AMENDMENTS FOLLOWING MERGER
In addition, and following the consummation of the Merger, an amendment will be required to reflect the ownership structure of INSW and its Subsidiaries, after giving effect to the Transactions. In accordance with the requirements of Section 11.13 (Amendment or Waiver; etc.) of the Credit Agreement, we hereby request that clauses (a) and (b) of the definition of “Change of Control” set forth in Section 1.01 (Defined Terms) of the Credit Agreement are amended as follows:
“(a)International Seaways, Inc., a Marshall Islands corporation (“Holdings”) at any time ceases to own, directly or indirectly 100% of the Equity Interests of DSSH or ceases to have the power to vote, or direct the voting of, any such Equity Interests, or
(b)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group or its respective subsidiaries, and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that, for purposes of this clause, such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of (x) voting Equity Interests of Holdings representing 50% or more of the voting power of the total outstanding voting Equity Interests of Holdings, (y) 50% or more of the total economic interests of the Equity Interests of Holdings (in either case, taking into account in the numerator all such securities that such person or group has the right to acquire (whether pursuant to an option right or otherwise) and taking into account in the denominator all securities that any person has the right to acquire (whether pursuant to an option right or otherwise)) or (z) the power (whether or not exercised) to elect, appoint or remove a majority of Holdings’ managers or board of directors or similar body or executive committee thereof, or”.
The amendment set forth in this Section 4 shall take effect as of the Closing Date (as defined in that certain Agreement and Plan of Merger, to be dated on or about the date of this Consent & Amendment Letter (the “Merger Agreement”) by and among INSW, Merger Sub and DSSI) (the “Merger Effective Date”), subject to the payment of the fees set forth in Section 5 of this Consent & Amendment Letter.
Please indicate your consent to the waivers and amendments set forth in Section 2, Section 3 and Section 4 of this Consent & Amendment Letter by executing a counterpart page hereto not later than March 30, 2021.
Each Lender which provides their consent will receive a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans of such Lender as of the Consent Effective Date (as defined below), which fee will be due and payable on the Merger Effective Date and paid by the Borrower to the Agent for distribution to each such Lender.
This Consent & Amendment Letter shall become effective on the date (the “Consent Effective Date”) when the Lenders shall have signed a counterpart hereof and shall have delivered the same to the Administrative Agent.