EXHIBIT 10.3
================================================================================
CREDIT AGREEMENT PROVIDING FOR A
SENIOR SECURED CREDIT FACILITY
OF UP TO $50,000,000
LCI SHIPHOLDINGS, INC.
and
CENTRAL GULF LINES, INC.
and
XXXXXXXX STEAMSHIP CORPORATION
as Borrowers,
AND
The Banks and Financial Institutions listed on Schedule I hereto,
as Lenders,
AND
WHITNEY NATIONAL BANK,
as Administrative Agent, Security Trustee and Arranger,
AND
INTERNATIONAL SHIPHOLDING CORPORATION,
ENTERPRISE SHIP COMPANY, INC.,
SULPHUR CARRIERS, INC.,
GULF SOUTH SHIPPING PTE LTD.,
and
CG RAILWAY, INC.,
as Guarantors
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December 6, 2004
CONTENTS
PAGE
1. DEFINITIONS.................................................................................................1
1.1 Specific Definitions...............................................................................1
1.2 Computation of Time Periods; Other Definitional Provisions........................................13
1.3 Accounting Terms..................................................................................13
1.4 Certain Matters Regarding Materiality.............................................................13
2. REPRESENTATIONS AND WARRANTIES.............................................................................13
2.1 Representations and Warranties....................................................................13
(a) Due Organization and Power........................................................................13
(b) Authorization and Consents........................................................................14
(c) Binding Obligations...............................................................................14
(d) No Violation......................................................................................14
(e) Filings; Stamp Taxes..............................................................................14
(f) Litigation........................................................................................14
(g) No Default........................................................................................14
(h) Vessels...........................................................................................14
(i) Insurance.........................................................................................15
(j) Financial Information.............................................................................15
(k) Tax Returns.......................................................................................15
(l) ERISA.............................................................................................15
(m) Chief Executive Office............................................................................16
(n) Foreign Trade Control Regulations.................................................................16
(o) Equity Ownership..................................................................................16
(p) Environmental Matters and Claims..................................................................16
(q) Compliance with ISM Code, ISPS Code and MTSA......................................................17
(r) Threatened Withdrawal of DOC or SMC...............................................................17
(s) Liens.............................................................................................17
(t) Indebtedness......................................................................................17
(u) Payment Free of Taxes.............................................................................17
(v) No Proceedings to Dissolve........................................................................17
(w) Solvency..........................................................................................17
(x) Compliance with Laws..............................................................................17
(y) Survival..........................................................................................17
3. THE LOAN...................................................................................................18
3.1
(a) Purposes..........................................................................................18
(b) Making of the Advances............................................................................18
3.2 Drawdown Notice...................................................................................18
3.3 Effect of Drawdown Notice.........................................................................18
3.4 Additional Note...................................................................................18
3.5 Several Obligations...............................................................................18
3.6 Pro Rata Treatment................................................................................18
3.7 Funding of Advances...............................................................................18
3.8 Letters of Credit.................................................................................19
3.9 Request for Issuance of Letter of Credit..........................................................20
3.10 Letter of Credit Payments Deemed Advances.........................................................20
3.11 Letter of Credit Participation....................................................................20
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3.12 Solidary Liability of Borrowers...................................................................22
3.13 Contribution and Indemnification among Borrowers..................................................23
3.14 Express Waivers by the Borrowers in respect of Cross Guaranties and Cross
Collateralization.................................................................................24
4. CONDITIONS.................................................................................................25
4.1 Conditions Precedent to the Effectiveness of this Agreement.......................................25
(a) Corporate Authority...............................................................................25
(b) The Agreement.....................................................................................26
(c) The Note..........................................................................................26
(d) The Pledge Agreement..............................................................................26
(e) The Creditors.....................................................................................26
(f) Fees..............................................................................................26
(g) Environmental Claims..............................................................................26
(h) Legal Opinions....................................................................................26
(i) Officer's Certificate.............................................................................26
(j) First Vessel Documents............................................................................27
(k) Security Documents................................................................................27
(l) Vessel Appraisals.................................................................................27
(m) ISM DOC...........................................................................................27
(n) Evidence of Current COFR..........................................................................27
(o) First Vessel Liens................................................................................27
(p) Charters; Pooling Agreements......................................................................28
4.2 Certain Matters with respect to the Available Amount..............................................28
(a) Second Vessel Documents...........................................................................28
(b) Security Documents................................................................................28
(c) Vessel Appraisals.................................................................................29
(d) Second Vessel Liens...............................................................................29
(e) Legal Opinions....................................................................................29
4.3 Further Conditions Precedent......................................................................29
(a) Drawdown Notice...................................................................................29
(b) Representations and Warranties True...............................................................29
(c) No Default........................................................................................29
(d) No Material Adverse Effect........................................................................29
4.4 Breakfunding Costs................................................................................29
4.5 Satisfaction after Drawdown.......................................................................29
5. REPAYMENT AND PREPAYMENT...................................................................................30
5.1 Repayment.........................................................................................30
5.2 Voluntary Prepayment; Re-borrowing................................................................30
5.3 Mandatory Prepayment; Sale or Loss of Vessel......................................................30
5.4 Prepayments Generally.............................................................................30
5.5 Borrowers' Obligation Absolute....................................................................30
6. INTEREST AND RATE..........................................................................................31
6.1 Payment of Interest; Interest Rate................................................................31
6.2 Maximum Interest..................................................................................31
7. PAYMENTS...................................................................................................31
7.1 Place of Payments, No Set Off.....................................................................31
7.2 Tax Credits.......................................................................................32
7.3 Computations; Banking Days........................................................................32
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8. EVENTS OF DEFAULT..........................................................................................32
8.1 Events of Default.................................................................................32
(a) Principal Payments................................................................................32
(b) Interest and other Payments.......................................................................32
(c) Representations, etc..............................................................................32
(d) Impossibility, Illegality.........................................................................32
(e) Mortgage..........................................................................................33
(f) Certain Covenants.................................................................................33
(g) Covenants.........................................................................................33
(h) Indebtedness and Other Obligations................................................................33
(i) Bankruptcy........................................................................................33
(j) Judgments.........................................................................................33
(k) Inability to Pay Debts............................................................................33
(l) Termination of Operations; Sale of Assets.........................................................33
(m) Change in Financial Position......................................................................34
(n) Cross-Default.....................................................................................34
(o) ERISA Debt........................................................................................34
8.2 Indemnification...................................................................................34
8.3 Application of Moneys.............................................................................35
9. COVENANTS..................................................................................................35
9.1 Affirmative Covenants.............................................................................35
(a) Performance of Agreements.........................................................................35
(b) Notice of Default, etc............................................................................35
(c) Obtain Consents...................................................................................35
(d) Financial Information.............................................................................36
(e) Contingent Liabilities............................................................................37
(f) Vessel Valuations.................................................................................37
(g) Corporate Existence...............................................................................37
(h) Books and Records.................................................................................37
(i) Taxes and Assessments.............................................................................37
(j) Inspection........................................................................................37
(k) Inspection and Survey Reports.....................................................................37
(l) Compliance with Statutes, Agreements, etc.........................................................37
(m) Environmental Matters.............................................................................38
(n) Insurance.........................................................................................38
(o) Vessel Management.................................................................................38
(p) Brokerage Commissions, etc........................................................................38
(q) ISM Code, ISPS Code and MTSA Matters..............................................................38
(r) ERISA.............................................................................................38
(s) Evidence of Current COFR..........................................................................39
(t) Discharge of Existing Mortgage on Second Vessel...................................................39
9.2 Negative Covenants................................................................................39
(a) Liens.............................................................................................39
(b) Third Party Guaranties............................................................................40
(c) Liens on Shares of Guarantors.....................................................................40
(d) Subordination of Inter-Company Indebtedness.......................................................40
(e) Certain Indebtedness..............................................................................40
(f) Transaction with Affiliates.......................................................................40
(g) Change of Flag, Class, Management or Ownership....................................................40
(h) Chartering........................................................................................40
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(i) Change in Business................................................................................40
(j) Sale of Assets....................................................................................40
(k) Changes in Offices or Names.......................................................................40
(l) Consolidation and Merger..........................................................................41
(m) Change Fiscal Year................................................................................41
(n) Indebtedness......................................................................................41
(o) Limitations on Ability to Make Distributions......................................................41
(p) Change of Control.................................................................................41
(q) No Money Laundering...............................................................................41
9.3 Financial Covenants...............................................................................41
(a) Consolidated Indebtedness to Consolidated EBITDA Ratio............................................41
(b) Working Capital...................................................................................41
(c) Consolidated Tangible Net Worth...................................................................41
(d) Consolidated EBITDA to Interest Expense...........................................................42
9.4 Asset Maintenance.................................................................................42
10. GUARANTEE..................................................................................................42
10.1 The Guarantee.....................................................................................42
10.2 Obligations Unconditional.........................................................................42
10.3 Reinstatement.....................................................................................43
10.4 Subrogation.......................................................................................43
10.5 Remedies..........................................................................................44
10.6 Joint, Several and Solidary Liability.............................................................44
10.7 Continuing Guarantee..............................................................................44
11. ASSIGNMENT.................................................................................................44
12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC..........................................................44
12.1 Illegality........................................................................................44
12.2 Increased Costs...................................................................................45
12.3 Nonavailability of Funds..........................................................................45
12.4 Lender's Certificate Conclusive...................................................................46
12.5 Compensation for Losses...........................................................................46
13. CURRENCY INDEMNITY.........................................................................................46
13.1 Currency Conversion...............................................................................46
13.2 Change in Exchange Rate...........................................................................46
13.3 Additional Debt Due...............................................................................46
13.4 Rate of Exchange..................................................................................47
14. FEES AND EXPENSES..........................................................................................47
14.1 Fees..............................................................................................47
14.2 Expenses..........................................................................................47
15. APPLICABLE LAW, JURISDICTION AND WAIVER....................................................................47
15.1 Applicable Law....................................................................................47
15.2 Jurisdiction......................................................................................47
15.3 WAIVER OF JURY TRIAL..............................................................................48
16. THE AGENTS.................................................................................................48
16.1 Appointment of Agents.............................................................................48
16.2 Appointment of Security Trustee..................................................................48
16.3 Distribution of Payments..........................................................................49
16.4 Holder of Interest in Note........................................................................49
16.5 No Duty to Examine, Etc...........................................................................49
16.6 Agents as Lenders.................................................................................49
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16.7 Acts of the Agent.................................................................................49
16.8 Certain Amendments................................................................................50
16.9 Assumption re Event of Default....................................................................50
16.10 Limitations of Liability..........................................................................51
16.11 Indemnification of the Agent and Security Trustee.................................................51
16.12 Consultation with Counsel.........................................................................51
16.13 Resignation.......................................................................................51
16.14 Representations of Lenders........................................................................52
16.15 Notification of Event of Default..................................................................52
17. NOTICES AND DEMANDS........................................................................................52
17.1 Notices...........................................................................................52
18. fraudulent conveyances/fraudulent transfers................................................................53
19. MISCELLANEOUS..............................................................................................53
19.1 Time of Essence...................................................................................53
19.2 Unenforceable, etc., Provisions - Effect..........................................................54
19.3 References........................................................................................54
19.4 Further Assurances................................................................................54
19.5 Prior Agreements, Merger..........................................................................54
19.6 Entire Agreement; Amendments......................................................................54
19.7 Indemnification...................................................................................54
19.8 Headings..........................................................................................55
v
SCHEDULES
I The Lenders and the Commitments
II The Applicable Margin
III The Vessels
IV Approved Ship Brokers
V Liens
VI Indebtedness
EXHIBITS
A Form of Promissory Note
B Form of Pledge Agreement
C Form of Drawdown Notice
D Form of Compliance Certificate
E Form of Assignment and Assumption Agreement
F-1 Form of Earnings Assignment (ENERGY ENTERPRISE)
F-2 Form of Earnings Assignment (SULPHUR ENTERPRISE)
G-1 Form of Insurances Assignment (ENERGY ENTERPRISE)
G-2 Form of Insurances Assignment (SULPHUR ENTERPRISE)
H-1 Form of U.S. Preferred Mortgage (ENERGY ENTERPRISE)
H-2 Form of U.S. Preferred Mortgage (SULPHUR ENTERPRISE)
I Form of Letter of Credit Request
vi
CREDIT AGREEMENT
THIS
CREDIT AGREEMENT (this "
Credit Agreement" or "Agreement")
is made as of the 6th day of December 2004, by and among (1) LCI SHIPHOLDINGS,
INC., a corporation organized and existing under the laws of the Republic of the
Xxxxxxxx Islands ("LCI"), CENTRAL GULF LINES, INC., a corporation organized and
existing under the laws of the State of Delaware ("Central Gulf"), and XXXXXXXX
STEAMSHIP CORPORATION, a corporation organized and existing under the laws of
the State of New York ("Xxxxxxxx", together with LCI and Central Gulf, the
"Borrowers" and each a "Borrower"), as borrowers, (2)
INTERNATIONAL SHIPHOLDING
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware ("ISH" ), ENTERPRISE SHIP COMPANY, INC., a corporation organized and
existing under the laws of the State of Delaware ("Enterprise"), SULPHUR
CARRIERS, INC., a corporation organized and existing under the laws of the State
of Delaware ("Sulphur"), GULF SOUTH SHIPPING PTE LTD., a corporation organized
and existing under the laws of the Republic of Singapore ("Gulf South"), and CG
RAILWAY, INC., a corporation organized and existing under the laws of the State
of Delaware ("CG", together with ISH, Enterprise, Sulphur, and Gulf South, the
"Guarantors" and each a "Guarantor"), as guarantors, (3) the banks and financial
institutions listed on Schedule I, as lenders (together with any bank or
financial institution which becomes a Lender pursuant to Article 11, the
"Lenders" and each a "Lender"), and (4) WHITNEY NATIONAL BANK ("Whitney"), as
administrative agent (in such capacity including any successor thereto, the
"Administrative Agent"), as security trustee for the Lenders (in such capacity,
the "Security Trustee") and as arranger.
WITNESSETH THAT:
WHEREAS, at the request of the Borrowers, each of the Agents
(as defined below) has agreed to serve in such capacity under the terms of this
Agreement and the Lenders have agreed to provide to the Borrowers a senior
secured revolving credit facility in the amount of up to Fifty Million United
States Dollars (US $50,000,000);
NOW, THEREFORE, in consideration of the premises set forth
above, the covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as set forth below:
1. DEFINITIONS
1.1 Specific Definitions. In this Agreement the words and expressions specified
below shall, except where the context otherwise requires, have the meanings
attributed to them below:
"Acceptable Accounting Firm" shall mean Ernst & Young
LLP, or such other recognized international
accounting firm as shall be approved by the
Administrative Agent, such approval not to
be unreasonably withheld;
"Administrative Agent" shall have the meaning ascribed thereto in
the preamble;
"Advance(s)" means any amount advanced to a Borrower with
respect to the Facility or (as the context
may require) the aggregate amount of all
such Advances for the time being
outstanding; provided, however, that the
aggregate amount of all Advances and the
Letter of Credit Outstandings shall not
exceed the Available Amount;
"Affiliate" shall mean with respect to any Person, any
other Person directly or indirectly
controlled by or under common control with
such Person. For the purposes of this
definition, "control" (including, with
correlative meanings, the terms "controlled
by" and "under common control with") as
applied to any Person means the possession
directly or indirectly of the power to
direct or cause the direction of the
management and policies of that Person
whether through ownership of voting
securities or by contract or otherwise;
"Agents" shall mean each of the Administrative Agent,
and the Security Trustee;
"Agreement" shall mean this Agreement, as the same shall
be amended, modified or supplemented from
time to time;
"Applicable Margin" shall mean a margin which will vary as set
forth on Schedule II attached hereto;
"Applicable Rate" shall mean any rate of interest applicable
to the Facility from time to time pursuant
to Section 6.1;
"Assigned Moneys" shall mean sums assigned to or received by
the Security Trustee pursuant to any
Security Document;
"Assignment and Assumption shall mean any Assignment and Assumption
Agreement(s)" Agreement(s) executed pursuant to Section 11
substantially in the form set out in Exhibit
E;
"Assignment Notices" shall mean (a) notices with respect to the
Earnings Assignments substantially in the
form set out in Exhibit 1 thereto and (b)
notices with respect to the Insurances
Assignments substantially in the form set
out in Exhibit 3 thereto;
"Assignments" shall mean the Earnings Assignments and the
Insurances Assignments;
"Available Amount" means the lesser of (i) Fifty Million United
States Dollars ($50,000,000) and (ii) the
sum of (a) seventy percent (70%) of the
aggregate Fair Market Value of the Vessels
then mortgaged to the Security Trustee under
the Facility, and (b) an amount equal to the
product of (X) fifty percent (50%) of LCI's
percentage interest in the share capital of
Belden multiplied by (Y) the Net Worth of
Xxxxxx;
2
provided, however, that for the purposes of
determining the Available Amount (b) shall
never exceed Eight Million United States
Dollars ($8,000,000);
"Banking Day(s)" shall mean any day that is not a Saturday,
Sunday or other day on which (a) banks in
Xxx Xxxx, Xxx Xxxx, xxx Xxxxxx, Xxxxxxx are
authorized or required by law to remain
closed, or (b) banks are not generally open
for dealing in dollar deposits in the London
interbank market;
"Xxxxxx" shall mean Xxxxxx Cement Holding Inc., a
corporation organized and existing under the
laws of the Republic of Panama;
"Borrower(s)" shall have the meaning ascribed thereto in
the preamble;
"Central Gulf" shall have the meaning ascribed thereto in
the preamble;
"CG" shall have the meaning ascribed thereto in
the preamble;
"Change of Control" shall mean (a) any "person" (as such term is
used in Sections 13(d) and 14(d) of the
Exchange Act), other than the existing
owners, that becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly,
of more than 30% of the total voting power
of ISH or (b) ISH ceases to own, directly or
indirectly, 100% of any of the Borrowers or
(c) the Board of Directors of any of the
Borrowers or ISH ceases to consist of a
majority of the directors existing on the
date hereof or directors nominated by at
least two-thirds (2/3) of the then existing
directors or (d) the Xxxxxxx Family shall
cease to own at least twenty percent (20%)
of ISH;
"Classification Society" shall mean a member of the International
Association of Classification Societies
acceptable to the Lenders with whom the
Vessels are entered and who conducted
periodic physical surveys and/or inspections
of the Vessels;
"Closing Date" shall mean the day and year first written
above;
"Code" shall mean the Internal Revenue Code of
1986, as amended, and any successor statute
and regulation promulgated thereunder;
"Collateral" shall mean, all property or other assets,
real or personal, tangible or intangible,
whether now owned or hereafter acquired in
which the Security Trustee or any Lender has
been granted a security interest pursuant to
a Security Document;
3
"Commitment(s)" shall mean in relation to a Lender, the
portion of the Facility set out opposite its
name in Schedule I hereto or, as the case
may be, in any relevant Assignment and
Assumption Agreement, as changed from time
to time pursuant to the terms of this
Agreement;
"Compliance Certificate" shall mean a certificate certifying the
compliance by each of the Security Parties
with all of its covenants contained herein
and showing the calculations thereof in
reasonable detail, delivered by the chief
financial officer of ISH to the
Administrative Agent from time to time
pursuant to Section 9.1(d) in the form set
out in Exhibit D or in such other form as
the Administrative Agent may agree;
"Consolidated EBITDA" shall mean, for any period, with respect to
ISH and the Subsidiaries, the sum of
(without duplication) (a) Consolidated Net
Income; (b) all Interest Expenses of ISH and
the Subsidiaries; (c) income taxes of ISH
and the Subsidiaries; and (d) depreciation
and amortization of ISH and the Subsidiaries
determined on a consolidated basis in
accordance with GAAP for such period;
provided that if any Subsidiary is not
wholly-owned by ISH, Consolidated EBITDA
shall be reduced (to the extent not
otherwise reduced in accordance with GAAP)
by an amount equal to (i) the amount of
Consolidated Net Income attributable to such
Subsidiary multiplied by (ii) the percentage
ownership interest in the income of such
Subsidiary not owned by ISH on the last day
of such period;
"Consolidated Indebtedness" all Indebtedness of ISH and the Subsidiaries
determined on a consolidated basis in
accordance with GAAP;
"Consolidated Net Income" for any period shall mean the consolidated
net income of ISH and the Subsidiaries for
such period, as shown on the consolidated
financial statements of ISH and the
Subsidiaries delivered in accordance with
Section 9.1 (d);
"Consolidated Tangible Net shall mean, with respect to ISH and its
Worth" Subsidiaries, at any date for which a
determination is to be made (determined on a
consolidated basis without duplication in
accordance with GAAP) (a) the amount of
capital stock; plus (b) the amount of
surplus and retained earnings (or, in the
case of a surplus or retained earnings
deficit, minus the amount of such deficit);
plus (c) deferred charges to the extent
amortized and acquired contract costs net of
accumulated amortization as stated on the
then most recent audited balance sheet of
ISH; minus (d) the sum of (i) the cost of
treasury shares and (ii) the book value of
all assets that should be classified as
intangibles (without duplication of
4
deductions in respect of items already
deducted in arriving at surplus and retained
earnings) but in any event including
goodwill, minority interests, research and
development costs, trademarks, trade names,
copyrights, patents and franchises,
unamortized debt discount and expense, all
reserves and any write up in the book value
of assets resulting from a revaluation
thereof subsequent to December 31, 1996;
"Credit Extensions" shall have the meaning ascribed thereto in
Section 3.8;
"Creditors" shall mean, together, the Agents and the
Lenders, each a "Creditor";
"Default" shall mean any event that would, with the
giving of notice or passage of time, or
both, be an Event of Default;
"Default Rate" shall mean a rate per annum equal to two
percent (2%) over the Applicable Rate then
in effect;
"DOC" shall mean a document of compliance issued
to an Operator in accordance with rule 13 of
the ISM Code;
"Dollars" and the sign "$" shall mean the legal currency, at any
relevant time hereunder, of the United
States of America and, in relation to all
payments hereunder, in same day funds
settled through the New York Clearing House
Interbank Payments System (or such other
Dollar funds as may be determined by the
Administrative Agent to be customary for the
settlement in New York City of banking
transactions of the type herein involved);
"Drawdown Date(s)" shall mean the dates, each being a Banking
Day, upon which the Borrowers have requested
that an Advance be made available to the
Borrowers, and such Advance is made, as
provided in Section 3; provided, however,
that the final Drawdown Date shall not fall
later than the day occurring one Banking Day
prior to the Repayment Date;
"Drawdown Notice" shall have the meaning ascribed thereto in
Section 3.2;
"Earnings Assignment(s)" shall mean the first priority assignments in
respect of the earnings of each of the First
Vessel and the Second Vessel, from any and
all sources to be executed by the relevant
Guarantor in favor of the Security Trustee
pursuant to Section 4.1(k) or Section
4.2.(b), as the case may be, substantially
in the form set out in Exhibit F-1 and F-2
respectively;
5
"Enterprise" shall have the meaning ascribed thereto in
the preamble;
"Environmental Affiliate(s)" shall mean, with respect to a Security
Party, any Person or entity, the liability
of which for Environmental Claims any
Security Party may have assumed by contract
or operation of law;
"Environmental Approval(s)" shall have the meaning ascribed thereto in
Section 2.1(q);
"Environmental Claim(s)" shall have the meaning ascribed thereto in
Section 2.1(q);
"Environmental Law(s)" shall have the meaning ascribed thereto in
Section 2.1(q);
"ERISA" shall mean the Employment Retirement Income
Security Act of 1974, as amended;
"ERISA Affiliate" shall mean a trade or business (whether or
not incorporated) which is under common
control with any Borrower within the meaning
of Sections 414(b), (c), (m) or (o) of the
Code;
"ERISA Group" shall mean ISH and its subsidiaries within
the meaning of Section 424(f) of the Code;
"Event(s) of Default" shall mean any of the events set out in
Section 8.1;
"Exchange Act" shall mean the Securities and Exchange Act
of 1934, as amended;
"Existing Letter of Credit" shall mean that certain letter of credit
issued as of April 24, 2003 and expiring on
January 31, 2005 in the name of Xxxxxxxx in
the amount of US$200,000 in favor of
Directorate of Procurement, Jordanian Armed
Forces;
"Existing Mortgage" shall mean that certain first preferred
United States ship mortgage over the Second
Vessel granted by Sulphur to the U.S.
Secretary of Transportation, and in the
amount of $43,357,000;
"Facility" means the credit facility to be made
available by the Lenders to the Borrower
hereunder in multiple Advances and/or
Letters of Credit (to be issued by the
Letter of Credit Issuer for the account of
the Borrowers) pursuant to Section 3 in the
maximum aggregate principal amount not to
exceed the Available Amount;
"Fair Market Value" means, in respect of any Vessel, the average
of two appraisals on a "willing seller,
willing buyer" basis of such Vessel from
ship brokers listed in Schedule IV or such
other independent ship brokers approved by
the Majority
6
Lenders, no such appraisal to be dated more
than thirty (30) days prior to the date on
which a determination of Fair Market Value
is required pursuant to this Agreement;
"Financed Amount" shall mean, with respect to a Vessel, that
amount set forth opposite such Vessel's name
under the column entitled "Financed Amount"
in Schedule III;
"Fee Letter" the letter dated November 18, 2004 and
entered into by the Borrowers and the
Administrative Agent in respect of the fees
referred to therein;
"First Vessel" shall mean the First Vessel listed on
Schedule III hereto, registered in the name
of Enterprise;
"GAAP" shall have the meaning ascribed thereto in
Section 1.3;
"Guarantor(s)" shall have the meaning ascribed thereto in
the preamble;
"Gulf South" shall have the meaning ascribed thereto in
the preamble;
"Indebtedness" shall mean, with respect to any Person at
any date of determination (without
duplication), (i) all indebtedness of such
Person for borrowed money, (ii) all
obligations of such Person evidenced by
bonds, debentures, notes or other similar
instruments, (iii) all obligations of such
Person in respect of letters of credit or
other similar instruments (including
reimbursement obligations with respect
thereto), (iv) all obligations of such
Person to pay the deferred and unpaid
purchase price of property or services,
which purchase price is due more than six
months after the date of placing such
property in service or taking delivery
thereof or the completion of such services,
except trade payables, (v) all obligations
on account of principal of such Person as
lessee under capitalized leases, (vi) all
indebtedness of other Persons secured by a
lien on any asset of such Person, whether or
not such indebtedness is assumed by such
Person; provided that the amount of such
indebtedness shall be the lesser of (a) the
fair market value of such asset at such date
of determination and (b) the amount of such
indebtedness, and (vii) all indebtedness of
other Persons guaranteed by such Person to
the extent guaranteed; the amount of
Indebtedness of any Person at any date shall
be the outstanding balance at such date of
all unconditional obligations as described
above and, with respect to contingent
obligations, the maximum liability upon the
occurrence of the contingency giving rise to
the obligation, provided that the amount
outstanding at any time of any indebtedness
issued with original issue
7
discount is the face amount of such
indebtedness less the remaining unamortized
portion of the original issue discount of
such indebtedness at such time as determined
in conformity with GAAP; and provided
further that Indebtedness shall not include
any liability for current or deferred
federal, state, local or other taxes, or any
trade payables;
"Indemnitee" shall have the meaning ascribed thereto in
Section 19.7;
"Insurance Assignments" shall mean the first priority assignments in
respect of the insurances over the First
Vessel and the Second Vessel, to be executed
by the relevant Guarantor in favor of the
Security Trustee pursuant to Section 4.1(k)
or Section 4.2(b), as the case may be,
substantially in the form set out in Exhibit
G-1 and G-2 respectively;
"Interest Expense" shall mean, with respect to ISH and the
Subsidiaries, on a consolidated basis, for
any period (without duplication), interest
expense, whether paid or accrued (including
the interest component of capitalized
leases), on all Indebtedness of ISH and the
Subsidiaries for such period, net of
interest income, all determined in
accordance with GAAP;
"ISH" shall have the meaning ascribed thereto in
the preamble;
"ISM Code" shall mean the International Safety
Management Code for the Safe Operating of
Ships and for Pollution Prevention
constituted pursuant to Resolution A.741(18)
of the International Maritime Organization
and incorporated into the Safety of Life at
Sea Convention and includes any amendments
or extensions thereto and any regulation
issued pursuant thereto;
"ISPS Code" shall mean the International Ship and Port
Facility Security Code adopted by the
International Maritime Organization at a
conference in December, 2002 and amending
the Safety of Life at Sea Convention and
includes any amendments or extensions
thereto and any regulation issued pursuant
thereto;
"ISSC" shall mean the International Ship Security
Certificate issued pursuant to the ISPS
Code;
"Xxxxxxx Family" shall mean (i) Xxxxx X. Xxxxxxx, Xxxx X.
Xxxxxxx, Xxxxx X. Xxxxxxx and Xxxx X.
Xxxxxxx; (ii) the wives and issue of Xxxxx
X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxx; and (iii) any
trust for the benefit of, or controlled by,
any of foregoing;
8
"LCI" shall have the meaning ascribed thereto in
the preamble;
"L/C Supportable Obligation" means such obligations of the Borrowers as
are not inconsistent with the issuance
policies of the Letter of Credit Issuer;
"Letter of Credit" shall have the meaning ascribed thereto in
Section 3.8;
"Letter of Credit Issuer" means, with respect to each Letter of
Credit, Whitney;
"Letter of Credit Outstandings" means, at any time, the aggregate Stated
Amount of all outstanding Letters of Credit,
less any drawings previously made
thereunder;
"Letter of Credit Participant" shall have the meaning ascribed thereto in
Section 3.11;
"Letter of Credit Participant means, in relation to a Letter of Credit
Percentage" Participant, the percentage its Commitment
bears to the aggregate of all Commitments
with respect to the Facility;
"Letter of Credit Request" shall have the meaning ascribed thereto in
Section 3.9;
"LIBOR Rate" shall mean the one month London Interbank
Offered Rate ("LIBOR") as set and published
by the British Banker's Association ("BBA")
and in effect as of the first day of each
calendar month as obtained by Administrative
Agent from a wire that is sent through
Bloomberg, L.P. which rate is based by BBA
on an average of the Interbank Offered Rates
for Dollar deposits in the London market
based on quotes from designated banks in the
London market. The initial LIBOR Rate shall
be based on the one month LIBOR as published
by BBA and in effect on December 1, 2004 and
shall be adjusted thereafter on the first
day of each calendar month. In the event
that the one month LIBOR is no longer
available from the BBA or Bloomberg, L.P.,
the Administrative Agent shall select a
comparable service to determine such rate
and shall provide notice thereof to the
Borrowers;
"Majority Lenders" at any time means Lenders holding an
aggregate of more than 66.66% of the
Advances then outstanding;
"Material Adverse Effect" shall mean a material adverse effect on the
ability of the Borrowers and/or a Guarantor
to meet any of their obligations with regard
to (i) the Facility and the financing
arrangements established in connection
therewith or (ii) any of their respective
other obligations that are material to
9
the Borrowers and the Guarantors considered
as a whole;
"Materials Of Environmental shall have the meaning ascribed thereto in
Concern" Section 2.1(p);
"Mortgage(s)" shall mean each of the first preferred
United States ship mortgages on the Vessels,
to be executed by the respective Guarantor
which is the registered owner of such Vessel
in favor of the Security Trustee pursuant to
Section 4.1(k) or Section 4.2(b), as the
case may be, substantially in the form set
out in Exhibit H-1 and H-2 respectively;
"MTSA" shall mean the Maritime & Transportation
Security Act, 2002, as amended, inter alia,
by Public Law 107-295;
"Multiemployer Plan" shall mean, at any time, a "multiemployer
plan" as defined in Section 4001(a)(3) of
ERISA to which any Borrower or any ERISA
Affiliate is making or accruing an
obligation to make contributions or has
within any of the three preceding plan years
made or accrued an obligation to make
contributions;
"Multiple Employer Plan" shall mean, at any time, an employee benefit
plan, other than a Multiemployer Plan,
subject to Title IV or ERISA, to which a
Borrower or ERISA Affiliate, and one or more
employers other than a Borrower or ERISA
Affiliate, is making or accruing an
obligation to make contributions or, in the
event that any such plan has been
terminated, to which a Borrower or ERISA
Affiliate made or accrued an obligation to
make contributions during any of the five
plan years preceding the date of termination
of such plan;
"Net Worth" shall mean the result of (i) the sum of the
Fair Market Value of all of the vessels
owned by a Person minus (ii) the amount of
all debt incurred by such Person related to
those vessels;
"Note" shall mean the promissory note or notes to
be executed by the Borrowers to the order of
the Administrative Agent or the individual
Lenders pursuant to Section 4.1(c), to
evidence the Facility substantially in the
form set out Exhibit A and shall include any
promissory note issued by the Borrowers
pursuant to Section 3.4;
"Obligations" shall have the meanings ascribed thereto in
Section 3.8;
"Operator" shall mean, in respect of any Vessel, the
Person who is concerned with the operation
of such Vessel and falls within the
definition of "Company" set out in rule
1.1.2 of the ISM Code;
10
"PBGC" shall mean the Pension Benefit Guaranty
Corporation;
"Person" shall mean any individual, sole
proprietorship, corporation, partnership
(general or limited), limited liability
company, business trust, bank, trust
company, joint venture, association, joint
stock company, trust or other unincorporated
organization, whether or not a legal entity,
or any government or agency or political
subdivision thereof;
"Plan" shall mean any employee benefit plan (other
than a Multiemployer Plan or a Multiple
Employer Plan) covered by Title IV of ERISA;
"Pledge Agreement" shall mean the pledge agreement to be
executed by LCI in favor of the Security
Trustee pursuant to Section 4.1(d)
substantially in the form set out in Exhibit
B;
"Pledged Shares" means the shares of capital stock or other
equity interests of Xxxxxx owned by LCI and
pledged to the Security Trustee under the
Pledge Agreement;
"Proceeding" shall have the meaning ascribed thereto in
Section 8.1(i);
"Reference Bank" shall mean Whitney Bank;
"Repayment Date" shall mean the date which falls on the fifth
(5th) anniversary of the Closing Date or, if
such date is not a Banking Day, the
Repayment Date shall be the immediately
preceding Banking Day;
"Second Vessel" shall mean the Second Vessel listed on
Schedule III hereto, registered in the name
of Sulphur;
"Security Document(s)" shall mean the Mortgages, the Assignments
and any other documents that may be executed
as security for the Facility and the
Borrowers' obligations in connection
therewith;
"Security Party(ies)" shall mean each of the Borrowers and each of
the Guarantors;
"Security Trustee" shall have the meaning ascribed thereto in
the preamble;
"SMC" shall mean the safety management certificate
issued in respect of a Vessel in accordance
with rule 13 of the ISM code;
"Stated Amount" means with respect to each Letter of Credit
the maximum
11
amount available to be drawn thereunder
(regardless of whether any conditions for
drawing could then be met);
"subsidiary" shall mean, with respect to any Person, any
business entity of which more than 50% of
the outstanding voting stock or other equity
interest is owned directly or indirectly by
such Person and/or one or more other
subsidiaries of such Person;
"Subsidiary(ies)" shall mean all of the subsidiaries of ISH;
"Sulphur" shall have the meaning ascribed thereto in
the preamble;
"Taxes" shall mean any present or future income or
other taxes, levies, duties, charges, fees,
deductions or withholdings of any nature now
or hereafter imposed, levied, collected,
withheld or assessed by any taxing authority
whatsoever, except for taxes on or measured
by the overall net income of each Lender
imposed by its jurisdiction of incorporation
or applicable lending office, the United
States of America, the State or City of New
York or any governmental subdivision or
taxing authority of any thereof or by any
other taxing authority having jurisdiction
over such Lender (unless such jurisdiction
is asserted by reason of the activities of
the Borrowers or any of the Subsidiaries);
"Termination Event" shall mean (i) a "reportable event," as
defined in Section 403 of ERISA, (ii) the
withdrawal of a Borrower or any ERISA
Affiliate from a Multiemployer Plan during a
plan year in which it was a "substantial
employer," as defined in Section 4001(a)(2)
of ERISA, or the incurrence of liability by
a Borrower or any ERISA Affiliate under
Section 4064 of ERISA upon the termination
of a Multiple Employer Plan, (iii) the
filing of a notice of intent to terminate a
Plan under Section 4041 of ERISA or the
treatment of a Multiemployer Plan amendment
as a termination under Section 4041A of
ERISA, (iv) the institution of proceedings
to terminate a Plan or a Multiemployer Plan,
or (v) any other event or condition which
might constitute grounds under Section 4042
of ERISA for the termination of, or the
appointment of a trustee to administer, any
Plan or Multiemployer Plan;
"Title XI Agreement" shall mean the Title XI Reserve Fund and
Financial Agreement, Contract No. MA-12901,
dated as of October 26, 1994 and made by and
between Sulphur Carriers, Inc. and the
United States of America;
"Total Loss" shall have the meaning ascribed thereto in
the Mortgages;
12
"Transaction Documents" shall mean each of this Agreement, the Note
and the Security Documents;
"Vessel(s)" shall mean the First Vessel and the Second
Vessel;
"Xxxxxxxx" shall have the meaning ascribed thereto in
the preamble;
"Whitney" shall have the meaning ascribed thereto in
the preamble; and
"Withdrawal Liability(ies)" shall have the meaning given to such term
under Part 1 of Subtitle E of Title IV of
ERISA.
1.2 Computation of Time Periods; Other Definitional Provisions. In this
Agreement, the Note and the other Security Documents, in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding"; words importing either gender include the other gender; references
to "writing" include printing, typing, lithography and other means of
reproducing words in a tangible visible form; the words "including," "includes"
and "include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Agreement, the Note or such Security Document,
as applicable; references to agreements and other contractual instruments
(including this Agreement, the Note and the Security Documents) shall be deemed
to include all subsequent amendments, amendments and restatements, supplements,
extensions, replacements and other modifications to such instruments (without,
however, limiting any prohibition on any such amendments, extensions and other
modifications by the terms of this Agreement, the Note or any Security
Document); references to any matter that is "approved" or requires "approval" of
a party shall mean approval given in the sole and absolute discretion of such
party unless otherwise specified.
1.3 Accounting Terms. Unless otherwise specified herein, all accounting terms
used in this Agreement, the Note and in the Security Documents shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Administrative Agent or to the
Lenders under this Agreement shall be prepared, in accordance with generally
accepted accounting principles for the United States ("GAAP").
1.4 Certain Matters Regarding Materiality. To the extent that any
representation, warranty, covenant or other undertaking of the Borrowers in this
Agreement is qualified by reference to those which are not reasonably expected
to result in a "Material Adverse Effect" or language of similar import, no
inference shall be drawn therefrom that any Agent or Lender has knowledge or
approves of any noncompliance by such Borrower with any governmental rule.
2. REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties. In order to induce the Creditors to enter
into this Agreement and to make the Facility available, each of the Borrowers
and each of the Guarantors hereby represents and warrants to the Creditors
(which representations and warranties shall survive the execution and delivery
of this Agreement and the Note and the drawdown of the Facility) that:
(a) Due Organization and Power. Each Security Party is duly formed and
is validly existing in good standing under the laws of its jurisdiction of
incorporation or formation, has full
13
power to carry on its business as now being conducted and to enter into and
perform its obligations under this Agreement, the Note and the Security
Documents to which it is a party, and has complied with all statutory,
regulatory and other requirements relative to such business and such agreements;
(b) Authorization and Consents. All necessary corporate action has been
taken to authorize, and all necessary consents and authorities have been
obtained and remain in full force and effect to permit, each Security Party to
enter into and perform its obligations under this Agreement, the Note and the
Security Documents and, in the case of the Borrowers to borrow, service and
repay the Facility and, as of the date of this Agreement, no further consents or
authorities are necessary for the service and repayment of the Facility or any
part thereof;
(c) Binding Obligations. This Agreement, the Note and the Security
Documents constitute or will, when executed and delivered, constitute the legal,
valid and binding obligations of each Security Party that is a party thereto
enforceable against such Security Party in accordance with their respective
terms, except to the extent that such enforcement may be limited by equitable
principles, principles of public policy or applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting generally the enforcement of
creditors' rights;
(d) No Violation. The execution and delivery of, and the performance of
the provisions of, this Agreement, the Note and those of the Security Documents
to which it is to be a party by each Security Party do not contravene any
applicable law or regulation existing at the date hereof or any contractual
restriction binding on such Security Party or the certificate of incorporation
or by-laws (or equivalent instruments) thereof and that the proceeds of the
Facility shall be used by the Borrowers exclusively for their own account or for
the account of a Subsidiary or Affiliate of the Borrowers;
(e) Filings; Stamp Taxes. Other than the recording of the Mortgages
with the appropriate authorities for the United States, as the case may be, and
the filing of UCC Financing Statements in the State of Delaware in respect of
the Assignments, and the payment and filing or recording fees consequent
thereto, it is not necessary for the legality, validity, enforceability or
admissibility into evidence of this Agreement, the Note or the Security
Documents that any of them or any document relating thereto be registered,
filed, recorded or enrolled with any court or authority in any relevant
jurisdiction or that any stamp, registration or similar Taxes be paid on or in
relation to this Agreement, the Note or any of the Security Documents;
(f) Litigation. No action, suit or proceeding is pending or threatened
against any Security Party before any court, board of arbitration or
administrative agency which could or might have a Material Adverse Effect;
(g) No Default. No Security Party is in default under any material
agreement by which it is bound, or is in default in respect of any material
financial commitment or obligation;
(h) Vessels. Upon each Drawdown Date, each Vessel:
(i) will be in the sole and absolute ownership of the
relevant Guarantor as set forth on Schedule III and duly
registered in such Guarantor's name under United States
flag, unencumbered, save and except: (X) with respect to
the First Vessel, the Mortgage recorded against it and as
permitted thereby; and (Y) with respect to the Second
Vessel, the
14
Existing Mortgage or, upon the discharge of the Existing
Mortgage, the Mortgage recorded against it and as
permitted thereby;
(ii) will be classed in the highest classification and rating
for vessels of the same age and type with its
Classification Society without any material outstanding
recommendations;
(iii) will be operationally seaworthy and in every way fit for
its intended service; and
(iv) will be insured in accordance with the provisions of the
Mortgage recorded against it and the requirements thereof
in respect of such insurances will have been complied
with;
(i) Insurance. Each of the Security Parties has insured its properties
and assets against such risks and in such amounts as are customary for companies
engaged in similar businesses;
(j) Financial Information. Except as otherwise disclosed in writing to
the Administrative Agent on or prior to the date hereof, all financial
statements, information and other data furnished by any Security Party to the
Administrative Agent are complete and correct, such financial statements have
been prepared in accordance with GAAP and accurately and fairly present the
financial condition of the parties covered thereby as of the respective dates
thereof and the results of the operations thereof for the period or respective
periods covered by such financial statements, and since the date of ISH's
financial statements most recently delivered to the Administrative Agent there
has been no Material Adverse Effect as to any of such parties and none thereof
has any contingent obligations, liabilities for taxes or other outstanding
financial obligations which are material in the aggregate except as disclosed in
such statements, information and data;
(k) Tax Returns. Each Security Party has filed all material tax returns
required to be filed thereby and has paid all taxes payable thereby which have
become due, other than those not yet delinquent or the nonpayment of which would
not have a Material Adverse Effect and except for those taxes being contested in
good faith and by appropriate proceedings or other acts and for which adequate
reserves shall have been set aside on its books;
(l) ERISA. The execution and delivery of this Agreement and the
consummation of the transactions hereunder will not involve any prohibited
transaction within the meaning of ERISA or Section 4975 of the Code and no
condition exists or event or transaction has occurred in connection with any
Plan maintained or contributed to by any member of the ERISA Group or any ERISA
Affiliate resulting from the failure of any thereof to comply with ERISA which
is reasonably likely to result in any member of the ERISA Group or any ERISA
Affiliate incurring any liability, fine or penalty which individually or in the
aggregate could have a Material Adverse Effect. No member of the ERISA Group nor
any ERISA Affiliate, individually or collectively, has incurred, or reasonably
expects to incur, Withdrawal Liabilities or liabilities upon the happening of a
Termination Event the aggregate of which for all such Withdrawal Liabilities and
other liabilities exceeds or would exceed $30,000,000. With respect to any
Multiemployer Plan, Multiple Employer Plan or Plan, no member of the ERISA Group
nor any ERISA Affiliate is aware of or has been notified that any "variance"
from the "minimum funding standard" has been requested (each such term as
defined in Part 3, Subtitle B, of Title 1 of ERISA). No member of the ERISA
Group
15
nor any ERISA Affiliate has received any notice that any Multiemployer Plan is
in reorganization, within the meaning of Title IV of ERISA, which reorganization
could have a Material Adverse Effect;
(m) Chief Executive Office. The chief executive office and chief place
of business of each Security Party and the office in which the records relating
to the earnings and other receivables of each Security Party are kept is, and
will continue to be, located at 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX
00000, XXX;
(n) Foreign Trade Control Regulations. To the best knowledge of each of
the Security Parties, none of the transactions contemplated herein will violate
the provisions of any statute or regulation enacted to prohibit or limit
economic transactions with certain foreign Persons including, without
limitation, any of the provisions of the Foreign Assets Control Regulations of
the United States of America (Title 31, Code of Federal Regulations, Chapter V,
Part 500, as amended);
(o) Equity Ownership. The Borrowers are owned, directly or indirectly,
one hundred percent (100%) by ISH;
(p) Environmental Matters and Claims. (a) Except as heretofore
disclosed in writing to the Administrative Agent (i) each of the Borrowers and
their Affiliates (which for purposes of this Section 2(p) shall be deemed to
include ISH and its respective Affiliates) will, when required to operate their
business as then being conducted, be in compliance with all applicable United
States federal and state, local, foreign and international laws, regulations,
conventions and agreements relating to pollution prevention or protection of
human health or the environment (including, without limitation, ambient air,
surface water, ground water, navigable waters, waters of the contiguous zone,
ocean waters and international waters), including, without limitation, laws,
regulations, conventions and agreements relating to (1) emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous materials, oil, hazardous substances, petroleum and
petroleum products and by-products ("Materials of Environmental Concern"), or
(2) the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern
("Environmental Laws"); (ii) each of the Borrowers and their Affiliates will,
when required, have all permits, licenses, approvals, rulings, variances,
exemptions, clearances, consents or other authorizations required under
applicable Environmental Laws ("Environmental Approvals") and will, when
required, be in compliance with all Environmental Approvals required to operate
their business as then being conducted; (iii) none of the Borrowers nor any
Affiliate thereof has received any notice of any claim, action, cause of action,
investigation or demand by any person, entity, enterprise or government, or any
political subdivision, intergovernmental body or agency, department or
instrumentality thereof, alleging potential liability for, or a requirement to
incur, material investigator costs, cleanup costs, response and/or remedial
costs (whether incurred by a governmental entity or otherwise), natural
resources damages, property damages, personal injuries, attorneys' fees and
expenses, or fines or penalties, in each case arising out of, based on or
resulting from (1) the presence, or release or threat of release into the
environment, of any Materials of Environmental Concern at any location, whether
or not owned by such person, or (2) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law or Environmental
Approval ("Environmental Claim") (other than Environmental Claims that have been
fully and finally adjudicated or otherwise determined and all fines, penalties
and other costs, if any, payable by the Security Parties in respect thereof have
been paid in full or which are fully covered by insurance (including permitted
deductibles)); and (iv) there are no circumstances that
16
may prevent or interfere with such full compliance in the future; and (b) except
as heretofore disclosed in writing to the Administrative Agent there is no
Environmental Claim pending or threatened against any of the Borrowers or any
Affiliate thereof and there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge or disposal of any Materials of Environmental
Concern, that could form the basis of any Environmental Claim against such
persons the adverse disposition of which may result in a Material Adverse
Effect;
(q) Compliance with ISM Code, ISPS Code and MTSA. Each Vessel and each
Operator complies with the requirements of the ISM Code, the ISPS Code and the
MTSA including (but not limited to) the maintenance and renewal of valid
certificates pursuant thereto;
(r) Threatened Withdrawal of DOC or SMC. There is no threatened or
actual withdrawal of any Operator's DOC or SMC in respect of any Vessel;
(s) Liens. Other than as disclosed in Schedule V, there are no liens of
any kind on any property owned by any Security Party other than those liens
created pursuant to this Agreement or the Security Documents or permitted
thereby;
(t) Indebtedness. Other than as disclosed in Schedule VI, none of the
Security Parties has any Indebtedness;
(u) Payment Free of Taxes. All payments made or to be made by the
Security Parties under or pursuant to this Agreement, the Note and the Security
Documents shall be made free and clear of, and without deduction or withholding
for an account of, any Taxes;
(v) No Proceedings to Dissolve. There are no proceedings or actions
pending or contemplated by any Security Party or, to the best knowledge of any
Security Party, contemplated by any third party, to dissolve or terminate any
Security Party.
(w) Solvency. On the Closing Date, in the case of each of the Security
Parties, (a) the sum of its assets, at a fair valuation, does and will exceed
its liabilities, including, to the extent they are reportable as such in
accordance with GAAP, contingent liabilities, (b) the present fair market
salable value of its assets is not and shall not be less than the amount that
will be required to pay its probable liability on its then existing debts,
including, to the extent they are reportable as such in accordance with GAAP,
contingent liabilities, as they mature, (c) it does not and will not have
unreasonably small working capital with which to continue its business and (d)
it has not incurred, does not intend to incur and does not believe it will incur
debts beyond its ability to pay such debts as they mature;
(x) Compliance with Laws. Each of the Security Parties is in compliance
with all Applicable Laws, except where any failure to comply with any such
Applicable Laws would not, alone or in the aggregate, have a Material Adverse
Effect; and
(y) Survival. All representations, covenants and warranties made herein
and in any certificate or other document delivered pursuant hereto or in
connection herewith shall survive the making of the Facility and the issuance of
the Note.
17
3. THE LOAN
3.1 (a) Purposes. The Lenders shall make the Facility available to the
Borrowers in multiple Advances and/or Letters of Credit for general corporate
purposes.
(b) Making of the Advances. Each of the Lenders, relying upon each of
the representations and warranties set out in Section 2, hereby severally and
not jointly agrees with the Borrowers that, subject to and upon the terms of
this Agreement, it will on the Drawdown Dates make its portion of the relevant
Advance available through the Administrative Agent to the Borrowers in an amount
not to exceed its Commitment ratably with the other Lenders according to their
respective Commitments.
3.2 Drawdown Notice. The Borrowers shall, in respect of any Advance, serve a
written notice (a "Drawdown Notice") on the Administrative Agent (which shall
promptly furnish a copy to each Lender) not later than 1:00 P.M., New Orleans
time, on the date of the proposed drawdown of such Advance. The Drawdown Notice
shall specify (a) the date of the proposed Advance (which shall be a Banking
Day), (b) the principal amount of the Advance to be made by the Lenders on that
date, and (c) the disbursement instructions for the proceeds of such Advance.
The Drawdown Notice shall be effective upon receipt by the Administrative Agent,
shall be irrevocable and shall be in the form set out in Exhibit C.
3.3 Effect of Drawdown Notice. Such Drawdown Notice shall be deemed to
constitute a joint and several and solidary warranty by the Borrowers (a) that
the representations and warranties stated in Section 2 (updated mutatis
mutandis) are true and correct on and as of the date of such Drawdown Notice and
will be true and correct on and as of relevant Drawdown Date as if made on such
date, and (b) that no Event of Default nor any event which with the giving of
notice or lapse of time or both would constitute an Event of Default has
occurred and is continuing.
3.4 Additional Note. At the direction of the Administrative Agent, the Borrowers
shall duly execute and deliver to a Lender a promissory note in favor of such
Lender evidencing the portion of the Facility owing by the Borrowers to such
Lender pursuant to this Agreement; provided, however, that such note be deemed
to be part of the Note and shall not in any way increase the obligations of the
Borrowers under this Agreement or the Note.
3.5 Several Obligations. The failure of any Lender to make its pro rata portion
of an Advance on the date specified therefor shall not relieve any other Lender
of its obligation to make its pro rata portion of such Advance on such date, and
none of the Agents nor any Lender shall be responsible for the failure of any
other Lender to make its pro rata portion of such Advance.
3.6 Pro Rata Treatment. The borrowing from the Lenders hereunder shall be made
from the Lenders, and any reduction of the amount of the Commitments shall be
applied to the Commitments of the Lenders, pro rata, according to the amounts of
their respective Commitments; each or prepayment of principal of the Facility by
the Borrowers shall be made for account of the Lenders pro rata in accordance
with the respective unpaid principal amounts thereof held by the Lenders; and
each payment of interest on the Facility by the Borrowers shall be made for the
account of the Lenders pro rata in accordance with the amounts of interest due
and payable to the respective Lenders.
3.7 Funding of Advances. Upon receipt of a Drawdown Notice, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such
Lender's share of the Facility.
18
(a) Not later than 3:00 P.M. New Orleans time on the Drawdown
Date, each Lender shall make available its share of the relevant Advance, in
Federal or other funds immediately available in New Orleans, to the
Administrative Agent at its address set forth on Schedule I or to such account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. Unless the Administrative Agent determines that any
applicable condition specified in Section 4.1 or 4.2 has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders available
to the Borrowers at the aforesaid address, subject to the receipt of funds by
the Administrative Agent as provided in the immediately preceding sentence, not
later than 4:00 P.M. New Orleans time on the Drawdown Date, and in any event as
soon as practicable after receipt.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the Drawdown Date that such Lender will not make
available to the Administrative Agent such Lender's share of the relevant
Advance, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the Drawdown Date in accordance
with subsections (a) and (b) of this Section 3.7 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrowers on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such share available to the Administrative Agent, such Lender and
the Borrowers (but without duplication) severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrowers until the date such amount is repaid to the Administrative Agent
as calculated by the Administrative Agent to reflect its cost of funds. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's share in the Facility included
in the Advance for purposes of this Agreement as of the date the Advance was
made. Nothing in this subsection (b) shall be deemed to relieve any Lender of
its obligation to make an Advance to the extent provided in this Agreement. In
the event that the Borrowers are required to repay any Advance to the
Administrative Agent pursuant to this Section 3.7(b), as between the Borrowers
and the defaulting Lender, the liability for any breakage costs as described in
Section 12.6 shall be borne by the defaulting Lender. If the defaulting Lender
has not paid any such breakage costs upon demand by the Administrative Agent
therefor, the Borrowers shall pay such breakage costs upon demand by the
Administrative Agent and the Borrowers shall be entitled to recover any such
payment for breakage costs made by the Borrowers from the defaulting Lender.
3.8 Letters of Credit. (a) Subject to and upon the terms and conditions herein
set forth, the Borrowers may request that the Letter of Credit Issuer at any
time and from time to time prior to the Banking Day 30 days prior to the
Repayment Date issue, for the account of the Borrowers and in support of L/C
Supportable Obligations, and subject to and upon the terms and conditions herein
set forth, the Letter of Credit Issuer agrees to issue from time to time,
irrevocable standby letters of credit denominated in Dollars (or in such other
currency as the Borrowers and the Letter of Credit Issuer may agree) and in such
form as may be approved by the Letter of Credit Issuer (singly, a "Letter of
Credit" and collectively, the "Letters of Credit"). The Existing Letter of
Credit shall constitute a "Letter of Credit", for all purposes of this Agreement
and shall be deemed issued for the purposes of Sections 3.11 on the date hereof;
and
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed Two Million Dollars ($2,000,000) at such
time; and (ii) each Letter of Credit shall have an expiry date
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occurring not later than the earlier of (x) the date which occurs thirty (30)
months after the date of issuance thereof and (y) the Banking Day immediately
preceding the Repayment Date.
3.9 Request for Issuance of Letter of Credit. (a) Whenever the Borrowers wish
that a Letter of Credit be issued, the Borrowers shall give the applicable
Letter of Credit Issuer written notice (a "Letter of Credit Request"),
substantially in the form of Exhibit I prior to 10:00 a.m., New Orleans time, at
least three (3) Banking Days prior to the proposed date of issuance (which shall
be a Banking Day), which Letter of Credit Request shall include any documents
that the Letter of Credit Issuer may reasonably require in connection therewith.
The Letter of Credit Request shall be irrevocable. The Letter of Credit Issuer
shall promptly notify each Lender of each Letter of Credit Request.
(b) The Letter of Credit Issuer shall, on the date of each
issuance of a Letter of Credit by it, give each Lender and the Borrowers written
notice of the issuance of such Letter of Credit.
3.10 Letter of Credit Payments Deemed Advances. (a) The Borrowers hereby agree
that any payment or disbursement made by the Letter of Credit Issuer under any
Letter of Credit shall be deemed an Advance in Dollars under this Agreement and
shall bear interest for each day from the date of such payment or disbursement
at the Applicable Rate as in effect on each day. The Letter of Credit Issuer
shall give prompt notice to the Borrowers and the Lenders of each payment or
disbursement and the amount thereof in Dollars under a Letter of Credit.
(b) (i) The Letter of Credit Issuer shall not concern itself
with the regularity or propriety of any demand made under any Letter of Credit
beyond the face thereof, provided that such demand strictly complies with the
terms of such Letter of Credit and (subject to the above proviso) it shall not
be a defense to a claim of the Letter of Credit Issuer that the Letter of Credit
Issuer could have resisted the payment in respect of which such claim is made.
(ii) The Borrowers' obligation to repay any Advance deemed
made under this Section 3.10 (including, in each case, interest thereon) shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which the Borrowers may have
or have had against the Letter of Credit Issuer or any Lender, including,
without limitation, any defense based upon the failure of any drawing under a
Letter of Credit to conform to the terms of the Letter of Credit (other than the
failure of the Letter of Credit Issuer to determine that any documents required
to be delivered under such Letter of Credit have been delivered and that they
comply on their face with the requirements of such Letter of Credit) or any
non-application or misapplication by the beneficiary of the proceeds of such
drawing; provided, however, that the Borrowers shall not be obligated to
reimburse the Letter of Credit Issuer for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer.
3.11 Letter of Credit Participation. (a) Immediately upon the issuance by the
Letter of Credit Issuer of such Letter of Credit, the Letter of Credit Issuer
shall be deemed to have sold and transferred to each Lender, and each Lender
(each a "Letter of Credit Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation, to the
extent of such Lender's Commitment, in such Letter of Credit, each substitute
letter of credit, each drawing made
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thereunder and the obligation of the Borrowers under this Agreement with respect
thereto and any security therefor or guaranty pertaining thereto.
(b) In determining whether to pay under any Letter of Credit,
the Letter of Credit Issuer shall not have any obligation relative to the
respective Letter of Credit Participants other than to determine that any
documents required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by the Letter of
Credit Issuer under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for the Letter of Credit Issuer any resulting liability to the respective
Letter of Credit Participants.
(c) In the event that the Letter of Credit Issuer makes any
payment under any Letter of Credit issued thereby, upon receipt of notice
thereof as provided in Section 3.10(a), each Letter of Credit Participant shall
promptly and unconditionally pay to the Letter of Credit Issuer, the amount of
such Letter of Credit Participant's Percentage of such payment in Dollars and in
same day funds; provided, however, that no Letter of Credit Participant shall be
obligated to pay to the Letter of Credit Issuer its percentage of such payment
for any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer. If the Letter of Credit
Issuer so notifies any Letter of Credit Participant required to fund a Drawing
under a Letter of Credit prior to 11:00 a.m., New Orleans time, on any Banking
Day, such Letter of Credit Participant shall make available to the Letter of
Credit Issuer such Letter of Credit Participant's Percentage of the amount of
such payment on such Banking Day in same day funds. If and to the extent such
Letter of Credit Participant shall not have so made its percentage of the amount
of such drawing available to the Letter of Credit Issuer, such Letter of Credit
Participant agrees to pay to the Letter of Credit Issuer, forthwith on demand
such amount, together with interest thereon, for each day from such date until
the date such amount is paid to the Letter of Credit Issuer at the LIBOR Rate
for overnight or weekend deposits. The failure of any Letter of Credit
Participant to make available to the Letter of Credit Issuer its percentage of
any drawing under any Letter of Credit shall not relieve any other Letter of
Credit Participant of its obligation hereunder to make available to the Letter
of Credit Issuer its percentage of any payment under any Letter of Credit on the
date required, as specified above, but no Letter of Credit Participant shall be
responsible for the failure of any other Letter of Credit Participant to make
available to the Letter of Credit Issuer such other Letter of Credit
Participant's Percentage of any such payment.
(d) The obligation of the respective Letter of Credit
Participants to make payments to the Letter of Credit Issuer with respect to
Letters of Credit shall be irrevocable and not subject to counterclaim, set-off
or other defense or any other qualification or exception whatsoever (provided
that no Letter of Credit Participant shall be required to make payments
resulting from the Letter of Credit Issuer's gross negligence or willful
misconduct) and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or enforceability of this
Agreement.
(ii) the existence of any claim, set-off, defense or
other right which the Borrowers may have at any
time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit
(or any person
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for whom any such transferee may be acting), any
Agent or Lender or other person, whether in
connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or
any unrelated transactions (including any
underlying transaction between any Borrower and
the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or other document
presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate
in any respect; or
(iv) the occurrence of any Event of Default.
3.12 Solidary Liability of Borrowers. All Advances or issuances of Letter of
Credit (collectively, the "Credit Extensions"), upon funding or issuance or
creation thereof, shall be deemed to be funded or issued to, and received by or
for the benefit of, all Borrowers. Each representation and warranty made herein,
unless the context expressly provides to the contrary, shall be deemed to have
been made independently by each Borrower, and each Borrower shall be liable in
solido with each other Borrower for any breach of this Agreement by any
Borrower. Each of the Borrowers solidarily agrees to pay, and shall be
solidarily liable under this Agreement for the payment of, all Credit
Extensions, regardless of (a) the manner or amount in which proceeds of the
Credit Extensions are used, allocated, shared or disbursed by or among or for
the benefit of Borrowers themselves, or (b) the manner in which Administrative
Agent or any Lender accounts for such Credit Extensions on its books and
records. Each Borrower shall be liable for all amounts due to the Administrative
Agent and the Lenders under this Agreement (collectively, the "Obligations"),
regardless of which Borrower actually receives the Credit Extensions or the
benefit thereof or the amount of such Credit Extensions received or the manner
in which Lender accounts for such Credit Extensions on its books and records.
Each Borrower's Obligations with respect to Credit Extensions made or issued to
or for the benefit of it, and such Borrower's Obligations arising as a result of
the joint and several and solidary liability of such Borrower hereunder with
respect thereto, shall be separate and distinct obligations, but all such
obligations to repay the Credit Extensions shall be primary obligations of such
Borrower. Each Borrower expressly acknowledges and agrees with Administrative
Agent and the Lenders that the joint and several and solidary liability of each
Borrower is required solely as a condition to, and is given solely as inducement
for and in consideration of, credit or accommodations extended or to be extended
under this Agreement and the Security Documents to any or all of the other
Borrowers and is not required or given as a condition of any Credit Extension to
such Borrower. Each Borrower's indebtedness, liabilities and obligations under
this Agreement and the Notes shall be separate and distinct indebtedness,
liabilities and obligations. Each Borrower's indebtedness, liabilities and
obligations under this Agreement shall, to the fullest extent permitted by law,
be unconditional irrespective of:
(i) the validity or enforceability, avoidance or
subordination of the Obligations of any other
Borrower or of any promissory note or other document
evidencing all or any part of the Obligations of any
other Borrower;
(ii) the absence of any attempt to collect the Obligations
from any other Borrower or any Guarantor, or from any
other security therefor, or the absence of any other
action to enforce the same;
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(iii) the waiver, consent, extension, forbearance or
granting of any indulgence by Administrative Agent or
Lenders with respect to any provision of any
agreement, document or instrument evidencing the
Obligations of any other Borrower or Guarantor, or
any part thereof, or any other agreement now or
hereafter executed by any other Borrower or Guarantor
and delivered to Administrative Agent or to any
Lender;
(iv) the failure by Administrative Agent to take any steps
to perfect or maintain its lien in, or to preserve
its rights to, any security or collateral for the
Obligations of any other Borrower or Guarantor;
(v) Administrative Agent's or any Lender's election, in
any proceeding instituted under the Bankruptcy Code,
of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(vi) any borrowing or grant of a lien by any other
Borrower, as debtor-in-possession under Section 364
of the Bankruptcy Code;
(vii) the disallowance of all or any portion of any
Lender's claim(s) for the repayment of the
Obligations of any other Borrower under Section 502
of the Bankruptcy Code; or
(viii) any other circumstances which might constitute a
legal or equitable discharge or defense of a
Guarantor or of any other Borrower.
With respect to any Borrower's Obligations arising as a result of the solidary
liability of Borrowers hereunder with respect to Credit Extensions made or
issued or created to or for the benefit of any of the other Borrowers hereunder,
such Borrower waives, until the Obligations shall have been paid, performed and
satisfied in full and this Agreement shall have been terminated, any right to
enforce any right of subrogation or any remedy which Lender now has or may
hereafter have against any other Borrower, any endorser or any Guarantor of all
or any part of the Obligations, and any benefit of, and any right to participate
in, any security or collateral given to Lender to secure payment of the
Obligations or any other liability of any Borrower to Lender. Upon the
occurrence of any Event of Default, Lender may proceed directly and at once,
without notice, against any Borrower to collect and recover the full amount, or
any portion of, the Obligations, without first proceeding against any other
Borrower or any other Person, or against any security or collateral for the
Obligations. Each Borrower consents and agrees that Lender shall be under no
obligation to marshal any assets in favor of any Borrower or against or in
payment of any or all of the Obligations.
3.13 Contribution and Indemnification among Borrowers. Each Borrower is
obligated to repay the Obligations as a solidary obligor under this Agreement
and under the Note. To the extent that any Borrower shall, under this Agreement
or the Note as a solidary obligor, repay any of the Obligations constituting
Advances to or for the benefit of another Borrower hereunder or other
Obligations incurred directly and primarily by any other Borrower (an
"Accommodation Payment"), then the Borrower making such Accommodation Payment
shall be entitled to contribution and
23
indemnification from, and be reimbursed by, each of the other Borrowers in an
amount, for each of such other Borrowers, equal to a fraction of such
Accommodation Payment, the numerator of which fraction is such other Borrower's
Allocable Amount and the denominator of which is the sum of the Allocable
Amounts of all of Borrowers. As of any date of determination, the "Allocable
Amount" of each Borrower shall be equal to the maximum amount of liability for
Accommodation Payments which could be asserted against such Borrower hereunder
without (a) rendering such Borrower "insolvent" within the meaning of Section
101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer
Act ("UFTA") or Section 2 of the Uniform Fraudulent Conveyance Act ("UFCA") or
within the meaning of
Louisiana Civil Code article 2037, (b) leaving such
Borrower with unreasonably small capital or assets, within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the
UFCA, or (c) leaving such Borrower unable to pay its debts as they become due
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 5 of the UFCA. All rights and claims of contribution, indemnification
and reimbursement under this Section 3.13 shall be subordinate in right of
payment to the prior payment in full of the Obligations and, upon and after the
occurrence of a Default or an Event of Default, no Borrower may receive any
payment, and no other Borrower may make any payment, based upon any such right
or claim without the prior written consent of the Administrative Agent. The
provisions of this Section 3.13 shall, to the extent expressly inconsistent with
any provision in this Agreement or any Security Document, supersede such
inconsistent provision.
3.14 Express Waivers by the Borrowers in respect of Cross Guaranties and Cross
Collateralization. Each Borrower agrees as follows:
(a) Each Borrower hereby waives: (i) notice of acceptance of
this Agreement; (ii) notice of the making of any Credit Extension under
this Agreement or any Security Document or the creation or existence of
any Obligations; (iii) notice of the amount of the Obligations,
subject, however, to such Borrower's right to make inquiry of
Administrative Agent or Lenders to ascertain the amount of the
Obligations at any reasonable time; (iv) notice of any adverse change
in the financial condition of any other Borrower or of any other fact
that might increase such Borrower's risk with respect to such other
Borrower under this Agreement or the Security Documents; (v) notice of
presentment for payment, demand, protest and notice thereof as to any
promissory notes or other instruments which constitute a part of the
Security Documents; and (vi) all other notices (except if such notice
is specifically required to be given to such Borrower hereunder or
under any of the Security Documents to which such Borrower is a party)
and demands to which such Borrower might otherwise be entitled;
(b) Each Borrower hereby waives the right by statute or
otherwise to require Lender to institute suit against any other
Borrower or to exhaust any rights and remedies which Administrative
Agent or the Lenders have or may have against any other Borrower. Each
Borrower further waives any defense arising by reason of any disability
or other defense of any other Borrower (other than the defense that the
Obligations shall have been fully and finally performed and
indefeasibly paid) or by reason of the cessation from any cause
whatsoever of the liability of any such Borrower in respect thereof;
(c) Each Borrower hereby waives and agrees not to assert
against Administrative Agent or any Lender: (i) any defense (legal or
equitable), setoff, counterclaim or claim which such Borrower may now
or at any time hereafter have against any other Borrower or any other
party liable under the Security Documents; (ii) any defense, setoff,
counterclaim
24
or claim of any kind or nature available to any other Borrower against
Lender, arising directly or indirectly from the present or future lack
of perfection, sufficiency, validity or enforceability of the
Obligations or any security therefor; (iii) any right or defense
arising by reason of any claim or defense based upon an election of
remedies by Lender under any applicable law; (iv) the benefit of any
statute of limitations affecting any other Borrower's liability
hereunder; and
(d) Each Borrower consents and agrees that, without notice to
or by such Borrower and without affecting or impairing the obligations
of such Borrower hereunder, Lender may, by action or inaction: (i)
compromise, settle, extend the duration or the time for the payment of
or discharge the performance of, or refuse to or otherwise not enforce,
this Agreement or any Security Document; (ii) release all or any one or
more parties to any one or more of this Agreement or any Security
Document or grant other indulgences to any other Borrower in respect
thereof; (iii) amend or modify in any manner and at any time (or from
time to time) this Agreement or any Security Document; or (iv) release
or substitute any person liable for payment of the Obligations, or
enforce, exchange, release or waive any security for the Obligations or
any guaranty of the Obligations.
Each Borrower represents and warrants to the Creditors that such Borrower is
currently informed of the financial condition of the other Borrowers and all
other circumstances which a diligent inquiry would reveal and which bear upon
the risk of nonpayment of the Obligations. Each Borrower further represents and
warrants that such Borrower has read and understands the terms and conditions of
this Agreement or any Security Document. Each Borrower agrees that the Creditors
have no responsibility to inform any Borrower of the financial condition of any
other Borrower or of any other circumstances which bear upon the risk of
nonpayment or nonperformance of the Obligations.
4. CONDITIONS
4.1 Conditions Precedent to the Effectiveness of this Agreement. The obligation
of the Lenders to make any Advance available or issue any Letter of Credit to
the Borrowers under this Agreement shall be expressly subject to the following
conditions precedent:
(a) Corporate Authority. The Administrative Agent shall have received
the following documents in form and substance satisfactory to the Administrative
Agent and its legal advisers:
(i) copies, certified as true and complete by an officer of
each of the Security Parties, of the resolutions of its
board of directors and, other than ISH, shareholders
evidencing approval of the Transaction Documents to which
each is a party and authorizing an appropriate officer or
officers or attorney-in-fact or attorneys-in-fact to
execute the same on its behalf, including the execution of
the Drawdown Notice;
(ii) copies, certified as true and complete by an officer of
each of the Security Parties, of the certificate or
articles of incorporation and by-laws or similar
constituent document thereof;
25
(iii) certificate of the jurisdiction of incorporation or
formation, as the case may be, of each Security Party as to
the good standing thereof; and
(iv) a certificate signed by the Chairman, President, Executive
Vice President, Treasurer, Comptroller, Controller or chief
financial officer of each of the Security Parties to the
effect that (A) no Default or Event of Default shall have
occurred and be continuing and (B) the representations and
warranties of such Security Party contained in this
Agreement are true and correct as of the date of such
certificate.
(b) The Agreement. Each of the Security Parties shall have duly
executed and delivered this Agreement to the Administrative Agent.
(c) The Note. The Borrowers shall have duly executed and delivered the
Note to the Administrative Agent.
(d) The Pledge Agreement. LCI shall have duly executed, and delivered
to the Security Trustee the Pledge Agreement and the Pledged Shares.
(e) The Creditors. The Administrative Agent shall have received
executed counterparts of this Agreement from each of the Lenders (or, in the
case of any Lender as to which an executed counterpart shall not have been
received, the Administrative Agent shall have received in form satisfactory to
it a telex, facsimile or other written confirmation from such Lender of the
execution of a counterpart of this Agreement by such Lender).
(f) Fees. The Creditors shall have received payment in full of all fees and
expenses due to each thereof pursuant to the terms hereof on the date when due
including, without limitation, all fees and expenses due under Section 14.
(g) Environmental Claims. The Lenders shall be satisfied that none of
the Security Parties is subject to any Environmental Claim which could
reasonably be expected to have a Material Adverse Effect.
(h) Legal Opinions. The Administrative Agent, on behalf of the Agents
and the Lenders, shall have received opinions addressed to the Administrative
Agent from (i) Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P.,
special counsel to the Security Parties, and (ii) Xxxxxx & Xxxxxx LLP, special
counsel to the Agents and the Lenders, in each case in such form as the
Administrative Agent may require, as well as such other legal opinions as the
Lenders shall have required as to all or any matters under the laws of the
Republic of the Xxxxxxxx Islands, the Republic of Panama, the Republic of
Singapore, the State of Delaware, the State of New York, the State of
Louisiana
and the United States of America covering certain of the conditions and
representations and warranties which are the subjects of Sections 2 and 4,
respectively.
(i) Officer's Certificate. The Administrative Agent shall have received
a certificate signed by the President or other duly authorized executive officer
of each of the Borrowers certifying that under applicable law existing on the
date hereof, such Borrower shall not be compelled by law to withhold or deduct
any Taxes from any amounts to become payable to the Administrative Agent for the
account of the Creditors hereunder.
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(j) First Vessel Documents. The Security Trustee shall have received
evidence satisfactory to it and its counsel that the First Vessel:
(i) is in the sole and absolute ownership of Enterprise
and is duly registered in Enterprise's name under
United States flag free of all liens and encumbrances
of record other than its Mortgage;
(ii) is insured in accordance with the provisions of its
Mortgage and all requirements of its Mortgage in
respect of such insurance have been fulfilled
(including, but not limited to, letters of
undertaking from the insurance brokers, including
confirmation notices of assignment, notices of
cancellation and loss payable clauses acceptable to
the Lenders);
(iii) is classed in the highest classification and rating
for vessels of the same age and type with its
Classification Society without any material
outstanding recommendations; and
(iv) is operationally seaworthy and in every way fit for
its intended service;
(k) Security Documents. Enterprise shall have executed and delivered to
the Security Trustee:
(i) the Mortgage on its Vessel, which shall have been
filed in accordance with the laws of the United
States so as to constitute a first preferred mortgage
lien under United States law;
(ii) the Insurances Assignment in respect of its Vessel;
(iii) the Earnings Assignment in respect of its Vessel;
(iv) the Assignment Notices with respect to its Vessel;
and
(v) such Uniform Commercial Code Financing Statements
(Forms UCC-1) as the Administrative Agent shall
require.
(l) Vessel Appraisals. The Administrative Agent shall have received
appraisals, in form and substance satisfactory to the Administrative Agent, as
to the Fair Market Value of each Vessel.
(m) ISM DOC. To the extent required to be obtained by the ISM Code the
Security Trustee shall have received a copy of the DOC for each Vessel.
(n) Evidence of Current COFR.The Administrative Agent shall have
received copies of the current Certificate of Financial Responsibility pursuant
to the Oil Pollution Xxx 0000 for each of the Vessels.
(o) First Vessel Liens. The Administrative Agent shall have received
evidence satisfactory to it and to its legal advisor that, save for the liens
created by the Mortgage and the
27
Assignments, there are no liens, charges or encumbrances of any kind whatsoever
on the First Vessel or on its earnings except as permitted hereby or by any of
the Security Documents.
(p) Charters; Pooling Agreements. The Security Parties shall, for each
of the Vessels, have delivered to the Agent true and complete copies of (i) all
charters having a term longer than twelve (12) months from the date of execution
and (ii) all vessel pooling agreements, in each case to which any Security Party
is a party.
4.2 Certain Matters with respect to the Available Amount. The obligations of the
Lenders to make available any Advance or issue any Letter of Credit, as the case
may be, under this Agreement shall at all times be subject to the limitation
that any such Advance or Letter of Credit, as the case may be, when aggregated
with any and all outstanding Advances and Letters of Credit shall not exceed the
then Available Amount. The Available Amount shall not include any calculations
with respect to the Fair Market Value of the Second Vessel unless and until the
satisfaction of the following conditions:
(a) Second Vessel Documents. The Security Trustee shall have received
evidence satisfactory to it and its counsel that the Second Vessel:
(i) is in the sole and absolute ownership of Sulphur and
is duly registered in Sulphur's name under United
States flag free of all liens and encumbrances of
record other than its Mortgage;
(ii) is insured in accordance with the provisions of its
Mortgage and all requirements of its Mortgage in
respect of such insurance have been fulfilled
(including, but not limited to, letters of
undertaking from the insurance brokers, including
confirmation notices of assignment, notices of
cancellation and loss payable clauses acceptable to
the Lenders);
(iii) is classed in the highest classification and rating
for vessels of the same age and type with its
Classification Society without any material
outstanding recommendations; and
(iv) is operationally seaworthy and in every way fit for
its intended service;
(b) Security Documents. Sulphur shall have executed and delivered to
the Security Trustee:
(i) the Mortgage on its Vessel, which shall have been
filed in accordance with the laws of the United
States so as to constitute a first preferred mortgage
lien under United States law;
(ii) the Insurances Assignment in respect of its Vessel;
(iii) the Earnings Assignment in respect of its Vessel;
(iv) the Assignment Notices with respect to its Vessel;
and
28
(v) such Uniform Commercial Code Financing Statements
(Forms UCC-1) as the Administrative Agent shall
require.
(c) Vessel Appraisals. The Administrative Agent shall have received
appraisals, in form and substance satisfactory to the Administrative Agent, as
to the Fair Market Value of the Second Vessel.
(d) Second Vessel Liens. The Administrative Agent shall have received
evidence satisfactory to it and to its legal advisor that, save for the liens
created by the Mortgage and the Assignments, there are no liens, charges or
encumbrances of any kind whatsoever on the Second Vessel or on its earnings
except as permitted hereby or by any of the Security Documents.
(e) Legal Opinions. The Administrative Agent, on behalf of the Agents
and the Lenders, shall have received opinions addressed to the Administrative
Agent as the Lenders shall have required as to all or any matters under the laws
of the State of Delaware and the United States of America covering certain of
the conditions and representations and warranties which are the subjects of
Sections 2 and 4, respectively.
4.3 Further Conditions Precedent. On each Drawdown Date or date on which a
Letter of Credit has been requested to be issued, the obligation of the Lenders
to make any Advance (other than an Advance which occurs by reason of a drawing
under any Letter of Credit) available or issue any Letter of Credit to the
Borrowers shall also be expressly conditional upon:
(a) Drawdown Notice. The Administrative Agent having received a
Drawdown Notice or a Letter of Credit Request, as applicable, in accordance with
the terms of Section 3.2 or Section 3.9, as the case may be.
(b) Representations and Warranties True. The representations stated in
Section 2 being true and correct as if made on that date.
(c) No Default. No Default or Event of Default having occurred and
being continuing or would result from the making of the Facility.
(d) No Material Adverse Effect. There having been no Material Adverse
Effect since June 30, 2004.
4.4 Breakfunding Costs. In the event that, on the date specified for the making
of the Facility in the Drawdown Notice, the Lenders shall not be obliged under
this Agreement to make the Facility available under this Agreement, the
Borrowers shall indemnify and hold the Lenders fully harmless against any losses
which the Lenders (or any thereof) may sustain as a result of borrowing or
agreeing to borrow funds to meet the drawdown requirement of such Drawdown
Notice and the certificate of the relevant Lender or Lenders shall, absent
manifest error, be conclusive and binding on the Borrower as to the extent of
any such losses.
4.5 Satisfaction after Drawdown. Without prejudice to any of the other terms and
conditions of this Agreement, in the event all of the Lenders elect, in their
sole discretion, to make the Facility prior to the satisfaction of all or any of
the conditions referred to in Sections 4.1, 4.2 or 4.3, the Borrowers hereby
covenant and undertake to satisfy or procure the satisfaction of such condition
or conditions within seven (7) days after the Drawdown Date (or such longer
period as the Majority Lenders, in their sole discretion, may agree).
29
5. REPAYMENT AND PREPAYMENT
5.1 Repayment. The Borrowers agree to repay the principal amount of the Facility
with interest thereon on the Repayment Date. Any amounts due under this
Agreement not paid when due, whether by acceleration or otherwise, shall bear
interest thereafter until paid at the Default Rate.
5.2 Voluntary Prepayment; Re-borrowing. The Borrowers may, at their option, on
any Banking Day, prepay any Advance or any portion thereof. The Borrowers shall
compensate the Lenders or any thereof for any loss, cost or expense incurred by
them as a result of a prepayment made on any day other than the last day of a
calendar month in accordance with the provisions of Section 12.6. Prepayments
made on the last day of a calendar month shall be without penalty or premium.
Any prepayment (except a prepayment of the entire amount of the outstanding
Advances) shall be in an integral multiple of Five Hundred Thousand Dollars
($500,000) with a minimum amount of Five Hundred Thousand Dollars ($500,000).
The Borrowers shall give to the Administrative Agent (which shall promptly
furnish a copy to each Lender) not later than 1:00 P.M. New Orleans time on the
date of any such prepayment (which notice shall be irrevocable and shall specify
the date and amount of prepayment). The Borrowers may from time to time pre-pay
the Advances and thereafter re-borrow such Advances or a portion thereof.
5.3 Mandatory Prepayment; Sale or Loss of Vessel. Upon (i) the sale of a Vessel
or (ii) the earlier of (x) ninety (90) days after the Total Loss (as such term
is defined in the Mortgages) of a Vessel or (y) the date on which the insurance
proceeds in respect of such loss are received by the Guarantors or the Security
Trustee as assignee thereof, the Borrowers shall either (I) deliver to the
Security Trustee, such additional collateral, of equal or greater value with
such Vessel, as may be satisfactory to the Lenders in their sole discretion or
(II) repay the Advances in an amount equal to the aggregate amount of the
Advances then outstanding multiplied by a fraction, the numerator of which is
the Financed Amount of that Vessel and the denominator of which is the sum of
the (a) aggregate Financed Amounts for all of the Vessels and (b) an amount
equal to the product of (X) fifty percent (50%) of LCI's percentage interest in
the share capital of Xxxxxx multiplied by (Y) the Net Worth of Xxxxxx, the
Facility shall be reduced by an amount equal to such repayment and each Lender's
Commitment shall be reduced pro-rata. So long as no event has occurred which
constitutes or, with the giving of notice or lapse of time or both, would
constitute an Event of Default or which adversely affects the Borrowers' ability
to perform its obligations under this Agreement, the Note and the Security
Documents or any of them, any surplus proceeds shall be paid to the Borrowers.
Amounts prepaid under this Section 5.3 shall not be available for re-borrowing
by the Borrowers.
5.4 Prepayments Generally. Any and all prepayments hereunder, whether mandatory
or voluntary, shall be applied in the following order:
(a) firstly, towards accrued and unpaid interest and for fees due under
this Agreement; and
(b) secondly, towards the Advances in the inverse order of their
respective Drawdown Dates.
5.5 Borrowers' Obligation Absolute. The Borrowers' obligation to pay each
Creditor hereunder and under the Note shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms hereof and
thereof, under any and all circumstances and irrespective of
30
any set-off, counterclaim or defense to payment which the Borrowers or any of
them may have or may have had against the Creditors.
6. INTEREST AND RATE
6.1 Payment of Interest; Interest Rate. (a) (a) Each Borrower hereby promises to
pay to the Lenders interest on the unpaid principal amount of each Advance for
the period commencing on the Drawdown Date until but not including the stated
maturity thereof (whether by acceleration or otherwise) or the date of
prepayment thereof at the Applicable Rate which shall be the rate per annum
which is equal to the aggregate of (a) the LIBOR Rate plus (b) the Applicable
Margin. The Applicable Rate with respect to the Facility shall be determined by
the Administrative Agent on the first day of each calendar month. The
Administrative Agent shall promptly notify the Borrowers and the Lenders in
writing of the Applicable Rate as and when determined. Each such determination,
absent manifest error, shall be conclusive and binding upon the Borrowers.
(b) Notwithstanding the foregoing, the Borrower agrees that after the
occurrence and during the continuance of an Event of Default, the Facility
Advances shall bear interest at a rate per annum equal to the greater of (A) the
Default Rate and (B) two percent (2%) plus the sum of (x) the Applicable Margin
plus (y) the LIBOR Rate for overnight or weekend deposits. In addition, the
Borrowers hereby promise to pay interest (to the extent that the payment of such
interest shall be legally enforceable) on any overdue interest, and on any other
amount payable by the Borrower hereunder which shall not be paid in full when
due (whether at stated maturity, by acceleration or otherwise), for the period
commencing on the due date thereof until but not including the date the same is
paid in full at the Default Rate.
(c) Except as provided in the next sentence, accrued interest on the
Advances shall be payable (i) on the first day of each calendar month and (ii)
with each repayment of principal thereof. Interest payable at the Default Rate
shall be payable from time to time on demand of the Administrative Agent.
6.2 Maximum Interest. Anything in this Agreement or the Note to the contrary
notwithstanding, the interest rate on the Facility shall in no event be in
excess of the maximum rate permitted by Applicable Law.
7. PAYMENTS
7.1 Place of Payments, No Set Off. All payments to be made hereunder by the
Borrowers shall be made to the Administrative Agent, not later than 3 p.m. New
Orleans time(any payment received after 3 p.m. New Orleans time shall be deemed
to have been paid on the next Banking Day) on the due date of such payment, at
its office located at 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 or to
such other office of the Administrative Agent as the Administrative Agent may
direct, without set-off or counterclaim and free from, clear of, and without
deduction for, any Taxes, provided, however, that if the Borrowers shall at any
time be compelled by law to withhold or deduct any Taxes from any amounts
payable to the Lenders hereunder, then the Borrowers shall pay such additional
amounts in Dollars as may be necessary in order that the net amounts received
after withholding or deduction shall equal the amounts which would have been
received if such withholding or deduction were not required and, in the event
any withholding or deduction is made, whether for Taxes or otherwise, the
Borrowers shall promptly send to the Administrative Agent
31
such documentary evidence with respect to such withholding or deduction as may
be required from time to time by the Lenders.
7.2 Tax Credits. If any Lender obtains the benefit of a credit against the
liability thereof for federal income taxes imposed by any taxing authority for
all or part of the Taxes as to which the Borrowers have paid additional amounts
as aforesaid (and each Lender agrees to use its best efforts to obtain the
benefit of any such credit which may be available to it, provided it has
knowledge that such credit is in fact available to it), then such Lender shall
reimburse the Borrowers for the amount of the credit so obtained. Each Lender
agrees that in the event that Taxes are imposed on account of the situs of its
loans hereunder, such Lender, upon acquiring knowledge of such event, shall, if
commercially reasonable, shift such loans on its books to another office of such
Lender so as to avoid the imposition of such Taxes.
7.3 Computations; Banking Days.
(a) All computations of interest and fees shall be made by the
Administrative Agent or the Lenders, as the case may be, on the basis of a
360-day year, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which interest or
fees are payable. Each determination by the Administrative Agent or the Lenders
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(b) Whenever any payment hereunder or under the Note shall be stated to
be due on a day other than a Banking Day, such payment shall be due and payable
on the next succeeding Banking Day unless the next succeeding Banking Day falls
in the following calendar month, in which case it shall be payable on the
immediately preceding Banking Day.
8. EVENTS OF DEFAULT
8.1 Events of Default. In the event that any of the following events shall occur
and be continuing:
(a) Principal Payments. Any principal of the Facility is not paid on
the due date therefor; or
(b) Interest and other Payments. Any interest on the Facility or any
other amount becoming payable under this Agreement and under any Transaction
Document or under any of them, is not paid within three (3) Banking Days from
the date when due; or
(c) Representations, etc. Any representation, warranty or other
statement made by any of the Security Parties in this Agreement or in any other
instrument, document or other agreement delivered in connection herewith proves
to have been untrue or misleading in any material respect as at the date as of
which it was made; or
(d) Impossibility, Illegality. It becomes impossible or unlawful for
any of the Security Parties to fulfill any of the covenants and obligations
contained herein or in any Transaction Document, or for any of the Lenders to
exercise any of the rights vested in any of them hereunder or under the other
Transaction Documents and such impossibility or illegality, in the reasonable
opinion of such Lender, will have a Material Adverse Effect on any of its rights
hereunder or under the other Transaction Documents or on any of its rights to
enforce any thereof; or
32
(e) Mortgage. There is any default under any Mortgage; or
(f) Certain Covenants. Any Security Party defaults in the performance
or observance of any covenant contained in Section 9.1(b), 9.1(m), 9.1(t),
9.2(k) and 9.3(a) through (d) inclusive; or
(g) Covenants. One or more of the Security Parties default in the
performance of any term, covenant or agreement contained in this Agreement or in
the other Transaction Documents, or in any other instrument, document or other
agreement delivered in connection herewith or therewith, in each case other than
an Event of Default referred to elsewhere in this Section 8.1, and such default
continues unremedied for a period of fifteen (15) days after written notice
thereof has been given to the relevant Security Party or Parties by the
Administrative Agent at the request of any Lender; or
(h) Indebtedness and Other Obligations. Any Security Party defaults in
the payment when due (subject to any applicable grace period) of any
Indebtedness or of any other indebtedness, in either case, in an outstanding
principal amount equal to or exceeding Two Million Dollars ($2,000,000) or such
Indebtedness or other indebtedness is, or by reason of such default is subject
to being, accelerated or any party becomes entitled to enforce the security for
any such Indebtedness or other indebtedness and such party shall take steps to
enforce the same, unless such default or enforcement is being contested in good
faith and by appropriate proceedings or other acts and such Security Party has
set aside on its books adequate reserves with respect thereto; or
(i) Bankruptcy. Any Security Party commences any proceedings relating
to any substantial portion of its property under any reorganization, arrangement
or readjustment of debt, dissolution, winding up, adjustment, composition,
bankruptcy or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect (a "Proceeding"), or there is commenced against any thereof
any Proceeding and such Proceeding remains undismissed or unstayed for a period
of sixty (60) days; or any receiver, trustee, liquidator or sequestrator of, or
for, any thereof or any substantial portion of the property of any thereof is
appointed and is not discharged within a period of sixty (60) days; or any
thereof by any act indicates consent to or approval of or acquiescence in any
Proceeding or to the appointment of any receiver, trustee, liquidator or
sequestrator of, or for, itself or any substantial portion of its property; or
(j) Judgments. Any judgment or order is made the effect whereof would
be to render invalid this Agreement or any other Transaction Document or any
material provision thereof or any Security Party asserts that any such agreement
or provision thereof is invalid; or judgments or orders for the payment of money
(not paid or fully covered by insurance, subject to applicable deductibles) in
excess of $2,500,000 in the aggregate for ISH or its Subsidiaries (or its
equivalent in any other currency) shall be rendered against ISH and/or any of
its Subsidiaries and such judgments or orders shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) Inability to Pay Debts. Any Security Party is unable to pay or
admits its inability to pay its debts as they fall due or a moratorium shall be
declared in respect of any Indebtedness of any thereof; or
(l) Termination of Operations; Sale of Assets. Except as expressly
permitted under this Agreement, any Security Party ceases its operations or
sells or otherwise disposes of all or
33
substantially all of its assets or all or substantially all of the assets of any
Security Party are seized or otherwise appropriated; or
(m) Change in Financial Position. Any change in the financial position
of any Security Party which, in the reasonable opinion of the Majority Lenders,
shall have a Material Adverse Effect; or
(n) Cross-Default. Any Security Party defaults under any material
contract or agreement to which it is a party or by which it is bound; or
(o) ERISA Debt. Any member of the ERISA Group or any ERISA Affiliate
shall (i) fail to pay when due an amount or amounts aggregating in excess of
$1,000,000 which it or they shall have become liable to pay under Title IV of
ERISA or (ii) any member of the ERISA Group or any ERISA Affiliate, individually
or collectively, shall incur, or shall reasonably expect to incur, any
Withdrawal Liability or liability upon the happening of a Termination Event and
the aggregate of all such Withdrawal Liabilities and such other liabilities
shall be in excess of $10,000,000;
then, the Lenders' obligation to make any Advance available shall cease and the
Administrative Agent on behalf of the Lenders may, with the Majority Lenders'
consent and shall, upon the Majority Lenders' instruction, by notice to the
Borrowers, declare the entire Facility, accrued interest and any other sums
payable by the Borrowers hereunder, under the Note and under the other
Transaction Documents due and payable whereupon the same shall forthwith be due
and payable without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived; provided that upon the happening of an event
specified in subclauses (i) or (k) of this Section 8.1, the Facility, accrued
interest and any other sums payable by the Borrowers hereunder, under the Note
and under the other Transaction Documents shall be immediately due and payable
without declaration, presentment, demand, protest or other notice to the
Borrowers all of which are expressly waived. In such event, the Creditors, or
any thereof, may proceed to protect and enforce their respective rights by
action at law, suit in equity or in admiralty or other appropriate proceeding,
whether for specific performance of any covenant contained in this Agreement or
in the Note or in any other Transaction Document or in aid of the exercise of
any power granted herein or therein, or the Lenders or the Administrative Agent
may proceed to enforce the payment of the Note when due or to enforce any other
legal or equitable right of the Lenders, or proceed to take any action
authorized or permitted by Applicable Law for the collection of all sums due, or
so declared due, including, without limitation, the right to appropriate and
hold or apply (directly, by way of set-off or otherwise) to the payment of the
obligations of the Borrowers to any of the Creditors hereunder, under the Note
and/or under the other Transaction Documents (whether or not then due) all
moneys and other amounts of the Borrower then or thereafter in possession of any
Creditor, the balance of any deposit account (demand or time, matured or
unmatured) of the Borrowers then or thereafter with any Creditor and every other
claim of the Borrowers then or thereafter against any of the Creditors.
8.2 Indemnification. The Borrowers, in solido, agree to, and shall, indemnify
and hold each of the Creditors harmless against any loss, as well as against any
reasonable costs or expenses (including reasonable legal fees and expenses),
which any of the Creditors sustains or incurs as a consequence of any default in
payment of the principal amount of the Facility, interest accrued thereon or any
other amount payable hereunder, under the Note or under the other Transaction
Documents including, but not limited to, all actual losses incurred in
liquidating or re-employing fixed deposits made by third parties or funds
acquired to effect or maintain the Facility or any
34
portion thereof. Any Creditor's certification of such costs and expenses shall,
absent any manifest error, be conclusive and binding on the Borrowers.
8.3 Application of Moneys. Except as otherwise provided in any Security
Document, all moneys received by the Creditors under or pursuant to this
Agreement, the Note or any of the Security Documents after the happening of any
Event of Default (unless cured to the satisfaction of the Majority Lenders)
shall be applied by the Administrative Agent in the following manner:
(a) firstly, in or towards the payment or reimbursement of any expenses
or liabilities incurred by any of the Creditors in connection with the
ascertainment, protection or enforcement of its rights and remedies hereunder,
under the Note and under the other Transaction Documents;
(b) secondly, in or towards payment of any interest owing in respect of
the Facility;
(c) thirdly, in or towards repayment of the principal of the Facility;
(d) fourthly, in or towards payment of all other sums which may be
owing to any of the Creditors under this Agreement, under the Note and under the
other Transaction Documents; and
(e) fifthly, the surplus (if any) shall be paid to the Borrowers or to
whomsoever else may be entitled thereto.
9. COVENANTS
9.1 Affirmative Covenants. Each of the Security Parties hereby covenants and
undertakes with the Lenders that, from the date hereof and so long as any
principal, interest or other moneys are owing in respect of this Agreement, the
Note or any of the Security Documents, it will:
(a) Performance of Agreements. Duly perform and observe, and procure
the observance and performance by all other parties thereto (other than the
Lenders) of, the terms of this Agreement, the Note and the Security Documents;
(b) Notice of Default, etc. Promptly upon obtaining knowledge thereof,
inform the Administrative Agent of the occurrence of (a) any Event of Default or
of any event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default, (b) any litigation or governmental proceeding
pending or threatened against any Security Party which could reasonably be
expected to have a Material Adverse Effect, (c) the withdrawal of any Vessel's
rating by its Classification Society or the issuance by the Classification
Society of any material recommendation or notation affecting class and (d) any
other event or condition which is reasonably likely to have a Material Adverse
Effect, in each case promptly, and in any event within three (3) Banking Days
after becoming aware of the occurrence thereof;
(c) Obtain Consents. Without prejudice to Section 2.1 and this Section
9.1, obtain every consent and do all other acts and things which may from time
to time be necessary or advisable for the continued due performance of all its
and the other Security Parties' respective obligations under this Agreement,
under the Note and under the Security Documents;
35
(d) Financial Information. Deliver to the Administrative Agent with
sufficient copies for the Lenders to be distributed to the Lenders by the
Administrative Agent promptly upon the receipt thereof:
(i) as soon as available, but not later than ninety (90) days
after the end of each fiscal year of ISH, complete copies
of the consolidated financial reports of ISH and its
Subsidiaries together with separate financial reports of
each Borrower (together with a Compliance Certificate),
all in reasonable detail which shall include at least the
consolidated balance sheet of ISH and its Subsidiaries and
balance sheets for the Borrowers as of the end of such
year and the related statements of income and sources and
uses of funds for such year, each as prepared in
accordance with GAAP, all in reasonable detail, which
shall be audited reports prepared by an Acceptable
Accounting Firm;
(ii) as soon as available but not later than one hundred eighty
(180) days after the end of each fiscal year of Xxxxxx,
complete copies of the consolidated financial reports
thereof and its Subsidiaries, in reasonable detail which
shall include at least the consolidated balance sheet of
Xxxxxx and its Subsidiaries as of the end of such year and
the related statements of income and sources and uses of
funds for such year, each as prepared in accordance with
GAAP, all in reasonable detail, which shall be audited
reports prepared by an Acceptable Accounting Firm;
(iii) as soon as available, but not less than forty-five (45)
days after the end of each of the first three quarters of
each fiscal year of ISH, a quarterly interim balance
sheets and profit and loss statements of ISH and its
Subsidiaries and the related profit and loss statements
and sources and uses of funds (together with a Compliance
Certificate), all in reasonable detail, unaudited, but
certified to be true and complete by the chief financial
officer of ISH;
(iv) as soon as available, but not less than ninety (90) days
after the end of each of the first three quarters of each
fiscal year of Xxxxxx, a quarterly interim balance sheets
and profit and loss statements of Belden and its
Subsidiaries and the related profit and loss statements
and sources and uses of funds, all in reasonable detail,
unaudited, but certified to be true and complete by the
chief financial officer thereof;
(v) promptly upon the mailing thereof to the shareholders of
the ISH, copies of all financial statements, reports,
proxy statements and other communications provided to
ISH's shareholders;
(vi) within ten (10) days of the ISH's receipt thereof, copies
of all audit letters or other correspondence from any
external auditors including material financial information
in respect of ISH and its Subsidiaries; and
36
(vii) such other statements (including, without limitation,
monthly consolidated statements of operating revenues and
expenses), lists of assets and accounts, budgets,
forecasts, reports and other financial information with
respect to its business as the Administrative Agent may
from time to time reasonably request, certified to be true
and complete by the chief financial officer of ISH;
(e) Contingent Liabilities. For inclusion with each Compliance
Certificate delivered in connection with Sections 9.1(d)(i) and 9.1(d)(iii), and
in any event upon the reasonable request of the Administrative Agent, an
accounting of all of the contingent liabilities of each Security Party;
(f) Vessel Valuations. For inclusion with each Compliance Certificate
delivered pursuant to Section 9.1(d)(i), and in any event upon the reasonable
request of the Administrative Agent, the Borrowers shall obtain appraisals of
the Fair Market Value of the Vessels. One of such additional valuations in any
year is to be at the Borrowers' cost, provided, that following and during the
continuance of any Event of Default even if such Event of Default has been
waived by the Lenders, all such valuations are to be at the Borrowers' cost. In
the event the Borrowers fail or refuse to obtain the valuations requested
pursuant to this Section 9.1 within ten (10) days of the Administrative Agent's
request therefor, the Administrative Agent will be authorized to obtain such
valuations, at the Borrower's cost, from one of the approved ship brokers listed
on Schedule IV, which valuations shall be deemed the equivalent of valuations
duly obtained by the Borrowers pursuant to this Section 9.1(e), but the
Administrative Agent's actions in doing so shall not excuse any default of the
Borrowers under this Section 9.1(e);
(g) Corporate Existence. Do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and all
licenses, franchises, permits and assets necessary to the conduct of its
business;
(h) Books and Records. At all times keep proper books of record and
account into which full and correct entries shall be made in accordance with
GAAP;
(i) Taxes and Assessments. Pay and discharge all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or property prior to the date upon which penalties attach thereto;
provided, however, that it shall not be required to pay and discharge, or cause
to be paid and discharged, any such tax, assessment, charge or levy so long as
the legality thereof shall be contested in good faith and by appropriate
proceedings or other acts and it shall set aside on its books adequate reserves
with respect thereto;
(j) Inspection. Allow any representative or representatives designated
by the Administrative Agent, subject to applicable laws and regulations, to
visit and inspect any of its properties, and, on request, to examine its books
of account, records, reports and other papers and to discuss its affairs,
finances and accounts with its officers, all at such reasonable times and as
often as the Administrative Agent reasonably requests;
(k) Inspection and Survey Reports. If the Lenders shall so request, the
Borrowers shall provide the Lenders with copies of all internally generated
inspection or survey reports on the Vessels;
(l) Compliance with Statutes, Agreements, etc. Do or cause to be done
all things necessary to comply with all material contracts or agreements to
which any of the Security Parties is
37
a party, and all material laws, and the rules and regulations thereunder,
applicable to such Security Party, including, without limitation, those laws,
rules and regulations relating to employee benefit plans and environmental
matters except where failure to do so would not be reasonably likely to have a
Material Adverse Effect;
(m) Environmental Matters. Promptly upon the occurrence of any of the
following conditions, provide to the Administrative Agent a certificate of a
chief executive officer of ISH, specifying in detail the nature of such
condition and its proposed response or the proposed response of any
Environmental Affiliate: (a) its receipt or the receipt by any Environmental
Affiliate of any written communication whatsoever that alleges that such Person
is not in compliance with any applicable Environmental Law or Environmental
Approval, if such noncompliance could reasonably be expected to have a Material
Adverse Effect, (b) knowledge by it or any Environmental Affiliate that there
exists any Environmental Claim pending or threatened against any such Person,
which could reasonably be expected to have a Material Adverse Effect, or (c) any
release, emission, discharge or disposal of any material that could form the
basis of any Environmental Claim against it or against any Environmental
Affiliate, if such Environmental Claim could reasonably be expected to have a
Material Adverse Effect. Upon the written request by the Administrative Agent,
the Borrower will submit to the Administrative Agent at reasonable intervals, a
report providing an update of the status of any issue or claim identified in any
notice or certificate required pursuant to this subsection;
(n) Insurance. Maintain with financially sound and reputable insurance
companies insurance on all its properties and against all such risks and in at
least such amounts and with such deductibles as are usually insured against by
companies of established reputation engaged in the same or similar business from
time to time;
(o) Vessel Management. Cause the Vessels to be managed both
commercially and technically by ISH, a wholly-owned subsidiary thereof or its
existing manager;
(p) Brokerage Commissions, etc. Indemnify and hold each of the Agents
and the Lenders harmless from any claim for any brokerage commission, fee or
compensation from any broker or third party resulting from the transactions
contemplated hereby;
(q) ISM Code, ISPS Code and MTSA Matters. (i) Procure that the Operator
will comply with and ensure that each of the Vessels will comply with the
requirements of the ISM Code, ISPS Code and MTSA in accordance with the
implementation schedules thereof, including (but not limited to) the maintenance
and renewal of valid certificates, and when required, security plans, pursuant
thereto throughout the term of the Facility; and (ii) will procure that the
Operator will immediately inform the Administrative Agent if there is any
threatened or actual withdrawal of its DOC, SMC or the ISSC in respect of any
Vessel; and (iii) will procure that the Operator will promptly inform the
Administrative Agent upon the issuance to the relevant Borrower or Operator of a
DOC and to any Vessel of an SMC or ISSC;
(r) ERISA. Forthwith upon learning of the occurrence of any material
liability of any member of the ERISA Group or any ERISA Affiliate pursuant to
ERISA in connection with the termination of any Plan or withdrawal or partial
withdrawal of any multi-employer plan (as defined in ERISA) or of a failure to
satisfy the minimum funding standards of Section 412 of the Code or Part 3 of
Title I of ERISA by any Plan for which any member of the ERISA Group or any
ERISA
38
Affiliate is plan administrator (as defined in ERISA), furnish or cause to be
furnished to the Lenders written notice thereof;
(s) Evidence of Current COFR. If the Lenders shall so request, provide
the Lenders with copies of the current Certificate of Financial Responsibility
pursuant to the Oil Pollution Xxx 0000 for each of the Vessels; and
(t) Discharge of Existing Mortgage on Second Vessel. Sulphur will
procure that the Existing Mortgage over the Second Vessel is discharged no later
than January 15, 2005, and that as at January 16, 2005 the Second Vessel will be
free of all liens and encumbrances of record other than its Mortgage.
9.2 Negative Covenants. Each of the Security Parties hereby covenants and
undertakes with the Lenders that, from the date hereof and so long as any
principal, interest or other moneys are owing in respect of this Agreement, the
Note or any other Transaction Documents, it will not, without the prior written
consent of the Majority Lenders (or all of the Lenders if required pursuant to
Section 16.8):
(a) Liens. Create, assume or permit to exist, any mortgage, pledge,
lien, charge, encumbrance or any security interest whatsoever upon any
Collateral or, in respect of the Borrowers and each of the Guarantors, other
property except:
(i) liens disclosed in Schedule V;
(ii) liens to secure Indebtedness under Section 9.2(i), such
liens to be limited to the vessels constructed or
acquired;
(iii) liens for taxes not yet payable for which adequate
reserves have been maintained;
(iv) the Mortgages, the Pledge Agreement, the Assignments and
other liens in favor of the Security Trustee or the
Lenders;
(v) liens, charges and encumbrances against the Vessels
permitted to exist under the terms of the Mortgages;
(vi) pledges of certificates of deposit or other cash
collateral securing reimbursement obligations in
connection with letters of credit now or hereinafter
issued for its account in connection with the
establishment of its financial responsibility under
33C.F.R. Part 130 or 46 C.F.R. Part 540, as the case may
be, as the same may be amended and replaced;
(vii) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation, deposits to
secure public or statutory obligations, warehousemen's or
other like liens, or deposits to obtain the release of
such liens and deposits to secure surety, appeal or
customs bonds on which it is the principal, as to all of
the foregoing, only to the extent arising and continuing
in the ordinary course of business; and
39
(viii) other liens, charges and encumbrances incidental to the
conduct of its business, the ownership of its property and
assets and which do not in the aggregate materially
detract from the value of its property or assets or
materially impair the use thereof in the operation of its
business;
(b) Third Party Guaranties. Guaranty the obligations of any third
party, except a direct or indirect subsidiary of ISH, whether or not affiliated
with such Security Party;
(c) Liens on Shares of Guarantors. With respect to ISH, create, assume
or permit to exist , any mortgage, pledge, lien, charge, encumbrance or any
security interest whatsoever upon the shares of any Guarantor, Central Gulf or
Xxxxxxxx;
(d) Subordination of Inter-Company Indebtedness. With respect to ISH,
procure that, upon the occurrence and during the continuance of an Event of
Default, no payments are made by any Security Party on any inter-company
Indebtedness until such time as the Facility is paid in full;
(e) Certain Indebtedness. With respect to LCI, procure that Gulf South
does not incur any additional Indebtedness or further encumber any of its assets
without the prior written consent of all of the Lenders. Upon the granting of
such consent by the Lenders, the Borrowers shall provide the Lenders with a
calculation of the Available Amount, such calculation to include the additional
Indebtedness or further encumbrance;
(f) Transaction with Affiliates. Enter into any transaction with an
Affiliate, other than on an arms length basis;
(g) Change of Flag, Class, Management or Ownership. Change the flag of
any of the Vessels other than to a jurisdiction reasonably acceptable to the
Lenders, their Classification Society other than to another member of the
International Association of Classification Societies, the technical management
of any Vessel other than to one or more technical management companies
reasonably acceptable to the Lenders or the immediate or ultimate ownership of
any Vessel;
(h) Chartering. Enter into any demise or bareboat charter with any
party other than ISH or its Subsidiaries with respect to any Vessel having a
duration of, including any options to extend such charter, more than twenty-five
(25) months without the prior consent of the Administrative Agent, which consent
shall not be unreasonably withheld;
(i) Change in Business. Materially change the nature of its business or
commence any business materially different from its current business;
(j) Sale of Assets. Other than as reasonably acceptable to the Majority
Lenders, sell, or otherwise dispose of, any Vessel or any other asset (including
by way of spin-off, installment sale or otherwise) which is substantial in
relation to its assets taken as a whole; provided, however, that the Borrowers
may sell any Vessel to a third party in an arm's length transaction provided
that the proceeds of such sale are distributed in accordance with Section 5.3 of
this Agreement;
(k) Changes in Offices or Names. Change the location of its chief
executive office, its chief place of business or the office in which its records
relating to the earnings or insurances of
40
the Vessels are kept or change its name unless the Lenders shall have received
sixty (60) days prior written notice of such change;
(l) Consolidation and Merger. Consolidate with, or merge into, any
corporation or other entity, or merge any corporation or other entity into it;
provided, however, that ISH may merge with any Subsidiary or any other Person if
(A) at the time of such transaction and after giving effect thereto, no Default
or Event of Default shall have occurred or be continuing, (B) the surviving
entity of such consolidation or merger shall be ISH and (C) after giving effect
to the transaction, ISH's Consolidated Tangible Net Worth shall be greater or
equal to its Consolidated Tangible Net Worth prior to the merger;
(m) Change Fiscal Year. In the case of ISH, change its fiscal year;
(n) Indebtedness. In the case of the Security Parties, incur any new
Indebtedness (which, for the sake of clarity, shall exclude any Indebtedness
pursuant to this Agreement) other than Indebtedness incurred to finance the
acquisition and/or construction of any vessels, provided that the principal
amount of such Indebtedness shall not exceed eighty percent (80%) of such
acquisition and/or construction price, unless such Indebtedness is subordinated
to all existing Indebtedness and this Facility; and
(o) Limitations on Ability to Make Distributions. Except as provided in
Section 13(c)(1) of the Title XI Agreement, create or otherwise cause or permit
to exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to pay dividends or make any other distributions on
its capital stock or limited liability company interests, as the case may be, to
the Borrowers or the Guarantors.
(p) Change of Control. Cause or permit a Change of Control.
(q) No Money Laundering. Contravene any law, official requirement or
other regulatory measure or procedure implemented to combat "money laundering"
(as defined in Article 1 of the Directive (91/308/EEC) of the Council of the
European Communities) and comparable United States Federal and state laws.
9.3 Financial Covenants. ISH hereby covenants and undertakes with the Lenders
that, from the date hereof and so long as any principal, interest or other
moneys are owing in respect of this Agreement, the Note or any of the Security
Documents, it will:
(a) Consolidated Indebtedness to Consolidated EBITDA Ratio. Maintain,
on a consolidated basis, a ratio of Consolidated Indebtedness to Consolidated
EBITDA of not more than 4.75 to 1.00 from the closing date through June 30,
2006, 4.50 to 1.00 from July 1, 2006 through December 31, 2006, and 4.00 from
January 1, 2007 through the Repayment Date, as measured at the end of each
fiscal quarter based on the four most recent fiscal quarters for which financial
information is available;
(b) Working Capital. Maintain on a consolidated basis a ratio of
current assets to current liabilities of not less than 1.00 to 1.00, as measured
at the end of each fiscal quarter;
(c) Consolidated Tangible Net Worth. Maintain a Consolidated Tangible
Net Worth, as measured at the end of each fiscal quarter, in an amount of not
less than the sum of One
41
Hundred Ten Million Dollars ($110,000,000) and seventy-five percent (75%) of all
net income of ISH (on a consolidated basis) earned after October 1, 2004;
(d) Consolidated EBITDA to Interest Expense. Maintain a ratio of
Consolidated EBITDA to Interest Expense of not less than 2.50 to 1.00, measured
at the end of each fiscal quarter based on the four most recent fiscal quarters
for which financial information is available;
9.4 Asset Maintenance. (a) If, at any time during the term of the Facility, the
aggregate amount of the Advances outstanding is greater than the Available
Amount (together with the value of any additional collateral theretofore
provided under this Section), the Borrowers shall, within a period of thirty
(30) days following receipt by the Borrowers of written notice from the
Administrative Agent notifying the Borrowers of such excess and specifying the
amount thereof (which amount shall, in the absence of manifest error, be deemed
conclusive and binding on the Borrowers) either (a) deliver to the Security
Trustee, such additional collateral as may be satisfactory to the Lenders in
their sole discretion such that the aggregate amount of the Advances then
outstanding is less than or equal to the Available Amount together with the
value of any such additional collateral or (b) prepay the Advances or part
thereof (together with interest thereon and any monies payable in respect of
such prepayment pursuant to Section 5.4) as shall result in the aggregate amount
of the Advances then outstanding being less than or equal to the Available
Amount.
(b) If, at any time during the term of the Facility, in the sole
opinion of the Lenders, there is a material adverse change to the financial
position of Xxxxxx, the Borrowers shall, within a period of ninety (90) days
following receipt by the Borrowers of written notice from the Administrative
Agent notifying the Borrowers of such change in financial position either (a)
deliver to the Security Trustee, such additional collateral as may be
satisfactory to the Lenders in their sole discretion, or (b) prepay the Advances
or part thereof (together with interest thereon and any monies payable in
respect of such prepayment pursuant to Section 5.4) as shall result in the
aggregate amount of the Advances then outstanding being less than or equal to
the Available Amount (as calculated excluding the amount set forth in subclause
(b) of the definition thereof).
10. GUARANTEE
10.1 The Guarantee. Each of the Guarantors hereby irrevocably and
unconditionally and in solido guarantees to each of the Creditors and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Facility made by the Lenders to the Borrowers and evidenced by
the Note and all other amounts from time to time owing to the Creditors by the
Borrowers under this Agreement, under the Note and under any of the Security
Documents, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). Each
of the Guarantors hereby further agrees that if the Borrowers shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of the Guaranteed Obligations, the Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
10.2 Obligations Unconditional. The obligations of each of the Guarantors under
Section 10.1 are absolute, unconditional and irrevocable, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Borrowers under this Agreement, the Note or
42
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of, or security for,
any of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 10.2 that the obligations of each
of the Guarantors hereunder shall be absolute, unconditional and irrevocable,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of any Guarantor hereunder, which shall
remain absolute, unconditional and irrevocable as described above:
a) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
b) any of the acts mentioned in any of the provisions of this
Agreement or the Note or any other agreement or instrument
referred to herein or therein shall be done or omitted;
c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under this Agreement or the Note or any other agreement or
instrument referred to herein or therein shall be waived or any
other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged, in whole or in
part, or otherwise dealt with; or
d) any lien or security interest granted to, or in favor of, the
Security Trustee or any Lender or Lenders as security for any of
the Guaranteed Obligations shall fail to be perfected.
Each of the Guarantors hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that any Agent,
the Security Trustee or any Lender exhaust any right, power or remedy or proceed
against the Borrowers under this Agreement or the Note or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
10.3 Reinstatement. The obligations of the Guarantors under this Section 10
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrowers in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any Proceedings and each of
the Guarantors agrees that it will indemnify each Creditor on demand for all
reasonable costs and expenses (including, without limitation, fees of counsel)
incurred by such Creditor in connection with such recission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
10.4 Subrogation. Each of the Guarantors hereby irrevocably waives, but only
until all amounts payable hereunder by the Guarantors to the Creditors (or any
of them) have been paid in full, any and all rights to which any of them may be
entitled by operation of law or otherwise, upon making any payment hereunder to
be subrogated to the rights of the payee against the Borrowers with respect to
such payment or to be reimbursed, indemnified or exonerated by or to seek
contribution from the Borrowers in respect thereof.
43
10.5 Remedies. Each of the Guarantors agrees that, as between the Guarantors and
the Lenders, the obligations of the Borrowers under this Agreement and the Note
may be declared to be forthwith due and payable as provided in Section 8 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 8) for purposes of Section 10.1
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrowers and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrowers) shall forthwith
become due and payable by the Guarantors for purposes of Section 10.1.
10.6 Joint, Several and Solidary Liability. Each Guarantor's obligations and
liability under this Agreement shall be on a "solidary" or "joint and several"
basis along with Borrowers to the same degree and extent as if each Guarantor
had been and/or will be a co-borrower, co-principal obligor and/or co-maker of
the Guaranteed Obligations. In the event that there is more than one Guarantor
under this Agreement, or in the event that there are other guarantors, endorsers
or sureties of all or any portion of the Guaranteed Obligations, each
Guarantor's obligations and liability hereunder shall further be on a "solidary"
or "joint and several" basis along with such other guarantors, endorsers and/or
sureties.
10.7 Continuing Guarantee. The guarantee in this Section 10 is a continuing
guarantee, and shall apply to all Guaranteed Obligations whenever arising.
11. ASSIGNMENT.
This Agreement shall be binding upon, and inure to the benefit of, each
of the Security Parties and each of the Creditors and their respective
successors and assigns, except that none of the Security Parties may assign any
of its rights or obligations hereunder without the written consent of the
Lenders. Each Lender shall be entitled to assign its rights and obligations
under this Agreement or grant participation(s) in the Facility to any
subsidiary, holding company or other affiliate of such Lender, to any subsidiary
or other affiliate company of any thereof or, with the consent of the Borrowers
(except upon the occurrence and during the continuation of an Event of Default,
in which case the Borrowers' consent shall not be required) and the
Administrative Agent, in the case of the Borrowers such consent not to be
unreasonably withheld, to any other bank or financial institution (in a minimum
amount of not less than $1,000,000), and such Lender shall forthwith give notice
of any such assignment or participation to the Borrowers and pay the
Administrative Agent an assignment fee of $3,000 for each such assignment or
participation; provided, however, that any such assignment must be made pursuant
to an Assignment and Assumption Agreement. The Borrowers will take all
reasonable actions requested by the Agents or any Lender to effect such
assignment, including, without limitation, the execution of a written consent to
any Assignment and Assumption Agreement.
12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.
12.1 Illegality. In the event that by reason of any change in any applicable
law, regulation or regulatory requirement or in the interpretation thereof, a
Lender has a reasonable basis to conclude that it has become unlawful for any
Lender to maintain or give effect to its obligations as contemplated by this
Agreement, such Lender shall inform the Administrative Agent and the Borrowers
to that effect, whereafter the liability of such Lender to make its Commitment
available shall forthwith cease and the Borrowers shall be required either to
repay to such Lender that portion
44
of the Facility advanced by such Lender immediately or, if such Lender so
agrees, to repay such portion of the Facility to the Lender on the last day of
the calendar month in accordance with and subject to the provisions of Section
12.5. In any such event, but without prejudice to the aforesaid obligations of
the Borrowers to repay such portion of the Facility, the Borrowers and the
relevant Lender shall negotiate in good faith with a view to agreeing on terms
for making such portion of the Facility available from another jurisdiction or
otherwise restructuring such portion of the Facility on a basis which is not
unlawful.
12.2 Increased Costs. If any change in applicable law, regulation or regulatory
requirement, or in the interpretation or application thereof by any governmental
or other authority, shall:
(i) subject any Lender to any Taxes with respect to its
income from the Facility, or any part thereof, or
(ii) change the basis of taxation to any Lender of
payments of principal or interest or any other
payment due or to become due pursuant to this
Agreement (other than a change in the basis effected
by the jurisdiction of organization of such Lender,
the jurisdiction of the principal place of business
of such Lender, the United States of America, the
State or City of New York or any governmental
subdivision or other taxing authority having
jurisdiction over such Lender (unless such
jurisdiction is asserted by reason of the activities
of any Security Party) or such other jurisdiction
where the Facility may be payable), or
(iii) impose, modify or deem applicable any reserve
requirements or require the making of any special
deposits against or in respect of any assets or
liabilities of, deposits with or for the account of,
or loans by, a Lender, or
(iv) impose on any Lender any other condition affecting
the Facility or any part thereof,
and the result of the foregoing is either to increase the cost to such
Lender of making available or maintaining its Commitment or any part thereof or
to reduce the amount of any payment received by such Lender, then and in any
such case if such increase or reduction in the opinion of such Lender materially
affects the interests of such Lender under or in connection with this Agreement:
(a) such Lender shall notify the Administrative Agent and the Borrowers
of the happening of such event, and
(b) the Borrowers agree forthwith upon demand to pay to such Lender
such amount as such Lender certifies to be necessary to compensate such Lender
for such additional cost or such reduction; PROVIDED, however, that the
foregoing provisions shall not be applicable in the event that increased costs
to the Lender result from the exercise by the Lender of its right to assign its
rights or obligations under Section 11.
12.3 Nonavailability of Funds. If the Administrative Agent shall determine that,
by reason of circumstances affecting the London Interbank Market generally,
adequate and reasonable means do
45
not or will not exist for ascertaining the Applicable Rate, the Administrative
Agent shall give notice of such determination to the Borrowers and the Lenders.
The Borrowers, the Administrative Agent and the Majority Lenders shall then
negotiate in good faith in order to agree upon a mutually satisfactory interest
rate to be substituted for that which would otherwise have applied under this
Agreement. If the Borrowers, the Administrative Agent and the Majority Lenders
are unable to agree upon such a substituted interest rate within thirty (30)
days of the giving of such determination notice, the Administrative Agent shall
set an interest rate to take effect at the Administrative Agent's direction,
which rate shall be equal to the Applicable Margin plus the cost to the Lenders
(as certified by each Lender) of funding such Advance.
12.4 Lender's Certificate Conclusive. A certificate or determination notice of
the Administrative Agent or any Lender, as the case may be, as to any of the
matters referred to in this Section 12 shall, absent manifest error, be
conclusive and binding on the Borrowers.
12.5 Compensation for Losses. Where any portion of the Facility is to be repaid
by the Borrowers pursuant to this Section 12, the Borrowers agree simultaneously
with such repayment to pay to the relevant Lender all accrued interest to the
date of actual payment on the amount repaid and all other sums then payable by
the Borrowers to the relevant Lender pursuant to this Agreement, together with
such amounts as may be certified by the relevant Lender to be necessary to
compensate such Lender for any actual loss, premium or penalties incurred or to
be incurred thereby on account of funds borrowed to make, fund or maintain its
Commitment or such portion thereof for the remainder (if any) of the then
current calendar month, but otherwise without penalty or premium.
13. CURRENCY INDEMNITY
13.1 Currency Conversion. If for the purpose of obtaining or enforcing a
judgment in any court in any country it becomes necessary to convert into any
other currency (the "judgment currency") an amount due in Dollars under this
Agreement or the other Transaction Documents then the conversion shall be made,
in the discretion of the Administrative Agent, at the rate of exchange
prevailing either on the date of default or on the day before the day on which
the judgment is given or the order for enforcement is made, as the case may be
(the "conversion date"), provided that the Administrative Agent shall not be
entitled to recover under this section any amount in the judgment currency which
exceeds at the conversion date the amount in Dollars due under this Agreement,
the Note and/or the other Transaction Documents.
13.2 Change in Exchange Rate. If there is a change in the rate of exchange
prevailing between the conversion date and the date of actual payment of the
amount due, the Borrowers shall pay such additional amounts (if any, but in any
event not a lesser amount) as may be necessary to ensure that the amount paid in
the judgment currency when converted at the rate of exchange prevailing on the
date of payment will produce the amount then due under this Agreement, the Note
and/or the other Transaction Documents in Dollars; any excess over the amount
due received or collected by the Lenders shall be remitted to the Borrowers.
13.3 Additional Debt Due. Any amount due from the Borrowers under this Section
13 shall be due as a separate debt and shall not be affected by judgment being
obtained for any other sums due under or in respect of this Agreement, the Note
and/or any of the Security Documents.
46
13.4 Rate of Exchange. The term "rate of exchange" in this Section 13 means the
rate at which the Administrative Agent in accordance with its normal practices
is able on the relevant date to purchase Dollars with the judgment currency and
includes any premium and costs of exchange payable in connection with such
purchase.
14. FEES AND EXPENSES
14.1 Fees. The Borrowers shall pay to the Administrative Agent (for the account
of the Lenders) a fee equal to seventy-five one hundredths of one percent
(0.75%) of the Facility, such fee to be payable on the Closing Date. During the
period beginning on the date of this Agreement and ending on the Repayment Date,
the Borrowers shall pay, quarterly in arrears, with the final payment to be made
on the Repayment Date to the Administrative Agent (for the account of the
Lenders), a commitment fee on the average undrawn portion of the Facility equal
to fifty percent (50%) of the Applicable Margin. The Borrowers shall also pay to
the Administrative Agent such fees as the parties have agreed pursuant to the
Fee Letter within five days of the Closing Date.
14.2 Expenses. The Borrowers jointly and severally agree, whether or not the
transactions hereby contemplated are consummated, on demand to pay, or reimburse
the Agents for their payment of, the reasonable expenses of the Agents and
(after the occurrence and during the continuance of an Event of Default) the
Lenders incident to said transactions (and in connection with any supplements,
amendments, waivers or consents relating thereto or incurred in connection with
the enforcement or defense of any of the Agents' and the Lenders' rights or
remedies with respect thereto or in the preservation of the Agents' and the
Lenders' priorities under the documentation executed and delivered in connection
therewith) including, without limitation, all reasonable costs and expenses of
preparation, negotiation, execution and administration of this Agreement and the
documents referred to herein, the reasonable fees and disbursements of the
Agents' counsel in connection therewith, as well as the reasonable fees and
expenses of any independent appraisers, surveyors, engineers and other
consultants retained by the Agents in connection with this transaction, all
reasonable costs and expenses, if any, in connection with the enforcement of
this Agreement and the other Transaction Documents and stamp and other similar
taxes, if any, incident to the execution and delivery of the documents
(including, without limitation, the other Transaction Documents) herein
contemplated and to hold the Agents and the Lenders free and harmless in
connection with any liability arising from the nonpayment of any such stamp or
other similar taxes. Such taxes and, if any, interest and penalties related
thereto as may become payable after the date hereof shall be paid immediately by
the Borrowers to the Agents or the Lenders, as the case may be, when liability
therefor is no longer contested by such party or parties or reimbursed
immediately by the Borrowers to such party or parties after payment thereof (if
the Agents or the Lenders, at their sole discretion, chooses to make such
payment).
15. APPLICABLE LAW, JURISDICTION AND WAIVER
15.1 Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of
Louisiana.
15.2 Jurisdiction. Each of the Borrowers and each of the Guarantors hereby
irrevocably submit to the jurisdiction of the courts of the State of
Louisiana
and of the United States District Court for the Eastern District of
Louisiana in
any action or proceeding brought against it by any Creditor under this Agreement
or under any document delivered hereunder and each hereby irrevocably agrees
that valid service of summons or other legal process on it may be effected by
serving a copy
47
of the summons and other legal process in any such action or proceeding by
mailing or delivering the same by hand to it at the address indicated for
notices in Section 17.1. The service, as herein provided, of such summons or
other legal process in any such action or proceeding shall be deemed personal
service and accepted by the Security Parties as such, and shall be legal and
binding upon the Security Parties for all the purposes of any such action or
proceeding. Final judgment (a certified or exemplified copy of which shall be
conclusive evidence of the fact and of the amount of any indebtedness of the
Borrowers or the Guarantors to any of the Creditors) against the Security
Parties in any such legal action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment. In the event that any
of the Security Parties shall not be conveniently available for such service,
each Security Party hereby irrevocably appoints the Person who is the Secretary
of State of the State of
Louisiana as its attorney-in-fact and agent. The
Borrower will advise the Administrative Agent promptly of any change of address
for the purpose of service of process. Notwithstanding anything herein to the
contrary, the Lenders may bring any legal action or proceeding in any other
appropriate jurisdiction.
15.3 WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BY AND AMONG EACH OF THE
SECURITY PARTIES AND EACH OF THE CREDITORS THAT EACH OF THEM HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO
AGAINST ANY OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
16. THE AGENTS
16.1 Appointment of Agents. Each of the Lenders irrevocably appoints and
authorizes the Agents severally each to take such action as agent on its behalf
and to exercise such powers under this Agreement, the Note and the other
Transaction Documents as are delegated to such Agent by the terms hereof and
thereof. The Agent nor any of their directors, officers, employees or agents
shall be liable for any action taken or omitted to be taken by it or them under
this Agreement, the Note or the other Transaction Documents or in connection
therewith, except for its or their own gross negligence or willful misconduct.
16.2 Appointment of Security Trustee. Each of the Lenders irrevocably appoints,
designates and authorizes the Security Trustee to act as security trustee on its
behalf with regard to (i) the security, powers, rights, titles, benefits and
interests (both present and future) constituted by and conferred on the Lenders
or any of them or for the benefit thereof under or pursuant to this Agreement or
any of the other Transaction Documents (including, without limitation, the
benefit of all covenants, undertakings, representations, warranties and
obligations given, made or undertaken to any Lender in the Agreement or the
other Transaction Documents), (ii) all moneys, property and other assets paid or
transferred to or vested in any Lender or any agent of any Lender or received or
recovered by any Lender or any agent of any Lender pursuant to, or in connection
with, this Agreement or the other Transaction Documents whether from any
Security Party or any other person and (iii) all money, investments, property
and other assets at any time representing or deriving from any of the foregoing,
including all interest, income and other sums at any time received or receivable
by any Lender or any agent of any Lender in respect of the same (or any part
thereof). The Security Trustee hereby accepts such appointment but shall have no
obligations under this Agreement, under the Note or under any of the Security
Documents except those expressly set forth herein and therein.
48
16.3 Distribution of Payments. Whenever any payment is received by the
Administrative Agent or the Security Trustee from the Borrowers or any other
Security Party for the account of the Lenders, or any of them, whether of
principal or interest on the Note, commissions, fees under Section 14 or
otherwise, it will thereafter cause to be distributed on the same day if
received before 10 a.m. New Orleans time, or on the next day if received
thereafter, like funds relating to such payment ratably to the Lenders according
to their respective Commitments, in each case to be applied according to the
terms of this Agreement. Unless the Administrative Agent or the Security
Trustee, as the case may be, shall have received notice from a Borrower prior to
the date when any payment is due hereunder that the Borrowers will not make any
payment on such date, the Administrative Agent or the Security Trustee may
assume that the Borrowers have made such payment to the Administrative Agent or
the Security Trustee, as the case may be, on the relevant date and the
Administrative Agent or the Security Trustee may, in reliance upon such
assumption, make available to the Lenders on such date a corresponding amount
relating to such payment ratably to the Lenders according to their respective
Commitments. If and to the extent that the Borrowers shall not have so made such
payment available to the Administrative Agent or the Security Trustee, as the
case may be, the Lenders and the Borrowers (but without duplication) severally
agree to repay to the Administrative Agent or the Security Trustee, as the case
may be, forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the Lenders
until the date such amount is repaid to the Administrative Agent or the Security
Trustee, as the case may be, as calculated by the Administrative Agent or
Security Trustee to reflect its cost of funds.
16.4 Holder of Interest in Note. The Agents may treat each Lender as the holder
of all of the interest of such Lender in the Note.
16.5 No Duty to Examine, Etc. The Agents shall not be under a duty to examine or
pass upon the validity, effectiveness or genuineness of any of this Agreement,
the other Transaction Documents or any instrument, document or communication
furnished pursuant to this Agreement or in connection therewith or in connection
with any other Transaction Document, and the Agents shall be entitled to assume
that the same are valid, effective and genuine, have been signed or sent by the
proper parties and are what they purport to be.
16.6 Agents as Lenders. With respect to that portion of the Facility made
available by it, each Agent shall have the same rights and powers hereunder as
any other Lender and may exercise the same as though it were not an Agent, and
the term "Lender" or "Lenders" shall include the Agent in its capacity as a
Lender. Each Agent and its affiliates may accept deposits from, lend money to
and generally engage in any kind of business with, the Borrowers and the other
Security Parties as if it were not an Agent.
16.7 Acts of the Agent. Each Agent shall have duties and discretion, and shall
act as follows:
(a) Obligations of the Agents. The obligations of each Agent under
this Agreement, the Note and the other Transaction Documents
are only those expressly set forth herein and therein;
(b) No Duty to Investigate. No Agent shall at any time, unless
requested to do so by a Lender or Lenders, be under any duty
to enquire whether an Event of Default, or an event which with
the giving of notice or lapse of time, or both, would
constitute an Event of Default, has occurred or to investigate
the
49
performance of this Agreement, the Note or any Security
Document by any Security Party; and
(c) Discretion of the Agents. Each Agent shall be entitled to use
its discretion with respect to exercising or refraining from
exercising any rights which may be vested in it by, and with
respect to taking or refraining from taking any action or
actions which it may be able to take under or in respect of,
this Agreement and the other Transaction Documents, unless the
Administrative Agent shall have been instructed by the
Majority Lenders to exercise such rights or to take or refrain
from taking such action; provided, however, that no Agent
shall be required to take any action which exposes it to
personal liability or which is contrary to this Agreement or
applicable law;
(d) Instructions of Majority Lenders. Each Agent shall in all
cases be fully protected in acting or refraining from acting
under this Agreement or under any other Transaction Document
in accordance with the instructions of the Majority Lenders,
and any action taken or failure to act pursuant to such
instructions shall be binding on all of the Lenders.
16.8 Certain Amendments. Neither this Agreement, the Note nor any of the
Security Documents nor any terms hereof or thereof may be amended unless such
amendment is approved by the Borrowers and the Majority Lenders, provided that
no such amendment shall, without the consent of each Lender affected thereby,
(i) reduce the interest rate or extend the time of payment of scheduled
principal payments or interest or fees on the Facility, or reduce the principal
amount of the Facility or any fees hereunder, (ii) increase or decrease the
Commitment of any Lender or subject any Lender to any additional obligation (it
being understood that a waiver of any Event of Default or any mandatory
repayment of the Facility shall not constitute a change in the terms of any
Commitment of any Lender), (iii) amend, modify or waive any provision of this
Section 16.8, (iv) amend the definition of Majority Lenders or any other
definition referred to in this Section 16.8, (v) consent to the assignment or
transfer by the Borrowers of any of its rights and obligations under this
Agreement, (vi) release any Security Party from any of its obligations under any
Security Document except as expressly provided herein or in such Security
Document, (vii) amend any provision relating to the maintenance of collateral
under Section 9.3 or (viii) amend the definition of Available Amount. All
amendments approved by the Majority Lenders under this Section 16.8 must be in
writing and signed by each of the Borrowers and each of the Lenders. In the
event that any Lender is unable to or refuses to sign an amendment approved by
the Majority Lenders hereunder, such Lender hereby appoints the Agent as its
Attorney-In-Fact for the purposes of signing such amendment. No provision of
this Section 16 or any other provisions relating to the Agent may be modified
without the consent of the Agent.
16.9 Assumption re Event of Default. Except as otherwise provided in Section
16.15, the Administrative Agent and the Security Trustee shall be entitled to
assume that no Event of Default, or event which with the giving of notice or
lapse of time, or both, would constitute an Event of Default, has occurred and
is continuing, unless it has been notified by any Security Party of such fact,
or has been notified by a Lender that such Lender considers that an Event of
Default or such an event (specifying in detail the nature thereof) has occurred
and is continuing. In the event that either thereof shall have been notified by
any Security Party or any Lender in the manner set forth in the preceding
sentence of any Event of Default or of an event which with the giving of notice
or lapse of time, or both, would constitute an Event of Default, the
Administrative Agent shall notify
50
the Lenders and shall take action and assert such rights under this Agreement,
under the Note and under Security Documents as the Majority Lenders shall
request in writing.
16.10 Limitations of Liability. No Agent or Lender shall be under any liability
or responsibility whatsoever:
(a) to any Security Party or any other person or entity as a
consequence of any failure or delay in performance by, or any
breach by, any other Lenders or any other person of any of its
or their obligations under this Agreement or under any
Security Document;
(b) to any Lender or Lenders as a consequence of any failure or
delay in performance by, or any breach by, any Security Party
of any of its respective obligations under this Agreement or
under the other Transaction Documents; or
(c) to any Lender or Lenders for any statements, representations
or warranties contained in this Agreement, in any Security
Document or in any document or instrument delivered in
connection with the transaction hereby contemplated; or for
the validity, effectiveness, enforceability or sufficiency of
this Agreement, any other Transaction Document or any document
or instrument delivered in connection with the transactions
hereby contemplated.
16.11 Indemnification of the Agent and Security Trustee. The Lenders agree to
indemnify each Agent (to the extent not reimbursed by the Security Parties or
any thereof), pro rata according to the respective amounts of their Commitments,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including legal fees and expenses incurred in
investigating claims and defending itself against such liabilities) which may be
imposed on, incurred by or asserted against, such Agent in any way relating to
or arising out of this Agreement or any other Transaction Document, any action
taken or omitted by such Agent thereunder or the preparation, administration,
amendment or enforcement of, or waiver of any provision of, this Agreement or
any other Transaction Document, except that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of either such Agent.
16.12 Consultation with Counsel. Each of the Administrative Agent and the
Security Trustee may consult with legal counsel selected by such Agent and shall
not be liable for any action taken, permitted or omitted by it in good faith in
accordance with the advice or opinion of such counsel.
16.13 Resignation. Any Agent may resign at any time by giving sixty (60) days'
written notice thereof to the other Agents, the Lenders and the Borrowers. Upon
any such resignation, the Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Lenders and
shall have accepted such appointment within sixty (60) days after the retiring
Agent's giving notice of resignation, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent which shall be a bank or trust company of
recognized standing. The appointment of any successor Agent shall be subject to
the prior written consent of the Borrowers, such consent not to be unreasonably
withheld. After any retiring Agent's resignation as Agent
51
hereunder, the provisions of this Section 16 shall continue in effect for its
benefit with respect to any actions taken or omitted by it while acting as
Agent.
16.14 Representations of Lenders. Each Lender represents and warrants to each
other Lender and the Agent that:
(a) in making its decision to enter into this Agreement and to
make its Commitment available hereunder, it has independently
taken whatever steps it considers necessary to evaluate the
financial condition and affairs of the Security Parties, that
it has made an independent credit judgment and that it has not
relied upon any statement, representation or warranty by any
other Lender or any Agent; and
(b) so long as any portion of its Commitment remains outstanding,
it will continue to make its own independent evaluation of the
financial condition and affairs of the Security Parties.
16.15 Notification of Event of Default. The Administrative Agent hereby
undertakes to promptly notify the Lenders, and the Lenders hereby promptly
undertake to notify the Administrative Agent and the other Lenders, of the
existence of any Event of Default which shall have occurred and be continuing of
which such party has actual knowledge.
17. NOTICES AND DEMANDS
17.1 Notices. All notices, requests, demands and other communications to any
party hereunder shall be in writing (including prepaid overnight courier,
facsimile transmission or similar writing) and shall be given to the Borrowers
or the Guarantors at the address or facsimile number set forth below and to the
Lenders and the Agents at their address and facsimile numbers set forth in
Schedule I or at such other address or facsimile numbers as such party may
hereafter specify for the purpose by notice to each other party hereto. Each
such notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and telephonic confirmation of receipt thereof is obtained or
(ii) if given by mail, prepaid overnight courier or any other means, when
received at the address specified in this Section or when delivery at such
address is refused.
If to the Borrowers or the Guarantors:
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to
Xxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
52
18. FRAUDULENT CONVEYANCES/FRAUDULENT TRANSFERS. Notwithstanding anything to the
contrary contained in this Agreement or any other Transaction Documents, in the
event that any court or other judicial body of competent jurisdiction determines
that legal principles of fraudulent conveyances, fraudulent transfers or similar
concepts are applicable in evaluating the enforceability against any Security
Party (for purposes of this Section 18 only, references to the defined term
"Security Party" shall be deemed not to include the Borrowers) or its assets of
this Agreement and that under such principles, this Agreement would not be
enforceable against such Security Party or its assets unless the following
provisions of this Section 18 had effect, then, the maximum liability of each
Security Party hereunder (the "Maximum Liability Amount") shall be limited so
that in no event shall such amount exceed the lesser of (i) the aggregate
outstanding principal amount of the Facility and (ii) an amount equal to the
aggregate, without double counting, of (a) ninety-five percent (95%) of such
Security Party's Adjusted Net Worth (as hereinafter defined) on the date hereof,
or on the date enforcement of this Agreement is sought (the "Determination
Date"), whichever is greater and (b) the amount of any Valuable Transfer (as
hereinafter defined) to such Security Party; provided that such Security Party's
liability under this Agreement shall be further limited to the extent, if any,
required so that the obligations of such Security Party under this Agreement
shall not be subject to being set aside or annulled under any applicable law
relating to fraudulent transfers or fraudulent conveyances. As used herein
"Adjusted Net Worth" of the respective Security Party shall mean, as of any date
of determination thereof, an amount equal to the lesser of (a) an amount equal
to the excess of (i) the amount of the present fair saleable value of the assets
of such Security Party over (ii) the amount that will be required to pay such
Security Party's probable liability on its then existing debts, including
contingent liabilities (exclusive of its contingent liabilities hereunder), as
they become absolute and matured, and (b) an amount equal to (i) the excess of
the sum of such Security Party's property at a fair valuation over (ii) the
amount of all liabilities of such Security Party, contingent or otherwise
(exclusive of its contingent liabilities hereunder), as such terms are construed
in accordance with applicable laws governing determinations of the insolvency of
debtors. In determining the Adjusted Net Worth of a Security Party for purposes
of calculating the Maximum Liability Amount for such Security Party, the
liabilities of such Security Party to be used in such determination pursuant to
each clause (ii) of the preceding sentence shall in any event exclude (a) the
liability of such Security Party under this Agreement and (b) the liabilities of
such Security Party subordinated in right of payment to this Agreement. As used
herein "Valuable Transfer" shall mean, in respect of such Security Party, (a)
all loans, advances or capital contributions made to such Security Party with
proceeds of the Facility, (b) all debt securities or other obligations of such
Security Party acquired from such Security Party or retired by such Security
Party with proceeds of the Facility, (c) the fair market value of all property
acquired with proceeds of the Facility and transferred, absolutely and not as
collateral, to such Security Party, (d) all equity securities of such Security
Party acquired from such Security Party with proceeds of the Facility, and (e)
the value of any other economic benefits in accordance with applicable laws
governing determinations of the insolvency of debtors, in each such case
accruing to such Security Party as a result of the Facility and this Agreement.
19. MISCELLANEOUS
19.1 Time of Essence. Time is of the essence of this Agreement but no failure or
delay on the part of any Creditor to exercise any power or right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise by any Creditor of any power or right hereunder preclude any other or
further exercise thereof or the exercise of any other power or right. The
remedies provided herein are cumulative and are not exclusive of any remedies
provided by law.
53
19.2 Unenforceable, etc., Provisions - Effect. In case any one or more of the
provisions contained in this Agreement or in the other Transaction Documents
would, if given effect, be invalid, illegal or unenforceable in any respect
under any law applicable in any relevant jurisdiction, said provision shall not
be enforceable against the relevant Security Party, but the validity, legality
and enforceability of the remaining provisions herein or therein contained shall
not in any way be affected or impaired thereby.
19.3 References. References herein to Articles, Sections, Exhibits and Schedules
are to be construed as references to articles, sections of, exhibits to, and
schedules to, this Agreement or the other Transaction Documents as applicable,
unless the context otherwise requires.
19.4 Further Assurances. Each of the Security Parties hereby agrees that if this
Agreement or any of the other Transaction Documents shall, in the reasonable
opinion of the Lenders, at any time be deemed by the Lenders for any reason
insufficient in whole or in part to carry out the true intent and spirit hereof
or thereof, it will execute or cause to be executed such other and further
assurances and documents as in the opinion of the Lenders may be required in
order to more effectively accomplish the purposes of this Agreement and/or the
other Transaction Documents.
19.5 Prior Agreements, Merger. Any and all prior understandings and agreements
heretofore entered into between the Security Parties on the one part, and the
Creditors, on the other part, whether written or oral, are superseded by and
merged into this Agreement and the other agreements (the forms of which are
exhibited hereto) to be executed and delivered in connection herewith to which
the Security Parties, the Agent, the Security Trustee and/or the Lenders are
parties, which alone fully and completely express the agreements between the
Security Parties, the Agents, and the Lenders.
19.6 Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the parties hereto including all parties added hereto pursuant to
an Assignment and Assumption Agreement. Subject to Section 16.8, any provision
of this Agreement or any other Transaction Document may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Borrowers, the Agents, and the Majority Lenders. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all such counterparts together shall constitute one and the same instrument.
19.7 Indemnification. Neither any Creditor nor any of its directors, officers,
agents or employees shall be liable to any of the Security Parties for any
action taken or not taken thereby in connection herewith in the absence of its
own gross negligence or willful misconduct. The Borrowers and the Guarantors
hereby jointly and severally agree to indemnify the Creditors, their respective
affiliates and the respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement, any actual or proposed use of proceeds of
the Facility hereunder, or any related transaction or claim; provided that (i)
no Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct as determined by a court
of competent jurisdiction and (ii) to the extent permitted by law, the
Indemnitee shall provide the Security Parties with prompt notice of any such
investigative, administrative or judicial proceeding after the Indemnitee
becomes aware of
54
such proceeding; provided, however, that the Indemnitee's failure to provide
such notice in a timely manner shall not relieve the Security Parties of their
obligations hereunder.
19.8 Headings. In this Agreement, Section headings are inserted for convenience
of reference only and shall not be taken into account in the interpretation of
this Agreement.
[Remainder of Page Intentionally Left Blank]
55
IN WITNESS whereof the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives as of the day and year
first above written.
LCI SHIPHOLDINGS, INC.,
as Borrower
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
CENTRAL GULF LINES, INC.,
as Borrower
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
XXXXXXXX STEAMSHIP CORPORATION,
as Borrower
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
INTERNATIONAL SHIPHOLDING CORPORATION,
as Guarantor
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
ENTERPRISE SHIP COMPANY, INC.,
as Guarantor
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
56
SULPHUR CARRIERS, INC.,
as Guarantor
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
GULF SOUTH SHIPPING PTE LTD.,
as Guarantor
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Director
CG RAILWAY, INC.,
as Guarantor
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
57
WHITNEY NATIONAL BANK
as Administrative Agent, Security Trustee and Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK
as Lender
By: /s/ Xxxx X. Wales
Name: Xxxx X. Wales
Title: Vice President
58
SCHEDULE I
LENDERS COMMITMENT
Whitney National Bank $35,000,000
Corporate Banking
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Vice President
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Hibernia National Bank $15,000,000
Commercial Banking
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Wales, Vice President
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
59
SCHEDULE II
APPLICABLE MARGIN
The Applicable Margin will vary as set forth hereunder based upon ISH's
Consolidated Indebtedness to Consolidated EBITDA ratio:
Consolidated Indebtedness/
Consolidated EBITDA Applicable Margin
------------------------------- -----------------
greater than or equal to 4.00 Two percent (2.0%) per annum
less than 4.00 One and one-half percent (1.5%)
per annum
Commencing on the Closing Date and through the six (6) month anniversary of this
Agreement, the Applicable Margin shall be two percent (2.0%) per annum.
The Applicable Margin for the Facility shall be determined by the Administrative
Agent based on the information set out in the most recent Compliance Certificate
delivered to the Administrative Agent in accordance with Section 9.1(d) hereof
and such determination of the Applicable Margin, absent manifest error, shall be
conclusive and binding upon the Borrowers. In the event of a failure by the
Borrowers to deliver a Compliance Certificate in a timely manner, ISH's
Consolidated Indebtedness to Consolidated EBITDA ratio shall be deemed to be
equal to or greater than 4.00 until such Compliance Certificate is delivered.
Each change in Applicable Margin, if any, shall be effective as of the start of
the next calendar month.
60
SCHEDULE III
THE VESSELS
THE FIRST VESSEL
Official Year Financed
Name of Vessel Owner Number Flag/Registry Built Amount FMV at Closing Date
------------------ --------------- -------- ------------- ----- ------------- -------------------
XXXXXX Xxxxxxxxxx Xxxx 000000 Xxxxxx Xxxxxx 1983 US$43,000,000 US$43,000,000
ENTERPRISE Company, Inc.
THE SECOND VESSEL
Official Year Financed
Name of Vessel Owner Number Flag/Registry Built Amount FMV at Closing Date
------------------ --------------- -------- ------------- ----- ------------- -------------------
XXXXXXX Xxxxxxx Xxxxxxxx, 0000000 Xxxxxx Xxxxxx 1994 US$50,000,000 US$50,000,000
ENTERPRISE Inc.
SCHEDULE IV
Approved Shipbrokers
X.X. Xxxxxx Shipbrokers a.s. Faber Shipping
Xxxxxx XXX'x xxxx 00 Xxxxxxxx 00
Xxxx, Xxxxxx DK-2950 Vedbek
Telephone No.: x00 00 00 00 00 Copenhagen, Denmark
Facsimile No.: x00 00 00 00 00 Telephone No.: x00 0000 0000
Facsimile No.: x00 0000 0000
Fearnleys A/S
Xxxx Xxxxxx xxxxx 0
Xxxx, Xxxxxx
Telephone No.: x00 00 00 00 00
Facsimile No.: x00 00 00 00 00
X. Xxxxxxxx & Company
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telephone No.: x00 000 000 0000
Facsimile No.: x00 000 000 0000
Braemar Shipbrokers Ltd.
00 Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Telephone No.: x00 000 000 0000
Facsimile No.: x00 000 000 0000
Jacq. Pierot Jr. & Sons, Inc. (USA)
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000 0000
Facsimile No.: (000) 000 0000
Henses Shipping AS
Rosanes
0rsnesallen 20
X.X. Xxx 00, Xxxx
0000 X0xxxxxx
Xxxxxx
Telephone No.: x00 00 00 00 00
Facsimile No.: x00 00 00 00 00
SCHEDULE V
Security Party Liens as of 12/2/04
LCI Shipholdings Inc.
1. Mortgage, Earnings Assignment and Insurance Assignment on vessel RHINE
FOREST in favor of DnB Nor Bank ASA (fka Den norske Bank ASA).
2. Mortgage, Earnings Assignment and Insurance Assignment on vessel ASIAN
EMPEROR in favor of HSBC Bank PLC as Facility Agent.
Central Gulf Lines, Inc.
1. Mortgage, Earnings Assignment and Insurance Assignment on 445 LASH Barges
in favor of DnB Nor Bank ASA (fka Den norske Bank ASA).
2. Mortgage, Earnings Assignment and Insurance Assignment on vessels GREEN
LAKE and GREEN COVE in favor of HSBC Bank PLC as Facility Agent.
Sulphur Carriers, Inc.
1. Mortgage, Earnings Assignment and Insurance Assignment on the Second
Vessel in favor of the U.S. Secretary of Transportation.
Xxxxxxxx Steamship Corporation
1. Mortgage, Earnings Assignment and Insurance Assignment on vessel ATLANTIC
FOREST in favor of DnB NOR Bank ASA (fka Den norske Bank ASA).
Gulf South Shipping Pte Ltd.
1. Liens in favor of LCI Shipholdings, Inc. against assets of Gulf South
Shipping Pte Ltd. as filed with the Singapore authorities.
The foregoing does not reflect Liens to be discharged as a result of
Indebtedness paid off with the proceeds of the Facility.
SCHEDULE VI
Security Party Indebtedness as of 12/2/04
International Shipholding Corporation
1. $71,033,000 outstanding on ISC's 7.75% Senior Notes, with The Bank of New
York, as trustee, due October 15, 2007.
2. $0 outstanding on ISC's revolving line of credit with Whitney National
Bank. This facility has a maximum limit of $15,000,000 and a maturity date
of April 23, 2006.
3. Guarantee of indebtedness in the amount of $30,697,000 to HSH Nordbank AG
and others, which indebtedness is due on November 24, 2011.
LCI Shipholdings Inc.
1. $6,000,000 outstanding on LCI's November 14, 2002 loan facility with DnB
Nor Bank ASA (fka Den norske Bank ASA), which has a maturity date of
September 30, 2007.
2. Guarantee of indebtedness of Emblem Shipping Inc. to DvB Group Merchant
Bank (Asia) Ltd. in the amount of $250,000, which indebtedness has a
maturity date of June 30, 2009.
3. Guarantee of indebtedness of Tilbury Shipping Inc. to DvB Group Merchant
Bank (Asia) Ltd. in the amount of $250,000, which indebtedness has a
maturity date of June 30, 2009.
4. Guarantee of indebtedness of Tollo Shipping Co. S.A. to DvB Group Merchant
Bank (Asia) Ltd. in the amount of $300,000, which indebtedness has a
maturity date of June 30, 2006.
5. $83,532,000 outstanding on LCI's and Central Gulf Lines, Inc.'s, as joint
and several borrowers, credit facility dated September 30, 2003 with HSBC
Bank Plc and others, which indebtedness has a maturity date of September
30, 2013.
The foregoing does not reflect Indebtedness to be paid off with the proceeds of
the Facility.
