Closing Date to satisfy in full the Existing Term Loan and the Nordea Loan or, (ii) the principal payments made following the Closing Date for the redemption or discharge of the 2022 Notes and the 2023 Notes or (iii) other than for purposes of determining the Fixed Charge Coverage Ratio under the Payment Conditions (in which case any such payment shall be included in clause (b) above), the Subject Payment (to the extent paid in cash).

FLSA: the Fair Labor Standards Act of 1938.

Flood Laws: the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973 and related laws.

Foreign Lender: any Lender that is not a U.S. Person.

Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.

FRBNY: the Federal Reserve Bank of New York.

Fronting Exposure: a Defaulting Lender’s interest in LC Obligations, Swingline Loans and Protective Advances, except to the extent Cash Collateralized by the Defaulting Lender or allocated to other Lenders hereunder.

Full Payment: with respect to any Obligations, (a) the full cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding), excluding contingent indemnification and other inchoate obligations for which no claim has been asserted or identified; (b) Cash Collateralization of all LC Obligations (or delivery of standby letter(s) of credit reasonably acceptable to the applicable Issuing Bank, in the amount of required Cash Collateral); (c) Cash Collateralization of Obligations that are inchoate or contingent in nature for which a claim has been asserted or identified; and (d) Cash Collateralization of Secured Bank Product Obligations (other than Secured Bank Products allowed to remain outstanding by Bank Product providers). No Loans shall be deemed to have been paid in full unless all Commitments related to such Loans are terminated.

GAAP: generally accepted accounting principles in effect in the United States from time to time, subject to Section 1.2.

Global Availability: the Global Borrowing Base minus Global Revolver Usage.

​

22

​

​

Global Borrowing Base: the sum of the U.K. Borrowing Base and the U.S. Borrowing Base; provided, that the U.K. Borrowing Base may not exceed 50% of the Global Borrowing Base.

Global Revolver Usage: the sum of the U.K. Revolver Usage and the U.S. Revolver Usage.

Governmental Approvals: all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.

Governmental Authority: any federal, state, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or European Central Bank).

Guarantor Payment: as defined in Section 5.10.3.

Guarantors: each Person that guarantees payment or performance of Obligations. As of the Closing Date, the Guarantors include each Borrower (in respect of the obligations of the other Borrowers) and the following:  Helix Robotics Solutions International Corp.; Helix Energy Solutions (U.K.) Limited; Kommandor LLC; Helix Subsea Construction, Inc; and, subject to Section 10.1.13, Helix Q5000 Holdings SarlS.à ▇.▇. and Helix Offshore Limited.

Guaranty: each guaranty agreement executed by a Guarantor in favor of Agent, including this Agreement.

Helix: as defined in the introductory paragraph of this Agreement.

Helix Q5000 Holdings S.à ▇.▇.: a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés, Luxembourg) under number B183815.

HOSL: Helix Offshore Services Limited, a Scottish corporation.

Indemnified Taxes: (a) Taxes, other than Excluded Taxes, imposed on or relating to any payment of an Obligation; and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees.

Insolvency Proceeding: (a) any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (i) the entry of an order for relief under the Bankruptcy Code or any other insolvency, debtor relief or debt adjustment law; (ii) the appointment of a receiver, monitor, trustee, liquidator, administrator, conservator, administrator receiver, compulsory manager or other custodian for such Person or any part of its Property; or (iii) an assignment, assignation, composition, compromise, arrangement or trust

​

23

​

​

mortgage for the benefit of or (as the case may be) with any creditors or (b) any proceeding commenced by or against a Person under any provision of the Insolvency ▇▇▇ ▇▇▇▇ (UK), the Corporate Insolvency & Governance ▇▇▇ ▇▇▇▇ (UK) or under any other insolvency law of any jurisdiction of the U.K.

Insolvency Regulation: Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast).

Intellectual Property: all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.

Intellectual Property Claim: any claim or assertion (whether in writing, by suit or otherwise) that an Obligor’s or Subsidiary’s ownership or use of Intellectual Property or other Property violates another Person’s Intellectual Property.

Interest Payment Date: (a) for each LIBORTerm SOFR Loan, the last day of the applicable Interest Period and, if the Interest Period is more than three months, each three month anniversary of the beginning of the Interest Period; and (b) for all other Loans, the first day of each calendar month.

Interest Period: as defined in Section 3.1.3.

Investment: an Acquisition, an acquisition of record or beneficial ownership of any Equity Interests or Debt of a Person, or an advance, loan or capital contribution to or other investment in a Person, including any Contingent Obligation in respect of Debt of another Person.

Investment Grade Account Debtor: any Account Debtor whose long-term issuer rating is BBB- (or then equivalent grade) or higher by S&P or Baa3 (or then equivalent grade) or higher by Moody’s.

IRS: the United States Internal Revenue Service.

Issuing Bank: each of Bank of America and ▇▇▇▇▇ Fargo Bank, National Association (including any Lending Office of the foregoing), or any replacement issuer therefor appointed pursuant to Section 2.2.4.

Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.

LC Application: an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance reasonably satisfactory to Issuing Bank and Agent.

LC Conditions: U.K. LC Conditions and/or U.S. LC Conditions, as the context requires.

​

24

​

​

LC Documents: U.S. LC Documents and/or U.K. LC Documents, as the context requires.

LC Obligations: U.K. LC Obligations and/or U.S. LC Conditions, as the context requires

LC Request: a request by Borrower Agent for issuance of a Letter of Credit, in form reasonably satisfactory to Agent and Issuing Bank.

Lender Indemnitees: Lenders and Secured Bank Product Providers, and their officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.

Lenders: lenders party to this Agreement (including Agent in its capacity as provider of Swingline Loans or Protective Advances, U.S. Lenders and U.K. Lenders) and any Person who hereafter becomes a “Lender” pursuant to an Assignment, including any Lending Office of the foregoing.

Lending Office: the office (including any domestic or foreign Affiliate or branch) designated as such by Agent, a Lender or Issuing Bank by notice to Borrower Agent and, if applicable, Agent.

Letter of Credit: U.K. Letter of Credit or U.S. Letter of Credit, as the context requires.

Letter of Credit Subline: the lesser of (a) $10,000,000 (which is subdivided $5,000,000 each between Bank of America and ▇▇▇▇▇ Fargo Bank, National Association) and (b) the sum of the U.K. Commitments and the U.S. Commitments.  The Letter of Credit Subline will be further subdivided between the U.K. and U.S. tranches of this Agreement from time to time as agreed between the U.S. Borrower Agent, Agent and Issuing Bank.

LIBOR Loan: a Loan denominated in Dollars that bears interest based on LIBOR.

LIBOR Rate: the per annum rate of interest determined by Agent at or about 11:00 a.m. (London time) two Business Days prior to an Interest Period for a term equivalent to such period, equal to the London Interbank Offered Rate, or comparable or successor rate approved by Agent, as published on the applicable Reuters screen page (or other commercially available source designated by Agent from time to time) (“LIBOR”); provided, that any comparable or successor rate shall be applied by Agent, if administratively feasible, in a manner consistent with market practice; provided further, that in no event shall LIBOR be less than zero.

License: any license or agreement under which an Obligor is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business.

Licensor: any Person from whom an Obligor obtains the right to use any Intellectual Property.

Lien: an interest in Property securing an obligation or claim, including any lien, security interest, charge, standard security, assignation in security, pledge, hypothecation, assignment,

​

25

​

​

trust, reservation, assessment right, encroachment, easement, right-of-way, covenant, condition, restriction, lease, or other title exception or encumbrance.

Lien Waiver: an agreement, in form and substance reasonably satisfactory to Agent, by which a lessor waives or subordinates any Lien it may have on the Collateral, and allows Agent to enter the premises and remove, store and dispose of Collateral.

Loan: a loan made by a Lender under the credit facility established by this Agreement, including U.K. Loans and U.S. Loans.

Loan Documents: this Agreement, Other Agreements and Security Documents.

Local Time: with respect to (a) U.S. Loans, Central time in the United States and (b) U.K. Loans, prevailing time in London, England.

MARAD Debt: those certain bonds issued by Cal Dive guaranteed by the United States and due February 2027, in an aggregate principal amount of $53,000,000.

Margin Stock: as defined in Regulation U of the Federal Reserve Board of Governors.

Material Adverse Effect: the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, has or could be reasonably expected to have (a) a material adverse effect on the business, operations, Properties or financial condition of the Obligors, taken as a whole, (b) a material impairment of the rights and remedies of the Agent or any Lender under any the Loan Documents, (c) a material adverse effect on the validity or priority of Agent’s Lien on a material portion of the Collateral; (d) a material impairment on the ability of the Obligors, taken as a whole, to perform their obligations under the Loan Documents, including repayment of the Obligations; or (e) otherwise materially impairs the ability of Agent or any Lender to enforce or collect the Obligations or to realize upon any material portion of the Collateral.

Material Contract: (a) any agreement or arrangement to which an Obligor or Subsidiary is party (other than the Loan Documents) (i) that is deemed to be a material contract under any securities law applicable to Helix, including the Securities Act of 1933 or (ii) for which breach, termination or nonperformance could reasonably be expected to have a Material Adverse Effect; or (b) any agreement or arrangement to which an Obligor is party (other than the Loan Documents) that relates to Debt in an outstanding principal amount of $25,000,000 or more.

Material Debt: any Debt of any Borrower in an amount, individually or in the aggregate, of $50,000,000 or more.

Maturity Date: the earliest of (a) September 30, 2026; (b) the date that is 91 days prior to earliest maturity of the 2026 Notes (to the extent the then outstanding principal balance thereof is $50,000,000 or more) or any other Material Debt (in each case, if such Debt remains outstanding on such date and has not been refinanced or extended on terms reasonably satisfactory to Agent to a date at least 91 days following the date in clause (a)); or (c) any date on which the aggregate Commitments terminate hereunder.

​

26

​

​

Modification: any amendment, supplement, extension, approval, consent, waiver, change or other modification of or under a Loan Document, including any waiver of a Default or Event of Default.

Moody’s: ▇▇▇▇▇’▇ Investors Service, Inc. or any successor acceptable to Agent.

Multiemployer Plan: any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which an Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

Multiple Employer Plan: a Plan with two or more contributing sponsors, including an Obligor or ERISA Affiliate, at least two of whom are not under common control, as described in Section 4064 of ERISA.

Net Proceeds: with respect to a Disposition, proceeds (including, when received, any deferred or escrowed payments) received by an Obligor in cash from such disposition, net of (a) costs and expenses actually incurred in connection therewith, including legal, accounting and investment banking fees and sales commissions; (b) amounts applied to repayment of Debt secured by a Permitted Lien senior to Agent’s Liens on the Collateral sold; (c) transfer or similar taxes paid or reasonably estimated by Helix to be payable as a result of such Disposition; (d) escrows and reserves for indemnities and similar items, until the same are no longer needed; (e) the amount of any purchase price or similar adjustment claimed by any Person to be owed by Helix or any Subsidiary, until such time as such claim has been settled or otherwise finally resolved, or paid or payable by Helix or any Subsidiary, in either case in respect of such Disposition; and (f) other expenses approved by Agent; provided, that any release from reserves, escrows or holdbacks to an Obligor shall constitute Net Proceeds at such time.

Nordea Loan: that certain loan made pursuant to the Credit Agreement dated as of September 26, 2014, between Helix Q5000 Holdings SarlS.à ▇.▇. and Nordea Bank Finland plc, which loan was repaid in full prior to the Closing Date.

Notice of Borrowing: notice by Borrower Agent of a Borrowing, in form reasonably satisfactory to Agent.

Notice of Conversion/Continuation: notice by Borrower Agent for conversion or continuation of a Loan as a LIBORTerm SOFR Loan, in form to reasonably satisfactory to Agent.

Notice of Prepayment: notice by Borrower Agent of prepayment of a Loan, in form reasonably satisfactory to Agent.

Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees, indemnification obligations, Claims and other amounts payable by Obligors under Loan Documents, (d) Secured Bank Product Obligations, and (e) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, in each case whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute

​

27

​

​

or contingent, due or to become due, primary or secondary, or joint or several; provided, that Obligations of an Obligor shall not include its Excluded Swap Obligations.

Obligor: each Borrower, Guarantor or other Person that is liable for payment of any Obligations or that has granted a Lien on its assets in favor of Agent to secure any Obligations.

OFAC: Office of Foreign Assets Control of the U.S. Treasury Department.

Ordinary Course of Business: the ordinary course of business of any Obligor or Subsidiary, consistent with past practices or, with respect to actions taken by such Person for which no past practices exist, consistent with past practices of similarly situated companies, and, in each case, undertaken in good faith.

Organic Documents: with respect to any Person, its charter, certificate or articles of incorporation, bylaws, memorandum (if any) and articles of organization or association, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.

OSHA: the Occupational Safety and Hazard Act of 1970.

Other Agreement: each LC Document, fee letter, Borrower Material, Communication, note, assignment, document, instrument or agreement of any kind (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any transaction relating hereto.

Other Connection Taxes: Taxes imposed on a Recipient due to a present or former connection between it and the taxing jurisdiction (other than connections arising from the Recipient having executed, delivered, become party to, performed obligations or received payments under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced, or sold or assigned an interest in, any Loan or Loan Document).

Other Rate Early Opt-in: Agent and the U.S. Borrower Agent have elected to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (a) an Early Opt-in Election and (b) Section 3.6.2(b) and clause (b) of the definition of “Benchmark Replacement”.

Other Taxes: all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a Lien under, or otherwise with respect to, any Loan Document, except Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 13.4(c)).

Overadvance: a U.K. Overadvance or a U.S. Overadvance, as the context requires.

Participant: as defined in Section 13.2.

​

28

​

​

Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

Payment Conditions: with respect to any transaction that references the “Payment Conditions”:

(a)no Event of Default shall have occurred and be continuing on the date of such transaction or would result after giving effect thereto;

(b)either (i) Global Availability is higher than the greater of $16,000,00020,000,000 or 20.0% of the Global Borrowing Base after giving effect to and at the close of business on each day during the 30 consecutive day period immediately prior to such transaction on a pro forma basis as if the transaction were consummated at the beginning of such period or (ii) both (A) Global Availability is higher than the greater of $14,000,00017,500,000 or 17.5% of the Global Borrowing Base after giving effect to and at the close of business on each day during the 30 consecutive day period immediately prior to such transaction on a pro forma basis as if the transaction were consummated at the beginning of such period and (B) the Fixed Charge Coverage Ratio for the most recently ended trailing 12 months for which financial statements have been delivered shall be greater than 1.00 to 1.00 on a pro forma basis for such transaction (whether or not the financial covenant is being tested at such time); and

(c)with respect to any such transaction or series of related transactions with a value in excess of $25,000,000, at least two Business Days prior to (but in no event more than five Business Days prior to) such transaction, Agent shall have received a certificate of a Senior Officer of U.S. Borrower Agent (i) certifying satisfaction of the foregoing conditions concurrently with any such transaction and (ii) setting forth in reasonable detail the pro forma calculations of such Fixed Charge Coverage Ratio and/or Global Availability.

Payment Item: each check, draft or other item of payment payable to an Obligor, including those constituting proceeds of any Collateral.

PBGC: the Pension Benefit Guaranty Corporation.

Pension Funding Rules: Code and ERISA rules regarding minimum required contributions (including installment payments) to Pension Plans set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

Pension Plan: any employee pension benefit plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan years.

​

29

​

​

Permitted Acquisition: any Acquisition as long as (a) no Default or Event of Default exists or is caused thereby; (b) the Acquisition is consensual; (c) the assets, business or Person being acquired is useful or engaged in the business of Obligors and Subsidiaries; (d) no Debt or Liens are assumed or incurred, except as permitted by Sections 10.2.1 and 10.2.2; (e) the Payment Conditions are satisfied; and (f) for any Acquisition where the total consideration exceeds $10,000,000, Borrowers deliver to Agent, at least five Business Days prior to the Acquisition (or such shorter period as Agent may agree), copies of all material agreements relating thereto and a certificate, in form and substance reasonably satisfactory to Agent, stating that the Acquisition is a “Permitted Acquisition” and demonstrating compliance with the foregoing requirements.

Permitted Debt: as defined in Section 10.2.1.

Permitted Discretion: a determination made in good faith, using reasonable business judgment (from the perspective of a secured, asset-based lender).

Permitted Disposition: a Disposition permitted by Section 10.2.5.

Permitted Lien: as defined in Section 10.2.2.

Permitted Maritime Liens: are (a) liens for unpaid master, officer and crew wages in accordance with usual maritime practice, (b) liens for salvage, (c) liens arising by operation of law for necessaries, repairs and maintenance of a Vessel, and (d) other common law maritime liens or liens arising under the Federal Maritime Lien Act (or similar state statutes).

Permitted Purchase Money Debt: Purchase Money Debt incurred or issued by any Obligor or Subsidiary that is unsecured or secured only by a Purchase Money Lien, in an aggregate principal amount not to exceed $50,000,000 at any time.

Person: any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity of any kind.

Plan: any Benefit Plan maintained for employees of an Obligor or ERISA Affiliate, or to which an Obligor or ERISA Affiliate is required to contribute on behalf of its employees.

Platform: as defined in Section 14.3.3.

Prime Rate: the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement.

Pro Rata: with respect to any Lender, a percentage (rounded to the ninth decimal place) determined (a) by dividing the amount of such Lender’s Borrower Group Commitment to a Borrower Group by the aggregate outstanding Borrower Group Commitments of all Lenders to such Borrower Group; or (b) following termination of such Borrower Group Commitments, by

​

30

​

​

dividing the amount of such Lender’s Loans and LC Obligations to members of such Borrower Group by the aggregate outstanding Loans and LC Obligations of all Lenders to members of such Borrower Group or, if all Loans and LC Obligations to members of such Borrower Group have been paid in full and/or Cash Collateralized, by dividing such Lender’s and its Affiliates’ remaining Obligations to members of such Borrower Group by the aggregate remaining Obligations of all Lenders and their respective Affiliates to such Borrower Group.

Properly Contested: with respect to any obligation of an Obligor or Subsidiary, (a) the obligation is subject to a bona fide dispute regarding validity, amount or the Obligor’s or Subsidiary’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP or IFRS, as applicable; (d) non-payment could not reasonably be expected to have a Material Adverse Effect, nor result in forfeiture or sale of any Collateral of an Obligor; (e) no Lien is imposed on Collateral of an Obligor, unless bonded and stayed within five Business Days to the reasonable satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.

Property: any interest in any kind of property or asset, whether real, heritable, personal or mixed, or tangible or intangible.

Protective Advances: U.K. Protective Advances and/or U.S. Protective Advances, as the context requires.

PTE: a prohibited transaction class exemption issued by the U.S. Department of Labor, as amended from time to time.

Purchase Money Debt: Debt (other than the Obligations) incurred to finance the acquisition, leasing, construction or improvement of fixed assets or payments pursuant to a Capital Lease of fixed assets; provided, that such Debt (a) is incurred within 90 days before or after acquisition of such fixed assets for the purpose of financing any of the purchase price thereof and (b) does not exceed the cost of acquiring such fixed assets.

Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the fixed assets so purchased, leased or improved with such Debt (and identifiable proceeds and products thereof) and constituting a Capital Lease or a purchase money security interest under the UCC.

Qualified ECP: an Obligor with total assets exceeding $10,000,000, or that constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of such act.

Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any real or heritable Property or any buildings, structures, parking areas or other improvements thereon.

Recipient: Agent, Issuing Bank, any Lender or any other recipient of a payment to be made by an Obligor under a Loan Document or on account of an Obligation.

​

31

​

​

Refinancing Conditions: no Event of Default described in Section 11.1(a) or (j) then exists and no Default or Event of Default would result after giving effect to the incurrence of such Refinancing Debt and such Debt, when compared to the Debt being extended, renewed or refinanced, (a) does not have a greater principal amount (except by an amount equal to unpaid accrued interest and premium on the Debt being refinanced that is capitalized, OID and upfront fees and other fees and expenses reasonably incurred in connection therewith), earlier final maturity or shorter weighted average life, (b) is subordinated to the Obligations to at least the same extent as the Debt being refinanced is subordinated (if applicable), (c) has representations, covenants, defaults and other terms that, taken as a whole, are not materially less favorable to Obligors than the Debt being refinanced (except for covenants or other provisions applicable only to the periods after the Maturity Date in effect at such time), and (d) has no additional obligor, guarantor, Lien, or other recourse to any additional Person or Property than the Debt being refinanced.

Refinancing Debt: Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.1(c), 10.2.1(e), (k) or (l).

Relevant Governmental Body: (a) with respect to Loans denominated in Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New YorkBoard and/or FRBNY, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor theretoBoard and/or FRBNY, and (b) with respect to Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto.

Relevant Rate: with respect to any Loans in (a) Dollars, LIBORSOFR and (b) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as applicable.

Relevant Rate Loans: Loans whose interest is determined by reference to a Relevant Rate.

Rent and Charges Reserve: the U.K. Rent and Charges Reserve and/or the U.S. Rent and Charges Reserve, as the context requires.

Report: as defined in Section 12.2.3.

Reportable Event: any event set forth in Section 4043(c) of ERISA, other than an event for which the 30 day notice period has been waived.

Required Lenders: two or more Lenders holding more than 50% of (a) the aggregate outstanding Commitments; or (b) after termination of the Commitments, the aggregate outstanding Loans and LC Obligations or, upon Full Payment of all Loans and LC Obligations, the aggregate remaining Obligations; provided, that (i) Commitments, Loans and other Obligations held by a Defaulting Lender and its Affiliates shall be disregarded in making such calculation, but any related Fronting Exposure shall be deemed held as a Loan or LC Obligation by the Lender (including in its capacity as Issuing Bank) that funded the applicable Loan or issued the applicable Letter of Credit, (ii) at any time there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders), Required Lenders must include at least two Lenders (who are not

​

32

​

​

Affiliates of one another), and (iii) in the event there is only one Lender at any time, such Lender shall constitute Required Lenders.

Rescindable Amount: as defined in Section 4.1.3(c).

Resolution Authority: an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority.

Restrictive Agreement: an agreement (other than a Loan Document) that conditions or restricts the right of any Obligor or Subsidiary to incur or repay the Obligations, to grant Liens on any assets to secure the Obligations, to declare or make Distributions, or to repay any intercompany Debt.

Revolver Usage: U.K. Revolver Usage or U.S. Revolver Usage, as the context requires.

S&P: Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., or any successor acceptable to Agent.

Sanction: a sanction administered or enforced by the U.S. government (including OFAC), United Nations Security Council, European Union, U.K. government or other applicable sanctions authority, and including any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by any Governmental Authority with jurisdiction over Agent, any Lender or any Obligor or any of their respective Subsidiaries or Affiliates.

Secured Bank Product Obligations: Debt, obligations and other liabilities with respect to Bank Products owing by an Obligor or Subsidiary of an Obligor to a Secured Bank Product Provider; provided, that Secured Bank Product Obligations of an Obligor shall not include its Excluded Swap Obligations.

Secured Bank Product Provider: (a) Bank of America or any of its Affiliates; and (b) any other Lender or Affiliate of a Lender that is providing a Bank Product, provided such provider delivers written notice to Agent, in the form of Exhibit C hereto or as otherwise reasonably satisfactory to Agent, (i) describing the Bank Product and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section 12.14.

Secured Parties: Agent, Issuing Bank, Lenders and Secured Bank Product Providers.

Securities Account: any present and future “securities account” as defined in Article 8 of the UCC, including all monies, “uncertificated securities”, “securities entitlements” and other “financial assets” (each as defined in Article 8 of the UCC) contained therein.

Securities Account Control Agreement: a control agreement reasonably satisfactory to Agent executed by an institution maintaining a Securities Account for an Obligor, to perfect Agent’s Lien on such account.

​

33

​

​

Security Documents: the U.K. Security Documents, Guaranties, Deposit Account Control Agreements, Securities Account Control Agreements, and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations (including this Agreement).

Senior Officer: the chairman of the board, president, chief executive officer or chief financial officer of the applicable Obligor.

Senior Notes: the 2022 Notes, the 2023 Notes and the 2026 Notes.

Senior Notes Indentures: the 2022 Notes Indenture, the 2023 Notes Indenture and the 2026 Notes Indenture.

Settlement Report: a report summarizing Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Commitments.

▇▇▇▇▇: with respect to any applicable determination date the Sterling Overnight Index Average Reference Rate published on such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time); provided, that if such determination date is not a Business Day, ▇▇▇▇▇ means such rate that applied on the first Business Day immediately prior thereto.

▇▇▇▇▇ Adjustment: with respect to ▇▇▇▇▇, 0.05% per annum.

▇▇▇▇▇ Daily Rate: for any date, the rate per annum equal to ▇▇▇▇▇ determined pursuant to the definition thereof, plus the ▇▇▇▇▇ Adjustment; provided, that such rate shall not be less than zero. Any change in the ▇▇▇▇▇ Daily Rate shall be effective from and including such date of change without further notice.

SOFR: as defined in the definition of “Daily Simple SOFR”

SOFR Early Opt-in: Agent and the applicable Borrower Agent have elected to replace LIBOR pursuant to (a) an Early Opt-in Election and (b) Section 3.6.2(b) and clause (a) of the definition of “Benchmark Replacement”

SOFR: the secured overnight financing rate as administered by FRBNY (or a successor administrator).

SOFR Adjustment: 0.10%.

Solvent: as to any Person, on any date of determination, such Person on such date (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and are scheduled to mature in the ordinary course of business; (c) is able to pay all of its debts as they are scheduled to mature in the ordinary course of business; (d) has capital

​

34

​

​

that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates; and (g) with respect to any Person incorporated in the U.K., (i) it is not unable and does not admit its inability to pay its debts as they fall due, (ii) it is not deemed to, or is not declared to, be unable to pay its debts under applicable law, (iii) it has not suspended or threatened to suspend making payments on any of it debts or (iv) by reason of actual or anticipated financial difficulties, it has not commenced negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; and (h) with respect to any Person incorporated under the laws of Luxembourg, (i) is not in a state of cessation of payments (cessation de paiements) and (ii) has not lost its creditworthiness (ébranlement de crédit). “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

▇▇▇▇▇: with respect to any applicable determination date the Sterling Overnight Index Average Reference Rate published on such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time); provided, that if such determination date is not a Business Day, ▇▇▇▇▇ means such rate that applied on the first Business Day immediately prior thereto.

▇▇▇▇▇ Adjustment: with respect to ▇▇▇▇▇, 0.05% per annum.

▇▇▇▇▇ Daily Rate: for any date, the rate per annum equal to ▇▇▇▇▇ determined pursuant to the definition thereof, plus the ▇▇▇▇▇ Adjustment; provided, that such rate shall not be less than zero. Any change in the ▇▇▇▇▇ Daily Rate shall be effective from and including such date of change without further notice.

Specified Obligor: an Obligor that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 5.10).

Spot Rate: the exchange rate, as determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding business day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agent’s principal foreign exchange trading office for the first currency.

Stated Amount: the outstanding amount of a Letter of Credit, including any automatic increase or tolerance (whether or not then in effect) provided by the Letter of Credit or related LC Documents.

​

35

​

​

Sterling: the lawful currency of the U.K.

Subject Acquisition: the Acquisition of the Equity Interests of the companies described in clauses (b) and (c) of the definition of “Alliance Companies” by Helix Alliance Decom, LLC, a Delaware ‎limited liability company, a wholly owned Subsidiary of Helix pursuant to the Alliance Purchase Agreement.

Subject Earnout: the Earn-Out Consideration (as defined in the Alliance Purchase Agreement, as in effect on the First Amendment Effective Date, and as amended, supplemented or modified from time to time, subject to Section 10.2.7).

Subject Payment: one or more payments made by Helix Alliance Decom, LLC, a Delaware ‎limited liability company, or Helix, in connection with the Subject Earnout.

Subject Payment Due Date: the estimated Earn Out Payment Date (as defined in the Alliance Purchase Agreement).

Subordinated Debt: Debt incurred by an Obligor that is expressly subordinate and junior in right of payment to Full Payment of all Obligations pursuant to a subordination agreement or provision reasonably satisfactory to Agent.

Subsidiary: any entity at least 50% of whose voting securities or Equity Interests is owned by an Obligor or combination of Obligors (including indirect ownership through other entities in which an Obligor directly or indirectly owns 50% of the voting securities or Equity Interests).

Successor Rate: an Alternative Currency Successor Rate or Term SOFR Successor Rate, as applicable.

Swap: as defined in Section 1a(47) of the Commodity Exchange Act.

Swap Obligations: obligations under an agreement relating to a Swap.

Swingline Loan: U.K. Swingline Loans and/or U.S. Swingline Loans, as the context requires.

Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

​

Term SOFR: for the applicable corresponding tenor (or if any Available Tenor of a Benchmark does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds equally to two Available Tenors of the applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body(a) for any Interest Period relating to a Term SOFR Loan, a per annum rate equal to the Term SOFR Screen Rate two U.S. Government

​

36

​

​

Securities Business Days prior to such Interest Period, with a term equivalent to such Interest Period (or if such rate is not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate on the U.S. Government Securities Business Day immediately preceding such date), plus the SOFR Adjustment for such Interest Period; and (b) for any interest calculation relating to a Base Rate Loan on any day, a fluctuating rate of interest equal to the Term SOFR Screen Rate with a term of one month commencing that day; provided, that in no event shall Term SOFR be less than zero.

Term SOFR Conforming Changes: with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Term SOFR Successor Rate, as applicable, any conforming changes to the definitions of U.S. Base Rate, U.K. Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Agent's discretion, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Agent determines is reasonably necessary in connection with the administration of any Loan Document).

Term SOFR Loan: a Loan that bears interest based on clause (a) of the definition of Term SOFR.

Term SOFR Scheduled Unavailability Date: as defined in Section 3.6.2.

Term SOFR Screen Rate: the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time).

Term SOFR Successor Rate: as defined in Section 3.6.2.

Transferee: any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations.

UCC: the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction.

U.K.: The United Kingdom of Great Britain and Northern Ireland.

U.K. Availability: the U.K. Borrowing Base minus U.K. Revolver Usage.

U.K. Availability Reserve: the sum (without duplication) of (a) the U.K. Rent and Charges Reserve; (b) the U.K. Bank Product Reserve; (c) the aggregate amount of liabilities secured by Liens upon Collateral (other than Vessels and related equipment) of U.K. Domiciled Obligors and

​

37

​

​

the aggregate amount of claims that are or may be senior to Agent’s Liens upon such Collateral, including Liens and claims arising under non-UCC law (but imposition of any such reserve shall not waive any Event of Default arising therefrom); (d) the U.K. Priority Payables Reserve; (e) subcontractor payables reserves; and (f) additional reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion may elect to impose from time to time.  Notwithstanding the foregoing, (i) the amount of any such reserve shall have a reasonable relationship to the event, condition or other matter that is the basis for such reserve, and (ii) no reserves shall be duplicative of items accounted for through the eligibility criteria.  Agent shall provide U.S. Borrower Agent with notice of Agent’s intent to establish new or increase existing U.K. Availability Reserves (which notice may be by telephone or email).  Agent shall be reasonably available during normal business hours to discuss the proposed new or increased U.K. Availability Reserves, and Borrowers may take such action as may be required by Agent so that the circumstance, condition, event or other contingency that is the basis for such new or increased U.K. Availability Reserves no longer exists in a manner and to the extent reasonably satisfactory to the Agent.  In no event shall such notice and opportunity limit the right of Agent to establish or increase U.K. Availability Reserves (unless Agent shall have determined that the circumstance, condition, event or other contingency that is the basis for such new or increased U.K. Availability Reserves no longer exists or has otherwise been adequately addressed by Borrowers), and such new or increased U.K. Availability Reserves shall not be effective until the third Business Day after the date notice of such proposed new U.K. Availability Reserve or increase was given by Agent to U.S. Borrower Agent.  During the period pending Agent’s implementation of any new or increased U.K. Availability Reserve, Agent may (but is not required to) limit Borrowings on a pro forma basis for such U.K. Availability Reserves.

U.K. Bank Product Reserve: the aggregate amount of reserves established by Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations for the account of the U.K. Domiciled Obligors.

U.K. Base Rate: (a) with respect to U.K. Loans denominated in Dollars, the LIBOR RateTerm SOFR for a 30 dayone month interest period as in effect on the first Business Day of the current calendar month, plus the SOFR Adjustment, and (b) with respect to U.K. Loans denominated in Sterling, the ▇▇▇▇▇ Daily Rate; provided, that in no event shall the U.K. Base Rate be less than zero.

U.K. Base Rate Loan: a U.K. Loan that bears interest based on the U.K. Base Rate.

U.K. Billed Accounts Formula Amount: (a) 90% of the Value of U.K. Eligible Accounts owing by Investment Grade Account Debtors, plus (b) 85% of the Value of U.K Eligible Accounts owing by other Account Debtors; provided, that such percentages shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%. The amounts included in the computation of the U.K Billed Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.

U.K. Bond and Floating Charge: the bond and floating charge governed by Scots law and executed by the U.K. Domiciled Obligors (and as the case may be any additional U.K. Domiciled Obligor incorporated in Scotland following the Closing Date) in favour of the Agent.

​

38

​

​

U.K. Borrower Agent: as defined in Section 4.4.

U.K. Borrowers: (a) the Initial U.K. Borrowers and (b) each other U.K. Subsidiary that after the Closing Date has executed a supplement or joinder to this Agreement in accordance with Section 10.1.9 and has satisfied the other requirements set forth in Section 10.1.9 in order to become a U.K. Borrower.

U.K. Borrower DTTP Filing: an HM Revenue & Customs Form DTTP2 duly completed and filed by the relevant U.K. Borrower, which:

(a)where it relates to a U.K. Treaty Lender that is a party to this Agreement as a Lender on the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1.1, and (i) where the U.K. Borrower is a party to this Agreement on the date of this Agreement, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or (ii) where the U.K. Borrower is not a party to this Agreement on the date of this Agreement, is filed with HM Revenue & Customs within 30 days of the date on which that U.K. Borrower becomes a party to this Agreement; or

(b)where it relates to a U.K. Treaty Lender that is not a party to this Agreement as a Lender on the date of this Agreement, 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 to this Agreement as a Lender, and (i) where the U.K. Borrower is a party to this Agreement as at the date on which that U.K. Treaty Lender becomes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or (ii) where the U.K. Borrower is not a party to this Agreement as at the date on which that U.K. Treaty Lender comes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that U.K. Borrower becomes a party to this Agreement.

U.K. Borrowing Base: on any date of determination and based on the most recent U.K. Borrowing Base Report (as it may be adjusted hereunder), an amount equal to the lesser of (a) the aggregate U.K. Commitments; or (b) the sum of (i) the U.K. Billed Accounts Formula Amount, plus (ii) the U.K. Unbilled Accounts Formula Amount, minus (iii) the U.K. Availability Reserve.

U.K. Commitment: for any U.K. Lender, its obligation to make U.K. Loans and to participate in U.K. LC Obligations up to the maximum principal amount shown on Schedule 1.1(a), as hereafter modified pursuant to Section 2.1.7 or an Assignment to which it is a party. “U.K. Commitments” means the aggregate amount of all U.K. Lenders’ U.K. Commitments. As of the ClosingFirst Amendment Effective Date, the aggregate amount of the U.K. Commitments is $35,000,000.

U.K. Commitment Termination Date: the earliest to occur of (a) the U.S. Commitment Termination Date; (b) the date on which U.K. Borrowers terminate the U.K. Commitments pursuant to Section 2.1.4; or (c) the date on which the U.K. Commitments are terminated pursuant to Section 11.2.

U.K. CTA: Corporation Tax ▇▇▇ ▇▇▇▇ (U.K.) as amended from time to time.

​

39

​

​

U.K. Debenture: the debenture governed by English law and executed by the U.K. Domiciled Obligors in favour of the Agent.

U.K. Domiciled Obligor: each U.K. Borrower and each U.K. Subsidiary now or hereafter party hereto as a Guarantor, and “U.K. Domiciled Obligors” means all such Persons, collectively.

U.K. Dominion Account: each account established by a U.K. Borrower at Bank of America (London) or another bank acceptable to Agent, over which Agent shall have exclusive control for withdrawal purposes.

U.K. Eligible Account: an Account owing to a U.K. Borrower from the rendition of services and that arises in the Ordinary Course of Business, is payable in Dollars, Sterling or Euros, has been invoiced and is deemed by Agent, in its Permitted Discretion, to be a U.K. Eligible Account. Without limiting the foregoing, no Account shall be a U.K. Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor are not U.K. Eligible Accounts under the foregoing clause; (c) when aggregated with other Eligible Accounts owing by the Account Debtor and its Affiliates to the Borrowers, it exceeds 20% of the Borrowers’ aggregate Eligible Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time, provided, that for BP Exploration Operating Company Limited and Royal Dutch Shell plc, such concentration limit shall instead be 40%), but ineligibility shall be limited to the amount of such excess; (d) it does not conform with a covenant or representation herein relating to Accounts; (e) it is owing by a creditor or supplier, or is otherwise subject to offset, counterclaim, dispute, deduction, discount (other than customary discounts for prompt payment in the Ordinary Course of Business), recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor from which the Account Debtor has not emerged (unless the payment of such Accounts from the Account Debtor is guaranteed in a manner and by a Person reasonably acceptable to Agent); or the Account Debtor has failed, has suspended (for more than 15 consecutive Business Days) or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is the target of any Sanction or on any specially designated nationals list maintained by OFAC; or the U.K. Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process; (g) the Account Debtor is not organized under or has its principal offices or assets outside an Eligible Account Debtor Jurisdiction applicable to such U.K. Borrower, unless the Account is supported by (i) a letter of credit, guaranty or other credit support reasonably acceptable to Agent or (ii) credit insurance reasonably satisfactory and assigned to Agent; (h) it is owing by a Governmental Authority; (i) it is not subject to a duly perfected, first priority Lien in favor of Agent or is subject to any other Lien (in each case other than Liens permitted under Section 10.2.2(c) and (d)); (j) the services giving rise to it have been rejected or otherwise disputed by the Account Debtor (but only to the extent of such rejection or dispute); (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended or the Account Debtor has made a partial payment; (m) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, ▇▇▇▇-and-hold, sale or return, sale on approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes; (n) it (i) represents a progress billing (it being understood and agreed that Dayrate Billings do not constitute progress ▇▇▇▇▇▇▇▇), except that this clause (i) shall not render task-based ▇▇▇▇▇▇▇▇ ineligible where the relevant task is

​

40

​

​

complete and the Account therefor is fully earned and entitled to be invoiced, (ii) constitutes retainage, except to the extent that the relevant project is complete and the retainage is final, due and owing with the conditions to its release, and acceptance of the work by the Account Debtor, fully satisfied, or (iii) relates to services for which a performance, surety or completion bond or similar assurance has been issued (whether or not constituting Permitted Debt), except that this clause (iii) shall not exclude Accounts from completed bonded projects where the services are complete and accepted by the Account Debtor and the bond therefor cannot be drawn; provided, that the aggregate amount of Accounts included as Eligible Accounts due to the exceptions in this clause (n) shall not exceed $5,000,000 at any time (on a combined basis with clause (n) of the definition of U.S. Eligible Account); (o) it is a credit card sale or an amount due from a credit card issuer or processor; (p) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; or (q) it arises from a contract served by a Vessel (or other equipment including remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers) that (i) has been arrested and not released, (ii) becomes the subject of a Lien that is not a Permitted Lien, (iii) is in a war zone requiring the suspension of Vessel (or other equipment) operations, (iv) fails to receive, renew or be granted the consent of a Governmental Authority necessary for its operation or (v) is otherwise incapable of generating Accounts and earnings, in each case to the extent that any of the foregoing could reasonably be expected to adversely affect the collectability of such Account in any material respect. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

U.K. Facility Collateral: Collateral that now or hereafter secures (or is intended to secure) any of the U.K. Facility Obligations, including Property of the Guarantors pledged to secure the U.K. Facility Obligations under their guarantee of the U.K. Facility Obligations.

U.K. Facility Obligations: all Obligations of the U.K. Domiciled Obligors (including, for the avoidance of doubt, all Obligations of the U.K. Domiciled Obligors as guarantors of the U.S. Facility Obligations).

U.K. Facility Secured Parties: Agent, any Issuing Bank of U.K. Letters of Credit, U.K. Lenders and Secured Bank Product Providers of Bank Products to U.K. Domiciled Obligors, together with the U.S. Facility Secured Parties.

U.K. Financial Institution: any BRRD Undertaking (as defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

U.K. ITA: the Income Tax ▇▇▇ ▇▇▇▇ (U.K.) as amended from time to time.

U.K. LC Conditions: the following conditions necessary for issuance of a U.K. Letter of Credit: (a) each of the conditions set forth in Section 6.2; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline and U.K. Revolver Usage does not exceed the U.K. Borrowing Base; (c) the U.K. Letter of Credit and payments thereunder are

​

41

​

​

denominated in Dollars or other currency satisfactory to Agent and Issuing Bank; and (d) the purpose and form of the proposed U.K. Letter of Credit are satisfactory to Agent and Issuing Bank in their discretion.

U.K. LC Documents: all documents, instruments and agreements (including requests and applications) delivered by any U.K. Borrower or any other Person to Issuing Bank or Agent in connection with any U.K. Letter of Credit.

U.K. LC Obligations: the sum of (a) all amounts owing by a U.K. Borrower for drawings under U.K. Letters of Credit; and (b) the Stated Amount of all outstanding U.K. Letters of Credit.

U.K. Lender: any Lender that has issued a U.K. Commitment.

U.K Letter of Credit: any standby or documentary letter of credit, foreign guaranty, documentary bankers acceptance, indemnity, reimbursement agreement or similar instrument issued by Issuing Bank for the account or benefit of a U.K. Domiciled Obligor, including the Existing Letters of Credit.

U.K. Loan: a Loan made by a U.K. Lender to U.K. Borrowers pursuant to Section 2.1, which Loan shall be (a) denominated in Dollars and shall be either a U.K. Base Rate Loan or a LIBORTerm SOFR Loan or (b) denominated in Sterling and shall be a U.K. Base Rate Loan, in each case as selected by the Borrower Agent, and including any U.K. Swingline Loan or U.K. Protective Advance.

U.K. Non-Bank Lender: a Lender which is not a party to this Agreement as a Lender on the date of this Agreement and which gives a U.K. Tax Confirmation in the documentation which it executes on becoming a party to this Agreement as a Lender.

U.K. Overadvance: as defined in Section 2.1.5(b).

U.K. Priority Payables Reserve: as of any date of determination, a reserve in such amount as the Agent may determine in its Permitted Discretion to reflect the full amount of any liabilities or amounts which (by virtue of any Liens or any statutory provision) rank or are capable of ranking in priority to the Agent’s Liens and/or for amounts which may represent costs relating to the enforcement of the Agent’s Liens including, without limitation, but only to the extent prescribed pursuant to law and statute then in force in the U.K., (a) amounts due to employees in respect of unpaid wages and holiday pay, (b) the amount of all scheduled but unpaid pension contributions, (c) the “prescribed part” of floating charge realisations held for unsecured creditors, (d) amounts for any creditor of any preferential debt arising at law including, amounts due to HM Revenue and Customs in respect of valued added tax (VAT), pay as you earn (PAYE) (including student loan repayments), employee national insurance contributions and construction industry scheme deductions, (e) amounts for the prior payment of certain winding up expenses, (f) amounts in relation to the rights of parties holding effectively executed diligence, (g) amounts for liabilities secured by Liens otherwise afforded priority (provided that the imposition of any such reserve shall not waive an Event of Default arising therefrom), and (h) the expenses and liabilities incurred by any administrator (or other insolvency officer) and any remuneration of such administrator (or other insolvency officer).

​

42

​

​

U.K. Protective Advances: as defined in Section 2.1.6.

U.K. Qualifying Lender: (a) a Lender that is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is (i) a Lender: (A) that is a bank (as defined for the purpose of section 879 of the U.K. ITA) making an advance under a Loan Document and is within the charge to U.K. 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 section 18A of the U.K. CTA; or (B) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the U.K. ITA) at the time such advance was made and within the charge to U.K. corporation tax as respects any payments of interest made in respect to such advance, (ii) a Lender which is (A) a company resident in the U.K. for U.K. tax purposes, (B) a partnership, each member of which is (x) a company so resident in the U.K.; or (y) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the U.K. CTA) the whole or any share of the interest payable in respect of that advance that falls to it by reason of Part 17 of the U.K. CTA; or (C) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing its chargeable profits (within the meaning of section 19 of the U.K. CTA) or (iii) a U.K. Treaty Lender; or (b) a Lender which is a building society (as defined for the purpose of section 880 of the U.K. ITA) making an advance under a Loan Document.

U.K. Rent and Charges Reserve: to the extent that original, non-duplicative books and records relating to the Collateral are located at the U.K. Borrowers’ headquarters, a reserve equal to three months’ rent and other charges that could reasonably be expected to be payable to the landlord of the U.K. Borrowers’ headquarters location, unless such Person has executed a Lien Waiver reasonably acceptable to Agent.

U.K. Reimbursement Date: as defined in Section 2.3.2.

U.K. Resolution Authority: the Bank of England or any other public administrative authority having responsibility for the resolution of any U.K. Financial Institution.

U.K. Revolver Usage: (a) the aggregate amount of outstanding U.K. Loans; plus (b) the aggregate Stated Amount of outstanding U.K. Letters of Credit (except, for purposes of determining U.K. Availability only, to the extent Cash Collateralized by the U.K. Borrowers pursuant to Section 2.3.3(a)).

U.K. Security Documents: the U.K. Debenture, the U.K. Bond and Floating Charge and any other document governed by English law or Scots law granting a Lien over any asset as security for the Obligations.

U.K. Subsidiary: any Subsidiary of Helix that is organized or incorporated under the laws of the United Kingdom or any legal jurisdiction thereof.

U.K. Swingline Loan: any Borrowing of U.K. Base Rate Loans funded with Agent’s funds, until such Borrowing is settled among U.K. Lenders or repaid by U.K. Borrowers.

​

43

​

​

U.K. Tax Confirmation: confirmation by a Lender that the person beneficially entitled to interest payable to such Lender in respect of an advance under a Loan Document is either (a) a company resident in the U.K. for U.K tax purposes, (b) a partnership, each member of which is (i) a company so resident in the U.K.; or (ii) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the U.K. CTA) the whole or any share of the interest payable in respect of that advance that falls to it by reason of Part 17 of the U.K. CTA or (c) a company not so resident in the U.K. that carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of such advance in computing the chargeable profits (within the meaning of section 19 of the U.K. CTA) of such company.

U.K. Tax Deduction: in relation to any U.K. Borrower, a deduction or withholding from a payment under any Loan Document for and on account of any Taxes, other than a FATCA Deduction.

U.K. Treaty Lender: a Lender which:

(a)is treated as a resident of a U.K. Treaty State for the purposes of the relevant U.K. Treaty;

(b)does not carry on a business in the U.K. through a permanent establishment with which that Lender’s participation in any advance is effectively connected; and

(c)fulfils any other conditions which must be fulfilled under the relevant U.K. Treaty by residents of that U.K. Treaty State (subject to the completion of any necessary procedural or filing requirements) for such residents to obtain full exemption from U.K. taxation on interest payable to that Lender in respect of an advance under a Loan Document.

U.K. Treaty State: a jurisdiction having a double taxation agreement (a U.K. Treaty) with the U.K. which makes provision for full exemption from tax imposed by the U.K. on interest.

U.K. Unbilled Accounts Formula Amount: 80% of the Value of U.K. Unbilled Eligible Accounts; provided, that (a) the aggregate amount of U.K. Unbilled Eligible Accounts and U.S. Unbilled Eligible Accounts included in the Global Borrowing Base shall not exceed $25,000,000 at any time and (b) such percentage shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%.  The amounts included in the computation of the U.K Unbilled Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.

U.K. Unbilled Eligible Accounts: any Account owing to a U.K. Borrower which would qualify as a “U.K Eligible Account” except that the invoice with respect thereto has not yet been submitted to the Account Debtor, so long as such Accounts have not been unbilled for more than 30 consecutive days following the creation of the unbilled Account; provided, that for Royal Dutch Shell plc, such time period shall instead be 45 consecutive days.

​

44

​

​

U.K. Unused Line Fee Rate: a per annum rate equal to (a) 0.50%, if average daily U.K. Revolver Usage was 50% or less of the U.K. Commitments during the preceding calendar month, or (b) 0.375%, if average daily U.K. Revolver Usage was more than 50% of the U.K. Commitments during such month.

Unfunded Pension Liability: the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to the Code, ERISA or the Pension Protection Act of 2006 for the applicable plan year.

Upstream Payment: a Distribution by a Subsidiary of an Obligor to such Obligor.

U.S.: the United States of America.

U.S. Availability: the U.S. Borrowing Base minus U.S. Revolver Usage.

U.S. Availability Reserve: the sum (without duplication) of (a) the U.S. Rent and Charges Reserve; (b) the U.S. Bank Product Reserve; (c) the aggregate amount of liabilities secured by Liens upon Collateral of U.S. Domiciled Obligors and the aggregate amount of claims that are or may be senior to Agent’s Liens upon such Collateral, including Liens and claims arising under non-UCC law (but imposition of any such reserve shall not waive any Event of Default arising therefrom); (d) reserves for sales taxes; (e) subcontractor payables reserves; and (f) additional reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion may elect to impose from time to time.  Notwithstanding the foregoing, (i) the amount of any such reserve shall have a reasonable relationship to the event, condition or other matter that is the basis for such reserve, and (ii) no reserves shall be duplicative of items accounted for through the eligibility criteria.  Agent shall provide U.S. Borrower Agent with notice of Agent’s intent to establish new or increase existing U.S. Availability Reserves (which notice may be by telephone or email).  Agent shall be reasonably available during normal business hours to discuss the proposed new or increased U.S. Availability Reserves, and Borrowers may take such action as may be required by Agent so that the circumstance, condition, event or other contingency that is the basis for such new or increased U.S. Availability Reserves no longer exists in a manner and to the extent reasonably satisfactory to the Agent.  In no event shall such notice and opportunity limit the right of Agent to establish or increase U.S. Availability Reserves (unless Agent shall have determined that the circumstance, condition, event or other contingency that is the basis for such new or increased U.S. Availability Reserves no longer exists or has otherwise been adequately addressed by Borrowers), and such new or increased U.S. Availability Reserves shall not be effective until the third Business Day after the date notice of such proposed new U.S. Availability Reserve or increase was given by Agent to U.S. Borrower Agent.  During the period pending Agent’s implementation of any new or increased U.S. Availability Reserve, Agent may (but is not required to) limit Borrowings on a pro forma basis for such U.S. Availability Reserves.

U.S. Bank Product Reserve: the aggregate amount of reserves established by Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations for the account of the U.S. Domiciled Obligors.

​

45

​

​

U.S. Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) the LIBOR RateTerm SOFR for a one month interest period as of such day, plus 1.0%; provided, that in no event shall the U.S. Base Rate be less than zero.

U.S. Base Rate Loan: a U.S. Loan that bears interest based on the U.S. Base Rate.

U.S. Billed Accounts Formula Amount: (a) 90% of the Value of U.S. Eligible Accounts owing by Investment Grade Account Debtors, plus (b) 85% of the Value of U.S. Eligible Accounts owing by other Account Debtors; provided, that such percentages shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%.  The amounts included in the computation of the U.S. Billed Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.

U.S. Borrower Agent: as defined in Section 4.4.

U.S. Borrowers: (a) the Initial U.S. Borrowers and (b) each other Domestic Subsidiary that after the Closing Date has executed a supplement or joinder to this Agreement in accordance with Section 10.1.9 and has satisfied the other requirements set forth in Section 10.1.9 in order to become a U.S. Borrower.

U.S. Borrowing Base: on any date of determination and based on the most recent U.S. Borrowing Base Report (as it may be adjusted hereunder), an amount equal to the lesser of (a) the aggregate U.S. Commitments; or (b) the sum of (i) the U.S. Billed Accounts Formula Amount, plus (ii) the U.S. Unbilled Accounts Formula Amount, plus (iii) the U.S. Cash Amount, minus (iv) the U.S. Availability Reserve.

U.S. Cash Amount: 100% of U.S. Eligible Pledged Cash not to exceed $20,000,000.

U.S. Cash Collateral Account: a demand deposit, money market or other account of a U.S. Borrower established by Agent at Bank of America or such other financial institution as Agent may select in its Permitted Discretion, which account shall be subject to a Lien in favor of Agent and exclusive control securing the U.S. Facility Obligations.

U.S. Commitment: for any U.S. Lender, its obligation to make U.S. Loans and to participate in U.S. LC Obligations up to the maximum principal amount shown on Schedule 1.1(a), as hereafter modified pursuant to Section 2.1.7 or an Assignment to which it is a party. “U.S. Commitments” means the aggregate amount of all U.S. Lenders’ U.S. Commitments. As of the ClosingFirst Amendment Effective Date, the aggregate amount of the U.S. Commitments is $45,000,00065,000,000.

U.S. Commitment Termination Date: the earliest to occur of (a) the Maturity Date; (b) the date on which U.S. Borrowers terminate the U.S. Commitments pursuant to Section 2.1.4; or (c) the date on which the U.S. Commitments are terminated pursuant to Section 11.2.

​

46

​

​

U.S. Domiciled Obligor: each U.S. Borrower and each Domestic Subsidiary now or hereafter party hereto as a Guarantor, and “U.S. Domiciled Obligors” means all such Persons, collectively.

U.S. Dominion Account: each account established by any of the U.S. Borrowers at Bank of America or another bank acceptable to Agent, over which Agent shall have exclusive control for withdrawal purposes.

U.S. Eligible Account: an Account owing to a U.S. Borrower from the rendition of services that arises in the Ordinary Course of Business, is payable in Dollars or Canadian Dollars, has been invoiced and is deemed by Agent, in its Permitted Discretion, to be a U.S. Eligible Account. Without limiting the foregoing, no Account shall be a U.S. Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor are not U.S. Eligible Accounts under the foregoing clause; (c) when aggregated with other Eligible Accounts owing by the Account Debtor and its Affiliates to the Borrowers, it exceeds 20% of the Borrowers’ aggregate Eligible Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time, provided, that for BP Exploration Operating Company Limited and Royal Dutch Shell plc, such concentration limit shall instead be 40%), but ineligibility shall be limited to the amount of such excess; (d) it does not conform with a covenant or representation herein relating to Accounts; (e) it is owing by a creditor or supplier, or is otherwise subject to offset, counterclaim, dispute, deduction, discount (other than customary discounts for prompt payment in the Ordinary Course of Business), recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor from which the Account Debtor has not emerged (unless the payment of such Accounts from the Account Debtor is guaranteed in a manner and by a Person reasonably acceptable to Agent); or the Account Debtor has failed, has suspended (for more than 15 consecutive Business Days) or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is the target of any Sanction or on any specially designated nationals list maintained by OFAC; or the U.S. Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process (provided, however that Accounts from customers in bankruptcy where Agent, after being notified thereof, shall have determined in its Permitted Discretion that the timely payment and collection of such Account will not be impaired, shall not be excluded solely by reason of this clause (f)); (g) the Account Debtor is not organized under or has its principal offices or assets outside an Eligible Account Debtor Jurisdiction applicable to such U.S. Borrower, unless the Account is supported by (i) a letter of credit, guaranty or other credit support reasonably acceptable to Agent or (ii) credit insurance reasonably satisfactory and assigned to Agent, provided, that Agent may, in its Permitted Discretion, permit U.S. Borrowers to include up to $5,000,000 in otherwise Eligible Accounts owing by Investment Grade Account Debtors as eligible hereunder notwithstanding that such Account Debtors do not satisfy this clause (g); (h) it is owing by a Governmental Authority, unless the Account Debtor is the United States or any State thereof or any department, agency or instrumentality thereof and the Account has been assigned to Agent in compliance with the federal Assignment of Claims Act or relevant state procedure respecting perfection in government accounts (or if no relevant state procedure exists Agent otherwise has a perfected security interest in such Account); (i) it is not subject to a duly perfected, first priority Lien in favor of Agent or is subject to any other Lien (in each case other than Liens permitted under Section 10.2.2(c) and (d));

​

47

​

​

(j) the services giving rise to it have been rejected or otherwise disputed by the Account Debtor (but only to the extent of such rejection or dispute); (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended or the Account Debtor has made a partial payment; (m) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, ▇▇▇▇-and-hold, sale or return, sale on approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes; (n) it (i) represents a progress billing (it being understood and agreed that Dayrate Billings do not constitute progress ▇▇▇▇▇▇▇▇), except that this clause (i) shall not render task-based ▇▇▇▇▇▇▇▇ ineligible where the relevant task is complete and the Account therefor is fully earned and entitled to be invoiced, (ii) constitutes retainage, except to the extent that the relevant project is complete and the retainage is final, due and owing with the conditions to its release, and acceptance of the work by the Account Debtor, fully satisfied, or (iii) relates to services for which a performance, surety or completion bond or similar assurance has been issued (whether or not constituting Permitted Debt), except that this clause (iii) shall not exclude Accounts from completed bonded projects where the services are complete and accepted by the Account Debtor and the bond therefor cannot be drawn; provided, that the aggregate amount of Accounts included as Eligible Accounts due to the exceptions in this clause (n) shall not exceed $5,000,000 at any time (on a combined basis with clause (n) of the definition of U.K. Eligible Account); (o) it is a credit card sale or an amount due from a credit card issuer or processor; (p) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; or (q) it arises from a contract served by a Vessel (or other equipment including remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers) that (i) has been arrested and not released, (ii) becomes the subject of a Lien that is not a Permitted Lien, (iii) is in a war zone requiring the suspension of Vessel (or other equipment) operations, (iv) fails to receive, renew or be granted the consent of a Governmental Authority necessary for its operation or (v) is otherwise incapable of generating Accounts and earnings, in each case to the extent that any of the foregoing could reasonably be expected to adversely affect the collectability of such Account in any material respect. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

U.S. Eligible Pledged Cash: on any date of determination, the aggregate amount of cash of U.S. Borrowers as of such date that is on deposit in a U.S. Eligible Pledged Cash Account and subject to a duly perfected first priority Lien in favor of Agent.

U.S. Eligible Pledged Cash Account: a special purpose Deposit Account established by U.S. Borrowers at Bank of America and designated by U.S. Borrowers and Agent as an “U.S. Eligible Pledged Cash Account” and over which Agent has, in accordance with Section 8.3.2, exclusive control for withdrawal purposes.

U.S. Facility Collateral: Collateral that now or hereafter secures (or is intended to secure) any of the U.S. Facility Obligations, including Property of the Guarantors pledged to secure the U.S. Facility Obligations under their guarantee of the U.S. Facility Obligations.

U.S. Facility Obligations: all Obligations of the U.S. Domiciled Obligors (including, for the avoidance of doubt, the Obligations of the U.S. Domiciled Obligors as guarantors of the U.K. Facility Obligations).

​

48

​

​

U.S. Facility Secured Parties: Agent, any Issuing Bank of U.S. Letters of Credit, U.S. Lenders and Secured Bank Product Providers of Bank Products to U.S. Domiciled Obligors, including U.K. Facility Secured Parties.

U.S. Government Securities Business Day: any Business Day, except any day on which the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY is not open for business because the day is a legal holiday under New York law or U.S. federal law.

U.S. LC Conditions: the following conditions necessary for issuance of a U.S. Letter of Credit: (a) each of the conditions set forth in Section 6.2; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline and U.S. Revolver Usage does not exceed the U.S. Borrowing Base; (c) the U.S. Letter of Credit and payments thereunder are denominated in Dollars or other currency satisfactory to Agent and Issuing Bank; and (d) the purpose and form of the proposed U.S. Letter of Credit are satisfactory to Agent and Issuing Bank in their discretion.

U.S. LC Documents: all documents, instruments and agreements (including requests and applications) delivered by any U.S. Borrower or any other Person to Issuing Bank or Agent in connection with any U.S. Letter of Credit.

U.S. LC Obligations: the sum of (a) all amounts owing by a U.S. Borrower for drawings under U.S. Letters of Credit; and (b) the Stated Amount of all outstanding U.S. Letters of Credit.

U.S. Lender: any Lender that has issued a U.S. Commitment.

U.S. Letter of Credit: any standby or documentary letter of credit issued by an Issuing Bank for the account of a U.S. Domiciled Obligor.

U.S. Loan: a Loan made by a U.S. Lender to a U.S. Borrower pursuant to Section 2.1, which Loan shall be denominated in Dollars and shall be either a U.S. Base Rate Loan or a LIBORTerm SOFR Loan, in each case as selected by the Borrower Agent, and including any U.S. Swingline Loan or U.S. Protective Advance.

U.S. Overadvance: as defined in Section 2.1.5(a).

U.S. Person: “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Protective Advances: as defined in Section 2.1.6.

U.S. Rent and Charges Reserve: a reserve equal to three months’ rent and other charges that could reasonably be expected to be payable to the landlord of the U.S. Borrowers’ headquarters location, unless such Person has executed a Lien Waiver reasonably acceptable to Agent.

U.S. Reimbursement Date: as defined in Section 2.2.2.

​

49

​

​

U.S. Revolver Usage: (a) the aggregate amount of outstanding U.S. Loans; plus (b) the aggregate Stated Amount of outstanding U.S. Letters of Credit (except, for purposes of determining U.S. Availability only, to the extent Cash Collateralized by the U.S. Borrowers pursuant to Section 2.2.3(a)).

U.S. Swingline Loan: any Borrowing of U.S. Base Rate Loans funded with Agent’s funds, until such Borrowing is settled among U.S. Lenders or repaid by U.S. Borrowers.

U.S. Tax Compliance Certificate: as defined in Section 5.9.2(b)(iii).

U.S. Unbilled Accounts Formula Amount: 80% of the Value of U.S. Unbilled Eligible Accounts; provided, that (a) the aggregate amount of U.K. Unbilled Eligible Accounts and U.S. Unbilled Eligible Accounts included in the Global Borrowing Base shall not exceed $25,000,000 at any time and (b) such percentage shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%.  The amounts included in the computation of the U.S. Unbilled Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.

U.S. Unbilled Eligible Accounts: any Account owing to a U.S. Borrower which would qualify as a “U.S. Eligible Account” except that the invoice with respect thereto has not yet been submitted to the Account Debtor, so long as such Accounts have not been unbilled for more than 30 consecutive days following the creation of the unbilled Account; provided, that for Royal Dutch Shell plc, such time period shall instead be 45 consecutive days.

U.S. Unused Line Fee Rate: a per annum rate equal to (a) 0.50%, if average daily U.S. Revolver Usage was 50% or less of the U.S. Commitments during the preceding calendar month, or (b) 0.375%, if average daily U.S. Revolver Usage was more than 50% of the U.S. Commitments during such month.

Value: for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person.

VAT:

(a)any value added tax imposed by the Value Added Tax ▇▇▇ ▇▇▇▇ (U.K.);

(b)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

(c)any other Tax of a similar nature, whether imposed in the U.K. or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.

Vessel: the whole of any floating structure, watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, owned, chartered (whether by time, demise or bareboat charter) or acquired by Helix or its Subsidiaries.

​

50

​

​

Write-Down and Conversion Powers: (a) the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule; or (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any U.K. Financial Institution 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.

1.2Accounting Terms

. Under the Loan Documents (except as otherwise specified therein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP (or, as the context may indicate, IFRS) applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date, except for any change required or permitted by GAAP (or, as the context may indicate, IFRS) after the Closing Date if Borrowers’ certified public accountants concur in such change and the change is disclosed to Agent and, if reasonably requested by Agent or the Required Lenders, the relevant provisions of the Loan Documents are amended in a manner reasonably satisfactory Agent and the Required Lenders to take into account the effects of the change. Notwithstanding the foregoing, if at any time any change occurs after the Closing Date in GAAP (or, as the context may indicate, IFRS) or in the application thereof on the computation of any financial ratio or financial requirement, or compliance with any covenant, set forth in any Loan Document, and Borrowers or Agent (or Required Lenders) shall so request (regardless of whether any such request is given before or after such change), Agent, the Lenders and Borrowers will negotiate in good faith to amend (subject to the approval of the Required Lenders) such ratio, requirement or covenant to preserve the original intent thereof in light of such change in GAAP (or, as the context may indicate, IFRS); provided, that until so amended, (a) such ratio, requirement or covenant shall continue to be computed in accordance with GAAP prior to such change therein and (b) if requested by Agent or any Lender, Borrowers shall provide to Agent or such Lender financial statements and other documents required under this Agreement which include a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Notwithstanding any other provision contained herein the amount of any Debt under GAAP with respect to Capital Lease shall be determined in accordance with the definition of Capital Lease.  In addition, all accounting terms shall be interpreted, all accounting determinations shall be made and all financial statements shall be prepared without giving effect to any election under FASB Accounting Standards Codification Topic 825, Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Debt at “fair value”, as defined therein.

1.3Uniform Commercial Code

. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York: “Account Debtor,” “Chattel Paper,” “Commercial Tort Claim,” “Commodity

​

51

​

​

Account”, “Document,” “Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right” and “Supporting Obligation.”

1.4Certain Matters of Construction

. The rules of construction and interpretation included in this Section apply to all Loan Documents save that clauses (i) through (p) (both inclusive) are applicable to each Loan Document where it relates to a Person incorporated or formed or having its Centre of Main Interests in Scotland or otherwise relates to assets, rights or interests located in Scotland or otherwise governed by Scots law. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” mean “including, without limitation”, “or” includes “any/or”, and the rule of ejusdem generis does not apply. Section titles appear as a matter of convenience only and will not affect the interpretation of a Loan Document. Reference to any (a) law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) document, instrument or agreement includes any amendment, extension, supplement, waiver, replacement and other modification thereto (to the extent permitted by the Loan Documents and except as otherwise specified herein); (c) section means, unless the context otherwise requires, a section of the applicable document; (d) exhibit or schedule means, unless the context otherwise requires, an exhibit or schedule to the applicable document, which is thereby incorporated by reference; (e) Person includes its permitted successors and assigns; (f) time of day means the time at Agent’s notice address under Section 14.3.1; (g) except as otherwise qualified, discretion of Agent, Issuing Bank or any Lender means the sole and absolute discretion of such Person exercised at any time; (h) except as otherwise set forth herein, in the determination of any date required for performance of deliveries, if such date is calculated to be a date other than a Business Day, such delivery or performance shall be due on the next succeeding Business Day; (i) a reference to a receiver, administrative receiver, administrator or other similar person includes, without limitation, a Scottish receiver with the powers conferred under Schedule 2 to the Insolvency Ac▇ ▇▇▇▇, a judicial factor or any person performing the same function of each of the foregoing; (j) reference to forfeiture shall include without limitation, irritancy; (k) reference to assigns and assignments include without limitation, assignees and assignations respectively; (l) reference to judgment and distress include, without limitation, decree and diligence respectively; (m) reference to premium shall include, without limitation, a premium, grassum or other financial incentive; (n) a reference to surety shall include, without limitation, guarantor; (o) reference to disposal shall include a sale, disposition, conveyance, transfer, assignation, grant, lease, declaration of trust, or other disposal; and (p) a reference to set off includes rights of retention, claims of compensation and right to balance accounts on insolvency. Any determination (including calculation of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to Agent (and not necessarily calculated in accordance with GAAP). Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by any Indemnitee under a Loan Document. No provision of a Loan Document shall be construed against a party by reason of it having, or being deemed to have, drafted the provision. Reference to an Obligor’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or

​

52

​

​

knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter.  With respect to the delivery of any projection or other forecasts, Agent, Issuing Bank and Lenders hereby acknowledge that (i) such information is forward looking and uncertain in nature, (ii) no assurances or representations or warranties may be made or given that such projections or forecasts will be achieved, and (iii) actual results might vary and any such variance might be material.

1.5Division

. Any reference herein to a merger, transfer, consolidation, amalgamation, assignation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company or limited partnership, or an allocation of assets to a series of any such entity (or the unwinding of such a division or allocation) as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer or similar term, as applicable, to, of or with a separate Person. Any division of Person shall constitute a separate Person hereunder.

1.6Currency Calculations

. All references in the Loan Documents to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts shall be denominated in Dollars, unless expressly provided otherwise. The Dollar Equivalent of any amounts denominated or reported under a Loan Document in a currency other than Dollars shall be determined by the Agent on a daily basis based on the current Spot Rate. Each Borrower shall report Value and other Borrowing Base components to the Agent in the currency invoiced by such Borrower or shown in such Borrower’s financial records, and unless expressly provided otherwise, Helix shall deliver consolidated financial statements and calculate financial covenants in Dollars. Notwithstanding anything herein to the contrary, if any Obligation is funded and expressly denominated in a currency other than Dollars, Borrowers shall repay such Obligation in such other currency.

1.7Judgments

. If, for purposes of obtaining judgment in any court, it is necessary to convert a sum from the currency provided under a Loan Document (“Agreement Currency”) into another currency, the Spot Rate shall be used as the rate of exchange. Notwithstanding any judgment in a currency (“Judgment Currency”) other than the Agreement Currency, a Borrower shall discharge its obligation in respect of any sum due under a Loan Document only if, on the Business Day following receipt by Agent of payment in the Judgment Currency, Agent can use the amount paid to purchase the sum originally due in the Agreement Currency. If the purchased amount is less than the sum originally due, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify Agent and Lenders against such loss. If the purchased amount is greater than the sum originally due, Agent shall return the excess amount to such Borrower (or to the Person legally entitled thereto).

1.8Luxembourg Terms

​

53

​

​

. Without prejudice to the generality of any provision of this Agreement and in each Loan Document, where it relates to a company incorporated under the laws of Luxembourg, a reference to:

1.8.1a winding-up, administration, liquidation, insolvency, dissolution, reorganisation, composition, compromise, assignment or arrangement includes, without limitation, bankruptcy (faillite), insolvency, voluntary or judicial liquidation (dissolution ou liquidation volontaire), court ordered liquidation (liquidation judiciaire) voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), moratorium or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;

1.8.2an agent includes, without limitation, a mandataire;

1.8.3constitutional documents includes the up-to-date articles of association (statuts) or the articles of incorporation of that person, as appropriate;

1.8.4a liquidator, trustee in bankruptcy, receiver, administrator or similar officer includes, without any limitation, any:

(a)juge-commissaire and/or insolvency receiver (curateur) appointed under the Luxembourg act of 10 August 1915 on commercial companies as amended;

(b)liquidateur appointed under Articles 110-1 to 110-15 (inclusive) of the Luxembourg act of 10 August 1915 on commercial companies, as amended;

(c)juge-commissaire and/or liquidateur appointed under Article 1200-1 of the Luxembourg act of 10 August 1915 on commercial companies, as amended;

(d)commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive of the Luxembourg Commercial Code);

(e)juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended;

1.8.5a security interest includes any hypothèque, nantissement, gage, privilège, sûreté réelle, droit de rétention and any type of security in rem or real security (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title by way of security;

1.8.6a guarantee includes any guarantee which is independent from the debt to which it relates or any suretyship (cautionnement) within the meaning of Articles 2011 and seq. of the Luxembourg Civil Code;

1.8.7attachment means an executory attachment (saisie exécutoire) or conservatory attachment (saisie conservatoire);

​

54

​

​

1.8.8a person being unable to pay its debts includes that person having ceased payments (cessation de paiements); and

1.8.9a director or a manager includes an administrateur and a gérant.

Section ▇.▇▇▇▇▇▇ FACILITIES.

2.1Loan Commitments

2.1.1Commitments.

(a)Each U.S. Lender agrees, severally on a Pro Rata basis up to its U.S. Commitment, on the terms set forth herein (including Section 6), to make U.S. Loans to U.S. Borrowers in Dollars from time to time through the U.S. Commitment Termination Date. The U.S. Loans may be repaid and reborrowed as provided herein. In no event shall U.S. Lenders have any obligation to honor a request for a U.S. Loan if, after giving effect to such U.S. Loan, U.S. Revolver Usage at such time would exceed the U.S. Borrowing Base then in effect.

(b)Each U.K. Lender agrees, severally on a Pro Rata basis up to its U.K. Commitment, on the terms set forth herein (including Section 6), to make U.K. Loans to U.K. Borrowers in Dollars and Sterling from time to time through the U.K. Commitment Termination Date. The U.K. Loans may be repaid and reborrowed as provided herein. In no event shall U.K. Lenders have any obligation to honor a request for a U.K. Loan if, after giving effect to such U.K. Loan, U.K. Revolver Usage at such time would exceed the U.K. Borrowing Base then in effect.

2.1.2Notes. Loans and interest accruing thereon shall be evidenced by the records of Agent and the applicable Lender. At the request of a Lender, Borrowers shall deliver promissory note(s) to such Lender, evidencing its Loans.

2.1.3Use of Proceeds. The proceeds of Loans shall be used by Borrowers solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility; (c) to pay Obligations in accordance with this Agreement; and (d) for any lawful corporate purposes of Borrowers, including working capital. Borrowers shall not, directly or indirectly, use any Letter of Credit or Loan proceeds, nor use, lend, contribute or otherwise make available any Letter of Credit or Loan proceeds to any Subsidiary, joint venture partner or other Person, (i) to fund any activities of or business with any Person, or in any Designated Jurisdiction, that is the subject of any Sanction in violation of applicable Sanctions; (ii) in any manner that would result in a violation of a Sanction, Anti-Corruption Law or other Applicable Law by any party to this Agreement (including any Secured Party or other individual or entity participating in the Loan Documents); or (iii) to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Federal Reserve Board of Governors.

2.1.4Voluntary Reduction or Termination.

(a)The U.S. Commitments shall terminate on the U.S. Commitment Termination Date and the U.K. Commitments shall terminate on the U.K. Commitment Termination Date, in each case unless sooner terminated in accordance with this Agreement. Upon

​

55

​

​

at least 10 days prior written notice to Agent at any time, (i) the U.S. Borrowers may, at their option, terminate the U.S. Commitments and (ii) the U.K. Borrowers may, at their option, terminate the U.K. Commitments; provided, that the U.K. Commitments may not exceed the U.S. Commitments. If the U.S. Borrowers elect to reduce to zero or terminate the U.S. Commitments pursuant to this Section, the U.K. Commitments shall automatically terminate concurrently with the termination of the U.S. Commitments. Any notice of termination given by Borrowers shall be irrevocable, provided that a notice of termination in full of the U.S. Commitments or the U.K. Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by notice to Agent prior to the specified effective date if such condition is not satisfied. On the U.S. Commitment Termination Date, the U.S. Domiciled Obligors shall make Full Payment of all U.S. Facility Obligations. On the U.K. Commitment Termination Date, the U.K. Domiciled Obligors shall make Full Payment of all U.K. Facility Obligations.

(b)U.S. Borrowers may permanently reduce the U.S. Commitments in part, on a Pro Rata basis for each U.S. Lender, and the U.K. Borrowers may permanently reduce the U.K. Commitments in part, on a Pro Rata basis for each U.K. Lender, in each case, upon at least 10 days prior written notice to Agent, which notice shall specify the amount of the reduction and shall be irrevocable once given; provided, that the U.K. Commitments may not exceed the U.S. Commitments. Each such partial reduction shall be in a minimum amount of $5,000,000, or an increment of $1,000,000 in excess thereof.

2.1.5Overadvances. If (a) the U.S. Revolver Usage exceeds the U.S. Borrowing Base (a “U.S. Overadvance”) or (b) the U.K. Revolver Usage exceeds the U.K. Borrowing Base (a “U.K. Overadvance”) at any time, such Overadvance shall be payable by the U.S. Borrowers or the U.K. Borrowers, as applicable, within one Business Day after any Borrower having knowledge of the existence thereof and, if not so repaid, shall constitute an Event of Default. All U.S. Overadvances shall nevertheless constitute U.S. Facility Obligations secured by the U.S. Facility Collateral and be entitled to all benefits of the Loan Documents. All U.K. Overadvances shall nevertheless constitute U.K. Facility Obligations secured by the U.K. Facility Collateral and shall be entitled to all benefits of the Loan Documents. Agent may require Lenders to fund Base Rate Loans that cause or constitute an Overadvance and to forbear from requiring Borrowers to cure an Overadvance, as long as the total Overadvance does not exceed $8,000,000 and does not continue for more than 30 consecutive days without the consent of Required Lenders. In no event shall Loans be required that would cause (1) the U.S. Revolver Usage to exceed the aggregate U.S. Commitments or (2) the U.K. Revolver Usage to exceed the aggregate U.K. Commitments. No funding or sufferance of an Overadvance shall constitute a waiver by Agent or Lenders of the Event of Default caused thereby. No Obligor shall be a beneficiary of this Section nor authorized to enforce any of its terms.

2.1.6Protective Advances. Agent shall be authorized, in its discretion, at any time that any conditions in Section 6 that have not been waived are not satisfied, to make U.S. Base Rate Loans to the U.S. Borrowers on behalf of the U.S. Lenders (“U.S. Protective Advances”) and U.K. Base Rate Loans to the U.K. Borrowers on behalf of the U.K. Lenders (“U.K. Protective Advances”) (a) up to an aggregate amount of $8,000,000 outstanding at any time, if Agent deems such Loans necessary or desirable to preserve or protect Collateral (other than Vessels), or to enhance the collectability or repayment of Obligations, as long as no U.S. Protective Advance shall

​

56

​

​

cause the U.S. Revolver Usage to exceed the U.S. Commitments, and no U.K. Protective Advance shall cause the U.K. Revolver Usage to exceed the U.K. Commitments; or (b) to pay any other amounts chargeable to Obligors under any Loan Documents, including interest, costs, fees and expenses. Each U.S. Lender shall participate in each U.S. Protective Advance on a Pro Rata basis, and each U.K. Lender shall participate in U.K. Protective Advances on a Pro Rata basis. Required Lenders may at any time revoke Agent’s authority to make further Protective Advances under clause (a) by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive. No funding of a Protective Advance shall constitute a waiver by Agent or Lenders of any Event of Default relating thereto. No Obligor shall be a beneficiary of this Section nor authorized to enforce any of its terms.

2.1.7Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than 30 days’ notice to Agent (or such shorter period as Agent may agree), as long as (a) the requested increase is in a minimum amount of $5,000,000 and is offered on the same terms as existing U.S. Commitments or U.K. Commitments, as applicable, except for a closing fee specified by Borrowers, (b) increases under this Section do not exceed $70,000,00050,000,000 in the aggregate and no more than three increases are made, (c) after giving effect to such increase, total U.K. Commitments do not exceed the U.S. Commitments, and (d) the requested increase does not cause the Commitments to exceed any applicable cap under any intercreditor agreement or the documentation for Permitted Debt. Agent shall promptly notify Lenders of the requested increase and, within 10 Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Commitment. No Lender is obligated to provide any increase, and any Lender not responding within such period shall be deemed to have declined an increase. If Lenders fail to commit to the full requested increase, Eligible Assignees may issue additional Commitments and become Lenders hereunder. Agent may allocate, in its discretion, the increased Commitments among committing Lenders (but not in an amount less than the pro rata share of any Lender requesting at least its pro rata share of any additional Commitments) and, if necessary, Eligible Assignees. Total Commitments shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Obligors, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Commitments and Obligors shall pay any fees and expenses incurred in connection therewith. On the effective date of an increase, the applicable Revolver Usage and other exposures under the applicable Commitments shall be reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’ adjusted shares of such Commitments.

2.2U.S. Letter of Credit Facility.

2.2.1Issuance of U.S. Letters of Credit. Issuing Bank shall issue U.S. Letters of Credit from time to time until 20 Business Days prior to the U.S. Commitment Termination Date, on the terms set forth herein, including the following:

(a)Each U.S. Borrower acknowledges that Issuing Bank’s issuance of any U.S. Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested U.S. Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. Issuing Bank

​

57

​

​

shall have no obligation to issue any U.S. Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; (ii) each U.S. LC Condition is satisfied; and (iii) if a Defaulting Lender exists and is a U.S. Lender, such U.S. Lender or U.S. Borrowers have entered into arrangements reasonably satisfactory to Agent and Issuing Bank to eliminate any Fronting Exposure associated with such U.S. Lender. If, in sufficient time to act, Issuing Bank receives written notice from Agent or Required Lenders that a U.S. LC Condition has not been satisfied, Issuing Bank shall not issue the requested U.S. Letter of Credit. Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of U.S. LC Conditions. U.S. Letters of Credit may not extend beyond the scheduled U.S. Commitment Termination Date unless Cash Collateralized to the reasonable satisfaction of Agent and the applicable Issuing Bank, and Issuing Bank shall be entitled to issue notices of non-renewal to the beneficiaries thereof with respect to any U.S. Letter of Credit with automatic renewal provisions.

(b)U.S. Letters of Credit may be requested by a U.S. Borrower to support obligations incurred in the Ordinary Course of Business of U.S. Domiciled Obilgors, or as otherwise approved by Agent and the applicable Issuing Bank. Increase, renewal or extension of a U.S. Letter of Credit shall be treated as issuance of a new U.S. Letter of Credit, but Issuing Bank may require a new LC Application in its discretion.

(c)U.S. Borrowers assume all risks of beneficiaries’ acts, omissions or misuses of U.S. Letters of Credit. None of Agent, Issuing Bank or U.S. Lenders shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial, incomplete or failed shipment of any goods referred to in a Letter of Credit or Documents; deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; breach of contract between a shipper or vendor and an Obligor; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in translation or interpretation of technical terms; misapplication by a beneficiary of a U.S. Letter of Credit or proceeds thereof; or consequences arising from causes beyond the control of Issuing Bank, Agent or any U.S. Lender, including any act or omission of a Governmental Authority. Obligors shall take all action (including enforcement of available rights against a beneficiary) to avoid and mitigate damages relating to U.S. Letters of Credit or claimed against Issuing Bank, Agent or any Lender. Issuing Bank shall be fully subrogated to all rights and remedies of a beneficiary whose claims are discharged through a U.S. Letter of Credit.

(d)In connection with its administration of and enforcement of rights or remedies under any U.S. Letters of Credit or U.S. LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or other Communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Issuing Bank may use legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act (and shall be fully protected in any action taken in good faith reliance)

​

58

​

​

upon any advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to U.S. Letters of Credit or U.S. LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

2.2.2Reimbursement; Participations.

(a)If Issuing Bank honors any request for payment under a U.S. Letter of Credit, U.S. Borrowers shall pay to Issuing Bank, on the same day (“U.S. Reimbursement Date”), the amount paid by Issuing Bank under such U.S. Letter of Credit, together with interest at the interest rate for U.S. Base Rate Loans from the U.S. Reimbursement Date until payment by U.S. Borrowers. The obligation of U.S. Borrowers to reimburse Issuing Bank for any payment made under a U.S. Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any U.S. Letter of Credit or the existence of any claim, setoff, defense or other right that U.S. Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, U.S. Borrowers shall be deemed to have requested a Borrowing of U.S. Base Rate Loans in an amount necessary to pay all amounts due Issuing Bank on any U.S. Reimbursement Date and each U.S. Lender shall fund its Pro Rata share of such Borrowing whether or not the U.S. Commitments have terminated, a U.S. Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied.

(b)Each U.S. Lender hereby irrevocably and unconditionally purchases from Issuing Bank, without recourse or warranty, an undivided Pro Rata participation in all U.S. LC Obligations outstanding from time to time. Issuing Bank is issuing U.S. Letters of Credit in reliance upon this participation. If U.S. Borrowers do not make a payment to Issuing Bank when due hereunder, Agent shall promptly notify U.S. Lenders and each U.S. Lender shall within one Business Day after such notice pay to Agent, for the benefit of Issuing Bank, the U.S. Lender’s Pro Rata share of such payment. Upon request by a U.S. Lender, Issuing Bank shall provide copies of U.S. Letters of Credit and U.S. LC Documents in its possession.

(c)The obligation of each U.S. Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a U.S. Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made as provided in this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; a draft, certificate or other document presented under a U.S. Letter of Credit being determined to be forged, fraudulent, noncompliant, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; waiver by Issuing Bank of a requirement that exists for its protection (and not a U.S. Obligor’s protection) or that does not materially prejudice a U.S. Domiciled Obligor; honor of an electronic demand for payment even if a draft is required; payment of an item presented after a U.S. Letter of Credit’s expiration date if authorized by the UCC or applicable customs or practices; or any setoff or defense that a U.S. Domiciled Obligor may have with respect to any Obligations. Issuing Bank does not assume responsibility for any failure or delay in performance or any breach by any U.S. Obligor or other Person of any obligations under any U.S. LC Documents. Issuing Bank does not make any express or implied warranty, representation or guaranty to U.S. Lenders with respect to any U.S. Letter of Credit, Collateral,

​

59

​

​

U.S. LC Document or U.S. Domiciled Obligor. Issuing Bank shall not be responsible to any U.S. Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any U.S. LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any Collateral or perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor.

(d)No Indemnitee shall be liable to any U.S. Domiciled Obligor, U.S. Lender or other Person for any action taken or omitted to be taken in connection with any U.S. Letter of Credit or U.S. LC Document except as a result of such Indemnitee’s gross negligence or willful misconduct. Issuing Bank may refrain from taking any action with respect to a U.S. Letter of Credit until it receives written instructions (and in its discretion, appropriate assurances) from the U.S. Lenders.

2.2.3Cash Collateral. At Agent’s or Issuing Bank’s request, U.S. Domiciled Obligors shall Cash Collateralize (a) the Fronting Exposure of any Defaulting Lender; and (b) all outstanding U.S. Letters of Credit if an Event of Default exists, the U.S. Commitment Termination Date is scheduled to occur within 20 Business Days or the U.S. Commitment Termination Date occurs. If U.S. Domiciled Obligors fail to provide any Cash Collateral as required hereunder, U.S. Lenders may (and shall upon direction of Agent) advance, as U.S. Loans, the amount of Cash Collateral required (whether or not the U.S. Commitments have terminated, a U.S. Overadvance exists or the conditions in Section 6 are satisfied).

2.2.4Resignation of Issuing Bank. Issuing Bank may resign at any time upon notice to Agent and U.S. Borrowers, and any resignation of Agent hereunder shall automatically constitute its concurrent resignation as Issuing Bank. From the effective date of its resignation, Issuing Bank shall have no obligation to issue, amend, renew, extend or otherwise modify any U.S. Letter of Credit, but shall otherwise have all rights and obligations of an Issuing Bank hereunder relating to any U.S. Letter of Credit issued by it prior to such date. A replacement Issuing Bank may be appointed by written agreement among Agent, Borrower Agent and the new Issuing Bank

2.3U.K. Letter of Credit Facility.

2.3.1Issuance of U.K. Letters of Credit. Issuing Bank shall issue U.K. Letters of Credit from time to time until 20 Business Days prior to the U.K. Commitment Termination Date, on the terms set forth herein, including the following (and on the Closing Date the Existing Letters of Credit shall be deemed issued hereunder):

(a)Each U.K. Borrower acknowledges that Issuing Bank’s issuance of any U.K. Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested U.K. Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no obligation to issue any U.K. Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; (ii) each U.K. LC Condition is satisfied; and (iii) if a Defaulting Lender exists and is a U.K. Lender, such U.K. Lender or U.K. Borrowers have entered into arrangements reasonably

​

60

​

​

satisfactory to Agent and Issuing Bank to eliminate any Fronting Exposure associated with such U.K. Lender. If, in sufficient time to act, Issuing Bank receives written notice from Agent or Required Lenders that a U.K. LC Condition has not been satisfied, Issuing Bank shall not issue the requested U.K. Letter of Credit. Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of U.K. LC Conditions. U.K. Letters of Credit may not extend beyond the scheduled U.K. Commitment Termination Date unless Cash Collateralized to the reasonable satisfaction of Agent and the applicable Issuing Bank, and Issuing Bank shall be entitled to issue notices of non-renewal to the beneficiaries thereof with respect to any U.K. Letter of Credit with automatic renewal provisions.

(b)U.K. Letters of Credit may be requested by a U.K. Borrower to support obligations incurred in the Ordinary Course of Business of U.K. Domiciled Obligors, or as otherwise approved by Agent and the applicable Issuing Bank. Increase, renewal or extension of a U.K. Letter of Credit shall be treated as issuance of a new U.K. Letter of Credit, but Issuing Bank may require a new LC Application in its discretion.

(c)U.K. Borrowers assume all risks of beneficiaries’ acts, omissions or misuses of U.K. Letters of Credit. None of Agent, Issuing Bank or U.K. Lenders shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial, incomplete or failed shipment of any goods referred to in a Letter of Credit or Documents; deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; breach of contract between a shipper or vendor and an Obligor; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in translation or interpretation of technical terms; misapplication by a beneficiary of a U.K. Letter of Credit or proceeds thereof; or consequences arising from causes beyond the control of Issuing Bank, Agent or any U.K. Lender, including any act or omission of a Governmental Authority. Obligors shall take all action (including enforcement of available rights against a beneficiary) to avoid and mitigate damages relating to U.K. Letters of Credit or claimed against Issuing Bank, Agent or any Lender. Issuing Bank shall be fully subrogated to all rights and remedies of a beneficiary whose claims are discharged through a U.K. Letter of Credit.

(d)In connection with its administration of and enforcement of rights or remedies under any U.K. Letters of Credit or U.K. LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or other Communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Issuing Bank may use legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act (and shall be fully protected in any action taken in good faith reliance) upon any advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to U.K. Letters of Credit or U.K. LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

​

61

​

​

2.3.2Reimbursement; Participations.

(a)If Issuing Bank honors any request for payment under a U.K. Letter of Credit, U.K. Borrowers shall pay to Issuing Bank, on the same day (“U.K. Reimbursement Date”), the amount paid by Issuing Bank under such U.K. Letter of Credit, together with interest at the interest rate for U.K. Base Rate Loans from the U.K. Reimbursement Date until payment by U.K. Borrowers. The obligation of U.K. Borrowers to reimburse Issuing Bank for any payment made under a U.K. Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any U.K. Letter of Credit or the existence of any claim, setoff, defense or other right that U.K. Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, U.K. Borrowers shall be deemed to have requested a Borrowing of U.K. Base Rate Loans in an amount necessary to pay all amounts due Issuing Bank on any U.K. Reimbursement Date and each U.K. Lender shall fund its Pro Rata share of such Borrowing whether or not the U.K. Commitments have terminated, a U.K. Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied.

(b)Each U.K. Lender hereby irrevocably and unconditionally purchases from Issuing Bank, without recourse or warranty, an undivided Pro Rata participation in all U.K. LC Obligations outstanding from time to time. Issuing Bank is issuing U.K. Letters of Credit in reliance upon this participation. If U.K. Borrowers do not make a payment to Issuing Bank when due hereunder, Agent shall promptly notify U.K. Lenders and each U.K. Lender shall within one Business Day after such notice pay to Agent, for the benefit of Issuing Bank, the U.K. Lender’s Pro Rata share of such payment. Upon request by a U.K. Lender, Issuing Bank shall provide copies of U.K. Letters of Credit and U.K. LC Documents in its possession.

(c)The obligation of each U.K. Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a U.K. Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made as provided in this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; a draft, certificate or other document presented under a U.K. Letter of Credit being determined to be forged, fraudulent, noncompliant, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; waiver by Issuing Bank of a requirement that exists for its protection (and not a U.K. Domiciled Obligor’s protection) or that does not materially prejudice a U.K. Domiciled Obligor; honor of an electronic demand for payment even if a draft is required; payment of an item presented after a U.K. Letter of Credit’s expiration date if authorized by the UCC or applicable customs or practices; or any setoff or defense that a U.K. Domiciled Obligor may have with respect to any Obligations. Issuing Bank does not assume responsibility for any failure or delay in performance or any breach by any U.K. Domiciled Obligor or other Person of any obligations under any U.K. LC Documents. Issuing Bank does not make any express or implied warranty, representation or guaranty to U.K. Lenders with respect to any U.K. Letter of Credit, Collateral, U.K. LC Document or U.K. Domiciled Obligor. Issuing Bank shall not be responsible to any U.K. Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any U.K. LC Documents; the validity, genuineness, enforceability, collectability, value or

​

62

​

​

sufficiency of any Collateral or perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor.

(d)No Indemnitee shall be liable to any U.K. Domiciled Obligor, U.K. Lender or other Person for any action taken or omitted to be taken in connection with any U.K. Letter of Credit or U.K. LC Document except as a result of such Indemnitee’s gross negligence or willful misconduct. Issuing Bank may refrain from taking any action with respect to a U.K. Letter of Credit until it receives written instructions (and in its discretion, appropriate assurances) from the U.K. Lenders.

2.3.3Cash Collateral. At Agent’s or Issuing Bank’s request, U.K. Domiciled Obligors shall Cash Collateralize (a) the Fronting Exposure of any Defaulting Lender; and (b) all outstanding U.K. Letters of Credit if an Event of Default exists, the U.K. Commitment Termination Date is scheduled to occur within 20 Business Days or the U.K. Commitment Termination Date occurs. If U.K. Domiciled Obligors fail to provide any Cash Collateral as required hereunder, U.K. Lenders may (and shall upon direction of Agent) advance, as U.K. Loans, the amount of Cash Collateral required (whether or not the U.K. Commitments have terminated, a U.K. Overadvance exists or the conditions in Section 6 are satisfied)

2.3.4Resignation of Issuing Bank. Issuing Bank may resign at any time upon notice to Agent and U.K. Borrowers, and any resignation of Agent hereunder shall automatically constitute its concurrent resignation as Issuing Bank. From the effective date of its resignation, Issuing Bank shall have no obligation to issue, amend, renew, extend or otherwise modify any U.K. Letter of Credit, but shall otherwise have all rights and obligations of an Issuing Bank hereunder relating to any U.K. Letter of Credit issued by it prior to such date. A replacement Issuing Bank may be appointed by written agreement among Agent, Borrower Agent and the new Issuing Bank.

Section 3.INTEREST, FEES AND CHARGES

3.1Interest

3.1.1Rates and Payment of Interest.

(a)The Obligations shall bear interest (i) if a U.S. Base Rate Loan, at the U.S. Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBORTerm SOFR Loan, at the LIBOR RateTerm SOFR for the applicable Interest Period, plus the Applicable Margin; (iii) if a U.K. Base Rate Loan, at the U.K. Base Rate in effect from time to time plus the Applicable Margin; (iv) if any other U.S. Facility Obligation (including, to the extent permitted by law, interest not paid when due), at the U.S. Base Rate in effect from time to time, plus the Applicable Margin for U.S. Base Rate Loans; and (v) if any other U.K. Facility Obligation (including, to the extent permitted by law, interest not paid when due), at the U.K. Base Rate in effect from time to time, plus the Applicable Margin for U.K. Base Rate Loans.

(b)During an Insolvency Proceeding with respect to any Obligor, or during any other Event of Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest at the Default Rate (whether before or after any judgment), payable on demand.

​

63

​

​

(c)Interest shall accrue from the date a Loan is advanced or Obligation is incurred or payable, as applicable, until paid in full by Borrowers, and shall in no event be less than zero at any time. Interest accrued on the Loans is due and payable in arrears (i) on each Interest Payment Date; and (ii) concurrently with prepayment of any LIBORTerm SOFR Loan, with respect to the principal amount being prepaid. In addition, interest accrued on the U.K. Loans shall be due and payable in arrears on the U.K. Commitment Termination Date, and interest accrued on the U.S. Loans shall be due and payable in arrears on the U.S. Commitment Termination Date. Interest accrued on any other Obligations shall be due and payable as provided in the applicable agreements or, if no payment date is specified, on demand.

3.1.2Application of LIBORTerm SOFR to Outstanding Loans.

(a)Borrowers may elect to convert any portion of U.S. Base Rate Loans or U.K. Base Rate Loans in Dollars to, or to continue any LIBORTerm SOFR Loan at the end of its Interest Period as, a LIBORTerm SOFR Loan. During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be made, converted or continued as a LIBORTerm SOFR Loan.

(b)Borrower Agent shall give Agent a Notice of Conversion/Continuation no later than 11:00 a.m. (Local Time) at least twothree Business Days before the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each applicable Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified). If, at expiration of an Interest Period for a LIBORTerm SOFR Loan, Borrower Agent has failed to deliver a Notice of Conversion/Continuation, the applicable Borrowers shall be deemed to have elected to convert such Loan into a U.S. Base Rate Loan (if owing by the U.S. Borrowers) or a U.K. Base Rate Loan (if owing by the U.K. Borrowers). Agent does not warrant or accept responsibility for, nor shall it have any liability with respect to, administration, submission or any other matter related to any rate used in determining the LIBOR Ratereferred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternate or replacement for or successor to any such rate (including any Successor Rate), or any component thereof, or the effect of any of the foregoing, or of any Alternative Currency Conforming Changes or any Benchmark Replacement Conforming Changes.  Agent may select information source(s) in its discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including any Successor Rate), or any component thereof, in each case pursuant to the terms hereof, and shall have no liability to any Lender, Obligor or other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise, and whether at law or in equity) for any error or other act or omission related to or affecting the selection, determination or calculation of any rate (or component thereof) provided by such information source(s).

3.1.3Interest Periods. Borrower Agent shall select an interest period (“Interest Period”) of one, three or six months (in each case, subject to availability) to apply to each LIBORTerm SOFR Loan; provided, that (a) the Interest Period shall begin on the date the Loan is made or continued as, or converted into, a LIBORTerm SOFR Loan, and shall expire on the

​

64

​

​

numerically corresponding day in the calendar month at its endone, three or six months thereafter, as applicable; (b) if any Interest Period begins on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of the ending month, then the Interest Period shall expire on such month’s last Business Day; and if any Interest Period would otherwise expire on a day that is not a Business Day, the period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond the Maturity Date.

3.2Fees.

3.2.1Unused Line Fee.

(a)U.S. Borrowers shall pay to Agent, for the Pro Rata benefit of U.S. Lenders, a fee equal to the U.S. Unused Line Fee Rate times the amount by which the U.S. Commitments exceed the average daily U.S. Revolver Usage during any month. Such fee shall be payable in arrears, on the first day of each month and on the U.S. Commitment Termination Date.

(b)U.K. Borrowers shall pay to Agent, for the Pro Rata benefit of U.K. Lenders, a fee equal to the U.K. Unused Line Fee Rate times the amount by which the U.K. Commitments exceed the average daily U.K. Revolver Usage during any month. Such fee shall be payable in arrears, on the first day of each month and on the U.K. Commitment Termination Date.

3.2.2LC Facility Fees.

(a)U.S. Borrowers shall pay (i) to Agent, for the Pro Rata benefit of U.S. Lenders, a fee equal to the Applicable Margin in effect for LIBORTerm SOFR Loans times the average daily Stated Amount of U.S. Letters of Credit, payable in arrears on the first day of each month; (ii) to Issuing Bank, for its own account, a fronting fee equal to 0.125% per annum on the Stated Amount of each U.S. Letter of Credit, payable in arrears on the first day of each month; and (iii) to Issuing Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of U.S. Letters of Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee payable under clause (i) shall be increased by 2% per annum.

(b)U.K. Borrowers shall pay (i) to Agent, for the Pro Rata benefit of U.K. Lenders, a fee equal to the Applicable Margin in effect for LIBORTerm SOFR Loans times the average daily Stated Amount of U.K. Letters of Credit, payable in arrears on the first day of each month; (ii) to Issuing Bank, for its own account, a fronting fee equal to 0.125% per annum on the Stated Amount of each U.K. Letter of Credit, payable in arrears on the first day of each month; and (iii) to Issuing Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of U.K. Letters of Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee payable under clause (i) shall be increased by 2% per annum.

3.2.3Fee Letters. Borrowers shall pay all fees set forth in any fee letter executed in connection with this Agreement.

3.3Computation of Interest, Fees, Yield Protection

​

65

​

​

. All computations of interest for U.S. Base Rate Loans (other thanincluding pursuant to clause (c) of the definition of U.S. Base Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days. Each determination by Agent of any interest, fee, interest rate or amounts payable hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. A certificate as to amounts payable by any Borrower under Section 3.4, 3.6, 3.7, 3.9 or 5.8 that is submitted to Borrower Agent by Agent or the affected Lender shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party within 10 days following receipt of the certificate.

3.4Reimbursement Obligations

. Obligors shall pay all Claims promptly upon written request (including by email), subject to Section 14.2. Obligors shall also reimburse Agent for all reasonable and documented legal, accounting, appraisal, consulting, and other fees and expenses incurred by it in connection with (a) negotiation and preparation of Loan Documents, including any modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) subject to the limits of Section 10.1.1(b), any examination or appraisal with respect to any Obligor or Collateral by Agent’s personnel or a third party. All legal, accounting and consulting fees shall be charged to Obligors by Agent’s professionals at their then applicable hourly rates, regardless of any alternative fee arrangements that Agent, any Lender or any of their Affiliates may have with such professionals that otherwise might apply to any other transaction. Obligors acknowledge that counsel may provide Agent with a benefit (such as a discount, credit or accommodation for other matters) based on counsel’s overall relationship with Agent, including fees paid hereunder. If, for any reason (including inaccurate information in Borrower Materials), it is determined that a higher Applicable Margin should have applied to a period than was actually applied, then the proper margin shall be applied retroactively and Borrower(s) of each affected Borrower Group shall immediately pay to Agent, for the ratable benefit of Lenders, an amount equal to the difference between the amount of interest and fees that would have accrued using the proper margin and the amount actually paid. All amounts payable by Obligors under this Section shall be due within five days of written demand therefor (including by email).

3.5Illegality

. If any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to a Relevant Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to determine or charge interest rates based on a Relevant Rate or to purchase or sell, or take deposits of, any Agreed Currency in the applicable intrabank market, then, on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue such Relevant Rate

​

66

​

​

Loans or to convert Base Rate Loans to Relevant Rate Loans shall be suspended until such Lender notifies Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of such notice, (a) U.S. Borrowers shall, in the case of all U.S. Loans bearing interest based on the Relevant Rate, prepay or, if applicable, convert all such Relevant Rate Loans of such Lender to U.S. Base Rate Loans, in each case, immediately, or on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Relevant Rate Loans to such day, and (b) U.K. Borrowers shall, in the case of all U.K. Loans bearing interest based on a Relevant Rate, prepay all such Relevant Rate Loans, in each case, immediately or on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Relevant Rate Loans to such day. Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.

3.6Inability to Determine Rates; Replacement of LIBORTerm SOFR; Replacement of Other Relevant Rates.

3.6.1Inability to Determine Rate. Agent will promptly notify Borrower Agents and Lenders if, in connection with a Borrowing of, conversion to or continuation of a LIBORTerm SOFR Loan, (a) Agent determines for any reason that (i) deposits are not being offered with respect to LIBOR to banks in the London interbank market for ▇▇▇▇▇ Term SOFR Successor Rate has been determined in accordance with Section 3.6.2, and the circumstances under Section 3.6.2(a) or the Term SOFR Scheduled Unavailability Date has occurred (as applicable Loan amount or Interest Period), or (ii) adequate and reasonable means do not exist for determining LIBORTerm SOFR for the applicable Loan or Interest Period (including with respect to calculation of the U.S. Base Rate or the U.K. Base Rate); or (b) Agent or Required Lenders determine for any reason that LIBORTerm SOFR for the Interest Period does not adequately and fairly reflect the cost to Lenders of funding or maintaining the Loan. Thereafter, Lenders’ obligations to make or maintain affected LIBORTerm SOFR Loans and utilization of the LIBORTerm SOFR component (if affected) in determining U.S. Base Rate or U.K. Base Rate shall be suspended until Agent determines (or is instructed by Required Lenders) to withdraw the notice. Upon receipt of such notice, Borrower Agents may revoke any pending request for a Borrowing, conversion or continuation of a Loan bearing interest based on LIBORTerm SOFR and denominated in Dollars or, failing that, will be deemed to have submitted a request for a U.S. Base Rate Loan (or in the case of a LIBORTerm SOFR Loan or U.K. Base Rate Loan to U.K. Borrowers, shall no longer be available).

3.6.2Replacement of LIBOR

3.6.2Term SOFR Successor Rate. Notwithstanding anything to the contrary hereinin this Agreement or in any other Loan Document:

(a)On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of LIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12- month U.S. dollar LIBOR tenor settings. On the earliest of (A) the date that all Available Tenors of U.S dollar LIBOR have permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative, (B) June 30, 2023Documents, if Agent determines (which determination shall be conclusive absent manifest error), or a Borrower Agent or Required

​

67

​

​

Lenders notify Agent (with, in the case of the Required Lenders, a copy to the Borrower Agents) that such Borrower Agent or Required Lenders (as applicable) have determined, that:

(a)adequate and reasonable means do not exist for ascertaining one, three and six month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis, and such circumstances are unlikely to be temporary; or

(b)CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided, that at the time of such statement, there is no successor administrator satisfactory to Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, “Term SOFR Scheduled Unavailability Date”);

then, on a date and (C) the Early Opt-in Effective Date in respect of a SOFR Early Opt-in, if the then-current Benchmark is LIBOR, the Benchmark Replacement will replace such Benchmark for all purposestime determined by Agent (any such date, “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (b) above, no later than the Term SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document in respect of any setting of such Benchmark on such day and all subsequent settingswith Daily Simple SOFR plus the SOFR Adjustment, for any payment period for interest calculated that can be determined by Agent, in each case, without any amendment to, or further action or consent of any other party to this Agreement or, any other Loan Document. (“Term SOFR Successor Rate”).  If the Benchmark ReplacementTerm SOFR Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly basis.

(b)(x) Upon (A) the occurrence of a Benchmark Transition Event or (B) a determination by Agent that neither of the alternatives under clause (a) of the definition of Benchmark Replacement are available, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the 5^th Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders (and any such objection shall be conclusive and binding absent manifest error); provided that solely in the event that the then-current Benchmark at the time of such Benchmark Transition Event is not a SOFR-based rate, the Benchmark Replacement therefor shall be determined in accordance with clause (a) of the definition of Benchmark Replacement unless Agent determines that neither of such alternative rates is available.

​

68

​

​

(y) On the Early Opt-in Effective Date in respect of an Other Rate Early Opt-in, the Benchmark Replacement will replace LIBOR for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document.

(c)At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower Agents may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower Agents’ receipt of notice from Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the applicable Borrower Agent will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During the period referenced in the foregoing sentence, the component of Base Rate based upon the Benchmark will not be used in any determination of Base Rate.

(d)In connection with the implementation and administration of a Benchmark Replacement, Agent 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 Loan 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.

(e)Agent will promptly notify the applicable Borrower Agent and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by Agent pursuant to this Section 3.6.2, 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 sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 3.6.2.

(f)At any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR), then Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (B) Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingswill be payable on a monthly basis.

Notwithstanding anything to the contrary herein, (x) if Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date or (y) if the events or circumstances of the type described in clauses (a) or (b) above have occurred with respect to the Term SOFR Successor Rate then in effect, then in each case, Agent and Borrower Agents may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Term SOFR Successor Rate in accordance with this Section at the end of any Interest Period, relevant

​

69

​

​

interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for such alternative benchmarks in similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the U.S.  and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for such benchmarks in similar U.S. dollar denominated credit facilities syndicated and agented in the U.S., which adjustment or method for calculating such adjustment shall be published on an information service selected by Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Term SOFR Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Agent shall have posted such proposed amendment to all Lenders and Borrower Agents unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent written notice that such Required Lenders object to such amendment.

Agent will promptly (in one or more notices) notify the Borrower Agents and each Lender of the implementation of any Term SOFR Successor Rate.  Any Term SOFR Successor Rate shall be applied in a manner consistent with market practice; provided, that to the extent such market practice is not administratively feasible for Agent, such Term SOFR Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent.  Notwithstanding anything else herein, if at any time any Term SOFR Successor Rate as so determined would otherwise be less than zero, the Term SOFR Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

3.6.3Inability to Determine Other Relevant Rate; Replacement of Other Relevant Rate. For purposes of this Section 3.6.3, the term “Relevant Rate Loan” shall exclude a LIBORTerm SOFR Loan (with LIBORTerm SOFR replacement determined in accordance with Section 3.6.2 above).

(a)If in connection with any request for a Relevant Rate Loan or a conversion of U.K. Base Rate Loans to Relevant Rate Loans or a continuation of any of such Loans, as applicable, (i) Agent determines (which determination shall be conclusive absent manifest error) that (A) no Alternative Currency Successor Rate for the Relevant Rate for the applicable Alternative Currency has been determined in accordance with Section 3.6.3(b) and the circumstances under clause (i) of Section 3.6.3(b) or the Alternative Currency Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable), or (B) adequate and reasonable means do not otherwise exist for determining the Relevant Rate for the applicable Alternative Currency for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed Relevant Rate Loan or in connection with an existing or proposed U.K. Base Rate Loan, or (ii) Agent or the Required Lenders determine that for any reason that the Relevant Rate with respect to a proposed Loan denominated in an Alternative Currency for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Agent will promptly so notify the U.K. Borrower Agent and each Lender.

Thereafter, (x) the obligation of the Lenders to make or maintain such Loans in the affected currencies, as applicable, or to convert U.K. Base Rate Loans to Relevant Rate Loans, shall be suspended in each case to the extent of the affected Relevant Rate Loans or Interest Period or

​

70

​

​

determination date(s), as applicable, and (y) in the event of a determination described in the preceding sentence with respect to any component of the U.K. Base Rate, the utilization of such component in determining the U.K. Base Rate shall be suspended, in each case until Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.6.3(a), until Agent upon instruction of the Required Lenders) revokes such notice.

Upon receipt of such notice, (i) the U.K. Borrowers may revoke any pending request for a Borrowing of, or conversion to Relevant Rate Loans, or Borrowing of, or continuation of Relevant Rate Loans to the extent of the affected Alternative Currency or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Borrowing of U.K. Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) any outstanding affected Relevant Rate Loans, at the U.K. Borrower Agent’s election, shall either (A) be converted into a Borrowing of U.K. Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Relevant Rate Loan immediately at the end of the applicable Interest Period or (B) be prepaid in full immediately at the end of the applicable Interest Period; provided that if no election is made by the U.K. Borrower Agent by the last day of the current Interest Period, the U.K. Borrower Agent shall be deemed to have elected clause (A) above.

(b)Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if Agent determines (which determination shall be conclusive absent manifest error), or the U.K. Borrower Agent or Required Lenders notify Agent (with, in the case of the Required Lenders, a copy to the U.K. Borrower Agent) that the U.K. Borrower Agent or Required Lenders (as applicable) have determined, that:

(i)adequate and reasonable means do not exist for ascertaining the Relevant Rate for an Alternative Currency because none of the tenors of such Relevant Rate (including any forward-looking term rate thereof) is available or published on a current basis and such circumstances are unlikely to be temporary;

(ii)the applicable administrator for the Relevant Rate for such Alternative Currency has made a public statement identifying a specific date after which all tenors of the Relevant Rate for an Alternative Currency (including any forward-looking term rate thereof) shall or will no longer be representative or made available, or used for determining the interest rate of loans denominated in such Alternative Currency, or shall or will otherwise cease, provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to Agent that will continue to provide such representative tenor(s) of the Relevant Rate for such Alternative Currency (the latest date on which all tenors of the Relevant Rate for such Alternative Currency (including any forward-looking term rate thereof) are no longer representative or available permanently or indefinitely, the “Alternative Currency Scheduled Unavailability Date”); or

(iii)syndicated loans currently being executed and agented in the U.S., are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Relevant Rate for an Alternative Currency;

​

71

​

​

or if the events or circumstances of the type described in Section 3.6.3(b)(i), (ii) or (iii) have occurred with respect to the Alternative Currency Successor Rate then in effect, then, Agent and the U.K. Borrower Agent may amend this Agreement solely for the purpose of replacing the Relevant Rate for an Alternative Currency or any then current Alternative Currency Successor Rate for an Alternative Currency in accordance with this Section 3.6.3 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative Currency for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative Currency for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Agent from time to time in its reasonable discretion and may be periodically updated (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, an “Alternative Currency Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Agent shall have posted such proposed amendment to all Lenders and the U.K. Borrower Agent unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent written notice that such Required Lenders object to such amendment.

Agent will promptly (in one or more notices) notify the U.K. Borrower Agent and each Lender of the implementation of any Alternative Currency Successor Rate.

Any Alternative Currency Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Agent, such Alternative Currency Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent.

Notwithstanding anything else herein, if at any time any Alternative Currency Successor Rate as so determined would otherwise be less than zero, the Alternative Currency Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

In connection with the implementation of an Alternative Currency Successor Rate, Agent will have the right to make Alternative Currency Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Alternative Currency Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, Agent shall post each such amendment implementing such Alternative Currency Conforming Changes to the U.K. Borrower Agent and the Lenders reasonably promptly after such amendment becomes effective.

3.7Increased Costs; Capital Adequacy

3.7.1Increased Costs Generally. If any Change in Law shall:

(a)impose, modify or deem applicable any reserve, liquidity, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for

​

72

​

​

the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in calculating LIBOR) or Issuing Bank;

(b)subject any Recipient to Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (iii) Connection Income Taxes) with respect to any Loan, Letter of Credit, Commitment or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(c)impose on any Lender, Issuing Bank or interbank market any other condition, cost or expense affecting any Loan, Letter of Credit, participation in LC Obligations, Commitment or Loan Document; and the result thereof shall be to increase the cost to a Lender of making or maintaining any Loan or its Commitment, or converting to or continuing any interest option for a Loan, or to increase the cost to a Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by a Lender or Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank, Borrowers will pay to it such additional amount(s) as will compensate it for the additional costs incurred or reduction suffered.  Such Lender or Issuing Bank shall deliver to Borrowers the certificate contemplated by Section 3.3.

3.7.2Capital Requirements. If a Lender or Issuing Bank determines that a Change in Law affecting it or its holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or holding company’s capital as a consequence of this Agreement, or such Lender’s or Issuing Bank’s Commitment, Loans, Letters of Credit or participations in LC Obligations or Loans, to a level below that which such Lender, Issuing Bank or holding company could have achieved but for such Change in Law (taking into consideration its policies with respect to capital adequacy), then from time to time Borrowers will pay to such Lender or Issuing Bank, as the case may be, such additional amounts as will compensate it or its holding company for the reduction suffered.  Such Lender or Issuing Bank shall deliver to Borrowers the certificate contemplated by Section 3.3.

3.7.3Compensation. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for any increased costs or reductions suffered more than nine months (plus any period of retroactivity of the Change in Law giving rise to the demand) prior to the date that the Lender or Issuing Bank notifies Borrower Agent of the applicable Change in Law and of such Lender’s or Issuing Bank’s intention to claim compensation therefor.

3.8Mitigation

. If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.7, or if any Borrower is required to pay any Indemnified Taxes or additional amounts with respect to a Lender under Section 5.8, then at the request of Borrower Agent, such Lender shall use reasonable efforts to designate or assign its obligations hereunder to a different Lending Office, if, in the

​

73

​

​

judgment of such Lender, such designation or assignment would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, would not subject the Lender to any unreimbursed cost or expense, and would not otherwise be disadvantageous to it or unlawful. Borrowers of each affected Borrower Group shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

3.9Funding Losses

. If for any reason (a) any Borrowing, conversion or continuation of a LIBORTerm SOFR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn but other than in respect of a Defaulting Lender), (b) any repayment or conversion of a LIBORTerm SOFR Loan occurs on a day other than the end of its Interest Period or tenor, (c) Borrowers of any Borrower Group fail to repay a LIBORTerm SOFR Loan when required, or (d) a Lender (other than a Defaulting Lender) is required to assign a LIBORTerm SOFR Loan prior to the end of its Interest Period or tenor pursuant to Section 13.4, then Borrowers of such Borrower Group shall pay to Agent its customary administrative charge and to each Lender all losses, expenses and fees arising from redeployment of funds or termination of match funding.

3.10Maximum Interest

. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (“maximum rate”). If Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the Obligations of the Borrower Group to which such excess interest relates or, if it exceeds such unpaid principal, refunded to such Borrower Group. In determining whether the interest contracted for, charged or received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread (in equal or unequal parts) the total amount of interest throughout the contemplated term of the Obligations hereunder.

Section ▇.▇▇▇▇ ADMINISTRATION.

4.1Manner of Borrowing and Funding Loans

4.1.1Notice of Borrowing.

(a)To request Loans, Borrower Agent shall give Agent a Notice of Borrowing by 11:00 a.m. (Local Time) (i) on the requested funding date, in the case of U.S. Base Rate Loans and U.K. Base Rate Loans denominated in Dollars, (ii) at least three Business Days prior to the requested funding date, in the case of U.K. Base Rate Loans denominated in Sterling, and (iii) at least twothree Business Days prior to the requested funding date, in the case of LIBORTerm SOFR Loans. Notices received by Agent after such time shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the Borrowing amount, (B) the requested funding date (which must be a Business Day), (C) whether the Borrowing is to be made as a U.S. Base Rate Loan, U.K. Base Rate Loan, or LIBORTerm SOFR Loan, (D) the

​

74

​

​

relevant currency, (E) in the case of a LIBORTerm SOFR Loan, the applicable Interest Period (which shall be deemed to be one month if not specified), and (F) the Borrower Group Commitment under which such Borrowing is proposed to be made.

(b)Unless payment is otherwise timely made by each Borrower within a Borrower Group, the becoming due of any Obligation (whether principal, interest, fees or other charges, including Extraordinary Expenses, U.S. LC Obligations, U.K. LC Obligations, Cash Collateral and Secured Bank Product Obligations) shall be deemed to be a request for Base Rate Loans on the due date in the amount due which shall bear interest at the per annum rate applicable hereunder to U.S. Base Rate Loans, in the case of such Obligations owing by any U.S. Domiciled Obligor, or to U.K. Base Rate Loans, in the case of such Obligations owing by any U.K. Domiciled Obligor. The Loan proceeds shall be disbursed as direct payment of such Obligation. In addition, Agent may, at its option, charge such amount against any operating, investment or other account of a Borrower within the applicable Borrower Group maintained with Agent or any of its Affiliates.

(c)If a Borrower within a Borrower Group maintains a disbursement account with Agent or any of its Affiliates, then presentation for payment in the account of a Payment Item when there are insufficient funds to cover it shall be deemed to be a request for Base Rate Loans on the presentation date, in the amount of the Payment Item, which shall bear interest at the per annum rate applicable to U.S. Base Rate Loans, in the case of insufficient funds owing by any U.S. Domiciled Obligor, or to U.K. Base Rate Loans in the case of insufficient funds owing by any U.K. Domiciled Obligor. Proceeds of the Loans may be disbursed directly to the account.

4.1.2Fundings by Lenders. Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify the Applicable Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by (a) 1:00 p.m. (Local Time) on the proposed funding date for a U.S. Base Rate Loan or a U.K. Base Rate Loan denominated in Dollars, (b) 3:00 p.m. (Local Time) three Business Days before a proposed funding of a U.K. Base Rate Loan denominated in Sterling, or (c) 3:00 p.m. (Local Time) two Business Days before a proposed funding of a LIBORTerm SOFR Loan. Each Applicable Lender shall fund its Pro Rata share of a Borrowing in immediately available funds not later than 3:00 p.m. (Local Time) on the requested funding date, unless Agent’s notice is received after the times provided above, in which case each Applicable Lender shall fund by 11:00 a.m. (Local Time) on the next Business Day. Subject to its receipt of such amounts from Lenders, Agent shall disburse the Borrowing proceeds in a manner directed by Borrower Agent and acceptable to Agent. Unless Agent receives (in sufficient time to act) written notice from an Applicable Lender that it will not fund its share of a Borrowing, Agent may assume that such Applicable Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to Borrowers within the applicable Borrower Group. If a Lender’s share of a Borrowing or of a settlement under Section 4.1.3(b) is not received by Agent, then Borrowers within the applicable Borrower Group agree to repay to Agent on demand the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to the Borrowing. Agent, a Lender or Issuing Bank may fulfill its obligations under Loan Documents through one or more Lending Offices, and this shall not affect any obligation of Obligors under the Loan Documents or with respect to any Obligations.

​

75

​

​

4.1.3Swingline Loans; Settlement; Rescindable Amounts.

(a)To fulfill any request for (i) a U.S. Base Rate Loan hereunder (unless Required Lenders have informed Agent that the conditions in Section 6 are not satisfied), Agent may in its discretion advance U.S. Swingline Loans to the U.S. Borrowers, up to an aggregate outstanding amount of 10% of the aggregate U.S. Commitments and (ii) a U.K. Base Rate Loan hereunder (unless Required Lenders have informed Agent that the conditions in Section 6 are not satisfied), Agent may in its discretion advance U.K. Swingline Loans to the U.K. Borrowers, up to an aggregate outstanding amount of 10% of the aggregate U.K. Commitments. Swingline Loans shall constitute Loans for all purposes, except that payments thereon shall be made to Agent for its own account until Lenders have funded their participations therein as provided below.

(b)Settlement of Loans, including Swingline Loans, among the Applicable Lenders and Agent shall take place on a date determined from time to time by Agent (but at least weekly, unless the settlement amount is de minimis), on a Pro Rata basis in accordance with the Settlement Report delivered by Agent to the Applicable Lenders. Between settlement dates, Agent may in its discretion apply payments on Loans to Swingline Loans, regardless of any designation by Borrowers or anything herein to the contrary. Each Applicable Lender hereby purchases, without recourse or warranty, an undivided Pro Rata participation in all U.S. Swingline Loans or U.K. Swingline Loans, as applicable, outstanding from time to time until settled. If a Swingline Loan cannot be settled among the Applicable Lenders, whether due to an Obligor’s Insolvency Proceeding or any other reason, each Applicable Lender shall pay the amount of its participation in the U.S. Swingline Loans or U.K. Swingline Loans, as applicable, to Agent, in immediately available funds, within one Business Day after Agent’s request therefor. Interest on a Loan shall be payable in favor of a Lender from the later of the date the Loan is advanced to Borrowers or the Lender funds the Loan (or participation therein). No Obligor or Secured Party shall be entitled to credit for interest paid by a Secured Party to Agent pursuant to Section 4.1.3(c) or 12.10.2, nor shall a Defaulting Lender be entitled to interest on amounts held by Agent pursuant to Section 4.2. Lenders’ obligations to make settlements and to fund participations are absolute, irrevocable and unconditional, without offset, counterclaim or other defense, and whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section 6 are satisfied.

(c)Unless Agent receives notice from Borrowers prior to the date on which a payment is due to Agent for the account of Lenders or Issuing Bank hereunder that Borrowers will not make such payment, Agent may assume that Borrowers have made such payment on such date in accordance herewith and may, in reliance on such assumption, distribute to the Applicable Lenders or Issuing Bank, as applicable, the amount due. With respect to any payment that Agent makes for the account of the Applicable Lenders or Issuing Bank hereunder as to which Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment, a “Rescindable Amount”): (1) Borrowers have not in fact made such payment, (2) Agent has made a payment in excess of the amount so paid by Borrowers (whether or not then owed), or (3) Agent has for any reason otherwise erroneously made such payment, then each Applicable Lender or Issuing Bank, as applicable, severally agrees to repay to Agent forthwith on demand the Rescindable Amount so distributed to or otherwise made for the account of such Lender or Issuing Bank, in immediately available funds with interest thereon for each day from and including the date such amount is distributed to it to but excluding the date of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in

​

76

​

​

accordance with banking industry rules on interbank compensation. A notice by Agent to Issuing Bank, any Applicable Lender or any Borrower with respect to any amount owing under this clause (c) shall be conclusive, absent manifest error.

4.1.4Notices. If Borrowers request, convert or continue Loans, select interest rates or transfer funds based on telephonic or electronic instructions to Agent, Borrowers shall confirm the request by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, as applicable. Agent and Lenders are not liable for any loss suffered by a Borrower as a result of Agent or a Lender acting on its understanding of telephonic or electronic instructions from a person believed in good faith to be authorized to give instructions on a Borrower’s behalf.

4.1.5Conforming Changes. Agent may make Conforming Changes from time to time with respect to SOFR, Term SOFR, any Relevant Rate, or any Successor Rate.  Notwithstanding anything to the contrary in any Loan Document, any amendment implementing such changes shall be effective without further action or consent of any party to any Loan Document.  Agent shall post or provide each such amendment to Lenders and Borrower Agents reasonably promptly after it becomes effective.

4.2Defaulting Lender

. Notwithstanding anything herein to the contrary:

4.2.1Reallocation of Pro Rata Share; Amendments. For purposes of determining Lenders’ obligations or rights to fund, participate in or receive collections with respect to Loans and Letters of Credit (including existing Swingline Loans, Protective Advances and LC Obligations), Agent may in its discretion reallocate Pro Rata shares by excluding a Defaulting Lender’s Commitments and Loans from the calculation of shares. A Defaulting Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 14.1.1(c).

4.2.2Payments; Fees. Agent may, in its discretion, receive and retain any amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have assigned to Agent such amounts until all Obligations owing to Agent, non-Defaulting Lenders and other Secured Parties have been paid in full. Agent may use such amounts to cover the Defaulting Lender’s defaulted obligations, to Cash Collateralize such Lender’s Fronting Exposure, to readvance the amounts to Borrowers or to repay Obligations. A Lender shall not be entitled to receive any fees accruing hereunder while it is a Defaulting Lender and its unfunded Commitment shall be disregarded for purposes of calculating the unused line fee under Section 3.2.1. If any LC Obligations owing to a Defaulted Lender are reallocated to other Lenders, fees attributable to such LC Obligations under Section 3.2.2 shall be paid to such Lenders. Agent shall be paid all fees attributable to LC Obligations that are not reallocated.

4.2.3Status; Cure. Agent may determine in its discretion that a Lender constitutes a Defaulting Lender and the effective date of such status shall be conclusive and binding on all parties, absent manifest error. Borrowers, Agent and Issuing Bank may agree in writing that a Lender has ceased to be a Defaulting Lender, whereupon Pro Rata shares shall be reallocated

​

77

​

​

without exclusion of the reinstated Lender’s Commitments and Loans, and the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders and settled by Agent (with appropriate payments by the reinstated Lender, including its payment of breakage costs for reallocated LIBORTerm SOFR Loans) in accordance with the readjusted Pro Rata shares. Unless expressly agreed by Borrowers, Agent and Issuing Bank, or as expressly provided herein with respect to Bail-In Actions and related matters, no reallocation of Commitments and Loans to non-Defaulting Lenders or reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform obligations hereunder shall not relieve any other Lender of its obligations under any Loan Document. No Lender shall be responsible for default by another Lender.

4.3Number and Amount of LIBORTerm SOFR Loans; Determination of Rate

. Each Borrowing of LIBORTerm SOFR Loans when made shall be in a minimum amount of $1,000,000, plus an increment of $100,000 in excess thereof. No more than six Borrowings of LIBORTerm SOFR Loans may be outstanding at any time, and all LIBORTerm SOFR Loans having the same length and beginning date of their Interest Periods shall be aggregated together and considered one Borrowing for this purpose. Upon determining LIBORTerm SOFR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.

4.4Borrower Agent

. Each U.S. Borrower hereby designates Helix (“U.S. Borrower Agent”), and each U.K. Borrower hereby designates Well Ops U.K. (“U.K. Borrower Agent”), as its representative and agent for all purposes under the Loan Documents, including requests for and receipt of Loans and Letters of Credit, designation of interest rates, delivery or receipt of Communications, delivery of Borrower Materials, payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender. Each Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon any Communication (including any notice of borrowing) delivered by or to a Borrower Agent on behalf of any Borrower. Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal exclusively with any Borrower Agent for all purposes under the Loan Documents. Each Obligor agrees that any Communication, delivery, action, omission or undertaking by a Borrower Agent shall be binding upon and enforceable against such Obligor.

4.5One Obligation

. The Loans, LC Obligations and other Obligations constitute one general obligation of Borrowers, jointly and severally, and are secured by Agent’s Lien on all Collateral; provided, that Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower.

4.6Effect of Termination

​

78

​

​

. On the effective date of the termination of all Commitments, the Obligations shall be immediately due and payable, and each Secured Bank Product Provider may terminate its Bank Products. Until Full Payment of the Obligations, all undertakings of Obligors contained in the Loan Documents shall continue, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents. Agent shall not be required to terminate its Liens unless it receives Cash Collateral or a written agreement, in each case satisfactory to it, protecting Agent and Lenders from dishonor or return of any Payment Item previously applied to the Obligations. Sections 2.2, 3.4, 3.6, 3.7, 3.9, 4.1.3(c), 5.4, 5.8, 5.9, Section 12, 14.2, this Section, and each indemnity or waiver given by an Obligor or Lender in any Loan Document, shall survive any assignment by Agent, Issuing Bank or any Lender of rights or obligations hereunder, termination of any Commitment, and any repayment, satisfaction, discharge or Full Payment of any Obligations.

Section 5.PAYMENTS

5.1General Payment Provisions

. All payments of Obligations shall be made in the applicable Agreed Currency, without offset, counterclaim or defense of any kind, free and clear of (and without deduction for) any Taxes, and in immediately available funds, not later than 12:00 noon (Local Time) on the due date. Any payment after such time shall be deemed made on the next Business Day. Any payment of a LIBORTerm SOFR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Sections 3.1.1(c) and 3.9. Agent shall have the continuing, exclusive right to apply and reapply payments and proceeds of Collateral against the Obligations, at Agent’s discretion, but whenever possible any prepayment shall be applied to Base Rate Loans before LIBORTerm SOFR Loans.

5.2Repayment of Loans

. Loans may be prepaid from time to time, without penalty or premium, pursuant to a Notice of Prepayment to Agent, delivered concurrently with prepayment of a Swingline Loan and at least two Business Days prior to prepayment of other Loans; provided, that no such notice shall be required for payments applied pursuant to Section 5.6 (subject to Section 3.9). All U.S. Loans shall be due and payable in full on the U.S. Commitment Termination Date and all U.K. Loans shall be due and payable in full on the U.K. Commitment Termination Date, in each case, unless payment is sooner required hereunder, and any Overadvance or Protective Advance shall be due and payable as provided in Sections 2.1.5 and 2.1.6. If any Disposition by Obligors includes Accounts, Obligors shall apply Net Proceeds to repay Loans equal to the greater of (a) the net book value (or fair market value, if higher) of such Accounts, or (b) the reduction in Borrowing Base resulting from the disposition.

5.3Payment of Other Obligations

. Obligations other than Loans, including LC Obligations and Claims, shall be paid by Obligors as provided in the Loan Documents or, if no payment date is specified, on demand.

5.4Marshaling; Payments Set Aside

​

79

​

​

. None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any payment by or on behalf of Obligors is made to Agent, Issuing Bank or any Lender, or if Agent, Issuing Bank or any Lender exercises a right of setoff, and any of such payment or setoff is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, Issuing Bank or a Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if such payment or setoff had not occurred.

5.5Application and Allocation of Payments

5.5.1Application. Payments made by Borrowers hereunder shall be applied (a) first, as specifically required hereby; (b) second, to Obligations then due and owing by the applicable Borrower Group; (b) third, to other Obligations specified by Borrowers; and (c) fourth, as determined by Agent in its discretion.  Any resulting credit balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers as long as no Event of Default exists, including by way of transfer to an operating account of the applicable Borrowers upon request.

5.5.2Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, during an Event of Default under Section 11.1(j), or during any other Event of Default at the discretion of Agent or Required Lenders, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows:

(a)first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent;

(b)second, to all other amounts owing to Agent, including Swingline Loans, Protective Advances, and Loans and participations that a Defaulting Lender has failed to settle or fund;

(c)third, to all amounts owing to Issuing Bank;

(d)fourth, to all Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to Lenders;

(e)fifth, to all Obligations (other than Secured Bank Product Obligations) constituting interest;

(f)sixth, to Cash Collateralize all LC Obligations;

(g)seventh, to all Loans, and to Secured Bank Product Obligations constituting Swap Obligations (including Cash Collateralization thereof) up to the amount of reserves existing therefor;

(h)eighth, to all other Secured Bank Product Obligations; and

​

80

​

​

(i)last, to all remaining Obligations.

Amounts shall be applied to payment of each category of Obligations only after Full Payment of amounts payable from time to time under all preceding categories. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in each category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the provider fails to deliver the calculation within five days following request, Agent may assume the amount is zero. The allocations in this Section are solely to determine the priorities among Secured Parties and may be changed by agreement of affected Secured Parties without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Obligor, and no Obligor has any right to direct the application of payments or Collateral proceeds subject to this Section.

5.5.3Erroneous Application. Agent shall not be liable for any application of amounts made by it in good faith and, if any such application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount should have been paid shall be to recover the amount from the Person that actually received it (and, if such amount was received by a Secured Party, the Secured Party agrees to return it).

5.6Dominion Account

. The ledger balance in the U.S. Dominion Account of the U.S. Domiciled Obligors as of the end of a Business Day shall be applied to the U.S. Facility Obligations at the beginning of the next Business Day, during any Dominion Trigger Period. Subject to Section 10.1.13, the ledger balance in any U.K. Dominion Account of the U.K. Borrowers as of the end of a Business Day shall be applied to the U.K. Facility Obligations whether or not a Dominion Trigger Period exists. Any resulting credit balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers as long as no Event of Default exists, including by way of transfer to an operating account of the applicable Borrowers upon request.

5.7Account Stated

. Agent shall maintain, in accordance with its customary practices, loan account(s) evidencing the Debt of Borrowers within each Borrower Group hereunder. Any failure of Agent to record anything in a loan account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder. Entries in a loan account shall, absent manifest error, be presumptive evidence of the information contained therein. If information in a loan account is provided to or inspected by or on behalf of a Borrower, the information shall be conclusive and binding on Borrowers for all purposes absent manifest error, except to the extent Borrower Agent notifies Agent in writing within 30 days of specific information subject to dispute.

​

81

​

​

5.8Taxes.

5.8.1Payments Free of Taxes; Obligation to Withhold; Tax Payment.

(a)All payments of Obligations by Obligors shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If Applicable Law (as determined by Agent in its discretion) requires the deduction or withholding of any Tax from any such payment by Agent or an Obligor, then Agent or such Obligor shall be entitled to make such deduction or withholding based on information and documentation provided pursuant to Section 5.9. For purposes of Sections 5.8 and 5.9, “Applicable Law” shall include FATCA and “Lender” shall include Issuing Bank.

(b)If Agent or any Obligor is required by the Code to withhold or deduct Taxes, including backup withholding and withholding taxes, from any payment, then (i) Agent shall pay the full amount that it determines is to be withheld or deducted to the relevant Governmental Authority pursuant to the Code, and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that the Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(c)If Agent or any Obligor is required by any Applicable Law other than the Code to withhold or deduct Taxes from any payment, then (i) Agent or such Obligor, to the extent required by Applicable Law, shall timely pay the full amount to be withheld or deducted to the relevant Governmental Authority, and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that the Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

5.8.2Payment of Other Taxes. Without limiting the foregoing, Obligors shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at Agent’s option, timely reimburse Agent for payment of, any Other Taxes.

5.8.3Tax Indemnification.

(a)Each Obligor shall indemnify and hold harmless, on a joint and several basis, each Recipient against any Indemnified Taxes (including those imposed or asserted on or attributable to amounts payable under this Section) payable or paid by a Recipient or required to be withheld or deducted from a payment to a Recipient, and any reasonable and documented out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, that, for the avoidance of doubt, no indemnification payment shall be due under this Section 5.8.3 to the extent such payment is duplicative of any payment made by an Obligor. Each Obligor shall indemnify and hold harmless Agent against any amount that a Lender or Issuing Bank fails for any reason to pay indefeasibly to Agent as required pursuant to this Section. Each Obligor shall make payment within 10 days after demand for any amount or liability payable under this Section. A certificate as to the amount of such payment or liability (setting forth in reasonable detail the basis and calculation of the applicable Tax) delivered to Borrower Agent by a Lender or

​

82

​

​

Issuing Bank (with a copy to Agent), or by Agent on its own behalf or on behalf of any Recipient, shall be conclusive absent manifest error. Notwithstanding anything herein to the contrary, no Recipient shall be indemnified for any Indemnified Taxes under this Section 5.8.3 unless such Recipient shall make written demand on the Obligors for such reimbursement no later than nine months after the earlier of (i) the date on which the relevant Governmental Authority makes written demand upon such Recipient for such Indemnified Taxes, and (ii) the date on which such Recipient has made payment of such Indemnified Taxes to the relevant Governmental Authority; provided that if the Indemnified Taxes imposed or asserted giving rise to such claims are retroactive, then the nine month period referred to above shall be extended to include the retroactive effect thereof.

(b)Each Lender and Issuing Bank shall indemnify and hold harmless, on a several basis, (i) Agent against any Indemnified Taxes attributable to such Lender or Issuing Bank (but only to the extent Obligors have not already paid or reimbursed Agent therefor and without limiting Obligors’ obligation to do so), (ii) Agent against any Taxes attributable to such Lender’s failure to maintain a Participant register as required hereunder, and (iii) Agent against any Excluded Taxes attributable to such Lender or Issuing Bank, in each case, that are payable or paid by Agent in connection with any Obligations, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each Lender and Issuing Bank shall make payment within 10 days after demand for any amount or liability payable under this Section. A reasonably detailed certificate as to the amount of such payment or liability delivered to any Lender or Issuing Bank by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this clause (b).

5.8.4Evidence of Payments. As soon as practicable after any payment of Taxes by any Obligor or Agent to a Governmental Authority as provided in this Section, Borrower Agent shall deliver to Agent or Agent shall deliver to Borrower Agent, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return reporting such payment or other evidence of such payment reasonably satisfactory to Borrower Agent or Agent, as the case may be.

5.8.5Treatment of Certain Refunds. Unless required by Applicable Law, at no time shall Agent have any obligation to file for or otherwise pursue on behalf of a Lender or Issuing Bank, nor have any obligation to pay to any Lender or Issuing Bank, any refund of Taxes withheld or deducted from funds paid for the account of a Lender or Issuing Bank. If a Recipient determines in its discretion that it has received a refund of Taxes that were indemnified by Obligors or with respect to which an Obligor paid additional amounts pursuant to this Section, it shall pay the amount of such refund to Borrower Agent (but only to the extent of indemnity payments or additional amounts actually paid by Obligors with respect to the Taxes giving rise to the refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient and without interest (other than interest paid by the relevant Governmental Authority with respect to such refund). Obligors shall, upon request by the Recipient, repay to the Recipient such amount paid over to Obligors (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) if the Recipient is required to repay such refund to the Governmental Authority. Notwithstanding anything herein to the contrary, no Recipient shall be required to pay any amount

​

83

​

​

to Obligors if such payment would place it in a less favorable net after-Tax position than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. In no event shall Agent or any Recipient be required to make its tax returns (or any other information relating to its taxes that it deems confidential) available to any Obligor or other Person.

5.8.6U.K. Tax Matters

(a)A payment by a U.K. Borrower shall not be increased under Section 5.8.1(c) by reason of a U.K. Tax Deduction on account of Taxes imposed by the U.K. on interest if, on the date on which the payment falls due:

(i)the payment could have been made to the relevant Lender without a U.K. Tax Deduction if the Lender had been a U.K. Qualifying Lender, but on that date that Lender is not or has ceased to be a U.K. Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or U.K. Treaty or any published practice or published concession of any relevant taxing authority; or

(ii)the relevant Lender is a U.K. Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of U.K. Qualifying Lender, and:

(1)an officer of HM Revenue & Customs has given (and not revoked) a direction (a Direction) under section 931 of the U.K. ITA which relates to the payment and that Lender has received from the U.K. Borrower Agent or the U.K. Borrower making the payment a certified copy of that Direction; and

(2)the payment could have been made to the Lender without any U.K. Tax Deduction if that Direction had not been made; or

(iii)the relevant Lender is a U.K. Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of U.K. Qualifying Lender and:

(1)the relevant Lender has not given a U.K. Tax Confirmation to the U.K. Borrower; and

(2)the payment could have been made to the Lender without any U.K. Tax Deduction if the Lender had given a U.K. Tax Confirmation to the U.K. Borrower, on the basis that the U.K. Tax Confirmation would have enabled the U.K. Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the U.K. ITA; or

(iv)the relevant Lender is a U.K. Treaty Lender and the U.K. Borrower making the payment is able to demonstrate that the payment could have been made to the

​

84

​

​

Lender without the U.K. Tax Deduction had that Lender complied with its obligations under Section 5.8.6(b) below.

(b)Subject to Section 5.8.6(c) below, a U.K. Treaty Lender and each U.K. Borrower which makes a payment to which that U.K. Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that U.K. Borrower to obtain authorization to make that payment without a U.K. Tax Deduction.

(c)(i)A U.K. Treaty Lender which becomes a party to this Agreement as a Lender on the date of this Agreement that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any U.K. Borrower) by confirming its scheme reference number and its jurisdiction of tax residence in Schedule 1.1; and

(ii)a U.K. Treaty Lender that becomes a party to this Agreement as a Lender after the date of this Agreement and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any U.K. Borrower) by notifying any U.K. Borrower of its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a party to this Agreement as Lender,

and having done so, that Lender shall be under no obligation pursuant to Section 5.8.6(b) above.

(d)If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Section 5.8.6(c) above and

(i)a U.K. Borrower making a payment to that Lender has not made a U.K. Borrower DTTP Filing in respect of that Lender; or

(ii)a U.K. Borrower making a payment to that Lender has made a U.K. Borrower DTTP Filing in respect of that Lender but:

(1)that U.K. Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

(2)HM Revenue & Customs has not given the U.K. Borrower authority to make payments to that Lender without a U.K. Tax Deduction within 60 days of the date of the U.K. Borrower DTTP Filing; or

(3)HM Revenue & Customs has given the U.K. Borrower authority to make payments to that Lender without a U.K. Tax Deduction but such authority has subsequently been revoked or expired,

and in each case, the U.K. Borrower has notified that Lender in writing, that Lender and the U.K. Borrower shall co-operate in completing any additional procedural formalities necessary for that U.K. Borrower to obtain authorization to make that payment without a Tax Deduction.

​

85

​

​

(e)If a Lender has not included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with Section 5.8.6(c) above, no U.K. Borrower shall file any form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s advance or its participation in any advance.

(f)A U.K. Borrower shall, promptly on making a U.K. Borrower DTTP Filing, deliver a copy of that U.K. Borrower DTTP Filing to the Agent for delivery to the relevant Lender.

(g)A U.K. Non-Bank Lender shall promptly notify the U.K. Borrower Agent and the Agent if there is any change in the position from that set out in the U.K. Tax Confirmation.

5.8.7VAT.

(a)All amounts set out or expressed in a Loan Document to be payable by any party to any Lender, the Agent or Issuing Bank (a Finance Party) which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Section 5.8.7(b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any party under a Loan Document and such Finance Party is required to account to the relevant tax authority for the VAT, that party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such party).

(b)If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Receiver) under a Loan Document, and any party other than the Receiver (the Subject Party) is required by the terms of any Loan Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Receiver in respect of that consideration):

(i)where the Supplier is the person required to account to the relevant tax authority for the VAT) the Subject Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Receiver will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Receiver from the relevant tax authority which the Receiver reasonably determines is in respect of such VAT; and

(ii)where the Receiver is the person required to account to the relevant tax authority for the VAT, the Subject Party shall promptly, following demand from the Receiver, pay to the Receiver an amount equal to the amount of VAT chargeable on that supply but only to the extent that the Receiver reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(c)Where a Loan Document requires any party to reimburse or indemnify a Finance Party for any cost or expense, that party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

​

86

​

​

(d)Any reference in this Section 5.8.7 to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax ▇▇▇ ▇▇▇▇ (U.K.)).

(e)In relation to any supply made by any Finance Party to any party under any Loan Document, if reasonably requested by such Finance Party, that party shall promptly provide such Finance Party with details of that party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

5.9Lender Tax Information.

5.9.1Status of Lenders.

(a)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments of Obligations under the Loan Documents shall deliver to Borrower Agent and Agent properly completed and executed documentation reasonably requested by Borrower Agent or Agent as will permit such payments to be made without or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower Agent or Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrower Agent or Agent to enable them to determine whether such Lender is subject to backup withholding or information reporting requirements. Notwithstanding the foregoing, such documentation (other than documentation described in Sections 5.9.2(a), (b) and (d)) shall not be required if a Lender reasonably believes delivery of the documentation would subject it to any material unreimbursed cost or expense or would materially prejudice its legal or commercial position.

(b)Each Lender which becomes a party to this Agreement after the date of this Agreement (a New Lender) shall indicate, in the documentation which it executes on becoming a party to this Agreement as a Lender, and for the benefit of the Agent and without liability to any U.K. Borrower, which of the following categories it falls within:

(i)not a U.K. Qualifying Lender;

(ii)a U.K. Qualifying Lender (other than a U.K. Treaty Lender); or

(iii)a U.K. Treaty Lender.

If a New Lender fails to indicate its status in accordance with this Section 5.9.1(b), then such New Lender shall be treated for the purposes of this Agreement (including by each U.K. Borrower) as if it is not a U.K. Qualifying Lender until such time as it notifies the Agent which category of U.K. Qualifying Lender applies (and the Agent, upon receipt of such notification, shall inform the U.K. Borrower Agent).  For the avoidance of doubt, the documentation which a Lender executes on becoming a party to this Agreement as a Lender shall not be invalidated by any failure of a New Lender to comply with this Section 5.9.1(b).

​

87

​

​

5.9.2Documentation. Without limiting the foregoing, if any Borrower is a U.S. Person,

(a)Any Lender that is a U.S. Person shall deliver to Borrower Agent and Agent on or prior to the date on which such Lender becomes a Lender hereunder (and from time to time thereafter upon reasonable request of Borrower Agent or Agent), properly completed and executed copies of IRS Form W-9, certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(b)Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower Agent and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon reasonable request of Borrower Agent or Agent), whichever of the following is applicable:

(i)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Loan Document, properly completed and executed copies of IRS Form W-8BENE establishing an exemption from or reduction of U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty, and (y) with respect to other payments under the Loan Documents, properly completed and executed copies of IRS Form W-8BENE establishing an exemption from or reduction of U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii)properly completed and executed copies of IRS Form W-8ECI;

(iii)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate in form reasonably satisfactory to Agent to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (“U.S. Tax Compliance Certificate”), and (y) properly completed and executed copies of IRS Form W-8BENE; or

(iv)to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by properly completed and executed copies of IRS Form W-8ECI, IRS Form W-8BENE, a U.S. Tax Compliance Certificate in form reasonably satisfactory to Agent, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided, that if the Foreign Lender is a partnership and one or more of its direct or indirect partners is claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such partner;

(c)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower Agent and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon reasonable request), executed copies of any other form prescribed by

​

88

​

​

Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit Borrowers or Agent to determine the withholding or deduction required to be made; and

(d)if payment of an Obligation to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code), such Lender shall deliver to Borrower Agent and Agent, at the time(s) prescribed by law and otherwise upon reasonable request, such documentation prescribed by Applicable Law (including Section 1471(b)(3)(C)(i) of the Code) and such additional documentation as may be appropriate for Borrowers or Agent to comply with their obligations under FATCA and to determine that such Lender has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (d), “FATCA” shall include any amendments made to FATCA after the date hereof.

5.9.3Redelivery of Documentation. If any form or certification previously delivered by a Lender pursuant to this Section expires or becomes obsolete or inaccurate in any respect, such Lender shall promptly update the form or certification or notify Borrower Agent and Agent in writing of its legal inability to do so.

5.10Nature and Extent of Each Obligor’s Liability.

5.10.1Joint and Several Liability. Each Obligor agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and the other Secured Parties the prompt payment and performance of, all Obligations, except its Excluded Swap Obligations. Each Obligor agrees that its guaranty of the Obligations hereunder constitutes a continuing guaranty of payment and performance and not of collection, that such guaranty shall not be discharged until Full Payment of the Obligations, and that such guaranty is absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which any Obligor is or may become a party or be bound; (b) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any other Secured Party with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Obligations or any action, or the absence of any action, by Agent or any other Secured Party in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any election by Agent or any other Secured Party in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other Obligor, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the disallowance of any claims of Agent or any other Secured Party against any Obligor for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of the Obligations.

​

89

​

​

5.10.2Waivers.

(a)Each Obligor expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or any other Secured Party to marshal assets or to proceed against any other Obligor, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Obligor. Each Obligor waives all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of Obligations and waives, to the maximum extent permitted by law, any right to revoke any guaranty of Obligations as long as it is an Obligor. It is agreed among each Obligor, Agent and the other Secured Parties that the provisions of this Section are of the essence of the transaction contemplated by the Loan Documents and that, but for such provisions, Agent and the other Secured Parties would decline to make Loans and issue Letters of Credit. Each Obligor acknowledges that its guaranty pursuant to this Section is necessary to the conduct and promotion of its business, and can be expected to benefit such business.

(b)Agent and the other Secured Parties may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or nonjudicial sale or enforcement, without affecting any rights and remedies under this Section. If, in taking any action in connection with the exercise of any rights or remedies, Agent or any other Secured Party shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Obligor or other Person, whether because of any Applicable Laws pertaining to “election of remedies” or otherwise, each Obligor consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that any Obligor might otherwise have had. Any election of remedies that results in denial or impairment of the right of Agent or any other Secured Party to seek a deficiency judgment against any Obligor shall not impair any other Obligor’s obligation to pay the full amount of the Obligations. Each Obligor waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for Obligations, even though that election of remedies destroys such Obligor’s rights of subrogation against any other Person. Agent may, based on the instruction of Required Lenders, bid Obligations, in whole or part, at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by Agent but may be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section, notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which Agent or any other Secured Party might otherwise be entitled but for such bidding at any such sale.

5.10.3Extent of Liability; Contribution.

(a)Notwithstanding anything herein to the contrary, each U.S. Domiciled Obligor’s liability under this Section shall not exceed the greater of (i) all amounts for which such U.S. Domiciled Obligor is primarily liable, as described in clause (c) below, or (ii) such U.S. Domiciled Obligor’s Allocable Amount.

​

90

​

​

(b)If any U.S. Domiciled Obligor makes a payment under this Section of any Obligations (other than amounts for which such U.S. Domiciled Obligor is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Obligor, exceeds the amount that such U.S. Domiciled Obligor would otherwise have paid if each Obligor had paid the aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such Obligor’s Allocable Amount bore to the total Allocable Amounts of all Obligors, then such U.S. Domiciled Obligor shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Obligor for the amount of such excess, ratably based on their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Obligor shall be the maximum amount that could then be recovered from such Obligor under this Section without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law.

(c)This Section shall not limit the liability of any U.S. Domiciled Obligor to pay or guarantee Loans made directly or indirectly to it (including Loans advanced hereunder to any other Person and then re-loaned or otherwise transferred to, or for the benefit of, such U.S. Domiciled Obligor), U.S. LC Obligations relating to U.S. Letters of Credit issued to support its business, Secured Bank Product Obligations incurred to support its business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such U.S. Domiciled Obligor shall be primarily liable for all purposes hereunder. Agent and Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of Loans and Letters of Credit to Borrowers based on that calculation.

(d)Each Obligor that is a Qualified ECP when its guaranty of or grant of Lien as security for a Swap Obligation becomes effective hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide funds or other support to each Specified Obligor with respect to such Swap Obligation as may be needed by such Specified Obligor from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP’s obligations and undertakings under this Section voidable under any applicable fraudulent transfer or conveyance act). The obligations and undertakings of each Qualified ECP under this Section shall remain in full force and effect until Full Payment of all Obligations. Each Obligor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support or other agreement” for the benefit of, each Obligor for all purposes of the Commodity Exchange Act.

5.10.4[Reserved].Guaranty Limitations under Luxembourg Law.  Notwithstanding any other provision of this Agreement or any other Loan Document, the maximum liability of a Guarantor incorporated under Luxembourg law (a “Luxembourg Guarantor”) for the obligations of any Obligor which is not a direct or indirect subsidiary of the Luxembourg Guarantor shall be limited at any time to an amount not exceeding 95% of the higher of:

(a)the own funds (capitaux propres) of the Luxembourg Guarantor, as referred to in Annex I of the grand-ducal regulation dated 18 December 2015, in relation to inter alia article

​

91

​

​

34 of the Luxembourg law dated 19 December 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings (the “Own Funds”) as increased by the amount of all existing subordinated liabilities owed by the Luxembourg Guarantor to any other member of the group (the “Subordinated Liabilities”), each as reflected in the Luxembourg Guarantor's latest available annual accounts and other relevant documents available to the Agent at the date of the guaranty; or

(b)the Own Funds of the Luxembourg Guarantor and its Subordinated Liabilities, each as reflected in the Luxembourg Guarantor's latest available annual accounts and other relevant documents available to the Agent at the time the guaranty is called.

The above limitation shall not apply to any amounts borrowed by, or made available to, in any form whatsoever, the Luxembourg Guarantor or any of its direct or indirect present or future subsidiaries under any Loan Document.

5.10.5Joint Enterprise. Each Obligor has requested that Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance Obligors’ business most efficiently and economically. Obligors’ business is a mutual and collective enterprise, and the successful operation of each Obligor is dependent upon the successful performance of the integrated group. Obligors believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease administration of the facility, all to their mutual advantage. Obligors acknowledge that Agent’s and Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to Obligors and at Obligors’ request.  Each other Obligor, as a direct or indirect owner or Subsidiary of one or more Borrowers shall receive substantial direct and indirect benefit from the consolidation of the credit facility of Borrowers. All of the Obligors acknowledge and agree that Agent’s and Lenders’ willingness to extend credit to Borrowers and to administer the Collateral on a combined basis is conditioned on the foregoing agreement of the Obligors to be jointly and severally liable therefor.

5.10.6Subordination. Each Obligor hereby subordinates any claims, including any rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set off, that it may have at any time against any other Obligor, howsoever arising, to the Full Payment of its Obligations.

Section 6.CONDITIONS PRECEDENT.

6.1Conditions Precedent to Initial Loans

. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund the initial requested Loan or otherwise make the initial extension of credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied or waived:

(a)Each Loan Document required to be delivered on the Closing Date and any notices, intimations, transfers, or other documents required to be given or executed or made under the terms of the Loan Documents shall have been duly executed and delivered to Agent by each of the signatories thereto.

​

92

​

​

(b)Agent shall have received authorization for all filings, registrations or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.

(c)Subject to Section 10.1.13, Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox and Deposit Account Control Agreements for all Deposit Accounts (other than Excluded Accounts), in form and substance reasonably satisfactory to Agent.

(d)Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a Senior Officer of the Obligors (or another officer or director reasonably acceptable to Agent) certifying that, after giving effect to the initial credit extensions and transactions hereunder, (i) the Obligors, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct.

(e)Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions (in the case of any U.K. Domiciled Obligor, of both its board of directors and its members) authorizing execution and delivery of the Loan Documents (and all other documents and notices or intimations connected thereto) is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.

(f)Agent shall have received a written opinion of ▇▇▇▇▇ Lord, LLP, counsel to U.S. Obligors, Maslon LLP, local Minnesota counsel to Helix, Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, English counsel to the Agent, and Brodies LLP, Scots counsel to the Agent, and, if applicable, U.S. Borrower Agent’s in-house counsel, each in form and substance reasonably satisfactory to Agent and addressed to Agent and each Lender.

(g)if available in any relevant jurisdiction, Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization as of a recent date. Agent shall have received good standing certificates as of a recent date for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each material U.S. jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification (to the extent such concept or a similar concept exists under the laws of such jurisdiction).

(h)Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Obligors, all in compliance with the Loan Documents.

​

93

​

​

(i)Each Obligor shall have provided, in form and substance satisfactory to Agent and each Lender, all documentation and other information as Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Obligor.

(j)Agent shall have completed its business, financial and legal due diligence of Obligors, with results satisfactory to Agent. No Material Adverse Effect shall have occurred since December 31, 2020.

(k)Obligors shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date, including fees and expenses of counsel and other advisors.

(l)Agent shall have received a Borrowing Base Report as of August 31, 2021. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Obligors of all fees and expenses incurred in connection herewith, Global Availability shall be at least 20% of the Global Borrowing Base.

(m)Agent shall have received a duly executed payoff letter in form and substance reasonably satisfactory to it and dated on or prior to the Closing Date with respect to the Existing Credit Agreement, together with evidence satisfactory to it (including UCC-3 financing statement terminations and other termination documents) that on the Closing Date such Debt will be repaid in full and the Liens securing such Debt have been released, subject only to receipt of the applicable payoff amount and the filing of applicable terminations and releases.

(n)In the case of a U.K. Domiciled Obligor whose shares are the subject of a U.K. Security Document (i) Agent shall have received a certificate of that U.K. Domiciled Obligor certifying that no “warning notice” or “restrictions notice” (in each case as defined in Schedule 1B of the Companies Act 2006 (UK)) has been issued in respect of those shares, together with a copy of the “PSC register” (within the meaning of section 790C(10) of the Companies ▇▇▇ ▇▇▇▇ (UK)) of that U.K. Domiciled Obligor, which is certified by a director of that U.K. Domiciled Obligor to be correct, complete and not amended or superseded as at a date no earlier than the Closing Date, or (ii) a certificate of that U.K. Domiciled Obligor certifying that such U.K. Domiciled Obligor is not required to comply with Part 21A of the Companies ▇▇▇ ▇▇▇▇ (UK).

6.2Conditions Precedent to All Credit Extensions

. Agent, Issuing Bank and Lenders shall not be required to make any credit extension hereunder (including funding any Loan, arranging any Letter of Credit, or granting any other accommodation to or for the benefit of any Obligor), if the following conditions are not satisfied on such date and upon giving effect thereto:

(a)No Default or Event of Default exists or would result therefrom;

(b)The representations and warranties of each Obligor in the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifications therein), except for representations and warranties that expressly apply only on an earlier date,

​

94

​

​

which shall be true and correct in all material respects (without duplication of any materiality qualifications therein) as of such date;

(c)Sufficient Availability exists therefor; and

(d)With respect to a Letter of Credit issuance, all LC Conditions are satisfied.

Each request (or deemed request) by a Borrower for any credit extension shall constitute a representation by Obligors that the foregoing conditions are satisfied on the date of such request and on the date of the credit extension.

Section 7.COLLATERAL.

7.1Grant of Security Interest

. To secure the prompt payment and performance of the Obligations, each U.S. Domiciled Obligor hereby grants to Agent, for the benefit of Secured Parties, a continuing Lien on all of the following Property of such U.S. Domiciled Obligor, whether now owned or hereafter acquired, and wherever located:

(a)all Accounts and Payment Intangibles, including all amounts payable to such U.S. Domiciled Obligor relating to freight, sub-freights, rentals, charter hire, sub-charter hire, interest in cargoes, extended freight and other monies earned or to be earned or due or to become due of whatsoever nature, arising out of the ownership and/or operation of the Vessels (which term shall, for purposes of this clause (a), include related equipment such as remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers) and, without limitation to the foregoing, (i) all receivables under any master service agreement or any contract for the provision of services through the operation of a Vessel, (ii) compensation payable to any U.S. Domiciled Obligor in the event of requisition of any Vessel, (iii) remuneration for salvage and towage services for any Vessel, (iv) demurrage and detention money relating to any Vessel, (v) damages for breach (or other payments relating to termination) of any contract for employment of any Vessel, and (vi) all money payable under any insurance in respect of loss of hire for any Vessel;

(b)all Deposit Accounts and all cash and monies on deposit therein, including all Cash Collateral and U.S. Eligible Pledged Cash;

(c)all Commodities Accounts and Securities Accounts, in each case including all financial assets and Investment Property therein;

(d)all prepaid assets, tax refunds and business interruption insurance;

(e)all Instruments and all intercompany debt;

(f)all General Intangibles related to the above clauses (a) through (e), including all master services agreements, customer contracts and charters relating to the foregoing;

​

95

​

​

(g)all Letter-of-Credit Rights, Commercial Tort Claims and Supporting Obligations related to the above clauses (a) through (e);

(h)all cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and

(i)all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records) pertaining to the foregoing;

provided, that in no event shall the above-described Property include any Excluded Property; provided, further, that Excluded Property shall not include any proceeds, products, substitutions or replacements of Excluded Property, including monies due or to become due to a U.S. Domiciled Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).

To the extent that any of the above-described Property is not subject to the UCC, each U.S. Domiciled Obligor hereby pledges and collaterally assigns all of such U.S. Domiciled Obligor’s right, title, and interest in and to such Property, whether now owned or hereafter acquired, to Agent for the benefit of the Secured Parties to secure the payment and performance of the Obligations to the full extent that such a pledge and collateral assignment is possible under the relevant law and provided that such pledge is without prejudice to any rights charged, pledged or assigned pursuant to any U.K. Security Document.

7.2Lien on Deposit Accounts; Cash Collateral.

7.2.1Deposit Accounts. Agent’s Lien hereunder encumbers all amounts credited to any Deposit Account of a U.S. Domiciled Obligor, including sums in any blocked, lockbox, sweep or collection account (other than Excluded Property). Each Obligor hereby authorizes and directs each bank or other depository to deliver to Agent, upon request, all balances in any Deposit Account maintained for such Obligor, without inquiry into the authority or right of Agent to make such request.

7.2.2Cash Collateral. Cash Collateral may be invested, at Agent’s (or the relevant Issuing Bank’s, as applicable) discretion (with the consent of U.S. Borrower Agent, provided no Event of Default exists), but neither Agent nor any Issuing Bank shall have any duty to do so, regardless of any agreement or course of dealing with any Obligor, and shall have no responsibility for any investment or loss. As security for the Obligations, each Obligor hereby grants to Agent (and the relevant Issuing Bank in the case of Cash Collateral delivered to it) a security interest in and Lien upon all Cash Collateral delivered hereunder from time to time, whether held in a segregated cash collateral account or otherwise. Cash Collateral of an Obligor may be applied to the payment of the Obligations in the order specified by this Agreement.  All Cash Collateral and related Deposit Accounts shall be under the sole dominion and control of Agent (and such Issuing Bank, as applicable). No Obligor or other Person claiming through or on behalf of any Obligor shall have any right to any Cash Collateral, until Full Payment of all Obligations or such time as such amounts are due to be returned to the applicable Obligors in accordance with the terms of this Agreement.

​

96

​

​

7.3Other Collateral.

7.3.1Certain After-Acquired Collateral. Obligors shall (a) promptly (and in any event within 30 days) notify Agent if an Obligor obtains an interest in any Securities Account, Commodity Account, Instrument, Commercial Tort Claim or Letter-of-Credit Right that would constitute Collateral, and (b) uponpromptly after Agent’s reasonable request, take such actions as Agent deems appropriate to effect its perfected, first priority Lien on such Collateral. If any such Collateral is in the possession of a third party, Obligors shall obtain an acknowledgment (in form and substance reasonably satisfactory to Agent) from such party that it holds such Collateral for the benefit of Agent.

7.4Limitations

. The Lien on Collateral granted hereunder and under the other Loan Documents is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of Obligors relating to any Collateral. In no event shall any Obligor’s grant of a Lien under any Loan Document secure its Excluded Swap Obligations.

7.5Further Assurances

. All Liens granted to Agent under the Loan Documents are for the benefit of the Secured Parties. Promptly upon written request (including by email), Obligors shall deliver such instruments and agreements, and shall take such actions, as Agent deems reasonably necessary under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Obligor authorizes Agent to file any financing statement that approximately describes the Collateral of such Obligor and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral.

Section 8.COLLATERAL ADMINISTRATION.

8.1Borrowing Base Reports

. By the 25th day of each month, Borrower Agents shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Report for the U.S. Borrowing Base, the U.K. Borrowing Base and the Global Borrowing Base as of the close of business of the previous month; provided, that if a Borrowing Base Reporting Trigger Period is in effect Borrower Agents shall, no later than Wednesday following the end of each calendar week, deliver a Borrowing Base Report prepared as of the close of business of such previous week (except that any ineligible accounts may be calculated as of the prior month end). All information (including calculation of Availability) in a Borrowing Base Report shall be certified by Borrowers. Agent may from time to time in its Permitted Discretion adjust such report (a) to reflect Agent’s reasonable estimate of declines in value of Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Accounts; and (c) to the extent any information or calculation does not comply with this Agreement.

​

97

​

​

8.2Accounts.

8.2.1Records and Schedules of Accounts. Each Obligor shall keep accurate and complete records of its Accounts, including all payments and collections thereon. Borrowers shall also provide to Agent (and Agent shall promptly deliver the same to Lenders), on or before the 25th day of each month, (a) sales, collection and reconciliation reports, and (b) a detailed aged trial balance of all Accounts of Borrowers (other than intercompany Accounts) as of the end of the preceding month specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and, upon Agent’s request, including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts of the U.S. Borrowers in an aggregate face amount of $2,500,000 or more cease to be U.S. Eligible Accounts for reasons other than aging and payment of Accounts, U.S. Borrowers shall notify Agent of such occurrence within one Business Day after any Obligor has knowledge thereof. If Accounts of the U.K. Borrowers in an aggregate face amount of $1,500,000 or more cease to be U.K. Eligible Accounts for reasons other than aging and payment of Accounts, U.K. Borrowers shall notify Agent of such occurrence within one Business Day after any Obligor has knowledge thereof.

8.2.2Taxes. If an Account of any Obligor includes a charge for any Taxes, Agent is authorized, in its discretion if Obligors have failed to make such payment, to pay the amount thereof to the proper taxing authority for the account of such Obligor and to charge Obligors therefor; provided, that neither Agent nor Lenders shall be liable for any Taxes that may be due from Obligors or relate to any Collateral.

8.2.3Account Verification. If an Event of Default exists, Agent shall have the right at any time, in the name of Agent, any designee of Agent or any Obligor, to verify the validity, amount or any other matter relating to any Accounts of Obligors by mail, telephone or otherwise; provided, that if no Event of Default has occurred which is continuing, the Agent may request the Obligors to contact their Account Debtors for such verification and Agent may participate in such verifications and direct responses to Agent. Obligors shall cooperate with Agent in an effort to facilitate and promptly conclude any such verification process.

8.2.4Maintenance of Dominion Account. Obligors shall maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Agent. Obligors shall obtain a Deposit Account Control Agreement in form and substance reasonably satisfactory to Agent from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative and other charges; provided that, U.S. Dominion Accounts will be subject to springing dominion and are not required to be subject to full dominion unless and until a Dominion Trigger Period exists. U.K. Dominion Accounts shall be under the sole dominion and exclusive control of Agent whether or not a Dominion Trigger Period exists. All U.K. Dominion Accounts shall be maintained with Bank of America (London).  If a U.S. Dominion Account is not maintained with Bank of America, Agent may, during any Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. Agent and Lenders assume no responsibility to Obligors for any lockbox arrangement or

​

98

​

​

Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.

8.2.5Release of Certain Accounts

. Borrower Agents may from time to time request the release of Accounts (and the related contracts or portion thereof and, in respect of any U.K. Domiciled Obligor, the applicable Vessel, equipment and similar related Collateral) pledged to secure the Obligations in connection with secured financings for Vessels and their related equipment otherwise permitted under this Agreement.  In respect of any Accounts (and such other Collateral) owed to any U.K. Domiciled Obligor, any such release shall be at the discretion of the Agent. In respect of any other Accounts (and the related contracts or portion thereof), Agent shall release such Accounts (and the related contracts or portion thereof) so long as no Default or Event of Default exists before or after giving effect to any such release, and each of the following other conditions have been satisfied in Agent’s reasonable discretion:

(a)such Borrower Agent shall have given Agent (i) at least 10 Business Days’ prior notice of the proposed release together with then current drafts of the related finance documentation, and (ii) prior to the closing date, final versions of the related finance documentation;

(b)the Accounts to be released relate solely to earnings from a Vessel that a Borrower will provide as collateral security for Permitted Debt which is secured by the whole of such Vessel and its earnings, in each case, permitted by this Agreement;

(c)such Accounts shall be removed from all calculations of any Borrowing Base, and Borrower Agent shall have delivered to Agent (and Agent shall promptly deliver the same to the Lenders) a Borrowing Base Report for the applicable Borrowing Base and Global Borrowing Base, calculated on a pro forma basis after giving effect to the removal of such Accounts;

(d)the Payment Conditions shall be satisfied before and after giving effect thereto;

(e)payments received by Borrowers in respect of such released Accounts will, after the date of such release, be paid into one or more segregated Deposit Accounts other than any Dominion Account; and

(f)Borrowers shall pay all reasonable and documented out-of-pocket costs and expenses actually incurred by Agent in connection with any such release.

8.2.6Proceeds of Collateral. Obligors shall request in writing and otherwise take all necessary steps to ensure that, no later than 90 days after the Closing Date (or such later date that Agent may agree in its sole discretion), all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account).  Subject to the preceding sentence, if any Obligor or Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent, and in case the concept of trust is not recognized in any applicable jurisdiction, as an agency (mandat), and promptly (not later

​

99

​

​

than the next Business Day) deposit same into a Dominion Account. Notwithstanding the foregoing, payments in respect of Accounts that are released pursuant to Section 8.2.5 above may not be comingled with the other Collateral and shall not be remitted to a Dominion Account.

8.3Administration of Deposit Accounts and Securities Accounts.

8.3.1Controlled Accounts. Schedule 8.3 lists, as of the Closing Date, all Deposit Accounts and Securities Accounts maintained by Obligors, including Dominion Accounts. Each Obligor shall take all actions necessary to establish Agent’s first priority Lien on each Deposit Account (other than any Excluded Accounts) and each Securities Account. Obligors shall be the sole account holders of each Deposit Account and Securities Account and shall not allow any Person (other than Agent and the depository bank or securities intermediary) to have control over their Deposit Accounts, Securities Accounts or any Property deposited therein. Obligors shall immediately notify Agent of any opening or closing of a Deposit Account or a Securities Account following the Closing Date. With respect to all Deposit Accounts (other than Excluded Accounts) and Securities Accounts existing on the Closing Date and concurrently with the opening of any new Deposit Account (other than Excluded Accounts) and Securities Account after the Closing Date, the Obligors shall provide Agent with a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable.

8.3.2U.S. Eligible Pledged Cash Accounts. U.S. Borrowers may, at any time and from time to time, deposit cash in Dollars into the U.S. Eligible Pledged Cash Account in an amount not less than $2,500,000. Agent shall have exclusive control over withdrawals from any U.S. Eligible Pledged Cash Account; provided, that U.S. Borrowers may, upon not less than five Business Days’ prior written notice to Agent by the U.S. Borrower Agent, withdraw U.S. Eligible Pledged Cash from the U.S. Eligible Pledged Cash Account if (i) no Default or Event of Default exists immediately prior to such withdrawal or would result after giving effect thereto, (ii) after giving effect to such withdrawal, no Overadvance would exist, and (iii) the U.S. Borrower Agent shall have delivered to Agent (and Agent shall promptly deliver the same to the Lenders) an updated Borrowing Base Report reflecting the reduction in the U.S. Borrowing Base attributable solely to the reduction in the U.S. Eligible Pledged Cash resulting from such withdrawal (and the U.S. Borrowing Base and Global Borrowing Base then in effect shall, until the next redetermination thereof in accordance with this Agreement, be determined on the basis of such Borrowing Base Report); provided, further, that a withdrawal by U.S. Borrowers may not be made more frequently than once in any calendar month. Each U.S. Eligible Pledged Cash Account shall be a money market deposit account offered by Bank of America or any of its Affiliates and established by U.S. Borrowers, in each case, at U.S. Borrowers’ sole risk and expense. Interest or profits, if any, on such deposit shall accumulate in the U.S. Eligible Pledged Cash Account and be part of the U.S. Eligible Pledged Cash.

8.4General Provisions.

8.4.1Location of Records of Collateral. All records respecting Collateral, shall at all times be kept by Obligors at the business locations set forth in Schedule 8.4.1, except that Obligors may (a) move records of U.S. Facility Collateral to another location in the United States, upon 10 Business Days prior written notice to Agent; and (b) move records of U.K. Facility Collateral to another location in the U.K., upon 10 Business Days prior written notice to Agent.

​

100

​

​

8.4.2[Reserved].

8.4.3Protection of Collateral. All expenses of protecting any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by Obligors. Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value thereof, or, if applicable, for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Obligors’ sole risk.

8.4.4Defense of Title. Each Obligor shall defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands, except Permitted Liens.

8.5Power of Attorney

. Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Obligor’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may (in its Permitted Discretion), without notice and in either its or an Obligor’s name, but at the cost and expense of Obligors:

(a)At any time, endorse an Obligor’s name on any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; and

(b)During an Event of Default, (i) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable; (iv) collect, liquidate and receive balances in Deposit Accounts or investment accounts, and take control, in any manner, of proceeds of Collateral; (v) prepare, file and sign an Obligor’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi) receive, open and dispose of mail addressed to an Obligor, and notify postal authorities to deliver any such mail to an address designated by Agent; (vii) endorse any Chattel Paper, Document, Instrument, ▇▇▇▇ of lading, or other document or agreement relating to any Accounts or other Collateral; (viii) use an Obligor’s stationery and sign its name to verifications of Accounts and notices to Account Debtors; (ix) use information contained in any data processing, electronic or information systems relating to Collateral; (x) make and adjust claims under insurance policies; (xi) take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance or other instrument for which an Obligor is a beneficiary; (xii) exercise any voting or other rights relating to Investment Property; and (xiii) take all other actions as Agent deems appropriate to fulfill any Obligor’s obligations under the Loan Documents.

​

101

​

​

Section 9.REPRESENTATIONS AND WARRANTIES.

9.1General Representations and Warranties

. To induce Agent and Lenders to enter into this Agreement and to make available the Commitments, Loans and Letters of Credit, each Obligor represents and warrants that:

9.1.1Organization and Qualification. Each Obligor and Subsidiary is duly organized or incorporated, validly existing and, in relation to each U.S. Domiciled Obligor, in good standing under the laws of the jurisdiction of its organization or incorporation. Each Obligor and Subsidiary is duly qualified, authorized to do business and in good standing as a foreign corporation in each jurisdiction where failure to be so qualified could reasonably be expected to have a Material Adverse Effect. No Obligor is an Affected Financial Institution or Covered Entity. As of the Closing Date, the information included in the Beneficial Ownership Certification most recently provided to Agent prior to the Closing Date is true and complete in all respects.  The information included in each Beneficial Ownership Certification provided to Agent or any Lender after the Closing Date shall be true and complete in all respects as of the date such Beneficial Ownership Certification is so provided.

9.1.2Power and Authority. Each Obligor is duly authorized to execute, deliver and perform the Loan Documents (including (save for the U.K. Bond and Floating charge) through electronic means) to which it is a party and has duly executed and delivered the Loan Documents to which it is a party. The execution, delivery and performance of the Loan Documents to which it is a party have been duly authorized by all necessary action, and do not (a) require any consent or approval of any holders of Equity Interests of any Obligor, except those already obtained; (b) violate the Organic Documents of any Obligor; (c) violate or cause a default under any Applicable Law or Material Contract; or (d) result in or require imposition of a Lien (other than a Permitted Lien) on any Obligor’s Property.

9.1.3Enforceability. Each Loan Document is a legal, valid and binding obligation of each Obligor party thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.

9.1.4Capital Structure. Schedule 9.1.4 shows as of the Closing Date, for each Obligor and Subsidiary, its name, jurisdiction of organization and holders of its Equity Interests. Except as disclosed on Schedule 9.1.4, in the five years preceding the Closing Date, no Obligor or Subsidiary has acquired any substantial assets from any other Person nor been the surviving entity in a merger or combination.

9.1.5Title to Properties; Priority of Liens. Each Obligor has legal title to the whole of each of its Vessels and good title to all of its personal Property, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to materially detract from the value thereof to, or the use thereof in, the business of such Obligors and Subsidiaries, in each case, free of Liens except for Permitted Liens. All Liens of Agent in the Collateral are duly perfected, first priority Liens (to the extent perfection is required under the Loan Documents),

​

102

​

​

subject only to Permitted Liens and completion of the perfection actions contemplated under the Loan Documents.

9.1.6Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Obligors with respect thereto. Obligors warrant, with respect to each Account shown as an Eligible Account in a Borrowing Base Report, that:

(a)it is genuine and in all material respects what it purports to be;

(b)it arises out of a rendition of services in the Ordinary Course of Business, and substantially in accordance with any purchase order, contract or other document relating thereto;

(c)it is for a sum certain and, other than in the case of Eligible Unbilled Accounts, maturing as stated in the applicable invoice, a copy of which has been furnished or is available to Agent on request;