EXHIBIT 99.5
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FORTIS CAPITAL CORP.,
AS AGENT FOR THE LENDERS
FORTIS CAPITAL CORP.,
AS ARRANGER AND BOOK RUNNER
NIB CAPITAL BANK N.V.,
AS ARRANGER
SEABULK INTERNATIONAL, INC.,
AS BORROWER
THE LENDERS FROM TIME TO TIME A PARTY HERETO
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
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CREDIT AGREEMENT
Dated as of September 13, 2002
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XXXXXXX XXXXXXXX & XXXX
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TABLE OF CONTENTS
PRELIMINARY STATEMENT.............................................................................................................1
Article I DEFINITIONS.............................................................................................................1
Section 1.01 Definitions................................................................................1
Section 1.02 Interpretation.............................................................................1
Section 1.03 Accounting Terms...........................................................................2
Article II REVOLVING LOANS AND TERM LOANS.........................................................................................2
Section 2.01 Revolving Loans............................................................................2
Section 2.02 Term Loans.................................................................................3
Section 2.03 Interest on the Loans......................................................................4
Section 2.04 Maximum Interest Rate......................................................................5
Section 2.05 Repayment..................................................................................6
Section 2.06 Mandatory Permanent Reduction of Tranches..................................................6
Section 2.07 Optional Permanent Reduction of Aggregate Tranche A Loan
Commitment and Aggregate Tranche B Loan Commitment.........................................8
Section 2.08 Application of Payments....................................................................8
Section 2.09 Manner of Payments.........................................................................8
Section 2.10 Register of Notes; Lost and Mutilated Notes................................................9
Section 2.11 Change in Circumstances...................................................................10
Section 2.12 Illegality................................................................................12
Section 2.13 Taxes.....................................................................................12
Section 2.14 Break Funding Payments....................................................................14
Section 2.15 Alternate Rate of Interest................................................................14
Section 2.16 Fees......................................................................................15
Article III LETTERS OF CREDIT....................................................................................................15
Section 3.01 Issuing the Letters of Credit.............................................................15
Section 3.02 Drawings under Letters of Credit..........................................................15
Section 3.03 Reimbursement on Demand...................................................................16
Section 3.04 Obligations Absolute......................................................................16
Section 3.05 Action in Respect of the Letters of Credit................................................17
Section 3.06 Indemnification...........................................................................17
Section 3.07 Deemed Disbursements......................................................................18
Section 3.08 L/C Participations........................................................................18
Section 3.09 Lenders Not Required to Make Loans or Issue Letters of Credit.............................19
Article IV REPRESENTATIONS, WARRANTIES AND AGREEMENTS............................................................................19
Section 4.01 Company Status............................................................................19
Section 4.02 Company Power and Authority...............................................................20
Section 4.03 No Violation..............................................................................20
Section 4.04 Governmental Approvals....................................................................20
Section 4.05 Financial Statement; Financial Condition; Undisclosed Liabilities; etc....................20
Section 4.06 Litigation................................................................................21
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Section 4.07 No Default................................................................................21
Section 4.08 Use of Proceeds; Margin Regulations.......................................................21
Section 4.09 Tax Returns and Payments..................................................................21
Section 4.10 Compliance with ERISA.....................................................................22
Section 4.11 Ownership; Subsidiaries...................................................................23
Section 4.12 Compliance with Statutes, etc.............................................................23
Section 4.13 Investment Company Act....................................................................24
Section 4.14 Environmental Matters.....................................................................24
Section 4.15 Labor Relations...........................................................................24
Section 4.16 Patents, Licenses, Franchises and Formulas................................................25
Section 4.17 Security Interests........................................................................25
Section 4.18 Indebtedness..............................................................................25
Section 4.19 Capitalization of Borrower................................................................25
Section 4.20 Concerning the Vessels....................................................................25
Section 4.21 Citizenship...............................................................................26
Section 4.22 Vessel Classification.....................................................................26
Section 4.23 [Reserved]................................................................................26
Section 4.24 Insurance.................................................................................26
Article V CONDITIONS OF LENDING..................................................................................................26
Section 5.01 Conditions Precedent to Drawdown of the Initial Loan......................................26
Section 5.02 Further Conditions Precedent..............................................................29
Article VI AFFIRMATIVE COVENANTS.................................................................................................30
Section 6.01 Existence.................................................................................30
Section 6.02 Payment of Debts..........................................................................30
Section 6.03 Accounts and Records......................................................................30
Section 6.04 Payment of Taxes and Claims...............................................................30
Section 6.05 Financing Statements......................................................................30
Section 6.06 Compliance with Law.......................................................................31
Section 6.07 Financial Statements......................................................................31
Section 6.08 Access to Books and Records...............................................................32
Section 6.09 Notifications.............................................................................32
Section 6.10 Performance of Obligations................................................................32
Section 6.11 Environmental Matters.....................................................................32
Section 6.12 Transaction Document Obligations..........................................................33
Section 6.13 ERISA.....................................................................................33
Section 6.14 Minimum Adjusted EBITDA to Adjusted Interest Expense......................................34
Section 6.15 Minimum Adjusted Tangible Net Worth.......................................................34
Section 6.16 Maximum Adjusted Funded Debt Ratio........................................................34
Section 6.17 Minimum Fair Market Value of the Vessels..................................................35
Section 6.18 Ownership of Subsidiary Guarantors........................................................35
Section 6.19 Additional Vessels; Further Assurances....................................................35
Section 6.20 Vessel Operations and Management..........................................................35
Section 6.21 Appraisals................................................................................36
Section 6.22 Reimbursement for Expenses................................................................36
Section 6.23 Remittance of Insurance Proceeds..........................................................37
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Article VII NEGATIVE COVENANTS...................................................................................................38
Section 7.01 Indebtedness..............................................................................38
Section 7.02 Liens.....................................................................................39
Section 7.03 Asset Sales...............................................................................39
Section 7.04 Assignment of Insurances..................................................................39
Section 7.05 Sale of Notes or Accounts Receivable......................................................39
Section 7.06 Sale and Leaseback........................................................................39
Section 7.07 Restricted Payments.......................................................................39
Section 7.08 Investments...............................................................................40
Section 7.09 Restriction on Payment Restrictions Affecting Subsidiary Guarantors.......................40
Section 7.10 Change in Business........................................................................40
Section 7.11 [Reserved]................................................................................40
Section 7.12 Transactions with Affiliates..............................................................40
Section 7.13 Changes in Offices or Names...............................................................41
Section 7.14 Changes in Fiscal Year....................................................................41
Section 7.15 Other Indebtedness........................................................................41
Section 7.16 Consolidation, Merger and Sale of Assets..................................................41
Article VIII AGREEMENT TO GUARANTEE..............................................................................................42
Section 8.01 Obligations Guaranteed....................................................................42
Section 8.02 Subsidiary Guarantee Obligations of Subsidiary Guarantors Unconditional...................43
Section 8.03 Waiver of Notice; Expenses................................................................46
Section 8.04 Other Security............................................................................46
Section 8.05 No Set-off by the Subsidiary Guarantors...................................................46
Section 8.06 Joint and Several Obligation..............................................................46
Section 8.07 Limitation on Liability...................................................................48
Section 8.08 Release of Subsidiary Guarantor...........................................................48
Article IX EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS..................................................................48
Section 9.01 Events of Default.........................................................................48
Section 9.02 Waiver of Default.........................................................................50
Section 9.03 Remedies..................................................................................51
Section 9.04 Rights of Set-Off.........................................................................51
Section 9.05 Rights and Remedies Cumulative............................................................51
Section 9.06 Specific Remedies.........................................................................52
Section 9.07 Restoration of Rights and Remedies........................................................53
Section 9.08 Cure of Defaults..........................................................................53
Article X RELATIONSHIP AMONG THE LENDERS.........................................................................................53
Section 10.01 Appointment and Authorization.............................................................53
Section 10.02 Delegation of Duties......................................................................54
Section 10.03 Liability of Agent........................................................................54
Section 10.04 Reliance by the Agent.....................................................................54
Section 10.05 Notice of Default.........................................................................55
Section 10.06 Credit Decision...........................................................................55
Section 10.07 Indemnification...........................................................................56
Section 10.08 Agent in Individual Capacity..............................................................56
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Section 10.09 Successor Agent...........................................................................56
Section 10.10 Collateral Matters........................................................................57
Section 10.11 Assignments, Participations, Etc..........................................................57
Article XI MISCELLANEOUS.........................................................................................................59
Section 11.01 Notices...................................................................................59
Section 11.02 Survival of Agreement.....................................................................60
Section 11.03 Governing Law.............................................................................60
Section 11.04 Modification of Agreement.................................................................61
Section 11.05 Costs and Expenses........................................................................61
Section 11.06 Waivers...................................................................................62
Section 11.07 Indemnification...........................................................................62
Section 11.08 Separability of Provisions; Obligations Several...........................................63
Section 11.09 Counterparts..............................................................................63
Section 11.10 Entire Agreement..........................................................................63
Section 11.11 Headings..................................................................................63
Section 11.12 Successors and Assigns....................................................................64
Section 11.13 Gender and Number.........................................................................64
Section 11.14 Exhibits..................................................................................64
Section 11.15 Notification of Addresses, Lending Offices, Etc...........................................64
Section 11.16 No Third Parties Benefitted...............................................................64
Section 11.17 Equitable Relief..........................................................................64
Section 11.18 Notice of Claims; Claims Bar..............................................................64
Section 11.19 Waiver of Punitive Damages................................................................65
Section 11.20 Consent to Jurisdiction...................................................................65
Section 11.21 Waiver of Jury Trial......................................................................65
Section 11.22 Currency Indemnity........................................................................65
Section 11.23 Release of Lien...........................................................................66
EXHIBITS
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EXHIBIT A Revolving Loan Note
EXHIBIT B Term Loan Note
EXHIBIT C Drawdown Request
EXHIBIT D Issuance Request
EXHIBIT E-I First Registered Ship Mortgage
EXHIBIT E-II Second Registered Ship Mortgage
EXHIBIT F Pledge Agreement
EXHIBIT G Subsidiary Guarantee Agreement
EXHIBIT H Assignment and Acceptance
SCHEDULES
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SCHEDULE I Tranche A Loan Commitment and Tranche B Loan Commitment
SCHEDULE 4.06 Litigation
SCHEDULE 4.10 ERISA
SCHEDULE 4.11 Ownership/Equity Interests
SCHEDULE 4.14 Environmental Matters
SCHEDULE 4.18 Indebtedness
SCHEDULE 4.20 Vessel Information/Noncompliance with Maritime Rules and Regulations
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CREDIT AGREEMENT (this "Agreement") dated as of September 13, 2002,
among Seabulk International, Inc., a corporation existing under the laws of
Delaware, as borrower (the "Borrower"), each Subsidiary Guarantor, Fortis
Capital Corp. ("Fortis"), NIB Capital Bank N.V. ("NIB") and each other financial
institution which may hereafter execute and deliver an Assignment and Acceptance
with respect to this Agreement pursuant to Section 10.11 (any one individually,
a "Lender", and collectively, the "Lenders"), Fortis, as administrative agent on
behalf of the Lenders (when acting in its capacity as administrative agent under
this Agreement or under any other Transaction Document, herein referred to,
together with any successor administrative agent, as the "Agent"), and as book
runner and as an arranger (when acting in such capacity, an "Arranger") and NIB,
as an arranger (when acting in such capacity, an "Arranger", and together with
Fortis, the "Arrangers").
PRELIMINARY STATEMENT
Pursuant to the Existing Credit Agreement and the Existing Indenture,
the Borrower incurred the Existing Indebtedness and pursuant to the Existing
Indenture, the Borrower issued the Existing Senior Notes. The Borrower desires
to obtain the Loans and Letters of Credit from the Lenders in an aggregate
amount, together with all Reimbursement Obligations, up to the Aggregate Loan
Commitment to refinance the Existing Indebtedness, to have access to funds to
redeem or repurchase any of the Existing Senior Notes upon the occurrence of
certain events specified herein and to have access to funds for general
corporate purposes. In order to induce the Lenders to make the Loans to the
Borrower and issue Letters of Credit on behalf of the Borrower, the Subsidiary
Guarantors have agreed to jointly and severally guarantee the Obligations of the
Borrower hereunder. The Borrower and the Subsidiary Guarantors have agreed to
grant to the Agent on its behalf and on the behalf of the Lenders a first,
priority, perfected security interest (other than in the case of the Second Lien
Vessels for which the Borrower or related Subsidiary Guarantors grant to the
Agent a second priority perfected security interest) in the Collateral to secure
such Obligations. The Lenders are willing to make the Loans and issue Letters of
Credit on behalf of the Borrower in an amount, together with all Reimbursement
Obligations, up to the Aggregate Loan Commitment pursuant to this Agreement and
upon the terms and subject to the conditions set forth herein and in reliance on
the representations and warranties set forth herein.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein, but not
otherwise defined herein shall have the meanings assigned to such terms in
Appendix A hereto.
Section 1.02 Interpretation. Words importing the singular number
only shall include the plural and vice versa. Words importing persons shall
include companies, firms, corporations, partnerships, unincorporated
associations and their respective successors and assigns.
Section 1.03 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP and all
financial statements submitted pursuant to this Agreement shall be prepared in
accordance with, and all financial data submitted pursuant hereto shall be
derived from financial statements prepared in accordance with, GAAP.
ARTICLE II
REVOLVING LOANS AND TERM LOANS
Section 2.01 Revolving Loans.
(a) The Lenders shall make the Revolving Loans available
to the Borrower and issue Letters of Credit for the purpose of (i)
refinancing the Existing Indebtedness of the Borrower and (ii) for
general corporate purposes.
(b) Each of the Lenders, relying upon each of the
representations and warranties of the Borrower set forth herein, hereby
severally and not jointly agrees with the Borrower that, upon
satisfaction of the conditions precedent set forth in Article V and
subject to and upon the terms of this Agreement, it will on each
Drawdown Date, make the Revolving Loans available to the Borrower
through the Agent in an aggregate amount not to exceed its Tranche A
Loan Commitment ratably with the other Lenders according to their
respective Tranche A Loan Commitments. The maximum aggregate amount of
all Revolving Loans, together with all L/C Obligations, which may be
outstanding at any time under this Agreement is the Aggregate Tranche A
Loan Commitment, as may be reduced pursuant to Sections 2.06 and 2.07.
Each Revolving Loan shall be drawn in a Minimum Borrowing Amount.
(c) The maximum number of Revolving Loans that may be
outstanding at any time under this Agreement shall be eight (8).
Subject to the remaining provisions of this Section 2.01, the Borrower
may obtain Revolving Loans, repay or prepay such Revolving Loans, and
reborrow such Revolving Loans.
(d) The Borrower shall, at least five (5) Business Days
prior to a Drawdown Date, deliver a Drawdown Request to the Agent in
writing addressed to the Agent. Each Drawdown Request shall be
effective on receipt by the Agent and shall be irrevocable.
(e) Each Drawdown Request shall be deemed to constitute a
warranty by the Borrower (i) that the representations and warranties
stated in Article IV are true and correct on and as of the date of such
Drawdown Request and will be true and correct on and as of the relevant
Drawdown Date as if made on such date (unless, in each case, such
representation and warranty is expressly limited to an earlier date or
is no longer true and correct solely as a result of transactions not
prohibited by the Transaction Documents), (ii) that after giving effect
to the borrowing made pursuant to such Drawdown Request, the sum of the
outstanding L/C Obligations and the aggregate principal amount of all
outstanding Revolving Loans will not exceed the Aggregate Tranche A
Loan Commitment and (iii) that no Default or Event of Default has
occurred and is continuing. Each Revolving Loan made by the Lenders
to the
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Borrower shall be evidenced by one or more promissory notes in the form
of Exhibit A attached hereto (each, as the same from time to time may
be amended, restated, modified, supplemented or renewed, a "Revolving
Loan Note"), duly executed by the Borrower, dated as of the applicable
Drawdown Date. Each Lender (or the Agent if only one Revolving Loan
Note shall be issued to the Agent for the benefit of the Lenders)
shall, and is hereby authorized by the Borrower to, record on the
schedule attached to its Revolving Loan Note (or on a continuation of
such schedule attached to such Revolving Loan Note) and make a part
thereof, an appropriate notation evidencing the date and amount of each
such Lender's Proportionate Share of such Revolving Loan, which
notation, absent manifest error, shall be prima facie evidence of the
amount of the relevant Revolving Loan.
Section 2.02 Term Loans.
(a) The Lenders shall make the Term Loans available to
the Borrower for the sole purpose of redeeming or repurchasing the
Existing Senior Notes in the event that (i) the Borrower is required to
repurchase the Existing Senior Notes due to a Change of Control, (ii)
the Borrower elects to call the Existing Senior Notes in accordance
with the terms of the Existing Indenture or (iii) the Borrower enters
into a solicitation with the holders of the Existing Senior Notes that
is acceptable to the Arrangers in their sole and absolute discretion.
(b) Each of the Lenders, relying upon each of the
representations and warranties of the Borrower set forth herein, hereby
severally and not jointly agrees with the Borrower that, upon
satisfaction of the applicable conditions precedent in Article V and
subject to and upon the terms of this Agreement, it will on each
Drawdown Date, make the Term Loans available to the Borrower through
the Agent in an aggregate amount not to exceed its Tranche B Loan
Commitment ratably with the other Lenders according to their respective
Tranche B Loan Commitments. The maximum aggregate amount of all Terms
Loans which may be outstanding at any time under this Agreement is the
Aggregate Tranche B Loan Commitment, as may be reduced pursuant to
Sections 2.06 and 2.07.
(c) The Borrower shall, (i) in the case of a LIBOR Loan,
at least five (5) Business Days prior to a Drawdown Date and (ii) in
the case of a Base Rate Loan, at least one (1) Business Day prior to a
Drawdown Date, deliver a Drawdown Request to the Agent in writing
addressed to the Agent. Each Drawdown Request shall be effective on
receipt by the Agent and shall be irrevocable.
(d) Each Drawdown Request shall be deemed to constitute a
warranty by the Borrower (i) that the representations and warranties of
the Borrower set forth herein are true and correct on and as of the
date of such Drawdown Request and will be true and correct on and as of
the relevant Drawdown Date as if made on such date (unless, in each
case, such representation and warranty is expressly limited to an
earlier date or is no longer true and correct solely as a result of
transactions not prohibited by the Transaction Documents), (ii) that
after giving effect to the borrowing made pursuant to such Drawdown
Request, the sum of the outstanding Term Loans will not exceed the
Aggregate Tranche B Loan Commitment and (iii)
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that no Default or Event of Default has occurred and is continuing. The
Term Loan made by the Lenders to the Borrower shall be evidenced by one
or more promissory notes in the form of Exhibit B attached hereto
(each, as the same from time to time may be amended, restated,
modified, supplemented or renewed, a "Term Loan Note"), duly executed
by the Borrower, dated as of the applicable Drawdown Date. Each Lender
(or the Agent if only one Term Loan Note shall be issued to the Agent
for the benefit of the Lenders) shall, and is hereby authorized by the
Borrower to, record on the schedule attached to its Term Loan Note (or
on a continuation of such schedule attached to such Term Loan Note) and
make a part thereof, an appropriate notation evidencing the date and
amount of each such Lender's Proportionate Share of such Term Loan,
which notation, absent manifest error, shall be prima facie evidence of
the amount of the relevant Term Loan.
Section 2.03 Interest on the Loans.
(a) Interest on the outstanding principal amount of each
(i) LIBOR Loan shall be payable on each Interest Payment Date, unless
the Interest Period exceeds three months in which case it shall be paid
quarterly, at a rate per annum equal to the Interest Rate for the
related Interest Period from the date when made and continued until
paid in full and (ii) Base Rate Loan shall be payable on each
Commitment Fee Payment Date at a rate per annum equal to the daily
average Interest Rate for the period from the date when made and
continued until paid in full.
(b) The duration of each Interest Period for each LIBOR
Loan shall be one month; provided, however, that (i) the Borrower may
direct that the duration of an Interest Period for a LIBOR Loan be
three or six months (or any other period agreed to by the Agent and all
of the Lenders) by giving the Agent written notice thereof at least
three Business Days before the first day of such Interest Period. The
Agent shall deliver a copy of such notice on the same day to the
Lenders.
(c) Each Loan will bear interest at the Overdue Rate on
any part of the principal amount and interest and other amounts due
thereunder not paid when due (whether at stated maturity, by
acceleration or otherwise), for any period during which the same will
be overdue.
(d) No later than 150 days after the Closing Date the
Borrower shall enter into an interest rate hedging agreement with
respect to the interest payable under the Term Loans for a period of at
least three years from the Closing Date. The Borrower shall deliver a
copy of such interest rate hedging agreement to the Agent. The Borrower
shall have the right to obtain one or more interest rate hedging
agreements and either Arranger or an Affiliate of either Arranger shall
have the right to arrange therefor pursuant to the terms of an ISDA
Master Agreement to be entered into between the Borrower and such
Arranger or an Affiliate of such Arranger; provided, however, if the
Borrower has requested an interest rate Hedging Agreement through the
Agent from either of the Arrangers or any Affiliate of an Arranger and
no Arranger or Affiliate of an Arranger wishes to arrange for such
interest rate Hedging Agreement or does not do so on terms reasonably
acceptable to the Borrower
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immediately following the Borrower's request therefor, then the
Borrower may use any other entity to arrange for such interest rate
hedging agreements; provided further, that any interest rate Hedging
Agreement entered into with an Arranger or an Affiliate of an Arranger
shall, if so required by such Arranger or such Affiliate, be guaranteed
by the Subsidiary Guarantors and secured by a second priority mortgage
on the Vessels (but excluding the Second Lien Vessels). If the
Collateral is used as security for an interest rate Hedging Agreement
with an Arranger or an Affiliate of an Arranger the interest of such
Arranger or Affiliate in respect of such agreement shall be
subordinated to the interests of the Lenders hereunder. In no event
shall the Collateral be used as security for any interest rate hedging
agreement with an entity other than an Arranger or an Affiliate of an
Arranger. The Borrower agrees to enter into good faith negotiations
with the Agent with respect to the terms of an ISDA Master Agreement,
to be used by a Arranger or an Affiliate of an Arranger in connection
with an interest rate hedge, promptly following the Closing Date. If an
Arranger or an Affiliate of an Arranger does not agree to use the form
of ISDA Master Agreement agreed to by the Borrower and the Agent, the
Borrower shall not be obligated to make hedging arrangements with such
Arranger or such Affiliate.
(e) The Borrower may elect to continue all or any part of
any borrowing of any LIBOR Loan beyond the expiration of the then
current Interest Period relating thereto by giving a Drawdown Request
(which shall be irrevocable) to the Agent of such election, specifying
the LIBOR Loan or LIBOR Loans or portion thereof to be continued and
the Interest Period therefor. In the absence of such a timely and
proper election with regard to LIBOR Loans, the Borrower shall be
deemed to have elected to convert such LIBOR Loans to Base Rate Loans
pursuant to Subsection 2.03(g).
(f) All or part of any LIBOR Loans may be continued as
provided herein, provided that any continuation of such Loans shall not
be (as to each borrowing of such Loans as continued for an applicable
Interest Period) less than $1,000,000 and shall be in an integral
multiple of $100,000.
(g) The Borrower may elect to convert any LIBOR Loan on
the last day of the then current Interest Period relating thereto to a
Base Rate Loan by giving a Drawdown Request to the Agent regarding such
election.
(h) The Borrower may elect to convert any Base Rate Loan
at any time or from time to time to a LIBOR Loan by giving a Drawdown
Request (which shall be irrevocable) to the Agent of such election,
specifying each Interest Period therefor.
(i) All or any part of the outstanding Loans may be
converted as provided herein, provided that any conversion of such
Loans shall not result in a borrowing of Loans in an amount less than
$1,000,000 and in integral multiples of $100,000.
Section 2.04 Maximum Interest Rate. In no event shall the interest
charged with respect to a Loan exceed the maximum amount permitted by applicable
law. If at any time the Interest Rate exceeds the maximum rate permitted by
applicable law, the rate of interest to accrue pursuant to this Agreement and
such Loan shall be limited to the maximum rate permitted by applicable law, but
any subsequent reductions in the Base Rate or LIBOR shall not reduce the
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interest to accrue on such Loan below the maximum amount permitted by applicable
law until the total amount of interest accrued on such Loan equals the amount of
interest that would have accrued if a varying rate per annum equal to the
Interest Rate had at all times been in effect. If the total amount of interest
paid or accrued on a Loan under the foregoing provisions is less than the total
amount of interest that would have accrued if the Interest Rate had at all times
been in effect, the Borrower, agrees to pay to the Lenders an amount equal to
the difference between (a) the lesser of (i) the amount of interest that would
have accrued if the maximum rate permitted by applicable law had at all times
been in effect or (ii) the amount of interest that would have accrued if the
Interest Rate had at all times been in effect, and (b) the amount of interest
accrued in accordance with the other provisions of this Agreement.
Section 2.05 Repayment. The Borrower shall repay all outstanding
Loans (subject to such reduction and prepayments as hereinafter set forth) on
the Maturity Date.
Section 2.06 Mandatory Permanent Reduction of Tranches.
(a) The Aggregate Tranche A Loan Commitment shall be
permanently reduced on each Tranche A Reduction Date pursuant to the
following schedule:
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TRANCHE A REDUCTION DATE TRANCHE A LOAN COMMITMENT
REDUCTION AMOUNT
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March 13, 2003 $ 5,000,000
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September 13, 2003 $ 5,000,000
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March 13, 2004 $ 5,000,000
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September 13, 2004 $ 5,000,000
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March 13, 2005 $10,000,000
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September 13, 2005 $10,000,000
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March 13, 2006 $12,500,000
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September 13, 2006 $12,500,000
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March 13, 2007 $12,500,000
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Maturity Date $22,500,000
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provided, however, in the event that the aggregate outstanding principal amount
of all of the Term Loans is less than the Aggregate Tranche B Loan Commitment on
the date that is the four month anniversary of the Closing Date and the
Aggregate Tranche B Loan Commitment is reduced pursuant to Section 2.06(b), then
the Tranche A Loan Commitment Reduction Amount for each Tranche A Reduction Date
shall be calculated using the following formula:
A - [(B-C)(A/D)] + E
Where
A = The Tranche A Loan Commitment Reduction Amount as set forth in the
above chart for such Tranche A Reduction Date
B = The Aggregate Tranche B Commitment Amount
C = The aggregate outstanding principal amount of all of the Term Loans as
of the date that is the four month anniversary of the Closing Date
D = The Aggregate Tranche A Commitment Amount
E = The Tranche B Reduction Amount, if any, on such Tranche A Reduction
Date
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For purposes of illustration, if it is the first Tranche A Reduction Date (i.e.,
March 2003) and the aggregate outstanding principal amount of the Terms Loans as
of four month anniversary of the Closing Date is $60,000,000, then the Tranche A
Loan Commitment Reduction Amount will be determined as follows:
$5,000,000 - [($80,000,000-$60,000,000) ($5,000,000/$100,000,000)] + 0 =
$4,000,000.
If is the Tranche A Reduction Date occurring in September 2006, then the Tranche
A Loan Commitment Reduction Amount will be determined as follows:
$12,500,000 - [($80,000,000-$60,000,000) ($12,500,000/$100,000,000)] +
[75,000,000-$63,000,000] = $22,000,000.
(b) In the event that the aggregate outstanding principal
amount of all of the Term Loans is less than the Aggregate Tranche B
Loan Commitment on the date that is the four month anniversary of the
Closing Date, the Aggregate Tranche B Loan Commitment shall be
permanently reduced to an amount equal to the outstanding principal
amount of the Terms Loans as of such date. In addition, the Aggregate
Tranche B Loan Commitment shall be permanently reduced on each Tranche
B Reduction Date by the amount necessary to cause the outstanding
principal amount of the Term Loans as of such date to not exceed the
amount indicated below beside such dates:
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TRANCHE B REDUCTION DATE AGGREGATE TRANCHE B LOAN COMMITMENT
--------------------------------------------------------------------------------
The date that is thirty-six (36) months $77,500,000
after the Closing Date
--------------------------------------------------------------------------------
The date that is forty-two (42) months $75,000,000
after the Closing Date
--------------------------------------------------------------------------------
The date that is forty-eight (48) months $63,000,000
after the Closing Date
--------------------------------------------------------------------------------
The date that is fifty-four (54) months $51,000,000
after the Closing Date
--------------------------------------------------------------------------------
Maturity Date $0.00
--------------------------------------------------------------------------------
In addition, in the event that the Borrower shall consummate a public or Rule
144A offering of its Indebtedness after the Closing Date, then the Aggregate
Tranche B Loan Commitment shall be permanently reduced on the date such offering
is completed by an amount equal to the net proceeds of such issuance.
(c) If, on any Tranche A Reduction Date, the outstanding
principal amount of the Revolving Loans plus all L/C Obligations as of
such date exceed the Aggregate Tranche A Loan Commitment (as reduced on
such Tranche A Reduction Date), then the Borrower shall, on such
Tranche A Reduction Date, make a mandatory repayment of the Revolving
Loans (or pay over to the Agent to be applied to or held as cash
collateral for the L/C Obligations) of the amount (the "Tranche A
Reduction Amount") of such excess. If, on any Tranche B Reduction Date,
the outstanding principal amount of the Term Loans as of such date
exceeds the
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Aggregate Tranche B Loan Commitment (as reduced on such Tranche B Reduction
Date), then the Borrower shall, on such Tranche B Reduction Date, make a
mandatory prepayment of the Term Loans in the amount (the "Tranche B Reduction
Amount") of such excess.
Section 2.07 Optional Permanent Reduction of Aggregate Tranche A
Loan Commitment and Aggregate Tranche B Loan Commitment.
(a) The Borrower shall have the right, at any time and
from time to time, to request, without penalty, a permanent reduction
of either the Aggregate Tranche A Loan Commitment or the Aggregate
Tranche B Loan Commitment so long as the Agent receives five (5)
Business Days prior written notice of such request. Each such partial
permanent reduction shall be in an amount at least equal to Five
Million Dollars ($5,000,000) and multiples of One Million Dollars
($1,000,000) thereafter. To the extent that the outstanding principal
amount of Revolving Loans and L/C Obligations or the outstanding
principal amount of the Term Loans exceeds the Aggregate Tranche A Loan
Commitment or the Aggregate Tranche B Loan Commitment, as applicable,
the Borrower shall pay the Tranche A Reduction Amount and/or the
Tranche B Reduction Amount, respectively.
(b) Any prepayment of any Loan made hereunder shall be
subject to the condition that on the date of prepayment all accrued
interest to the date of such prepayment shall be paid in full with
respect to such Loans or portions thereof being prepaid, together with
any and all actual costs or expenses incurred by any Lender in
connection with any breaking of funding (as certified by such Lender,
which certification shall, absent any manifest error, be conclusive and
binding on the Borrower).
(c) Prepayments made under this Section 2.07 shall, at
the option of the Borrower, be applied either (i) pro rata to any
mandatory repayments due under Section 2.06(c) during the next six (6)
months or (ii) to mandatory repayments due under Section 2.06(c) in
inverse order of maturity.
Section 2.08 Application of Payments. Unless otherwise expressly
provided herein, each payment made on a Loan will be applied, first to the
payment of all fees and expenses due to the Agent or the Lenders under this
Agreement, second, to the payment of interest on overdue interest at the Overdue
Rate on such Loan to the date of such payment, third, to the payment of interest
on any overdue Reduction Amount at the Overdue Rate on such Loan to the date of
such payment, fourth, to the payment of accrued interest on such Loan to the
date of such payment, fifth, to the payment of any overdue Reduction Amount past
due on such Loan and sixth, to the payment of the Reduction Amount of such Loan
then due.
Section 2.09 Manner of Payments.
(a) All payments made pursuant to the Credit Agreement
shall be made without set-off or counterclaim but subject to deduction
for, and net of, applicable Excluded Taxes and shall be made in
immediately available funds by the Borrower to
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the Agent for the account of the Lenders in accordance with their
Proportionate Share. All such payments shall be made to the Agent,
prior to 11:00 a.m., New York City time, on the date due to the Agent's
account at JPMorgan Chase Bank, ABA#: 000000000, Account of Fortis
Capital Corp., Account # 000-0-000000, Reference: Seabulk, or at such
other place in New York as may be designated by the Agent to the
Borrower in writing. Any payments received after 11:00 a.m., New York
City time, shall be deemed received on the next Business Day. The Agent
shall promptly remit to each Lender, in the same type of funds as
payment was received, each Lender's Proportionate Share according to
its respective interest of all such payments received by the Agent for
the account of such Lender. Subject to the definition of "Interest
Period", whenever any payment to be made hereunder shall be stated to
be due on a date other than a Business Day, such payment may be made on
the next succeeding Business Day with the same effect as if made on the
due date but interest shall continue to accrue until the date of
payment.
(b) If any Lender or other holder of a Note shall obtain
any payment or other recovery (whether voluntary, involuntary, by
application of offset, set-off, banker's lien, counterclaim or
otherwise) on account of principal of or interest on any Note or
Reimbursement Obligation in excess of its Proportionate Share of
payments and other recoveries obtained by all Lenders or other holders,
such Lender or other holder shall purchase from the other Lenders or
holders such participation in the Notes and Reimbursement Obligations
held by them as shall be necessary to cause such purchasing Lender or
other holder to share the excess payment or other recovery with each of
them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing
holder, the purchase shall be rescinded and the purchase price restored
to the extent of such recovery, but without interest. The Borrower
agrees that the Lender so purchasing a participation from the other
Lenders under this Section 2.09(b) may exercise all its rights of
payment, including the right of set-off, with respect to such
participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of the participation
Section 2.10 Register of Notes; Lost and Mutilated Notes
(a) The Agent will maintain at its principal office a
register (the "Register") for the purpose of registering the Notes and
registering transfers and exchanges of Notes. The Person in whose name
a Note is registered in accordance with this Section 2.10(a) shall for
all purposes hereof be deemed a Lender. Upon surrender for transfer or
exchange of any Note at the principal office of the Agent, the Borrower
will execute and deliver (in the case of any such transfer, in the name
of the designated transferee or transferees or, in the case of an
exchange, in the name of the holder thereof), one or more new Notes of
the same series of a like aggregate principal amount. The Agent will
not be required to register or exchange any surrendered Note as above
provided during the 15-day period preceding any Interest Payment Date.
Every Note presented or surrendered for transfer or exchange will be
duly endorsed (or be accompanied by a written instrument of transfer in
form satisfactory to the Agent) duly executed by the holder thereof or
his attorney duly
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authorized in writing. Any Note issued in a registration of transfer or
exchange will carry the same rights to interest (unpaid and to accrue)
carried by the Note so transferred or exchanged so that there will not
be any loss or gain of interest on such Note. The Agent shall xxxx on
each new Note (i) the dates to which principal and interest have been
paid on the old Note and (ii) all payments and prepayments of principal
previously made on such old Note which are allocable to such new Note.
(b) If any Note has been mutilated, lost, stolen or
destroyed, the Borrower will execute and deliver a new Note of like
date and tenor in exchange and substitution for, and upon cancellation
of, such mutilated Note or in lieu of and in substitution for such
lost, stolen or destroyed Note; provided, however, that the Borrower
will so execute and deliver such new Note only if the applicable holder
has paid the reasonable expenses and charges of the Borrower in
connection therewith and, in the case of a lost, stolen or destroyed
Note, (i) has filed with the Borrower evidence satisfactory to it that
such Note was lost, stolen or destroyed, and (ii) has furnished to the
Borrower indemnity satisfactory to it. Neither the Borrower nor the
Agent shall have any obligation to indemnify or reimburse such holder
for any losses, expenses or charges that it may suffer or incur in
connection with the previous sentence, such costs to be borne entirely
by such holder. If any such Note has matured or is otherwise subject to
payment, instead of issuing a new Note the Borrower may pay the same
without surrender thereof. Any Note issued in exchange for a lost,
stolen, destroyed or mutilated Note will carry the same rights to
interest (unpaid and to accrue) carried by the Note lost, stolen,
destroyed or mutilated so that there will not be any loss or gain of
interest on such Note. The Agent shall xxxx on each new Note (A) the
dates to which interest has been paid on the old Note and (B) all
payments and prepayments of principal previously made on such old Note
which are allocable to such new Note.
(c) Upon the issuance of a new Note or Notes pursuant to
Section 2.10(a) or 2.10(b) hereof, each of the Borrower and the Agent
may require from the party requesting such new Note or Notes payment of
a sum to reimburse the Borrower for, or to provide funds for, the
payment of any tax or other governmental charge in connection therewith
or any charges and expenses connected with such tax or other
governmental charge paid or payable by the Borrower.
Section 2.11 Change in Circumstances.
(a) If after the date of this Agreement, there shall have
occurred the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency, that a Lender has reasonably
determined has or would have the effect of reducing the rate of return
on the Lender's capital or the capital of its direct or indirect
holding company as a consequence of its obligations hereunder to a
level below that which such Lender or its holding company would have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or its holding company's policies with
respect to capital adequacy) by an amount which such Lender, in its
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reasonable judgment, shall deem material, then from time to time, the
Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender or its holding company for such reduction.
A certificate as to such amounts submitted to the Borrower by such
Lender shall be conclusive and binding for such purposes, absent
manifest error; provided, however, that the determination of such
additional amount or amounts shall be made in good faith in a manner
generally consistent with such Lender's standard practice.
(b) If after the date of this Agreement, there shall have
occurred the adoption of any applicable law, rule or regulation
regarding the maintenance of reserves, special deposits, compulsory
loans or similar requirements against assets held by, deposits or
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the
determination of the Interest Rate hereunder, or any change therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency, that a
Lender has reasonably determined has or would have the effect of
increasing the cost to such Lender or such Lender's direct or indirect
holding company, by an amount which such Lender deems to be material,
with respect to issuing the Letters of Credit or making, continuing or
maintaining the LIBOR Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amount
or amounts as will compensate such Lender or holding company for such
increased cost or reduced amount receivable. A certificate as to such
amounts submitted to the Borrower by such Lender shall be conclusive
and binding for such purposes, absent manifest error; provided,
however, that the determination of such additional amount or amounts
shall be made in good faith in a manner generally consistent with such
Lender's standard practice.
(c) Upon the occurrence of any event giving rise to the
operation of this Section 2.11, the affected Lender shall use
reasonable efforts to designate or cause its direct or indirect holding
company to designate a different lending office for funding or booking
its obligations hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to this Section 2.11 in
the future, (ii) would not subject such Lender to any economic, legal
or regulatory disadvantage or to any unreimbursed cost or expense and
(iii) would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses
incurred by such Lender in connection with such designation or
assignment. If the affected Lender does not so designate or cause its
direct or indirect holding company to designate a different lending
office, then the Borrower shall have the right to require such lender
to assign its interest to an Eligible Assignee pursuant to Section
10.11 hereof.
(d) The Borrower shall not be required to compensate a
Lender pursuant to this Section 2.11 for any amounts pursuant to the
immediately preceding clauses (a) and/or (b) of this Section 2.11 to
the extent that such amounts were incurred more
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than 180 days prior to the date that such Lender notifies the Borrower
of the circumstances giving rise to such amounts and of such Lender's
intention to claim compensation therefor; provided, however, that, if
the circumstances giving rise to such amounts are retroactive, then the
180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
Section 2.12 Illegality. Notwithstanding any other provision
herein, if any Change in Law shall make it unlawful for any Lender to make or
maintain any portion of a Loan as a LIBOR Loan, such Lender shall so notify the
Borrower and the Agent in writing and interest on such portion of such Loan
shall thereafter be calculated by reference to the Base Rate. If any such change
in the method of calculating interest is required, pursuant to such change in
law, to be made on a day which is not the last day of an Interest Period, the
Borrower shall pay to such Lender the amounts, if any, as may be required
pursuant to Section 2.14.
Section 2.13 Taxes.
(a) Any and all payments on account of any Obligations
shall be made free and clear of and without deduction for any Taxes
(other than, and excluding, Excluded Taxes); provided, however, that if
the Borrower shall be required to withhold or deduct any Indemnified
Taxes from any such payment, the amount of such payment shall be
increased as necessary so that after making all required withholdings
or deductions (including withholdings or deductions applicable to
additional sums payable under this Section 2.13) the Lenders receive an
amount equal to the sum that they would have received had no such
deductions been made. The Borrower shall pay the full amount withheld
or deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) The Borrower shall indemnify each Indemnified Party
(provided, however, that for purposes of this Section 2.13, Indemnified
Party shall mean the Agent, any Issuing Lender, each Arranger, each
Lender, and any Affiliate of any of the foregoing) within twenty (20)
days after written demand therefor for the full amount of any
Indemnified Taxes payable with respect to or on account of any
Obligation (including Taxes imposed on or attributable to amounts
payable under this Section 2.13) and any penalties, interest, and
reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. In the case of
Indemnified Taxes paid by an Indemnified Party, a certificate as to the
amount of such payment or liability delivered to the Borrower by such
Indemnified Party shall be conclusive absent manifest error. The
agreements in this Section shall survive the termination of this
Agreement and the Transaction Documents and the payment of all amounts
payable hereunder and thereunder.
(c) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to such Indemnified Party the
original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return
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reporting such payment or other evidence of such payment reasonably
satisfactory, to such Indemnified Party.
(d) Each Indemnified Party not incorporated or organized
under the laws of the United States of America or a state thereof shall
deliver to the Borrower and Agent prior to the first date on which any
payment is due such entity hereunder two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, or
successor applicable form, as the case may be, certifying in each case
that such entity is entitled to receive payments under the Loan without
withholding or deduction of any United States federal income tax. Each
entity required to deliver Forms W-8BEN or W-8ECI, or successor
applicable form pursuant to the preceding sentence, further undertakes
to deliver to the Borrower and the Agent two further copies of W-8BEN
or W-8ECI, or successor applicable forms, as the case may be, on or
before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent forms
previously delivered by it to the Borrower and the Agent, unless in any
such case an event (including, without limitation, any change in
treaty, law or regulation or in the interpretation thereof) has
occurred prior to the date on which any such delivery otherwise would
be required which renders all such forms inapplicable or which would
prevent such entity from duly completing and delivering any such form.
The Borrower shall not be obligated to pay any Indemnified Party any
amounts pursuant to this Section 2.13 in respect of Indemnified Taxes
that would not have been imposed but for failure of the Indemnified
Party to comply with this Section 2.13(d).
(e) Notwithstanding the foregoing, if the Borrower incurs
any liability pursuant to this Section 2.13, to make a payment (or pay
an increased amount) to a Lender with respect to a Loan or otherwise,
the Lender in respect of whose Proportionate Share of such Loan such
liability arises shall use reasonable efforts to designate a different
lending office for funding or booking its obligations hereunder or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to this Section 2.13 in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by such Lender in connection
with such designation or assignment.
(f) The Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(g) If a Lender, the Issuing Lender, the Agent or any
Arranger shall become aware that it is entitled to claim a refund from
a Governmental Authority in respect of Taxes or Other Taxes as to which
it has been indemnified by the Borrower, or with respect to which the
Borrower has paid additional amounts, pursuant to this Section 2.13, it
shall promptly notify the Borrower of the availability of such claim
and shall, within thirty (30) days after receipt of a request by the
Borrower, make a claim to such Governmental Authority for such refund
at the Borrower's expense. If a Lender, the Issuing Lender, the Agent
or any Arranger receives a refund in respect of
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any Taxes or Other Taxes with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.13, it shall within
thirty (30) days from the date of such receipt pay over such refund to
the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.13 with
respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of such Lender, the Issuing Lender, the
Agent or such Arranger and without interest (other than interest paid
by the relevant Governmental Authority with respect to such refund);
provided, however, that the Borrower, upon the request of such Lender,
the Issuing Lender, the Agent or any Arranger, agrees to repay the
amount paid over to the Borrower (plus penalties, interest or other
charges payable to the relevant Governmental Authority) to such Lender,
the Issuing Lender, the Agent or any Arranger in the event such Lender,
the Issuing Lender, the Agent or any Arranger is required to repay such
refund to such Governmental Authority.
Section 2.14 Break Funding Payments. The Borrower agree to
indemnify each Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of a LIBOR Loan after the Borrower has given
irrevocable notice requesting such borrowing in accordance with Section 2.01(d),
2.02(c) or 3.01 or (b) a prepayment of a LIBOR Loan on any day other than the
last day of the Interest Period applicable to such Loan. The provisions of this
Section 2.14 shall survive the termination of the Transaction Documents and the
payment of all amounts payable hereunder and thereunder. A certificate as to any
additional amounts payable pursuant to this Section 2.14 submitted by such
Lender to the Borrower shall (i) set forth the basis for requesting such amounts
and (ii) be conclusive absent manifest error.
Section 2.15 Alternate Rate of Interest. If prior to the
commencement of any Interest Period: (a) the Agent determines (which
determination shall be reasonably made and shall be conclusive absent manifest
error) that, by reason of changes arising after the date of this Agreement
affecting the interbank LIBOR market, or any Lender's position in such market,
adequate and reasonable means do not exist for ascertaining Adjusted LIBOR, for
such Interest Period, or (b) the Agent is advised by any Lender that, by reason
of changes arising after the date of this Agreement affecting the interbank
LIBOR market, or any Lender's position in such market, Adjusted LIBOR for such
Interest Period will not adequately and fairly reflect the cost to such Lender
of making or maintaining such Lender's Proportionate Share of the Loans during
such Interest Period, then the Agent shall promptly give notice thereof to the
Borrower, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such notice no longer exist, the Loans shall not be LIBOR Loans
and interest on the Loans shall be calculated by reference to the Base Rate (in
the case of clause (a) above) or such Lender's Proportionate Share of the Loan
(in the case of clause (b) above) shall not be a LIBOR Loan and interest on such
portion of the Loans shall be calculated by reference to the Base Rate.
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Section 2.16 Fees.
(a) The Borrower shall pay the Commitment Fee to the
Agent on each Commitment Fee Payment Date.
(b) The Borrower shall pay (i) to the Agent for pro rata
distribution to each L/C Participant (based upon each L/C Participant's
Proportionate Share) a fee in respect of each Letter of Credit (the
"Letter of Credit Fee") for the period from and including the date of
issuance of such Letter of Credit through the Termination Date of such
Letter of Credit, computed at a rate equal to the Applicable Margin for
Revolving Loans maintained as LIBOR Loans per annum on the average
daily Stated Amount of such Letter of Credit and (ii) to the Issuing
Lender in respect of each Letter of Credit issued by it, a fee (the
"Facing Fee"), for the period from and including the date of issuance
of such Letter of Credit through the Termination Date of such Letter of
Credit, computed at a rate equal to 0.25% per annum on the daily Stated
Amount of such Letter of Credit; provided that in no event shall the
annual Facing Fee with respect to any Letter of Credit be less than
$500. Accrued Letter of Credit and Facing Fees shall be due and payable
quarterly in arrears on each Commitment Fee Payment Date and on the
first date on and after the Maturity Date on which no Letters of Credit
remain outstanding. In addition, the Borrower shall pay, upon each
payment under, issuance of, or amendment to, any Letter of Credit, such
amount as shall at the time of such event be the administrative charge
which the Issuing Lender is generally imposing in connection with such
occurrence with respect to letters of credit.
ARTICLE III
LETTERS OF CREDIT
Section 3.01 Issuing the Letters of Credit. The Borrower shall, at
least five (5) Business Days prior to an Issuance Date, deliver an Issuance
Request to the Agent in writing addressed to the Agent. Each Issuance Request
shall be effective on receipt by the Agent and shall be irrevocable. On the
Issuance Date and upon fulfillment of the applicable conditions set forth in
Article V, the Letter of Credit shall be issued. Notwithstanding anything to the
contrary contained herein, the Issuing Lender shall have no obligation to issue
a Letter of Credit if (a) a Default or Event of Default has occurred and is
continuing, (b), after giving effect to such issuance, the L/C Obligations would
exceed the L/C Commitment or (c) after giving effect to the issuance of such
Letter of Credit, the sum of the outstanding L/C Obligations and the aggregate
principal amount of all outstanding Revolving Loans would exceed the Aggregate
Tranche A Loan Commitment. Each Letter of Credit shall be in a Minimum Borrowing
Amount and no Letter of Credit shall have a Termination Date later than thirty
(30) days prior to the Maturity Date.
Section 3.02 Drawings under Letters of Credit. In the event that
there occurs one or more drawings under any Letter of Credit, and such
drawing(s) are made in accordance with the terms and conditions thereof, the
Issuing Lender shall, on the Business Day on which such drawing is required to
be honored pursuant to such Letter of Credit (the "Disbursement Date"),
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make available to the beneficiary under such Letter of Credit, in same day
funds, the amount of such drawing.
Section 3.03 Reimbursement on Demand. On (or promptly after) each
Disbursement Date, the Issuing Lender shall notify the Borrower of a drawing
under a Letter of Credit, and the Issuing Lender will promptly thereafter
furnish to the Borrower copies of (i) each draft drawn under such Letter of
Credit and (ii) each certificate and each other document (if any) accompanying
any such draft. The Borrower will, as reimbursement for such payment by the
Issuing Lender either (i) immediately and unconditionally repay the amount drawn
under a Letter of Credit to the Issuing Lender, or (ii) if the Borrower does not
effect such repayment by 5:00 p.m., New York time, on the Disbursement Date, the
amount drawn under such Letter of Credit shall automatically convert into a
Revolving Loan (without regard to the minimum prior notice provisions of Section
2.01(d) and the Minimum Borrowing Amount) on the following day, provided that no
Default or Event of Default shall have occurred and be continuing as of the
Disbursement Date. If, however, a Default or an Event of Default shall have
occurred and be continuing as of the Disbursement Date, the amount drawn under
such Letter of Credit shall not convert into a Revolving Loan and, instead,
shall be immediately due and payable hereunder, as of the Disbursement Date.
Section 3.04 Obligations Absolute. The obligation of the Borrower
to reimburse the Issuing Lender with respect to each payment under each Letter
of Credit (its "Reimbursement Obligation") shall, to the extent permitted by
applicable New York law, be unconditional and irrevocable, and shall to such
extent be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, to the extent permitted by
applicable New York Law, the following circumstances:
(a) any lack of validity or enforceability of any Letter
of Credit or any related contract, instrument or other agreement in
support of which the Letter of Credit has been issued (collectively
referred to as a "Contract");
(b) any amendment or waiver of or any consent to
departure from all or any of the Letters of Credit or any Contract in
each case agreed to by the Borrower;
(c) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against any beneficiary
of any Letter of Credit (or any Person for whom any such beneficiary
may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated herein or
in such Letter of Credit or any Contract or any unrelated transaction;
(d) any certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent or insufficient
in any respect or any statement therein being untrue or inaccurate in
any respect due to circumstances not known to the Issuing Lender; or
(e) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing;
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provided, however, that such circumstances do not result directly from the gross
negligence, willful misconduct or bad faith of the Issuing Lender.
Section 3.05 Action in Respect of the Letters of Credit. To the
extent permitted by applicable New York law, the Borrower assumes all risks of
the acts or omissions of the beneficiaries under the Letters of Credit with
respect to their use of the Letters of Credit. Neither the Issuing Lender nor
any of their officers, employees, agents or directors shall be liable or
responsible for:
(a) the use which may be made of any Letter of Credit;
(b) the form, sufficiency, accuracy or genuineness of
certificates or other documents delivered under or in connection with
any Letter of Credit, even if such certificates or other documents
should prove to be insufficient, fraudulent or forged;
(c) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, email, cable, telex,
telecopy, telegraph, wireless or otherwise; or
(d) errors in translation or for errors in interpretation
of technical terms;
provided, however, that such circumstances do not result directly from the gross
negligence, willful misconduct or bad faith of the Issuing Lender. The Issuing
Lender may accept certificates or other documents that appear on their face to
be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary. In furtherance and not in limitation of
the foregoing provisions, the Borrower agrees that, except for the Issuing
Lender's gross negligence, willful misconduct or bad faith, and except as
otherwise required by applicable New York law, any action, inaction or omission
taken or suffered by the Issuing Lender in good faith in connection with any
Letter of Credit, or the relative drafts, certificates or other documents, shall
be binding on the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
Section 3.06 Indemnification. The Borrower hereby agrees to
protect, indemnify, defend and hold harmless the Issuing Lender and each of its
directors, officers, employees and agents and any person who controls any of
them within the meaning of the federal, state and foreign securities laws from
and against any and all liabilities, losses, obligations, damages, penalties,
expenses or costs of any kind or nature and from any suits, judgments, claims or
demands (including in respect of or for attorney costs and other fees and other
disbursements of counsel for and consultants of such party in connection with
any investigative, administrative or judicial proceeding, whether or not such
party shall be designated a party thereto) (collectively, the "Indemnified
Liabilities") incurred by reason of or in connection with the execution and
delivery of, or payment or failure to make payment under, any Letter of Credit;
provided, however, that the Borrower shall not be required to indemnify pursuant
to this Section for any Indemnified Liabilities to the extent caused by (i) the
Issuing Lender's gross negligence or willful misconduct in determining whether
documents presented under any Letter of Credit comply with the terms of such
Letter of Credit or (ii) the Issuing Lender's gross negligence or willful
misconduct in failing to make lawful payment under any Letter of Credit after
presentation to it by a beneficiary of a draft and certificate strictly
complying with the terms and
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conditions of such Letter of Credit. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
Section 3.07 Deemed Disbursements. Upon the occurrence and during
the continuation of an Event of Default and upon notification by the Issuing
Lender to the Borrower of its obligations under this Section 3.07, the Borrower
shall be immediately obligated to deliver to the Issuing Lender cash collateral
for the Issuing Lender's unfunded obligations under all issued and outstanding
Letters of Credit in an amount equal to the then aggregate amount of each Letter
of Credit which is undrawn and available under all issued and outstanding
Letters of Credit. Any amounts so payable by the Borrower pursuant to this
Section shall be deposited in immediately available funds in an interest bearing
collateral account maintained with the Issuing Lender, and held as collateral
security for the Reimbursement Obligations. At such time when all Events of
Default shall have been cured or waived, the Issuing Lender shall return to the
Borrower all amounts then on deposit with the Issuing Lender pursuant to this
Section 3.07 which have not been applied towards satisfaction of all amounts
owing to the Issuing Lender.
Section 3.08 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Issuing Lender, on the terms and conditions
hereinafter stated, for such L/C Participant's own account and risk an
undivided interest equal to such L/C Participant's Proportionate Share
in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the
Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid
under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon
demand, at the Issuing Lender's address for notices specified herein,
an amount equal to such L/C Participant's Proportionate Share of the
amount of such draft, or any part thereof, which is not so reimbursed
and whether or not such amount is converted into a Revolving Loan
pursuant to Section 3.03.
(b) Upon becoming aware of any amount required to be paid
by any L/C Participant to the Issuing Lender pursuant to Section
3.08(a) in respect of any unreimbursed portion of any payment made by
the Issuing Lender under any Letter of Credit, the Issuing Lender shall
notify each L/C Participant in writing of the amount and due date of
such required payment and such L/C Participant shall pay to the Issuing
Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand, in
addition to such amount, the product of (i) such amount, times (ii) the
daily average Federal Funds Rate as determined by the Issuing Lender
during the period from and including the date such payment is due to
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the date on which such payment is immediately available to the Issuing
Lender, times (iii) a fraction the numerator of which is the number of
days that elapsed during such period and the denominator of which is
360. A certificate of the Issuing Lender with respect to any amounts
owing under this Section 3.08(b) shall be conclusive in the absence of
manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.08(b), if the L/C
Participants receive written notice that any such payment is due (A)
prior to 1:00 p.m. (New York time) on any Business Day, such payment
shall be due that Business Day, and (B) after 1:00 p.m. (New York time)
on any Business Day, such payment shall be due on the following
Business Day.
(c) Whenever, at any time after the Issuing Lender has
made payment under any Letter of Credit and has received from any L/C
Participant such L/C Participant's Proportionate Share of such payment
in accordance with this Section 3.08, the Issuing Lender receives any
payment related to such Letter of Credit (whether directly from the
Borrower or otherwise), or any payment of interest on account thereof,
the Issuing Lender will promptly distribute to such L/C Participant its
Proportionate Share thereof; provided, however, that in the event any
such payment received by the Issuing Lender shall be required to be
returned by the Issuing Lender, such L/C Participant shall return to
the Issuing Lender the portion thereof previously distributed by the
Issuing Lender to it.
Section 3.09 Lenders Not Required to Make Loans or Issue Letters
of Credit. Notwithstanding anything to the contrary contained in this Agreement,
neither the Lenders nor the Issuing Lender shall be obligated in any manner to
make any Loan or issue any Letter of Credit in a principal amount which,
together with the aggregate principal amount of all Loans outstanding and all
L/C Obligations outstanding on the proposed date of making such Loan or issuance
of a Letter of Credit, would exceed the Aggregate Loan Commitment.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In order to induce the Agent, the Arrangers and the Lenders to enter
into this Agreement and to induce the Lenders to make the Facility available,
each Credit Party hereby represents and warrants to the Agent, the Arrangers and
the Lenders (which representations and warranties shall survive the execution
and delivery of this Agreement, the Notes and the other Transaction Documents
and the drawdown of the Loans and the issuances of any Letters of Credit
hereunder) that:
Section 4.01 Company Status. Each Credit Party (i) is a duly
organized and validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, (ii) has the organizational
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the conduct of its business requires such qualifications,
except where the failure to be so qualified is not reasonably expected to result
in a Material Adverse Change.
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Section 4.02 Company Power and Authority. Each Credit Party has
the requisite power and authority to execute, deliver and perform the terms and
provisions of each of the Transaction Documents to which it is party and has
taken all necessary action to authorize the execution, delivery and performance
by it of each of such Transaction Documents. Each Credit Party has duly executed
and delivered each of the Transaction Documents to which it is party, and each
of such Transaction Documents constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except
to the extent that such enforceability may be limited by any applicable
bankruptcy, insolvency or similar laws generally affecting the enforcement of
creditor's rights and by general principles of equity.
Section 4.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Transaction Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, other than any such contravention that could not reasonably be
expected to result in a Material Adverse Change, (ii) will conflict with or
result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien (except pursuant to the
Security Documents) upon any of the material properties or assets of the
Borrower or any of its Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or instrument, to which the Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it may be subject, or (iii) will violate any provision of the
Certificate of Incorporation or other documents of the Borrower or any of its
Subsidiaries.
Section 4.04 Governmental Approvals. Except for filings and
recordings in connection with the Security Documents (which filings shall be
made on or before the Closing Date with respect to the Collateral delivered as
of the Closing Date) and except as have been obtained and are in effect, no
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the consummation and performance by any Credit
Party of any Transaction Document or (ii) the legality, validity, binding effect
or enforceability of any Transaction Document.
Section 4.05 Financial Statement; Financial Condition; Undisclosed
Liabilities; etc. Except as otherwise disclosed in writing to the Lenders on or
prior to the date hereof, the financial information regarding the Borrower and
its Subsidiaries for the year ended December 31, 2001 and for the quarters ended
March 31, 2002 and June 30, 2002 contained in the Borrower's Form 10-K/A, Form
10-QA and Form 10-Q, respectively, are complete and correct, 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 the most recent of
such statements, there has been no Material Adverse Change and there are no
contingent obligations, liabilities for Taxes or other outstanding financial
obligations which are material in the aggregate except as disclosed in such
statements. No written information, exhibit, schedule or report prepared by or
on behalf of the Borrower and furnished to the Agent or the Lenders by or at the
direction of the Borrower or any of its
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Subsidiaries in connection with the negotiation of this Agreement contained any
material misstatement of fact or, when such statement is considered with all
other written statements furnished to the Agent or the Lenders in that
connection, omitted to state a material fact or any fact necessary to make the
statement contained therein not misleading; provided, that, the financial
information with respect to the Borrower's projections, copies of which have
been furnished to the Agent and each Lender prior to the Closing Date, were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions were believed by the Borrower to be reasonable in all material
respects at the time made.
Section 4.06 Litigation. Except as disclosed in Schedule 4.06
hereto, there is no action, suit, proceeding or investigation pending or, to the
best knowledge of each Credit Party, threatened, before any court or
administrative agency that might: (i) adversely affect its ability to perform
its obligations under this Agreement or any other Transaction Document to which
it is a party, (ii) reasonably be expected to result in any judgment or
liability which would result in a Material Adverse Change or (iii) adversely
affect the enforceability of this Agreement, any Note or any other Transaction
Document.
Section 4.07 No Default. No Credit Party is in default (in any
respect that could reasonably be expected to result in a Material Adverse
Change) under any agreement by which it is bound, or is in default in respect of
any financial commitment or obligation.
Section 4.08 Use of Proceeds; Margin Regulations.
(a) The proceeds received with respect to the (i) Terms
Loans shall be used by the Borrower for the sole purpose of
repurchasing or redeeming the Existing Senior Notes in the event that
(1) the Borrower is required to repurchase the Existing Senior Notes
due to a Change of Control, (2) the Borrower elects to call the
Existing Senior Notes in accordance with the terms of the Existing
Indenture or (3) the Borrower enters into a solicitation with the
holders of the Existing Senior Notes that is acceptable to the
Arrangers in their sole discretion and (ii) Revolving Loans shall be
used by the Borrower for (1) general corporate purposes and payment of
professional fees and expenses of the Borrower and the other Credit
Parties and (2) to refinance and repay the Existing Indebtedness.
(b) No part of the proceeds of any Loan will be used by
the Borrower to purchase or carry any Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan nor the use of the proceeds thereof will
violate or be inconsistent with the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
Section 4.09 Tax Returns and Payments. The Borrower and each of
its Subsidiaries has filed or caused to be filed, with the appropriate taxing
authority, all federal, state, provincial and other returns, statements, forms
and reports for Taxes (the "Returns") required to be filed by or with respect to
the income, properties or operations of the Borrower and/or its Subsidiaries
except where the failure to so file or cause to be filed could not reasonably be
expected to result in a Material Adverse Change. The Borrower and its
Subsidiaries have paid all Taxes payable by them other than (a) Taxes which are
not delinquent, (b) Taxes contested in good faith for
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which adequate reserves have been established in accordance with GAAP and (c)
foreign Taxes as to which the failure to pay such foreign Taxes could not
reasonably be expected to result in a Material Adverse Change.
Section 4.10 Compliance with ERISA.
(a) Except, in each case, as could not reasonably be
expected to result in a Material Adverse Change or except as disclosed
on Schedule 4.10 hereto, (i) each Plan (and each related trust,
insurance contract or fund) is in compliance in all material respects
with its terms and with all applicable laws, including without
limitation ERISA and the Code; (ii) each Plan (and each related trust,
if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue
Service to the effect that it is qualified and meets the requirements
of Sections 401(a) and 501(a) of the Code and nothing has occurred
since the date of such determination letter that could adversely affect
the qualification of such Plan; (iii) the most recent annual report
(Form 5500 Series) with respect to each Plan, including Schedule B
(Actuarial Information) thereto, copies of which have been filed with
the Internal Revenue Service, is complete and correct and fairly
presents the funding status of each such Plan, and since the date of
such report there has been no Material Adverse Change in such funding
status; (iv) no Reportable Event has occurred or is reasonably likely
to occur; (v) no Plan which is a multiemployer plan (as defined in
Section 4001(a)(3) of ERISA) is insolvent or in reorganization; (vi) no
Plan which is subject to Section 412 of the Code or Section 302 of
ERISA has an accumulated funding deficiency, within the meaning of such
sections of the Code or ERISA, or has applied for or received a waiver
of a funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of
ERISA; (vii) all contributions required to be made with respect to a
Plan have been or will be timely made; (viii) neither the Borrower nor
any Subsidiary of the Borrower nor any ERISA Affiliate has committed
any violation or incurred any liability (including any indirect,
contingent or secondary liability) pursuant to Section 406, 409,
502(i), 502(l), 515 or Title IV of ERISA (other than the payment of
premiums, none of which are overdue) or Section 401(a)(29), 4971 or
4975 of the Code or reasonably expects to incur any such liability
under any of the foregoing sections; (ix) no condition exists which
presents a risk to the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate of incurring a liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; (x) no
proceedings have been instituted to terminate or appoint a trustee to
administer any Plan which is subject to Title IV of ERISA; (xi) neither
the Borrower, any Subsidiary Guarantor nor any ERISA Affiliate has
incurred any liability under the Worker Adjustment and Retraining
Notification Act (29 U.S.C.ss.ss.201-2109) (which remains unpaid);
(xii) no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of
any Plan (other than routine claims for benefits) is pending, expected
or threatened; (xiii) the Borrower has not received notice that
indicates the existence of potential withdrawal liability under a
Multiemployer Plan (as defined In Section 4001(a)(3) of ERISA); (xiv)
each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees
or former
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employees of the Borrower, any Subsidiary of the Borrower, or any ERISA
Affiliate has at all times been operated in compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section
4980B of the Code; (xv) no lien or security interest encumbrance on the
assets of the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate that is imposed under the Code or ERISA or is likely to arise
in connection with any Plan; (xvi) the Borrower and its Subsidiaries do
not maintain or contribute to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) which provides benefits to retired
employees or other former employees (other than as required by Section
601 of ERISA) or any Plan; (xvii) no Plan has an Unfunded Current
Liability in excess of $1,000,000; (xviii) the accumulated post
retirement benefit obligation (as determined in accordance with
Financial Accounting Standard 106 of the Borrower, any Subsidiary
Guarantor and any ERISA Affiliate, to the extent it could subject the
Borrower to liability, shall not as of the end of the fiscal year
preceding the Closing Date exceed $1,000,000, and there is no other
post-termination benefit obligation for which the Borrower could
reasonably be expected to incur liability or be obligated in excess of
$1,000,000, and the Borrower shall not take any action not required by
applicable law that could reasonably be expected to cause such
obligation to increase above $1,000,000; and (xix) using actuarial
assumptions and computation methods consistent with Part 1 of Subtitle
E of Title IV of ERISA, the aggregate liabilities of the Borrower and
its Subsidiaries and their ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the
event of a complete withdrawal therefrom, as of the close of the most
recent fiscal year of such Plan ended prior to the date of the most
recent Credit Event, would not exceed $100,000.
(b) Except, in each case, as could not reasonably be
expected to result in a Material Adverse Change, (i) each Foreign
Pension Plan has been maintained in compliance in all material respects
with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained,
where required, in good standing with applicable regulatory
authorities; (ii) all contributions required to be made with respect to
a Foreign Pension Plan have been timely made; (iii) neither the
Borrower nor any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any Foreign
Pension Plan; and (iv) the present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower's most recently ended fiscal
year on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan allocable to such benefit liabilities.
Section 4.11 Ownership; Subsidiaries. Schedule 4.11 correctly (a)
lists each of the Borrower's direct and indirect Subsidiaries as of the Closing
Date and (b) describes the Equity Interests owned by the Borrower (directly or
indirectly) in each of its Subsidiaries as of the Closing Date.
Section 4.12 Compliance with Statutes, etc. The Borrower and each
of its Subsidiaries is in compliance with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct
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of its businesses and the ownership of its property, except such noncompliances
as could not (in the event such noncompliance were asserted by any Person
through appropriate action), individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change.
Section 4.13 Investment Company Act. Neither the Borrower nor any
of its Subsidiaries is an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.14 Environmental Matters.
(a) To the actual knowledge of each Responsible Officer
of each Credit Party who executes any Transaction Document on behalf of
any Credit Party and without independent investigation: (i) except as
disclosed in Schedule 4.14, the Borrower and each of its Subsidiaries
have complied with, and on the date of each Credit Event will be in
compliance with, all applicable Environmental Laws and the requirements
of any permits issued under such Environmental Laws, (ii) there are no
pending or threatened Environmental Claims against the Borrower or any
of its Subsidiaries or any Real Property owned or operated by the
Borrower or any of its Subsidiaries in excess of $150,000, (iii) there
are no facts, circumstances, conditions or occurrences with respect to
the business or operations of the Borrower or any Real Property at any
time owned or operated by the Borrower or any of its Subsidiaries that
could reasonably be expected to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any such Real
Property in excess of $150,000, or to cause any such currently owned
Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property by the Borrower
or any of its Subsidiaries under any applicable Environmental Law.
(b) To the actual knowledge of each Responsible Officer
of each Credit Party who executes any Transaction Document on behalf of
any Credit Party and without independent investigation: (i) except as
disclosed in Schedule 4.14, Hazardous Materials have not at any time
been generated, used, treated or stored on, or transported to or from,
any Real Property owned or operated by the Borrower or any of its
Subsidiaries where such generation, use, treatment or storage has
violated or could reasonably be expected to violate any Environmental
Law in such a manner so as to cause this representation to be untrue;
or (ii) Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by the Borrower or any of its
Subsidiaries where such Release has violated or could reasonably be
expected to violate any applicable Environmental Law in such a manner
so as to cause this representation to be untrue.
Section 4.15 Labor Relations. (a) Except as could not reasonably
be expected to result in a Material Adverse Change, neither the Borrower nor any
of its Subsidiaries is engaged in any unfair labor practice; (b) except (in each
case) as could not reasonably be expected to result in a Material Adverse
Change, there is (i) no unfair labor practice complaint pending against the
Borrower or any of its Subsidiaries, or, to the knowledge of the Borrower,
threatened against any of them, before the National Labor Relations Board, and
no material grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the
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Borrower or any of its Subsidiaries or threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage pending against the Borrower or any
of its Subsidiaries or threatened against the Borrower or any of its
Subsidiaries and (iii) no union representation proceeding pending with respect
to the employees of the Borrower or any of its Subsidiaries; and (c) except (in
each case) as could not reasonably be expected to result in a Material Adverse
Change, hours worked by and payments made to any employee of the Borrower, any
Subsidiary Guarantor or any ERISA Affiliate have not been in violation of the
Fair Labor Standards Act or any other applicable law dealing with such matters.
Section 4.16 Patents, Licenses, Franchises and Formulas. The
Borrower and each of its Subsidiaries owns or is licensed to use all material
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, and has
obtained assignments of all material leases and other rights of whatever nature,
reasonably necessary for the present conduct of its business, without any known
conflict with the rights of others which, or the failure to obtain or so own
which, as the case may be, has had, or could reasonably be expected to result
in, a Material Adverse Change.
Section 4.17 Security Interests. On and after the Closing Date,
each of the Security Documents creates (or after the execution and delivery
thereof, will create), as security for the Obligations purported to be secured
thereby, a valid and enforceable security interest in and Lien on all of the
Collateral subject thereto, which shall be perfected upon the taking of
possession thereof or completion of filings with respect thereto, in each case
as required by this Agreement or the other Transaction Documents, superior to
and prior to the rights of all third Persons and subject to no other Liens
(except for Permitted Encumbrances with respect to the Vessels, first mortgages
with respect to the Second Lien Vessels and Customary Permitted Liens with
respect to other assets). No filings or recordings are required in order to
perfect the security interests created under any Security Document except for
filings or recordings required in connection with any such Security Document
which shall have been made substantially contemporaneously with the execution
and delivery thereof.
Section 4.18 Indebtedness. Schedule 4.18 sets forth a true and
complete list of all (i) Indebtedness for borrowed money of the Borrower and
each of its Subsidiaries outstanding as of the Closing Date and (ii) agreements
existing on the Closing Date pursuant to which the Borrower or any of its
Subsidiaries are entitled to incur Indebtedness, in each case showing the
aggregate principal amount thereof and the name of the borrower and any other
entity which directly or indirectly guaranteed such debt.
Section 4.19 Capitalization of Borrower. On and as of the Closing
Date, the authorized capital stock of the Borrower shall consist of 40,000,000
shares of common stock, 23,200,000 shares of which shall be issued and
outstanding and 5,000,000 shares of preferred stock, none of which shall be
issued or outstanding. All such outstanding shares of common stock are duly and
validly issued and fully paid and non-assessable.
Section 4.20 Concerning the Vessels. The name, official number,
registered owner, and jurisdiction of registration of each Vessel is set forth
on Schedule 4.20 hereto. Except as set forth on Schedule 4.20 (which includes a
list of vessels designated as laid-up), each Vessel is operated in material
compliance with all applicable maritime rules and regulations, including,
-25-
without limitation, with respect to each Vessel operated in the coastwise trade
of the United States of America, the Shipping Act of 1916, as amended and in
effect, and the regulations promulgated thereunder. Each Vessel not designated
as laid-up on Schedule 4.20 is maintained and operated in material compliance
with all applicable Environmental Laws.
Section 4.21 Citizenship. The Borrower and each Subsidiary
Guarantor which owns or operates one or more Vessels is qualified to own and
operate such Vessels under the laws of the Approved Jurisdiction.
Section 4.22 Vessel Classification. Except (a) as permitted by the
laws and/or regulations of the relevant flag state or (b) with respect to a
Vessel that has been laid-up in accordance with Section 6.20(c) of this
Agreement, each Vessel is classified in the highest classification and rating
for vessels of the same age and type with the respective classification society
set forth in Schedule 4.20, without any conditions or recommendations affecting
class other than those for which the time prescribed for curing the condition or
recommendation has not passed.
Section 4.23 [Reserved]
Section 4.24 Insurance. Each of the Credit Parties has insured its
properties and assets against such risks and in such amounts as are customary
for companies engaged in similar businesses.
ARTICLE V
CONDITIONS OF LENDING
Section 5.01 Conditions Precedent to Drawdown of the Initial Loan.
The obligation of the Lenders to make the Initial Loan available to the Borrower
and/or issue a Letter of Credit (if the Initial Loan has not yet been made)
under this Agreement shall be expressly subject to the following conditions
precedent:
(a) The Agent shall have received the following documents
in form and substance satisfactory to the Arrangers and their legal
advisor:
(i) copies, certified as true and complete by an officer of each
Credit Party, of the resolutions of such Credit Party
evidencing approval of this Agreement, the Notes and the other
Transaction Documents to which it 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, or other
evidence of such approvals and authorizations;
(ii) copies, certified as true and complete by an officer of each
Credit Party, of all documents evidencing any other necessary
action (including actions by such parties thereto other than
the Credit Parties as may b e required by the Arrangers),
approvals or consents with respect to the Transaction
Documents;
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(iii) copies, certified as true and complete by an officer of each
Credit Party of the certificate of incorporation and bylaws or
the certificate of formation and operating agreement (or
equivalent instruments) thereof;
(iv) certificate of the Secretary of the Borrower certifying that
it legally and beneficially owns, directly or indirectly, all
of the issued and outstanding Equity Interests of each of the
Subsidiary Guarantors and that, except as disclosed in a
schedule hereto, such Equity Interests are free and clear of
any liens, claims, pledges or other encumbrances whatsoever;
(v) certificate of the Secretary of each Credit Party (other than
the Borrower) certifying as to the record ownership of all of
its issued and outstanding Equity Interests; and
(vi) certificates of the jurisdiction of formation of each Credit
Party as to the good standing thereof.
(b) The Agent shall have received evidence satisfactory
to the Arrangers and their legal advisor that:
(i) the Vessels (except as disclosed in schedule 4.20) are in the
sole and absolute ownership of the relevant Subsidiary
Guarantor as set forth in Schedule 4.20 and duly registered in
such Subsidiary Guarantor's name under the flag of an Approved
Jurisdiction, unencumbered, save and except for the Mortgage
recorded against it and Permitted Encumbrances and with
respect to Second Lien Vessels the first mortgages thereon as
of the Closing Date;
(ii) the Mortgage on each Vessel has been properly recorded under
the laws of the jurisdiction of registration and constitutes a
first priority mortgage (or, in the case of the Second Lien
Vessels, a second priority mortgage), subject only to
Permitted Encumbrances;
(iii) except as otherwise disclosed to the Agent in writing, the
Vessels are classed in the highest classification and rating
for vessels of the same age and type with the respective
classification society as set forth in Schedule 4.22 without
any outstanding conditions or recommendations affecting class
other than those for which the time prescribed for curing the
condition or recommendation has not passed;
(iv) except as otherwise disclosed to the Agent in writing, each
Vessel is operationally seaworthy and in every way fit for its
intended service;
(v) all necessary governmental or regulatory approvals, licenses
and authorities which are necessary to the operation of each
Vessel have been obtained from each applicable Governmental
Authority; and
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(vi) each Vessel is insured in accordance with the provisions of
the related Mortgage and the requirements thereof in respect
of such insurances have been complied with.
(c) The Borrower shall have duly executed and delivered
this Agreement, the Notes, the Pledge Agreement and the other
Transaction Documents to which it is a Party and each Subsidiary
Guarantor shall have duly executed and delivered this Agreement, the
Security Documents and the other Transaction Documents to which it is a
party. Notwithstanding any provision in this Agreement to the contrary,
so long as MARAD is the first mortgagee on any Vessel owned by Seabulk
Towing, Inc., Seabulk Towing, Inc. shall be under no obligation to
enter into or execute any security agreement, Assignment of Earnings
and Insurances, or any other agreement granting a security interest in
its assets, except for (i) second priority Mortgages on its Second Lien
Vessels and (ii) first priority Mortgages and Assignments of Insurances
with respect to its other Vessels.
(d) The Borrower and the Subsidiary Guarantors shall have
delivered the Equity Interests subject to the Pledge Agreement to the
Agent, together with executed and undated stock powers with respect
thereto, and all other documents required to be delivered pursuant to
the Pledge Agreement.
(e) The Borrower and the Subsidiary Guarantors shall each
have duly executed and delivered the following documents:
(i) the Mortgage with respect to its Vessel(s);
(ii) an Assignment of Earnings and Insurances with respect to its
Vessel(s), other than its Second Lien Vessels, or, with
respect to the Vessels owned by Seabulk Towing, Inc., other
than the Second Lien Vessels owned by Seabulk Towing, Inc., an
Assignment of Insurances;
(iii) Uniform Commercial Code Financing Statements for filing with
the appropriate jurisdictions necessary to perfect the
security interest of the Agent for the benefit of the Lenders
in and to its Collateral; and
(iv) such other documents as may be required to perfect the
security interest of the Agent, on behalf of the Lenders, in
the Collateral.
(f) The Agent shall have received a certificate from the
Borrower to the effect that the Borrower is in compliance with the
conditions precedent set forth in this Article V.
(g) The Agent shall have received evidence that neither
the Borrower nor any of its Subsidiaries is subject to any
Environmental Claim which could reasonably be expected to result in a
Material Adverse Change.
(h) The Agent shall have received payment in full of all
fees and expenses due on or before the Closing Date to the Agents, the
Arrangers and the Lenders under
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Section 2.16, or such fees and expenses shall be paid directly from the
Initial Loan proceeds on the Closing Date.
(i) The Agent shall have received evidence satisfactory
to the Arrangers and to their legal advisor that, save for the liens
created by the Mortgages and the Assignments of Earnings and
Insurances, there are no liens, charges or encumbrances of any kind
whatsoever on any of the Vessels or on their respective earnings except
for Permitted Encumbrances and, with respect to the Second Lien
Vessels, the first mortgages thereon as of the Closing Date.
(j) The Agent shall have received the favorable written
opinions of counsel to the Borrower and the Subsidiary Guarantors,
dated the Closing Date and in form and substance satisfactory to the
Agent and its legal advisors.
(k) The Agent shall have received a favorable written
opinion of counsel to the Borrower to the effect that any existing
indebtedness of the Lightship Tanker Entities is non-recourse to the
Borrower and the Subsidiary Guarantors.
(l) The Borrower shall have completed the successful
offering of new Equity Interests, the gross proceeds of which shall at
least equal $100,000,000, and $25,000,000 of such proceeds shall have
been used to reduce the Borrower's Existing Indebtedness.
(m) There shall have occurred no event that could result
in a Material Adverse Change since the date hereof.
(n) The Agent shall have received any additional
documents, affidavits or certificates of the Borrower, the Subsidiary
Guarantors or any other Person as it may reasonably require.
Section 5.02 Further Conditions Precedent. The obligation of the
Lenders to make any Loan available to the Borrower under this Agreement or to
issue any Letter of Credit shall be expressly and separately subject to the
following further conditions precedent on the relevant Drawdown Date or Issuance
Date, as the case may be:
(a) The Agent shall have received a Drawdown Request or
Issuance Request, as the case may be, in accordance with the terms of
Section 2.01(d), Section 2.02 (c) or Section 3.01, as the case may be.
(b) The representations and warranties set forth in
Article IV hereof shall be true and correct in all material respects
with the same effect as though each such representation and warranty
had been made on and as of such date, except to the extent that any of
such representations and warranties expressly relate to earlier dates,
or are no longer true as a result of transactions not prohibited by the
Transaction Documents.
(c) No Default or Event of Default shall have occurred
and be continuing.
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(d) No change in any applicable laws, regulations, rules
or in the interpretation thereof shall have occurred which make it
unlawful for any Credit Party to make any payment as required under the
terms of the Transaction Documents.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as this Agreement shall
remain in effect or any of the Obligations shall be outstanding, it shall, and
shall cause each of the Subsidiary Guarantors to unless the Borrower shall have
received the prior written consent of the Requisite Lenders:
Section 6.01 Existence. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence (except as
permitted by Section 7.16), rights and franchises and comply with all laws
applicable to it and at all times be qualified to do business in the
jurisdictions where failure to qualify could reasonably be expected to result in
a Material Adverse Change.
Section 6.02 Payment of Debts. Pay its debts, liabilities and
obligations when due, except (a) any such debts, liabilities and obligations
that are being contested in good faith by appropriate proceedings, (b) any
single debt, liability or obligation, which does not exceed $2,500,000 and (c)
any debts, liabilities and obligations, which in the aggregate do not exceed
$5,000,000.
Section 6.03 Accounts and Records. Keep and maintain full and
accurate accounts and records in accordance with GAAP consistently applied.
Section 6.04 Payment of Taxes and Claims. Prepare and timely file
all tax returns required to be filed by it and pay and discharge all Taxes
imposed upon it or in respect of any of its property and assets before the same
shall become in default, as well as all lawful claims (including, without
limitation, claims for labor, materials and supplies) which, if unpaid, might
become a lien or charge upon the Collateral or any part thereof, except (a) in
each case, for any such Taxes as are being contested in good faith by
appropriate proceedings or (b) with respect to foreign Taxes, the failure of
which to pay or discharge could not reasonably be expected to result in a
Material Adverse Change.
Section 6.05 Financing Statements. In the case of the Collateral,
execute, financing statements or other documents deemed necessary or desirable
by the Agent to perfect, maintain or preserve any security interest granted
pursuant to the Transaction Documents and pay the filing costs pursuant to law.
Without limiting the generality of the foregoing, each of the Credit Parties
will execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be reasonably necessary
or desirable, or that the Agent may reasonably request, to protect and preserve
the Liens granted or purported to be granted hereby and by the other Transaction
Documents. Each of the Credit Parties hereby authorizes the Agent to file one or
more financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral without the signature of such Credit Party,
where permitted by law.
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Section 6.06 Compliance with Law. Comply in all material respects
with all applicable federal, state, local and foreign laws, ordinances, rules,
orders and regulations now in force or hereafter enacted, including, without
limitation all laws and regulations relating to environmental laws and employee
benefit plans, failure to comply with which could reasonably be expected to
result in a Material Adverse Change.
Section 6.07 Financial Statements. Furnish to the Agent the
following financial statements:
(a) as soon as available but not later than ninety (90)
days after the end of each fiscal year of the
Borrower, complete copies of the consolidated
financial reports of the Borrower and its
Subsidiaries, all in reasonable detail, which shall
include at least the consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of
such year and the related consolidated statements of
income and sources and uses of funds for such year,
which shall be audited reports prepared by
independent chartered accountants of international
standing;
(b) as soon as available but not later than ninety (90)
days after the end of each fiscal year of the
Borrower, complete copies of the consolidated
financial reports of the Borrower and its
Subsidiaries excluding the Lightship Tanker Entities,
all in reasonable detail, which shall include at
least the consolidated balance sheet of the Borrower
and its Subsidiaries, excluding the Lightship Tanker
Entities, as of the end of such year and the related
consolidated statements of income and sources and
uses of funds for such year, which shall be
unaudited, but certified to be true and complete by
the chief financial officer of the Borrower;
(c) 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 the Borrower, a
quarterly interim consolidated balance sheet of the
Borrower and its Subsidiaries and the related
consolidated 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 of the Borrower;
(d) within ten (10) days of the filing thereof, copies of
all registration statements and reports on Forms
10-K, 10-Q and 8-K (or their equivalents) and other
material filings which the Borrower shall have filed
with the SEC or any similar governmental authority;
and
(e) promptly upon the mailing thereof to the shareholders
of the Borrower, copies of all financial statements,
reports, proxy statements, notices and other
communications transmitted to all of the Borrower's
shareholders;
(f) at such time as the financial statements described in
Sections 6.07(a), 6.07(b) and 6.07(c) are delivered,
a certificate of the Borrower's Chief Financial
Officer (i) certifying the Borrower's compliance with
each of its
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covenants contained herein and showing the
calculations thereof (with respect to the covenants
in Sections 6.14, 6.15, 6.16 and 6.17 hereof) in
reasonable detail and (ii) stating that the financial
statements delivered in accordance with Sections
6.07(a), 6.07(b) and 6.07(c) are complete and correct
in all material respects and present fairly the
financial condition and results of operations of the
Borrower and its Subsidiaries as of the dates and for
the periods indicated, in accordance with generally
accepted accounting principles consistently applied
(subject as to interim statements to normal year-end
adjustments); and
(g) any other information regarding the Borrower that is
material to the Transaction Documents or, the Loans
or the Letters of Credit as any Lender, through the
Agent, may reasonably request.
Upon receipt the Agent shall promptly deliver the above referenced
financial statements to the Lenders.
Section 6.08 Access to Books and Records. Permit the Agent and
each Lender, and their respective duly authorized agents and officers, during
normal business hours and upon reasonable notice to (a) examine the books and
records of the Borrower and to make copies and extracts therefrom, and (b)
discuss the affairs, finances and accounts of the Borrower, and be advised as to
the same by, the officers of the Borrower as shall be relevant to the
performance or observance of the terms, covenants or conditions of this
Agreement, the other Transaction Documents or the financial condition of the
Borrower.
Section 6.09 Notifications. Give prompt written notice to the
Agent of (a) any Default of which the Borrower has actual knowledge or an Event
of Default specifying the same and the steps being taken to remedy the same, (b)
any litigation or governmental proceeding pending or, to the best knowledge of
the Borrower, threatened against the Borrower or against any of the Subsidiaries
which could reasonably be expected to result in a Material Adverse Change, (c)
the withdrawal of any Vessel's rating by its classification society or the
issuance by such classification society of any material recommendation or
notation affecting class and (d) any other event or condition which could
reasonably be expected to result in a Material Adverse Change.
Section 6.10 Performance of Obligations. Not take, or fail to
take, any action, or fail to use commercially reasonable efforts to prevent any
action to be taken by others, (a) which would release any Person from any of
such Person's covenants or obligations under any agreement or instrument
included in the Security Documents, or (b) which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such agreement or instrument in a manner
materially adverse to the Agent or the Lenders.
Section 6.11 Environmental Matters. Promptly, and in any event
within five (5) Business Days after an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, give written notice to the Agent
of one or more of the following environmental matters, unless, in each case,
such environmental matters could not, individually
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or when aggregated with all other such environmental matters, be reasonably
expected to result in a Material Adverse Change:
(a) any pending or threatened in writing Environmental
Claim against the Borrower or any of its Subsidiaries
or any Real Property owned or operated by the
Borrower or any of its Subsidiaries;
(b) any condition or occurrence on or arising from any
Real Property owned or operated by the Borrower or
any of its Subsidiaries that (i) results in
noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or
(ii) could reasonably be expected to form the basis
of an Environmental Claim against the Borrower or any
of its Subsidiaries or any such Real Property;
(c) any condition or occurrence on any Real Property
owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or
transferability by the Borrower or any of its
Subsidiaries of such Real Property under any
Environmental Law; and
(d) the taking of any removal or remedial action in
response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or
operated by the Borrower or any of its Subsidiaries
as required by any Environmental Law or any
governmental or other administrative agency; provided
that in any event the Borrower shall deliver to each
Lender all material notices received after the date
hereof by them or any of its Subsidiaries from any
Governmental Authority under, or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower or such Subsidiary's response thereto. In addition, upon the request of
the Agent, the Borrower will provide the Lenders with copies of all material
communications with any Governmental Authority relating to Environmental Laws,
all material communications with any Person (other than their attorneys)
relating to any Environmental Claim of which notice is required to be given
pursuant to this Section 6.11(e), and such detailed reports of any such
Environmental Claim as may reasonably be requested by the Agent on behalf of the
Lenders.
Section 6.12 Transaction Document Obligations. Pay the Notes
according to the reading, tenor and effect thereof, and do and perform every act
and discharge all of the obligations provided to be performed by the Borrower
under the Transaction Documents, including this Agreement, at the time or times
and in the manner specified, and cause the Subsidiary Guarantors to take such
action with respect to their obligations to be performed and discharged under
the Transaction Documents to which they respectively are parties.
Section 6.13 ERISA. Promptly upon learning of the occurrence or
the expected occurrence of (i) any material liability of any Credit Party or any
ERISA Affiliate pursuant to ERISA in connection with the termination of any Plan
or withdrawal or partial withdrawal of any
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multi-employer plan (as defined in ERISA), (ii) 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 Credit Party or any ERISA Affiliate is plan administrator
(as defined in ERISA) other than to the extent such failure could not reasonably
be expected to result in a Material Adverse Change, (iii) a plant closing or
mass layoff (as defined in the Worker Adjustment and Retraining Notification
Act) of the Borrower, any Subsidiary Guarantor or any ERISA Affiliate; (iv) the
Borrower, any Subsidiary Guarantor or any ERISA Affiliate becoming liable for
material increases in retiree medical, life insurance or other death benefits
(contingent or otherwise) (other than as a result of a continuation of medical
coverage required under section 4980B of the Code or the insurance coverage
continuation provisions of applicable state law); or (v) a failure to satisfy
the conditions represented, warranted and agreed to in Section 4.10 of this
Agreement other than to the extent such failure could not reasonably be expected
to result in a Material Adverse Change, furnish or cause to be furnished to the
Agent written notice thereof.
Section 6.14 Minimum Adjusted EBITDA to Adjusted Interest Expense.
With respect to the Borrower, maintain a ratio determined as of the last day of
each of the Borrower's fiscal quarters commencing September 30, 2002 of Adjusted
EBITDA to Adjusted Interest Expense as follows:
(a) through the fiscal quarter ending December 31, 2002,
not less than 2.25 to 1.00;
(b) thereafter, until the fiscal quarter ending December
31, 2003, not less than 2.50 to 1.00;
(c) thereafter, until the fiscal quarter ending December
31, 2004, not less than 2.75 to 1.00;
(d) thereafter, until the fiscal quarter ending December
31, 2005, not less than 3.00 to 1.00; and
(e) thereafter, not less than 3.25 to 1.00.
Section 6.15 Minimum Adjusted Tangible Net Worth With respect to
the Borrower, maintain an Adjusted Tangible Net Worth of not less than One
Hundred Seventy-Five Million Dollars ($175,000,000) plus fifty percent (50%) of
the Borrower's cumulative positive annual net income (on a consolidated basis)
for each fiscal quarter from September 30, 2002 onwards, plus seventy-five
percent (75%) of the net proceeds received by the Borrower (or any of the
Borrower's Subsidiaries) from the issuance of Equity Interests issued after the
Closing Date.
Section 6.16 Maximum Adjusted Funded Debt Ratio. With respect to
the Borrower, maintain an Adjusted Funded Debt Ratio determined as of the last
day of each of the Borrower's fiscal quarters commencing September 30, 2002 as
follows:
(a) through the fiscal quarter ending March 31, 2003, not
more than 4.25 to 1.00;
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(b) thereafter, until the fiscal quarter ending March 31,
2004, not more than 4.00 to 1.00; and
(c) thereafter, not more than 3.50 to 1.00.
Section 6.17 Minimum Fair Market Value of the Vessels. Maintain an
Asset Coverage Ratio at all times equal to or greater than 1.75 to 1.00.
Section 6.18 Ownership of Subsidiary Guarantors. With respect to
the Borrower, own, directly or indirectly, the percentage of the Equity
Interests of each Subsidiary Guarantor shown on Schedule 4.11 hereto.
Section 6.19 Additional Vessels; Further Assurances. If either
(a) the Borrower or a Subsidiary acquires a Vessel after the Closing Date and,
if as of the date of acquisition of such Vessel the Borrower is not in
compliance with Section 6.17 hereof or (b) the Borrower is not in compliance
with Section 6.17 hereof, then the Borrower shall or shall cause its Subsidiary
within 30 days of such acquisition to:
(a) Execute and deliver a Mortgage, deliver related
information and reports, and otherwise take such
actions with respect to such Vessel and Mortgage as
would have been required to satisfy the conditions of
Section 5.01 if such new Vessel were a Vessel on the
Closing Date;
(b) Execute and deliver a Subsidiary Guarantee Agreement
(to the extent not previously delivered);
(c) Pledge and deliver, or cause to be pledged and
delivered, all of the Equity Interest of each new
Subsidiary Guarantor acquired or created after the
Closing Date, to the extent owned by the Borrower or
any Subsidiary Guarantor, to the Agent for the
benefit of the Lenders pursuant to the Pledge
Agreement; and
(d) Execute and deliver an Assignment of Earnings and
Insurances;
provided, however, that if, pursuant to Section 7.03, the Borrower or a
Subsidiary Guarantor mortgages a vessel in order to remain in compliance with
Section 6.17, such vessel must be a Qualified Substitute Vessel.
Section 6.20 Vessel Operations and Management. (a) Procure that
each of the Vessels not laid-up in accordance with Section 6.20(c) hereof, shall
at all times be (i) managed by the technical and commercial managers managing
the Vessels as of the Closing Date or such other managers acceptable to the
Requisite Lenders in accordance with vessel management agreements acceptable to
the Requisite Lenders, (ii) flagged under the laws of an Approved Jurisdiction
and (iii) classed in the highest classification and rating for vessels of the
same age and type without any outstanding conditions or recommendations
affecting class (other than those for which the time prescribed for curing the
condition or recommendation has not passed) with Lloyds Registry of Shipping,
Det norske Veritas, Bureau Veritas, American Bureau of Shipping or such other
classification society classing the Vessels as of the Closing Date or with such
other
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classification society acceptable to the Agent; provided, however, if a Vessel
is reflagged under the laws of an Approved Jurisdiction, it shall be a condition
to such reflagging that the Subsidiary Guarantors deliver to the Agent (A)
evidence (including an opinion of counsel) that such Vessel has been registered
in the name of the related Subsidiary Guarantor under the laws of such
jurisdiction; (B) evidence (including an opinion of counsel) that the related
Mortgage has been properly recorded under the laws of such jurisdiction and
constitutes a first priority mortgage (or, in the case of the Second Lien
Vessels, a second priority mortgage) subject only to Permitted Encumbrances; (C)
evidence that all necessary governmental or regulatory approvals, licenses and
authorities which are necessary to the operation of the Vessel have been
obtained; (D) evidence that insurances in compliance with the requirements of
the Mortgage have been obtained; and (E) such other items as the Agent may
reasonably require.
(b) Except with respect to any Vessel that has been laid-up in
accordance with Section 6.20(c) hereof, comply in all material respects or to
procure that the operator of each of the Vessels will comply in all material
respects within the requisite applicable time limits for vessels of the same
type, size, age and flag of the Vessels with the International Management Code
for the Safe Operation of Ships and for Pollution Prevention (as the same may be
amended from time to time, the "ISM Code") adopted by the International Maritime
Organization or any replacement of the ISM Code and in particular, without
prejudice to the generality of the foregoing, as and when required to do so by
the ISM Code and at all times thereafter, (i) to hold or to procure that the
operator of each of the Vessels holds, a valid Document of Compliance (being a
document issued to a vessel operator as evidence of its compliance with the
requirements of the ISM Code) duly issued to the Subsidiary Guarantor or the
operator (as the case may be) pursuant to the ISM Code and a valid Safety
Management Certificate (being a document issued to a vessel as evidence that the
vessel operator and its shipboard management operate in accordance with an
approved structured and documented system enabling the personnel of that vessel
operator to implement effectively the safety and environmental protection policy
of that vessel operator) duly issued to each of the Vessels pursuant to the ISM
Code, (ii) to provide the Agent with copies of any such Document of Compliance
and Safety Management Certificate promptly following the issue thereof and after
every renewal and (iii) to keep or to procure that there is kept, on board each
of the Vessels a copy of any such Document of Compliance and the original of any
such Safety Management Certificate
(c) Ensure that the laying-up of any Vessel is commercially
reasonable; that each laid-up Vessel is maintained in accordance with ordinary
and reasonable commercial standards for laid-up vessels, and that the Agent is
notified of each lay-up within thirty (30) days after the commencement thereof.
Section 6.21 Appraisals. Upon the request of the Agent and at the
Borrower's expense, furnish the Agent with appraisals from an Appraiser for each
of the Vessels; provided, however, such request shall not be made more than once
in any twelve-month period.
Section 6.22 Reimbursement for Expenses. Reimburse the Agent, or
cause the Subsidiary Guarantors to reimburse the Agent, promptly, with interest
at the interest rate applicable to the Notes, for any and all expenditures which
the Agent may from time to time make in providing protection in respect of
insurance, discharge or purchase of liens, taxes, dues, assessments,
governmental charges, fines and penalties lawfully imposed, repairs, attorneys'
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fees, necessary translation fees for documents made in a language other than
English and other matters, in each case in respect of which the Borrower has
Defaulted in its obligation hereunder with respect to such matters, or the
Subsidiary Guarantors have Defaulted in their Subsidiary Guarantee Obligation
hereunder with respect to such matters or under a Subsidiary Guarantee Agreement
with respect to such matters, to provide. Such obligation of the Borrower and
the Subsidiary Guarantors to reimburse the Agent shall be an additional
indebtedness due from the Borrower and the Subsidiary Guarantors, secured by the
Collateral and the Transaction Documents, and shall be payable by the Borrower
and the Subsidiary Guarantors on demand. The Agent, though privileged to do so,
shall be under no obligation to the Borrower or the Subsidiary Guarantors to
make any such expenditures, nor shall the making thereof relieve the Borrower or
the Subsidiary Guarantors of any default in that respect.
Section 6.23 Remittance of Insurance Proceeds. (a) Immediately
upon the receipt of any and all insurance proceeds in respect of a Second Lien
Vessel that are not used to repair or replace the relevant Second Lien Vessel in
accordance with the provisions of the MARAD first mortgage, promptly pay to the
Agent, or cause the applicable Subsidiary Guarantor to pay to the Agent, any
insurance proceeds received by the Borrower or a Subsidiary Guarantor after
payment of such insurance proceeds to MARAD, as first mortgagee thereon, to the
extent of the outstanding amount of the indebtedness owing to MARAD with respect
to such Second Lien Vessel. Such proceeds shall be used to repay the Revolving
Loans outstanding at such time; provided however, if the Borrower delivers to
the Agent appraisals, from an Appraiser selected by the Agent for all of the
Vessels, dated no earlier than ten (10) days prior to the date such proceeds are
received by and paid to the Agent, that demonstrate compliance with Section
6.17, then such proceeds, or portion thereof not required to cause the Borrower
to be in compliance with Section 6.17, shall be remitted by the Agent back to
the Borrower.
(b) Upon the discharge of the first mortgage on any Second Lien
Vessel owned by the Borrower and upon the discharge of all of the first
mortgages on the Second Lien Vessels owned by Seabulk Towing, Inc., the Borrower
or Seabulk Towing, Inc., as the case may be, shall deliver to the Agent an
Assignment of Earnings and Insurances with respect to such Vessel(s), together
with such other documents as may be required to perfect the security interest of
the Agent, on behalf of the Lenders, in such Collateral.
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ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as this Agreement shall
remain in effect or any of the Obligations shall be outstanding, it shall not,
and shall not permit any of the Subsidiary Guarantors to, without the prior
written consent of the Requisite Lenders:
Section 7.01 Indebtedness. Contract for, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness contemplated by this Agreement or any of the
other Transaction Documents;
(b) Indebtedness outstanding on the date hereof which is set forth
on Schedule 4.18 and any extensions, renewals and replacements of any such
Indebtedness, provided that any such Indebtedness indicated on Schedule 4.18 as
"Indebtedness to be Repaid" shall have been repaid on or before the Closing
Date;
(c) accounts payable (for the deferred purchase price of property
or services) from time to time incurred in the ordinary course of business and
guarantees by the Borrower or any Subsidiary Guarantor in the ordinary course of
business of any such obligations incurred by the Borrower or any other
Subsidiary Guarantor;
(d) obligations for current taxes, assessments and other
governmental charges and taxes, assessments or other governmental charges which
are not yet due or are being contested in good faith by appropriate procedures,
diligently prosecuted or appealed;
(e) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(f) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
(g) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness; provided that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this clause (g) shall not exceed $5,000,000 at any
time outstanding;
(h) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that (i) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (ii) the aggregate principal amount
of Indebtedness permitted by this clause (h) shall not exceed $5,000,000 at any
time outstanding;
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(i) Capital Lease Obligations not to exceed $10,000,000 at any
one time;
(j) Indebtedness owing pursuant to hedge agreements entered into
in the ordinary course of business for the purpose of hedging against
fluctuations in interest rates (on money borrowed by the Borrower or any
Subsidiary), commodity prices and foreign exchange rates; and
(k) any Indebtedness (and any extensions, renewals and
replacements of such Indebtedness), to the extent that, at the time such
Indebtedness is contracted for, created, assumed or incurred, and both before
and after giving effect to such Indebtedness, no Default or Event of Default
exists or would exist hereunder.
Section 7.02 Liens. Create, assume, permit or suffer to exist any
mortgage, pledge, encumbrance, security interest or other Lien securing an
obligation on any Vessel or on any other asset, whether now owned or hereafter
acquired, except Permitted Encumbrances and second priority mortgages to secure
a Hedging Agreement pursuant to Section 2.03(d) with respect to the Vessels and
Customary Permitted Liens with respect to such other assets.
Section 7.03 Asset Sales. Sell, lease, transfer, assign or
otherwise dispose of any Vessel unless (a) after giving effect to such sale,
lease, transfer, assignment or disposition, the Borrower is in compliance with
Section 6.17 hereof or (b) the Borrower delivers to the Agent a Qualified
Substitute Vessel and the documents described in Section 6.19 with respect
thereto in order to remain in compliance with Section 6.17.
Section 7.04 Assignment of Insurances. Grant an assignment or
permit or suffer to exist any mortgage, pledge, encumbrance, security interest
or other Lien on the Insurances relating to a Second Lien Vessel other than
Liens in favor of MARAD.
Section 7.05 Sale of Notes or Accounts Receivable. Sell, lease,
transfer, assign or otherwise dispose of any notes, accounts receivable or
other obligations owed to by any Person, except (a) for the purpose of
collection in the ordinary course of its business and (b) to the extent that,
both before and after giving effect to any such sale, lease, transfer,
assignment or disposition (taking into account any prepayment to be made to the
Lenders under this Agreement from the net proceeds of any such sale, lease,
transfer, assignment or disposition), no Default or Event of Default would
exist hereunder.
Section 7.06 Sale and Leaseback. Enter into any arrangements,
directly or indirectly, with any Person whereby it shall sell or transfer any
property, whether real or personal, and used and useful in its business,
whether now owned or hereafter acquired, if it, at the time of such sale or
disposition, intends to lease or otherwise acquire the right to use or possess
(except by purchase) such property or like property for a substantially similar
purpose.
Section 7.07 Restricted Payments. With respect to the Borrower,
declare or pay any dividend or make any distribution on its capital stock or
purchase, redeem, acquire or otherwise retire any capital stock for value (in
each case, a "Restricted Payment"); provided, however, that the Borrower may
make a Restricted Payment so long as, at the time of, and after giving effect
to, the proposed Restricted Payment: (a) no Default or Event of Default shall
have occurred and be continuing and (b) the aggregate amount expended for all
Restricted Payments (the amount so
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expended, if other than in cash, to be determined in good faith by the Board of
Directors) would not exceed fifty percent (50%) of the aggregate amount of the
consolidated net income of the Borrower and its consolidated Subsidiaries
excluding the Lightship Tanker Entities for the fiscal year ended immediately
prior to the fiscal year in which such proposed Restricted Payment is to be
made determined in accordance with GAAP. Notwithstanding the preceding
sentence, (w) the Borrower may make Restricted Payments with the proceeds of
substantially concurrent capital contributions made by its stock holders so
long as no Default or Event of Default shall have occurred and be continuing
prior to or after giving effect thereto, (x) the Borrower may declare and pay
dividends with respect to its Equity Interests payable solely in additional
shares of its common stock, (y) Subsidiaries of the Borrower may declare and
pay dividends ratably with respect to their Equity Interests, and (z) the
Borrower may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for management, directors or employees of
the Borrower and its Subsidiaries.
Section 7.08 Investments. Make any Investment unless at the time
of, and after giving effect to, the making of any proposed Investment, no
Default or Event of Default has occurred and is continuing or would occur as a
consequence of the making of such Investment. Notwithstanding the foregoing
sentence, the Borrower and the Subsidiary Guarantors may make the following
Investments at any time: (a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof, and (b) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than
$500,000,000.
Section 7.09 Restriction on Payment Restrictions Affecting
Subsidiary Guarantors. Create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction (other than pursuant to this
Agreement) on the ability of the Subsidiary Guarantors to (a) pay dividends or
make any other distributions on its capital stock or any other interest or
participation in its profits or pay any Indebtedness owed to the Borrower, (b)
make advances or loans to the Borrower or (c) transfer any of its properties or
assets to the Borrower, except for such encumbrances or restrictions existing
under or by reason of applicable law.
Section 7.10 Change in Business Engage (directly or indirectly) in
any business other than the business of the Borrower and its Subsidiaries as of
the Closing Date and other businesses reasonably related thereto.
Section 7.11 [Reserved]
Section 7.12 Transactions with Affiliates. Enter into any
transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate, other than on terms and conditions
substantially as favorable to such Person as would be obtainable by such Person
at the time in a comparable arm's-length transaction with a Person other than
an Affiliate. Notwithstanding the foregoing, the restrictions set forth in this
Section 7.12 shall not apply to (a)
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the payment of reasonable and customary fees to directors of the Borrower who
are not employees of the Borrower, (b) any other transaction with any employee,
officer or director of the Borrower or any of its Subsidiaries pursuant to
employee benefit plans and compensation arrangements in amounts customary for
corporations similarly situated to the Borrower or any such Subsidiary and
entered into the ordinary course of business and approved by the Board of
Directors of the Borrower or any committee thereof or the Board of Directors of
such Subsidiary, (c) transactions between or among the Borrower and its
Subsidiaries who are Subsidiary Guarantors and not involving any other
Affiliate, (d) the Stock Purchase Agreement and the Stock Holders Agreement,
and (e) any Restricted Payment permitted by Section 7.07.
Section 7.13 Changes in Offices or Names. Change the location of
the chief executive office of any Credit Party, the office of the chief place
of business any such parties, the office of the Credit Parties in which the
records relating to the earnings or insurances of the Vessels are kept unless
the Agent shall have received thirty (30) days prior written notice of such
change.
Section 7.14 Changes in Fiscal Year. Change its fiscal year.
Section 7.15 Other Indebtedness. For a period, which shall be the
lesser of (a) 60 days following the Closing Date and (b) completion of the
syndication by the Arrangers, engage in any offering, placement or arrangement
of any Indebtedness of the Credit Parties or their Affiliates, other than the
transaction described in this Agreement.
Section 7.16 Consolidation, Merger and Sale of Assets. Consolidate
with, or merge with or into, any other Person or convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing at any future time)
all or substantially all of its property or assets, unless each of the
following conditions is satisfied:
(a) The entity formed by such consolidation or into
which such Credit Party is merged or the Person which acquires by
conveyance or transfer substantially all of the assets of such Credit
Party as an entirety shall expressly assume all of the obligations of
such Credit Party under this Agreement and the other Transaction
Documents pursuant to a written supplement to this Agreement executed
in accordance with Article XI.
(b) Immediately prior to and after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing and the Agent shall have received a certificate from an
Executive Officer to such effect.
(c) The Agent shall have received an opinion of counsel
regarding the merged or consolidated entity, the legality, validity
and enforceability of this Agreement and the other Transaction
Documents, the title to the related Vessels and the priority of the
Mortgages, as applicable.
(d) Upon any consolidation or merger, or any conveyance
or transfer of substantially all of the assets of such Credit Party as
an entirety in accordance with this Section 7.16, the successor entity
formed by such consolidation or into which such Credit Party is merged
or to which such conveyance or transfer is made shall
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succeed to, and be substituted for, and may exercise every right and
power of, such Credit Party under this Agreement and the other
Transaction Documents with the same effect as if such successor entity
had been named as a Credit Party herein. No such conveyance or
transfer of substantially all of the assets of such Credit Party as an
entirety shall have the effect of releasing such Credit Party or any
successor entity which shall theretofore have become such in the
manner prescribed in this Section 7.16 from its liability hereunder.
Nothing in this Section 7.16 shall restrict the Subsidiary Guarantors
from chartering the Vessels so long as such charters are not bareboat
charters for a period in excess of ten (10) years, except with respect
to bareboat charters of the Second Lien Vessels so long as MARAD is
the first mortgagee thereon and all Vessels owned now or in the future
by Seabulk Towing, Inc. so long as MARAD is the first mortgagee on a
Second Lien Vessel owned by Seabulk Towing, Inc., which shall not be
subject to any such restriction.
ARTICLE VIII
AGREEMENT TO GUARANTEE
Section 8.01 Obligations Guaranteed.
(a) The Subsidiary Guarantors, jointly and severally,
hereby unconditionally guarantee to each of the Agent and the Lenders
(i) the full and prompt payment of the principal of the Notes and the
indebtedness represented thereby and the L/C Obligations when and as
the same shall become due and payable, whether at the stated maturity
thereof, by acceleration, call for redemption or otherwise; (ii) the
full and prompt payment of interest on the Notes and the L/C
Obligations when and as the same shall become due and payable
(including interest at the Overdue Rate on any part of the principal
amount, interest amount or other amount due under this Agreement and
not paid when due); (iii) the full and prompt payment of an amount
equal to each and all of the payments and other sums when and as the
same shall become due, required to be paid by the Borrower under the
terms of this Agreement and under each of the other Transaction
Documents to which it is a party and (iv) the full and prompt
performance and observance by the Borrower of the obligations,
covenants and agreements required to be performed and observed by the
Borrower under the terms of this Agreement and under each of the other
Transaction Documents to which it is a party (items (i) through (iv),
the "Subsidiary Guarantee Obligations"). The Subsidiary Guarantors
hereby irrevocably and unconditionally agree that upon any default by
the Borrower in the payment, when due, of any principal of, interest
on or other amounts (including amounts in respect of fees and
indemnification owing to the Agent or the Lenders) due under the
Notes, this Agreement or any other Transaction Document, the
Subsidiary Guarantors will promptly pay the same within ten (10) days
after receipt of written demand therefor from the Agent or any Lender.
The Subsidiary Guarantors further hereby irrevocably and
unconditionally agree that upon any default by the Borrower in any of
its obligations, covenants and agreements required to be performed and
observed by the Borrower under this Agreement and under each of the
other Transaction Documents to which it is a party, the Subsidiary
Guarantors will effect the observance of such
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obligations, covenants and agreements within ten (10) days after
receipt of written demand therefor from the Agent or any Lender.
(b) All payments by the Subsidiary Guarantors shall be
paid in the lawful currency of the United States of America. Each and
every default (i) in the payment of the principal of, premium, if any,
interest on or other amounts due under the Notes or L/C Obligations,
(ii) in the payment of any sum required to be paid by the Borrower
under the terms of this Agreement or the other Transaction Documents,
or (iii) in the prompt performance and observance by the Borrower of
all of the obligations, covenants and agreements required to be
performed and observed by the Borrower under the terms of the
Transaction Documents, shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each cause
of action arises.
(c) The Subsidiary Guarantors further agree that the
Subsidiary Guarantee Obligations constitute an absolute,
unconditional, present and continuing guarantee of performance and
payment and not of collection, and waives any right to require that
any resort be had by the Agent and the Lenders to (i) any security
held by or for the benefit of the Agent and the Lenders for payment of
the principal of, premium, if any, interest on or other amounts due
under the Notes, this Agreement or the Transaction Documents, (ii) the
Agent's and Lenders' right against any other Person, or (iii) any
other right or remedy available to the Agent and the Lenders by
contract, applicable law or otherwise. The Subsidiary Guarantee
Obligations are direct, unconditional and completely independent of
the obligations of any other Person or entity, and a separate cause of
action or separate causes of action may be brought and prosecuted
against the Subsidiary Guarantors without the necessity of any other
party or previous proceeding with or exhausting any other remedy
against any other Person who might have become liable for the
indebtedness or of realizing upon any security held by or for the
benefit of the Agent and the Lenders.
(d) The Subsidiary Guarantors shall pay to the Agent and
the Lenders all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred by the Agent and the
Lenders upon the occurrence of an Event of Default under any or all of
the Transaction Documents.
Section 8.02 Subsidiary Guarantee Obligations of Subsidiary
Guarantors Unconditional. The Subsidiary Guarantee Obligations shall be
absolute and unconditional and shall remain in full force and effect until (1)
the entire principal of, premium, if any, interest on and other amounts due
under the Notes and the L/C Obligations shall have been paid and (2) all other
sums payable by the Borrower and the Subsidiary Guarantors under this Agreement
and the other Transaction Documents have been paid in full (including, without
limitation, Section 8.01 hereof) have been paid in full, and, to the extent
permitted by law, such Subsidiary Guarantee Obligations shall not be affected,
modified, released or impaired by any state of facts or the happening from time
to time of any event, including, without limitation, any of the following,
whether or not with notice to or the consent of the Subsidiary Guarantors:
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(a) the invalidity, irregularity, illegality,
frustration or unenforceability of, or any defect in, (i) any
Transaction Document or (ii) any collateral security given in
connection therewith;
(b) any present or future law or order of any government
(de jure or de facto) or of any agency thereof purporting to reduce,
amend or otherwise affect the Notes, the L/C Obligations or any other
obligation of the Borrower or any other obligor or to vary any terms
of payment;
(c) any claim of immunity on behalf of the Borrower or
any other obligor or with respect to any property of the Borrower or
any other obligor;
(d) the waiver, compromise, settlement, release,
extension, change, modification or termination of any or all of the
obligations, covenants or agreements of (i) the Borrower under this
Agreement or any other Transaction Document (except by payment in full
of all its Obligations under this Agreement) or (ii) the Subsidiary
Guarantors with respect to the Subsidiary Guarantee Obligations
(except by payment in full of all the Subsidiary Guarantee Obligations
hereunder);
(e) the failure to give notice to the Subsidiary
Guarantors of the occurrence of a Default or an Event of Default
hereunder or under any other Transaction Document;
(f) the transfer, assignment, sublease or mortgaging, or
the purported or attempted transfer, assignment, sublease or
mortgaging, of all or any part of the interest of the Borrower in any
of its properties, or any failure of or defect in the title with
respect to the Borrower's interest in any of its properties;
(g) the release, sale, exchange, surrender or other
change in any collateral security for payment of the Borrower's
Obligations;
(h) the extension of the time for payment of any amounts
payable on the Notes, the L/C Obligations or any part thereof or of
the time for performance of any other obligations, covenants or
agreements under or arising out of this Agreement, any other
Transaction Document or the extension or the renewal of any thereof;
(i) the modification or amendment (whether material or
otherwise) of any Subsidiary Guarantee Obligation, covenant or
agreement set forth in any Transaction Document;
(j) the taking of, or the omission to take, any of the
actions referred to in this Agreement or any Transaction Document;
(k) any failure, omission, delay, or lack on the part of
the Agent or the Lenders or any other Person to enforce, assert or
exercise any right, power or remedy conferred on the Agent and the
Lenders or such other Person in this Agreement or any other
Transaction Document;
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(l) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the
assets, marshalling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement or composition with creditors or
readjustment of, or other similar proceedings affecting the Subsidiary
Guarantors or any of their assets, or any allegation or contest of the
validity of this Agreement, or any other Transaction Document, or the
disaffirmance or attempted disaffirmance of this Agreement or any
other Transaction Document, in any such proceedings;
(m) any event or action that would, in the absence of
this Section, result in the release or discharge of the Subsidiary
Guarantors from the performance or observance of any Subsidiary
Guarantee Obligation, covenant or agreement contained in this
Guarantee, other than the performance thereof;
(n) the default or failure of any Subsidiary Guarantor
to fully perform any of its Subsidiary Guarantee Obligations;
(o) any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or a
guarantor;
(p) the actual or purported assignment of any of the
Subsidiary Guarantee Obligations;
(q) the receipt and acceptance by the Agent or the
Lenders of notes, checks or other instruments for the payment of money
made by the Subsidiary Guarantors and any extensions and renewals
thereof (other than the payment in full of the entire principal of,
premium, if any, interest on and other amounts due under the Notes and
the L/C Obligations and all other sums payable by the Borrower and the
Subsidiary Guarantors under this Agreement and the other Transaction
Documents);
(r) to the extent permitted by law, the release or
discharge of the Subsidiary Guarantors from the performance or
observance of any guaranteed obligation, covenant or agreement
contained herein by operation of law;
(s) any release or impairment of the Collateral pledged
under this Agreement or any other Transaction Document;
(t) the release, substitution or replacement in
accordance with the terms of any Transaction Document of any property
subject thereto or any redelivery, repossession, surrender or
destruction of any such property, in whole or in part;
(u) any limitation on the liability or obligations of
the Borrower under this Agreement or any other Transaction Document or
any termination, cancellation, frustration, invalidity or
unenforceability, in whole or in part, of this Agreement or any other
Transaction Document, or any term thereof;
(v) the merger or consolidation or any sale, lease or
transfer of any or all of the assets of the Borrower or any Subsidiary
Guarantor to any Person; or
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(w) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing.
Section 8.03 Waiver of Notice; Expenses. The Subsidiary Guarantors
each hereby expressly waive notice from the Agent and the Lenders of its
acceptance and reliance on the Subsidiary Guarantor's Guarantee or of any
action taken or omitted in reliance hereon. The Subsidiary Guarantors further
expressly waive diligence, presentment, demand for payment, protest, any
requirement that any right or power be exhausted or any action be taken against
the Borrower or against any other obligor under any of the Transaction
Documents or against the Collateral or any other collateral security for the
Obligations. The Subsidiary Guarantors jointly and severally agree to pay all
costs, fees, commissions and expenses (including, without limitation, all court
costs and reasonable attorneys' fees) which may be incurred by the Agent or the
Lenders in enforcing or attempting to enforce the Subsidiary Guarantee
Obligations following any default on the part of any or all of the Subsidiary
Guarantors hereunder, whether the same shall be enforced by suit or otherwise.
Section 8.04 Other Security. The Agent and Lenders may pursue
their rights and remedies against the Subsidiary Guarantors notwithstanding (a)
any other Guarantee of or security for the Obligations and (b) any action taken
or omitted to be taken by the Agent, the Lenders or any other Person to enforce
any of the rights or remedies under such other guarantee or with respect to any
other security.
Section 8.05 No Set-off by the Subsidiary Guarantors. No set-off,
abatement, recoupment, counterclaim, reduction or diminution of an obligation,
or any defense of any kind or nature (other than performance by the Subsidiary
Guarantors of the Subsidiary Guarantee Obligations hereunder) which the
Subsidiary Guarantors have or may have with respect to a claim hereunder, shall
be available hereunder to the Subsidiary Guarantors against the Agent or the
Lenders.
Section 8.06 Joint and Several Obligation. Each of the Subsidiary
Guarantors hereby agrees that it is jointly and severally liable for each of
the Subsidiary Guarantee Obligations hereunder and under each of the other
Transaction Documents. Each of the Subsidiary Guarantors accepts joint and
several liability for all Subsidiary Guarantee Obligations hereunder in
consideration of the financial accommodation to be provided by the Lenders to
the Borrower under this Agreement, and in turn, the Borrower to the Subsidiary
Guarantors, for the mutual benefit, directly and indirectly, of each of the
Subsidiary Guarantors and in consideration of the undertakings by each of the
Subsidiary Guarantors to accept joint and several liability for each of their
Subsidiary Guarantee Obligations.
Each of the Subsidiary Guarantors jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other Subsidiary Guarantors
with respect to the payment and performance of all of the Subsidiary Guarantee
Obligations, it being the intention of the parties hereto that all the
Subsidiary Guarantee Obligations shall be the joint and several obligations of
each of the Subsidiary Guarantors without preferences or distinction among
them.
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If and to the extent that any Subsidiary Guarantor shall fail to make
any payment with respect to any of the Subsidiary Guarantee Obligations as and
when due or to perform any of the Subsidiary Guarantee Obligations in
accordance with the terms thereof, then in each such event, the other
Subsidiary Guarantor will make such payment with respect to, or perform, such
Subsidiary Guarantee Obligations.
The obligations of each Subsidiary Guarantor under the provisions of
this Section 8.06 constitute full recourse obligations of such Subsidiary
Guarantor, enforceable against it to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Agreement or any other Transaction Document against another Subsidiary
Guarantor or any other circumstances whatsoever that under applicable law might
constitute a defense to the joint and several Subsidiary Guarantee Obligations
of such other Subsidiary Guarantor.
Except as otherwise expressly provided herein, each Subsidiary
Guarantor hereby waives notice of acceptance of its joint and several
liability, notice of any and all Subsidiary Guarantee Obligations incurred
hereunder or under any other Transaction Document, notice of the occurrence of
any Default or Event of Default, or of any demand for any payment hereunder or
any other Transaction Document, notice of any action at any time taken or
omitted by the Agent or any Lender under or in respect of any of the Subsidiary
Guarantee Obligations, any requirement of diligence and, generally, all
demands, notices and other formalities of every kind in connection with the
Subsidiary Guarantee Obligations, this Agreement or any other Transaction
Document. Each Subsidiary Guarantor hereby assents to, and waives notice of,
any extension or postponement of the time for the payment of any of the
Subsidiary Guarantee Obligations, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence by the Agent or
any Lender at any time or times in respect of any default by any Subsidiary
Guarantor in the performance or satisfaction of any term, covenant, condition
or provision hereunder or under this Agreement or any other Transaction
Document, any and all other indulgences whatsoever by the Agent or any Lender
in respect of any of the Subsidiary Guarantee Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times,
of any security for any of the Subsidiary Guarantee Obligations or the
addition, substitution or release, in whole or in part, of any Subsidiary
Guarantor. Without limiting the generality of the foregoing, each Subsidiary
Guarantor assents to any other action or delay in acting or failure to act on
the part of the Agent or any Lender, including, without limitation, any failure
strictly or diligently to assert any right or to pursue any remedy or to comply
fully with applicable laws or regulations thereunder which might, but for the
provisions of this Section 8.06, afford grounds for terminating, discharging or
relieving such Subsidiary Guarantor, in whole or in part, from any of its
obligations under this Section 8.06, it being the intention of each Subsidiary
Guarantor that, so long as any of the Subsidiary Guarantee Obligations remain
unsatisfied, the obligations of such Subsidiary Guarantor shall not be
discharged except by performance and then only to the extent of such
performance. The Subsidiary Guarantee Obligations of each Subsidiary Guarantor
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding
with respect to the Borrower or the other Subsidiary Guarantors or any Lender.
The joint and several liability of the Subsidiary Guarantors hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of the Borrower, any Subsidiary Guarantor or
any Lender.
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The provisions of this Section 8.06 are made for the benefit of the
Agent and each Lender and their successors and assigns, and may be enforced by
such party from time to time against any of the Subsidiary Guarantors as often
as occasion therefore may arise and without requirement on the part of the
Agent or any Lender first to marshal any of its claims or to exercise any of
its rights against the other Subsidiary Guarantor or to exhaust any remedies
available to it against the other Subsidiary Guarantor or to resort to any
other source or means of obtaining payment of any of the Subsidiary Guarantee
Obligations or to elect any other remedy. The provisions of this Section 8.06
shall remain in effect until all the Subsidiary Guarantee Obligations shall
have been paid in full or otherwise fully satisfied. If at any time, any
payment, or any part thereof, made in respect of any of the Subsidiary
Guarantee Obligations, is rescinded or must otherwise be restored or returned
by the Agent or any Lender upon the insolvency, bankruptcy or reorganization of
either of the Subsidiary Guarantors, or otherwise, the provisions of this
Section 8.06 will forthwith be reinstated in effect, as though such payment had
not been made.
Section 8.07 Limitation on Liability. Any term or provision of
this Agreement or any other Transaction Document to the contrary
notwithstanding, the maximum, aggregate amount of the Obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Agreement or any other
Transaction Document, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
Section 8.08 Release of Subsidiary Guarantor. So long as no
Default or Event of Default has occurred and is continuing, upon the sale or
other disposition (including by way of consolidation or merger) of a Subsidiary
Guarantor or the sale or disposition of all or substantially all the assets of
such Subsidiary Guarantor in compliance with the terms of this Agreement, such
Subsidiary Guarantor shall be deemed released from all obligations under this
Article VIII without any further action required on the part of the Agent or
any Lender. At the request and sole cost and expense of the Borrower, the Agent
shall execute and deliver an appropriate instrument evidencing such release.
ARTICLE IX
EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS
Section 9.01 Events of Default. Any one or more of the following
events shall constitute an Event of Default:
(a) if any payment of any Reduction Amount, interest,
fees, charge or any other amounts due to the Agent or the Lenders
under the Notes, this Agreement, the Mortgages, or any Transaction
Document, whether at the stated maturity thereof or at any date fixed
for payment by acceleration, by notice of prepayment or otherwise,
shall not be made on the due date thereof and if such failure to pay
shall remain unremedied for two (2) Business Days;
(b) if the Borrower shall default in the performance or
observance of any covenant contained in Sections 6.14, 6.15, 6.16,
6.17, 6.18, 6.19, 6.23 or in Article
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VII of this Agreement, Sections 4.01 and 4.02 of the Assignment(s) of
Earnings and Insurances, Sections 4.01 and 4.02 of the Assignment(s)
of Insurances, the second sentence of Section 5 and Section 7(a) of
the Pledge Agreement(s) and Article I, Sections 4, 5(a)(ii), 7, 9, 10,
12(a), 13(b), 14 and 19 of the Mortgages and Deeds of Covenant;
(c) if the Borrower shall default in any material
respect in the performance or observance of any covenant contained in
Article VI of this Agreement or any other covenant, agreement or
condition (other than those set forth in (a) or (b) above) contained
in this Agreement or in any other Transaction Document and such
default shall not be cured by the earlier of (i) twenty (20) days
after an Executive Officer of the Borrower had actual knowledge of
such default and (ii) twenty (20) days after receipt by the Borrower
of notice thereof from the Agent;
(d) if any representation or warranty made by a Credit
Party herein or in any other Transaction Document shall prove to have
been false, incorrect or misleading in any material respect on the
date as of which made and uncured at the time discovered and shall not
have been cured by the earlier of (i) 30 days after an Executive
Officer of a Credit Party obtains actual knowledge thereof and (ii) 30
days after receipt by the Borrower of notice thereof from the Agent;
(e) if a Credit Party shall (i) generally not be paying
its debts as they come due, (ii) file a petition in bankruptcy or a
petition to take advantage of any insolvency act, (iii) become
insolvent or make an assignment for the benefit of its creditors, (iv)
consent to the appointment of a custodian or receiver of itself or of
the whole or any substantial part of its property, (v) on a petition
in bankruptcy filed against it, have an order for relief entered
against it or (vi) file a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable
law;
(f) if a petition in bankruptcy shall be filed against a
Credit Party or any of their respective subsidiaries and not dismissed
within 60 days from the date of the filing;
(g) if a court of competent jurisdiction shall enter an
order, judgment or decree appointing, without the consent of an
affected entity, a custodian or receiver of a Credit Party, or of the
whole or any substantial part of its property, or approving a petition
filed against such entity seeking reorganization or arrangement of
such entity under applicable law, and such order, judgment or decree
shall not be set aside or stayed within 60 days from the date of its
entry;
(h) if, under the provisions of any other law for the
relief or aid of debtors, any court of competent jurisdiction shall
assume custody or control of a Credit Party or of the whole or any
substantial part of such entity's property and such custody or control
shall not be terminated or stayed within 60 days from the date of
assumption of custody or control;
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(i) if a final judgment, a fine or other order for the
payment of money in excess of $2,000,000 or the equivalent thereof in
another currency shall be rendered by a court or administrative agency
against a Credit Party and such entity shall not discharge the same or
provide for its discharge in accordance with its terms, or procure a
stay of execution thereof within 30 days from the date of its entry
and within the 30-day period, or any longer period during which
execution of such judgment, fine or other order shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during the appeal;
(j) if a Credit Party shall default (as principal or
guarantor or other surety) in any payment of principal or interest on
any obligation for money borrowed beyond any period of grace provided
with respect thereto, or if any other default under any agreement
under which any such obligation is created or under any instrument
securing or evidencing such obligation, shall have occurred, if the
effect of such other default is to cause, or permit the holder of such
obligation to cause, such obligation to become due prior to its stated
maturity; provided, however, in the case of any such obligation for
money borrowed as to which any such default in any payment of
principal or interest or any such other default has occurred, it shall
not constitute an Event of Default under this clause (j) unless (i)
with respect to any such obligation for borrowed money evidenced by
common loan documents (such as a single credit agreement or a single
series of notes), the principal amount of such obligation exceeds
$2,500,000, or (ii) the principal amount of all such obligations for
money borrowed (including, without limitation, any such obligations
described in the immediately preceding clause (i)) as to which any
such default then exists exceeds $5,000,000 in aggregate;
(k) if an Event of Default has occurred and is
continuing under a Security Document or if any of the Transaction
Documents shall for any reason other than the satisfaction in full of
the Obligations cease to be, or be asserted by a Credit Party not to
be, a legal, valid and binding obligation of such Credit Party,
enforceable in accordance with its terms, except to the extent that
such enforceability may be limited by any applicable bankruptcy,
insolvency or similar laws generally affecting the enforcement of
creditor's rights or by general principles of equity;
(l) if a Borrower shall breach or default under any
Hedging Agreement or any interest rate or currency hedging agreement
in any material respect and such breach or default shall not have been
cured within 30 days; or
(m) if a Subsidiary Guarantor ceases to be a direct or
indirect wholly-owned subsidiary of the Borrower without the written
consent of the Requisite Lenders which consent shall not be
unreasonably withheld.
Section 9.02 Waiver of Default. Any Event of Default may be waived
only with the written consent of the Requisite Lenders. Any Event of Default so
waived shall be deemed to have been cured and not to be continuing, but no such
waiver shall be deemed a continuing waiver or shall extend to or affect any
subsequent like default or impair any rights arising therefrom.
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Section 9.03 Remedies. Upon the occurrence and continuance of any
Default or Event of Default, the Lenders shall have no further obligation to
advance money or extend any additional credit to or for the benefit of the
Borrower, whether in the form of Loans, Letters of Credit or otherwise. In
addition, upon the occurrence and during the continuance of an Event of
Default, the Requisite Lenders or the Agent, on behalf and for the ratable
benefit of the Lenders, may, at the direction of the Requisite Lenders, do any
one or more of the following, all of which are hereby authorized by the
Borrower:
(a) declare (i) all or any of the Notes, the L/C
Obligations, the Obligations of the Borrower under this Agreement, the
other Transaction Documents and any other instrument executed by the
Borrower pursuant to the Transaction Documents to be immediately due
and payable and, upon such declaration, such obligations so declared
due and payable shall immediately become due and payable; provided,
however, that if such Event of Default is under either Sections
9.01(e), (f), (g) or (h), then all of the Obligations shall become
immediately due and payable forthwith without the requirement of any
notice or other action by the Lenders or the Agent;
(b) declare the Commitments and other lending
obligations under the Transaction Documents, if any, terminated,
whereupon the Commitments and such other lending obligations, if any,
of each Lender shall immediately terminate;
(c) exercise any or all of the rights and powers and
pursue any and all of the remedies pursuant to this Article and any of
the other Transaction Documents, to the extent permitted by applicable
law; and
(d) bring suit at law or in equity, to collect the
payments due under each of the Transaction Documents and to recover
judgment for the Obligations hereby secured, and collect the same out
of any and all of the Collateral.
Section 9.04 Rights of Set-Off. Regardless of the adequacy of any
Collateral, during the continuance of an Event of Default, any deposits or
other sums credited by or due from any Lender to the Borrower may be set-off
against the Obligations and any and all other liabilities, direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrower to the Lenders. Any Lender that exercises any such
set-off right shall use reasonable diligence to notify the Borrower of any such
exercise, provided that the failure of such Lender to provide any such notice
shall not affect the validity of such Lender's exercise of such set-off right.
Section 9.05 Rights and Remedies Cumulative. The Lenders' and the
Agent's rights and remedies under this Agreement shall be cumulative and shall
be in addition to every other right, power and remedy herein specifically given
or now or hereafter existing at law, in admiralty, in equity or by statute, and
each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Agent or the Lenders, and the exercise
or the beginning of the exercise of any power or remedy shall not be construed
to be a waiver of the right to exercise at the same time or thereafter any
other right, power or remedy. The Lenders and the Agent shall have all other
rights and remedies not inconsistent herewith as provided by law or in equity.
No exercise by any Lender or the Agent of one right or remedy shall be
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deemed an election. No delay or omission by any Lender or the Agent shall
constitute a waiver, election or acquiescence by such party.
Section 9.06 Specific Remedies. Upon the occurrence and during the
continuance of an Event of Default:
(a) At the request of the Agent, each Credit Party shall
promptly execute and deliver such instruments and other documents as
the Agent may deem necessary or advisable to enable the Agent to
obtain possession of all or any part of the Collateral to which
possession the Lenders shall at the time be entitled hereunder. If a
Credit Party shall for any reason fail to execute and deliver such
instruments and documents after such request by the Agent, the Agent
may obtain a judgment conferring on the Agent the right to such
possession on behalf of the Lenders immediately and requiring such
Credit Party to deliver such instruments and documents to the Agent,
to the entry of which judgment such Credit Party hereby specifically
consents.
(b) The Agent, on behalf of the Lenders, may proceed to
enforce the rights of the Lenders by directing payment to it of all
monies payable under any agreement or undertaking constituting a part
of the Collateral, by proceedings in any court of competent
jurisdiction for the appointment of a receiver or for sale of all or
any part of the Collateral possession to which the Lenders shall at
the time be entitled hereunder or for foreclosure of such Collateral,
and by any other action, suit, remedy or proceeding authorized or
permitted by this Agreement or by law or by equity, and may file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Lenders asserted or
upheld in any bankruptcy, receivership or other judicial proceedings.
(c) The Agent shall be entitled to set-off against and
withdraw all amounts constituting a part of the Collateral and to
apply the same as follows:
First: To the payment of all reasonable expenses and
charges, including the expenses of any taking,
operating, attorney's fees, court costs and other
expenses or advances made or incurred by the Agent in
connection with the ascertainment or protection of
its rights and the pursuance of its remedies
hereunder or under any of the Transaction Documents
(including, without limitation, the reasonable fees
and disbursements of counsel);
Second: To the payment of interest on the Notes and
L/C Obligations;
Third: To the payment of principal on the Notes and
the L/C Obligations;
Fourth: To the payment of all amounts due to the
Agent and the Lenders in respect of taxes,
indemnities, fees, expenses, premiums,
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purchase of liens or otherwise under the provisions
hereof or under any of the Transaction Documents;
Fifth: To the payment of the Obligations in respect
any Hedging Agreement; provided, however, if there is
more than one Counterparty in respect of the Hedging
Agreements, a Counterparty's right to payment
pursuant to this clause Fifth shall be pari pasu with
the rights of each other Counterparty;
Sixth: To the payment of the Obligations, other than
those referred to in First through Fifth above; and
Seventh: To the payment of any surplus thereafter
remaining to the Borrower or whomever may be lawfully
entitled thereto.
(d) Without limiting the foregoing, the Agent and the
Lenders, their respective assigns and legal representatives shall have
all the remedies of a secured party under applicable law and such
further remedies as from time to time may hereafter be provided
pursuant to such law for a secured party. In exercising its power of
sale, the Agent shall be entitled to add to the Loans any and all of
the Agent's or Lenders' expenses incurred in connection therewith.
Section 9.07 Restoration of Rights and Remedies. In case the Agent
or a Lender shall have proceeded to enforce any right, power or remedy under
this Agreement or any other Transaction Document by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Agent or such Lender,
then and in every such case the Borrower, the Agent and the Lenders shall be
restored to their former positions and rights hereunder with respect to this
Agreement, the Transaction Documents, the Collateral, and all rights, remedies
and powers of the Agent and the Lenders shall continue as if no such
proceedings had been taken.
Section 9.08 Cure of Defaults. Subject to the terms of this
Agreement, if at any time after an Event of Default, the Borrower offers
completely to cure all Events of Default and to pay all expenses, advances and
damages to the Agent and the Lenders related to such Events of Default, with
interest with respect to such Borrower's obligations as provided herein, then
the Agent may, but shall not be required to, accept such offer and payment and
restore the Borrower to its former position, but such action, if taken, shall
not affect any subsequent Event of Default or impair any rights consequent
thereon.
ARTICLE X
RELATIONSHIP AMONG THE LENDERS
Section 10.01 Appointment and Authorization. Each Lender hereby
irrevocably appoints, designates and authorizes Fortis as the Agent under this
Agreement and under each of the other Transaction Documents and irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and each other Transaction Document and to exercise such powers
and perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Transaction Document, together with such powers as are
reasonably
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incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Transaction Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Transaction Document or otherwise exist against the
Agent.
Section 10.02 Delegation of Duties. The Agent may execute any of
its duties under this Agreement or any other Transaction Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall not
be responsible for the gross negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care or for any action it
takes on the advice of counsel.
Section 10.03 Liability of Agent. None of the Agent-Related Persons
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Transaction Document
(except for its own gross negligence or willful misconduct), (b) be liable as a
consequence of any failure or delay in performance by, or any breach by, any
other Lender or any other Person, of its obligations under this Agreement or
any other Transaction Document or (c) be responsible in any manner to any
Lender for any recital, statement, representation or warranty made by a Credit
Party, or any officer thereof, contained in this Agreement or in any other
Transaction Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Transaction Document, or for the
value of any Collateral or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Transaction
Document, or for any failure of a Credit Party or any other party to this
Agreement or any other Transaction Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Transaction Document, or to inspect the properties, books or records of
any Credit Party.
Section 10.04 Reliance by the Agent.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon (i) any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and (ii) any advice or
statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Transaction Document unless
it shall first receive such advice or concurrence of the Requisite
Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this
Agreement or any
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other Transaction Document in accordance with a request or consent of
the Requisite Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions precedent specified in Article V, each Lender that has
executed this Agreement or shall hereafter execute and deliver an
Assignment and Acceptance in accordance with Section 10.11 shall be
deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter either sent by the Agent to such
Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender, unless an officer of the Agent responsible
for the transactions contemplated by the Transaction Documents shall
have received notice from the Lender prior to the borrowing specifying
its objection thereto and either such objection shall not have been
withdrawn by notice to the Agent to that effect or the Lender shall
not have made available to the Agent the Lender's Proportionate Share
of such borrowing.
Section 10.05 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of any Reduction Amount,
interest and fees required to be paid to the Agent on behalf and for the
benefit of the Lenders, unless the Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give notice thereof to the Lenders. The Agent shall take such action with
respect to such Default or Event of Default as shall be requested by the
Requisite Lenders in accordance with this Agreement; provided, however, that
unless and until the Agent shall have received any such request, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best commercial interest of the Lenders.
Section 10.06 Credit Decision. Each Lender expressly acknowledges
that none of the Agent-Related Persons has made any representation or warranty
to it and that no act by the Agent hereinafter taken, including any review of
the affairs of a Credit Party, shall be deemed to constitute any representation
or warranty by the Agent to any Lender. Each Lender represents to the Agent
that it has, independently and without reliance upon the Agent and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit
Parties, and all applicable Lender regulatory laws relating to the transactions
contemplated thereby, and made its own decision to enter into this Agreement
and extend credit to the Borrower under and pursuant to this Agreement. Each
Lender also represents that it will, independently and without reliance upon
the Agent and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Transaction Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or
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responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower, which may come into the
possession of any of the Agent-Related Persons.
Section 10.07 Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, the Lenders shall indemnify upon
demand the Agent-Related Persons (to the extent not reimbursed by or on behalf
of the Borrower and without limiting the obligation of the Borrower to do so),
ratably from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind whatsoever which may at any time (including at any time following the
repayment of the Notes and the L/C Obligations and the termination or
resignation of the related Agent) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement, the Transaction Documents or any document contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by any such Person under or in
connection with any of the foregoing; provided, however, that no Lender shall
be liable for the payment to the Agent-Related Persons of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent-Related
Person's gross negligence or willful misconduct. Without limiting the
foregoing, each Lender shall reimburse the Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including reasonable attorney
fees) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under this Agreement, any other
Transaction Document, or any document contemplated by or referred to herein to
the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Borrower. The obligation of the Lenders in this Section 10.07 shall
survive the payment of the Obligations.
Section 10.08 Agent in Individual Capacity. Fortis and its
affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory or other business with the Borrower
and any of its affiliates as though Fortis were not the Agent hereunder and
without notice to or consent of the Lenders. With respect to its Proportionate
Share, Fortis shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" shall include Fortis in its individual capacity.
Section 10.09 Successor Agent. The Agent may resign as Agent upon
thirty (30) days' notice to the Lenders. If the Agent shall resign as Agent
under this Agreement, the Requisite Lenders shall appoint from among the
Lenders a successor agent for the Lenders. If no successor agent is appointed
prior to the effective date of the resignation of the Agent, the Agent may
appoint, after consulting with the Lenders and the Borrower, a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article X shall inure to its benefit as to any actions taken
or omitted to be
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taken by it while it was Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is thirty (30) days following a
retiring Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of
the duties of the Agent hereunder until such time, if any, as the Requisite
Lenders appoint a successor agent as provided for above. Any successor Agent
appointed under this Section 10.09 shall be reasonably acceptable to Borrower.
Section 10.10 Collateral Matters.
(a) The Agent is authorized on behalf of all the
Lenders, without the necessity of any notice to or further consent
from the Lenders, from time to time to take any action with respect to
the Collateral which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral
granted pursuant thereto.
(b) The Lenders irrevocably authorize the Agent, at its
option and in its discretion, to release any Lien granted to or held
by the Agent upon any Collateral (i) upon payment in full of all of
the Notes, the L/C Obligations and all other Obligations then payable
under this Agreement and under any other Transaction Document; (ii)
consisting of an instrument evidencing Indebtedness or other debt
instrument, if the indebtedness evidenced thereby has been paid in
full; (iii) if approved, authorized or ratified in writing by all of
the Lenders or (iv) upon any sale, transfer, assignment or other
disposition of any Collateral, to the extent that the same is
expressly permitted by the terms of this Agreement and the other
Transaction Documents. Upon request by the Agent at any time, the
Lenders will confirm in writing the Agent's authority to release
particular types or items of Collateral pursuant to this Section
10.10(b).
Section 10.11 Assignments, Participations, Etc.
(a) Any Lender may, with the written consent of the
Borrower (other than during the existence of a Default or Event of
Default in which event the Borrower's consent shall not be required)
and the Agent, which consent, in each case, shall not be unreasonably
withheld (which consent of the Borrower and the Agent shall not be
required if the Eligible Assignee is an Affiliate of such Lender or is
another Lender), provided that such assignment shall not result in
increased costs to the Borrower pursuant to Section 2.11, at any time
assign and delegate to one or more Eligible Lender (each an
"Assignee") all, or any ratable part of all, of the Notes, L/C
Obligations and the other rights and obligations of such Lender
hereunder. In the event of a partial assignment (other than to another
Lender or an Affiliate of a Lender), such assignment shall be in a
minimum amount of not less than $5,000,000 and, after giving effect to
such assignment, the assigning Lender's or selling Lender's
Proportionate Share of the Notes and L/C Obligations shall equal an
amount that it not less than $10,000,000, in each case, unless
otherwise agreed in writing by the Borrower and the Agent; provided,
however, that the Borrower and the Agent may continue to deal solely
and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information
with respect to the Assignee,
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shall have been given to the Borrower and the Agent by such Lender and
the Assignee; (ii) such Lender and its Assignee shall have delivered
to the Borrower and the Agent an Assignment and Acceptance in the form
of Exhibit H ("Assignment and Acceptance") together with any Note
subject to such assignment; and (iii) the assignor Lender or the
Assignee has paid to the Agent a processing fee in the amount of
$4,000.
(b) From and after the date that the Agent notifies the
assigning Lender that it has received an executed Assignment and
Acceptance and payment of the above-referenced processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, shall have the rights and obligations
of a Lender under the Transaction Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and
under the other Transaction Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Transaction Documents.
(c) Within five (5) Business Days after its receipt of
notice by the Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee, the Borrower shall
execute and deliver to the Agent, a new Note evidencing such
Assignee's assigned Proportionate Share of the related Loans and, if
the assignor Lender has retained a portion thereof, a replacement Note
in the principal amount of the Proportionate Share of the Loans
retained by the assignor Lender (such Note to be in exchange for, but
not in payment of, the Note held by such Lender). Immediately upon
each Assignee's making its processing fee payment under the Assignment
and Acceptance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of
the Assignee and the adjustment of the Proportionate Share of the
Loans.
(d) Any Lender may at any time sell to one or more
commercial banks or other Persons not affiliates of the Borrower (a
"Participant") participating interests in the Loans, the L/C
Obligations and the other interests of that Lender (the "Originating
Lender") hereunder and under the other Transaction Documents;
provided, however, that (i) the Originating Lender's obligations under
this Agreement shall remain unchanged, (ii) the Originating Lender
shall remain solely responsible for the performance of such
obligations, (iii) the Borrower and the Agent shall continue to deal
solely and directly with the Originating Lender in connection with the
Originating Lender's rights and obligations under this Agreement and
the other Transaction Documents and (iv) no Lender shall transfer or
grant any participating interest under which the Participant shall
have rights to approve any amendment to, or any consent or waiver with
respect to, this Agreement or any other Transaction Documents other
than those that pursuant to the terms of this Agreement require the
consent of the affected Lender; and provided further that, and it is
hereby agreed that, the Borrower shall not be obligated to make any
greater payment or otherwise incur any greater cost or liability under
Section 2.11 than had no such sale of a participating interest
occurred.
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(e) Each Lender agrees to maintain the confidentiality
of all information identified as "confidential" by the Borrower and
provided to it by the Borrower, or by the Agent on the Borrower's
behalf, in connection with this Agreement or any other Transaction
Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to
the terms contemplated by this Agreement; except to the extent such
information (i) was or becomes generally available to the public other
than as a result of a disclosure by the Lender, or (ii) was or becomes
available on a non-confidential basis from a source other than the
Borrower or one of its affiliates; provided, however, that any Lender
may disclose such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which the Lender is
subject or in connection with an examination of such Lender by any
such authority; (B) pursuant to subpoena or other court process; (C)
when required to do so in accordance with the provisions of any
applicable law or requirement of law; and (D) to such Lender's
independent auditors and other professional advisors. If the Agent or
any Lender discloses any such confidential information pursuant to the
provisions of the immediately proceeding proviso, the Agent or such
Lender shall seek to obtain assurance that confidential treatment will
be accorded to such confidential information; provided, however, that
neither the Agent nor any Lender shall have any liability for the
failure to obtain such confidential treatment. Notwithstanding the
foregoing, the Borrower authorizes each Lender to disclose to any
Participant or Assignee and to any prospective Participant or
Assignee, such financial and other information in such Lender's
possession concerning a Borrower or a Subsidiary Guarantor which has
been delivered to the Agent or the Lenders pursuant to this Agreement
or which has been delivered to the Agent or the Lenders by the
Borrower or a Subsidiary Guarantor in connection with the Lenders'
credit evaluation of the Borrower and the Subsidiary Guarantors prior
to entering into this Agreement, provided that such participant or
assignee (or prospective participant or assignee) agrees in writing to
be bound by a confidentiality agreement similar to the provisions of
this Section 10.11(e).
(f) Notwithstanding any other provision contained in
this Agreement or any other Transaction Document to the contrary, any
Lender may assign all or any portion of its Proportionate Share of the
Notes and the L/C Obligations held by it to any Federal Reserve Bank
or the United States Treasury as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank
ARTICLE XI
MISCELLANEOUS
Section 11.01 Notices.
(a) All notices, requests, approvals and other
communications provided for hereunder shall be in writing (including,
unless the context expressly otherwise provides, by facsimile
transmission, provided that any matter transmitted by the Borrower or
a Subsidiary Guarantor by facsimile (i) shall be immediately confirmed
by a telephone call to the recipient at the number specified on the
applicable signature
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page hereof, and (ii) shall be followed promptly by a hard copy
original thereof) and faxed, sent for overnight (next day) delivery or
delivered, to the address or facsimile number specified for notices on
the applicable signature page hereof or, as directed to the Borrower
or the Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as directed to
each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next day) delivery, or transmitted by
facsimile machine, respectively, or if delivered, upon delivery,
except that notices pursuant to Articles II, V, VI and IX shall not be
effective until actually received by the Agent.
(c) The Borrower acknowledges and agrees that any
agreement of the Agent and the Lenders to receive certain notices by
telephone and facsimile is solely for the convenience and at the
request of the Borrower. The Agent and the Lenders shall be entitled
to rely on the authority of any Person purporting to be a Person
authorized by such Borrower to give such notice and the Agent and the
Lenders shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower and the Subsidiary Guarantors to repay the
Obligations shall not be affected in any way or to any extent by any
failure by the Agent and the Lenders to receive written confirmation
of any telephonic or facsimile notice or the receipt by the Agent and
the Lenders of a confirmation which is at variance with the terms
understood by the Agent and the Lenders to be contained in the
telephonic or facsimile notice.
Section 11.02 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the making of the Loans and the issuance of the
Letters of Credit and the execution and delivery of the Notes and shall
continue in full force and effect so long as the Obligations remain
outstanding.
Section 11.03 Governing Law. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
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Section 11.04 Modification of Agreement.
(a) No amendment, modification or waiver of any
provision of this Agreement or any other Transaction Document, and no
consent with respect to any departure by a Borrower therefrom, shall
be effective unless the same shall be in writing and signed by the
Requisite Lenders and acknowledged by the Agent, and then such waiver
shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by each
Lender affected thereby and acknowledged by the Agent, do any of the
following:
(i) increase or extend the Commitment or Proportionate Share of
any Lender, decrease the Applicable Margin, change the
Aggregate Loan Commitment, Tranche A Loan Commitment or
Tranche B Loan Commitment (other than as provided in
Article II) or subject any Lender to any additional
obligations;
(ii) postpone or delay any date fixed for any payment of
principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any Transaction
Document;
(iii) reduce the principal of, or the rate of interest specified
herein on any Loan or L/C Obligation, or of any fees or
other amounts payable hereunder or under any Transaction
Document;
(iv) amend this Section 11.04; or;
(v) amend Section 2.09 or any other provision with respect to
pro rata payments or sharing of recoveries among the
Lenders;
and, provided further that no amendment, modification, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Requisite Lenders
or all the Lenders, as the case may be, affect the rights or duties of the
Agent under this Agreement or any other Transaction Document.
(b) Notwithstanding the provisions of Section 11.04(a),
in order for a Subsidiary of the Borrower to become a Subsidiary
Guarantor pursuant to Section 6.19, this Agreement may be supplemented
for the purpose of adding such Subsidiary as a party hereto with the
consent of the Borrower and the Agent but without the consent of the
other Subsidiary Guarantors or the Lenders.
Section 11.05 Costs and Expenses. The Borrower agrees whether or
not the transactions contemplated hereby shall be consummated, to:
(a) pay or reimburse each Arranger and the Agent within
five (5) Business Days after demand for all costs and expenses
incurred by the Agent or such Arranger in connection with the
development, preparation, delivery, administration and execution of,
and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any other
Transaction Document and any other documents prepared in connection
herewith (including any commitment letter and related
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documents preceding this Agreement) or therewith, and the consummation
of the transactions contemplated hereby and thereby, including the
attorney costs incurred by each Arranger and the Agent with respect
hereto and thereto;
(b) pay or reimburse the Agent and each Lender within
five (5) Business Days after demand for all costs and expenses
incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the Loans
and/or the L/C Obligations, and including in any insolvency
proceedings or appellate proceeding) under this Agreement, any other
Transaction Document, and any such other documents, including attorney
costs incurred by the Agent and any Lender; and
(c) pay or reimburse each Arranger and the Agent within
five (5) Business Days after demand for all reasonable audit,
environmental inspection and review, search and filing, registration
and recording costs, fees and expenses, incurred or sustained in
connection with the matters referred to under Section 11.05(a) and
Section 11.05(b).
Section 11.06 Waivers. No waiver of any of the provisions of this
Agreement (a) shall be valid unless evidenced by a writing executed by each
party to be bound thereby, (b) shall be deemed or shall constitute a waiver of
any other provision of this Agreement or any other provisions hereof (whether
or not similar), or (c) shall constitute a continuing waiver unless otherwise
expressly provided. No delay on the part of the Agent or any Lender in
exercising any right or remedy hereunder shall operate as a waiver thereof nor
shall any single or partial exercise of any power or right or remedy preclude
other or further exercise thereof or the exercise of any other right or remedy.
No notice to or demand on the Borrower or a Subsidiary Guarantor in any case
shall entitle it to any other or further notice or demand in the same or
similar circumstances.
Section 11.07 Indemnification. To the fullest extent permitted by
law, the Borrower agrees to protect, indemnify, defend and hold harmless each
Indemnified Party from and against any and all liabilities, losses,
obligations, damages, penalties, expenses or costs of any kind or nature and
from any suits, judgments, claims or demands (including in respect of or for
attorney costs and other fees and other disbursements of counsel for and
consultants of any Indemnified Party in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnified Party
shall be designated a party thereto) based on any federal, state, local or
foreign law or other statutory regulation, including securities, environmental
and commercial law or other statutory regulation, which arises under common law
or at equitable cause or on contract or otherwise on account of or in
connection with any matter or thing or any action or failure to act by the
Indemnified Parties, or any of them, arising out of or relating to the
Transaction Documents or any agreement or instrument contemplated by the
Transaction Documents, but excluding those arising (x) with respect to an
Indemnified Party, by reason of gross negligence or willful misconduct of such
Indemnified Party or (y) in respect of Taxes (as to which indemnification shall
be applicable only as and to the extent set forth in Section 2.13). Upon
receiving knowledge of any suit, claim or demand asserted by any Person that an
Indemnified Party believes is covered by this indemnity, such Indemnified Party
shall give the Borrower notice thereof and an opportunity to defend it, at the
Borrower's sole cost and expense, with legal counsel satisfactory to such
Indemnified Party. Such Indemnified Party may also require the
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Borrower to defend the matter. The obligations of the Borrower under this
Section 11.07 shall survive the payment and performance of the Obligations and
the termination of this Agreement. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in this Section 11.07 may be
unenforceable because it violates any law or public policy, the Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of its obligations set forth in
this Section 11.07.
Section 11.08 Separability of Provisions; Obligations Several.
(a) If any provision of this Agreement or other
Transaction Document should be deemed invalid under any applicable
law, such provision shall be void and of no effect and shall cease to
be a part of this Agreement or other Transaction Document without
affecting the remaining provisions, which shall remain in full force
and effect.
(b) In the event that this Agreement, the Notes, any
Transaction Document or any of the documents or instruments which may
from time to time be delivered hereunder or thereunder or any
provision hereof or thereof shall be deemed invalidated by present or
future law of any nation or by decision of any court, or if any third
party shall fail or refuse to recognize any of the powers granted to
the Agent hereunder when it is sought to exercise them, this shall not
affect the validity and/or enforceability of all or any other parts of
this Agreement, the Notes, any Transaction Document or such documents
or instruments and, in any such case, the Borrower covenants and
agrees that, on demand, they will execute and deliver such other and
further agreements and/or documents and/or instruments and do such
things as the Agent in its sole discretion may deem to be necessary to
carry out the true intent of this Agreement and of the obligations
secured hereby.
Section 11.09 Counterparts. This Agreement and any amendment,
waivers, consents or supplements hereto may be executed in two or more
counterparts, any by different parties hereto in different counterparts, each
of which when so executed shall constitute an original, but all of which, when
taken together, shall constitute but one Agreement.
Section 11.10 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties, and
there are no warranties, representations or other agreements between the
parties in connection with the subject matter hereof except as specifically set
forth or incorporated herein.
Section 11.11 Headings. Section and paragraph headings and the
table of contents are not to be considered part of this Agreement, are included
solely for convenience and are not intended to be full or accurate descriptions
of the contents thereof. Sections and paragraphs mentioned by number only are
the respective sections and paragraphs of this Agreement. The use of the terms
"herein", "hereunder", "hereof", and like terms shall be deemed to refer to
this entire Agreement and not merely to the particular provision in which the
term is contained, unless the context clearly indicates otherwise.
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Section 11.12 Successors and Assigns. All Persons shall be deemed
to include the successors or assigns thereof. All of the terms and provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective transferees, legal representatives, heirs,
successors and assigns; provided, however, that (a) the Borrower may not assign
its rights or obligations hereunder without the prior written consent of the
Agent and each Lender and (b) the Lenders may assign their respective rights
and obligations hereunder only in accordance with Section 10.11 hereof.
Section 11.13 Gender and Number. Words importing a particular
gender mean and include every other gender and words importing the singular
number mean and include the plural number and vice-versa.
Section 11.14 Exhibits. Exhibits to this Agreement are an integral
part of this Agreement.
Section 11.15 Notification of Addresses, Lending Offices, Etc. Each
Lender shall notify the Agent in writing of any changes in the address to which
notices to the Lender should be directed, of addresses of its Lending Office,
of payment instructions in respect of all payments to be made to it hereunder
and of such other administrative information as the Agent shall reasonably
request.
Section 11.16 No Third Parties Benefitted. This Agreement is made
and entered into for the sole protection and legal benefit of the Borrower, the
Subsidiary Guarantors, the Lenders, the Arrangers and the Agent, and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any of the other Transaction
Documents. None of the Agent, the Arrangers nor any Lenders shall have any
obligation to any Person not a party to this Agreement or other Transaction
Documents.
Section 11.17 Equitable Relief. The Borrower recognizes that, in
the event it fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, the Notes or any of the other Transaction
Documents, any remedy at law may prove to be inadequate relief to the Lenders
or the Agent; therefore, the Borrower agrees that the Lenders or the Agent, if
the Lenders so request, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
Section 11.18 Notice of Claims; Claims Bar. THE BORROWER AND EACH
SUBSIDIARY GUARANTOR HEREBY AGREES THAT IT SHALL GIVE PROMPT NOTICE OF ANY
CLAIM OR CAUSE OF ACTION IT BELIEVES IT HAS, OR MAY SEEK TO ASSERT OR ALLEGE
AGAINST ANY LENDER, EITHER ARRANGER OR THE AGENT, WHICH SUCH CLAIM IS BASED IN
LAW OR EQUITY OR ADMIRALTY, ARISING UNDER OR RELATED TO THIS AGREEMENT, THE
NOTES OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR TO THE LOANS, THE L/C
OBLIGATIONS OR SUBSIDIARY GUARANTOR OBLIGATIONS (OR THE COLLATERAL THEREFOR)
CONTEMPLATED HEREBY OR THEREBY OR ANY ACT OR OMISSION TO ACT BY ANY LENDER,
EITHER ARRANGER OR THE AGENT WITH RESPECT HERETO OR
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THERETO, AND THAT IF IT SHALL FAIL TO GIVE SUCH PROMPT NOTICE TO THE AGENT WITH
REGARD TO ANY SUCH CLAIM OR CAUSE OF ACTION, IT SHALL BE DEEMED TO HAVE WAIVED,
AND SHALL BE FOREVER BARRED FROM BRINGING OR ASSERTING SUCH CLAIM OR CAUSE OF
ACTION IN ANY SUIT, ACTION OR PROCEEDING IN ANY COURT OR BEFORE ANY
GOVERNMENTAL AGENCY.
Section 11.19 Waiver of Punitive Damages. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EACH PARTY HERETO HEREBY AGREES
THAT IT SHALL NOT SEEK FROM ANY OTHER PARTY HERETO, UNDER ANY THEORY OF
LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY THEORY IN TORTS, ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.
Section 11.20 Consent to Jurisdiction. (a) Any legal suit, action
or proceeding against a Credit Party arising out of or relating to this
Agreement or any other Transaction Document, or any transaction contemplated
hereby or thereby, may be instituted in any federal or state court of competent
jurisdiction in The City of New York, State of New York, and each Credit Party
hereby irrevocably submits to the jurisdiction of any such court in any such
suit, action or proceeding. Each Credit Party hereby waives, to the fullest
extent permitted by applicable law, any defense which it may now or hereafter
have based upon lack of personal jurisdiction or venue or forum non conveniens.
Each Credit Party hereby irrevocably appoints and designates Corporate
Creations Network, Inc., having an address at 000 Xxxxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000, as its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting service of legal process
and each Credit Party agrees that service of process upon such party shall
constitute personal service of such process such Credit Party. Each Credit
Party shall maintain the designation and appointment of such authorized agent
until all Obligations shall have been paid in full. If such agent shall cease
to so act, the Credit Parties shall immediately designate and appoint another
such agent satisfactory to the Agent and shall promptly deliver to the Agent
evidence in writing of such other agent's acceptance of such appointment.
Section 11.21 Waiver of Jury Trial. THE BORROWER, EACH SUBSIDIARY
GUARANTOR, EACH ARRANGER, EACH LENDER AND THE AGENT HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
THE NOTES OR THE OTHER TRANSACTION DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
Section 11.22 Currency Indemnity. Any payment or payments made to
or for the account of the Agent, either Arranger or any Lender in a currency
other than the currency in which such payment is required to be made hereunder
or under any other Transaction Document (the "Required Currency") for any
reason (pursuant to a judgment or order of a court or tribunal of any
jurisdiction) shall only constitute a discharge to the Borrower to the extent
of the amount of the Required Currency which the Agent, such Arranger or
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such Lender is, acting in good faith and exercising reasonable and customary
diligence, able to purchase in New York City with the amount or amounts so
received on the date or dates of receipt by the Agent, such Arranger or such
Lender of such payment or payments (or if such date is not a Business Day on
the next succeeding Business Day). If the amount of the Required Currency which
the Agent, such Arranger or such Lender is so able to purchase falls short of
the amount of the Required Currency due to the Agent, such Arranger or such
Lender, the Borrower shall indemnify and hold the Agent, such Arranger or such
Lender harmless against any loss or damage arising as a result. This indemnity
shall constitute a separate and independent obligation from the other
obligations contained in this Agreement, shall give rise to an independent
cause or causes of action, shall apply irrespective of any indulgence granted
by the Agent, such Arranger or such Lender from time to time and shall continue
in full force and effect notwithstanding any judgment or order for a liquidated
sum or sums in respect of the amount due hereunder or under any such judgment
or order.
Section 11.23 Release of Lien. In the event that the Borrower or a
Subsidiary Guarantor sells, leases, transfers, assigns or otherwise disposes of
a Vessel in accordance with Section 7.03, the Agent shall execute and file such
instruments and take such actions, at the expense of Borrower, as may be
reasonably requested to release such Vessel and the related collateral from the
Lien securing the Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FORTIS CAPITAL CORP. as Agent, Arranger,
Bookrunner and Lender
By:
-------------------------------------------
By:
-------------------------------------------
Address: Three Stamford Plaza, 000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
NIB CAPITAL BANK N.V., as Arranger and
Lender
By:
-------------------------------------------
By:
-------------------------------------------
Address:
Phone:
Fax:
SEABULK INTERNATIONAL, INC.,
the Borrower,
By:
-------------------------------------------
Address: 0000 Xxxxx Xx., Xxxx Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
SEABULK ARIES II, INC.
SEABULK XXXXX, INC.
SEABULK CAPRICORN, INC.
SEABULK XXXXX, INC.
SEABULK CHAMP, INC.
SEABULK COOT I, INC.
SEABULK COOT II, INC.
SEABULK CORMORANT, INC.
SEABULK CYGNET I, INC.
SEABULK CYGNET II, INC.
SEABULK DANAH, INC.
SEABULK DEFENDER, INC
SEABULK DUKE, INC.
SEABULK EAGLE II, INC.
SEABULK EMERALD, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON II, INC.
SEABULK FREEDOM, INC.
SEABULK GANNET II, INC.
SEABULK GIANT, INC.
SEABULK XXXXX, INC.
SEABULK HAWAII, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HORIZON, INC.
SEABULK KESTREL, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK XXXXXXX, INC.
SEABULK XXXXXX I, INC.
SEABULK XXXXXX XX, INC.
SEABULK MASTER, INC.
SEABULK MERLIN, INC.
SEABULK NEPTUNE, INC.
SEABULK OSPREY, INC.
SEABULK OFFSHORE, LTD.
By its general partner Seabulk Tankers, Ltd
By its general partner Seabulk Transport, Inc.
SEABULK PENGUIN I, INC.
SEABULK PENGUIN II, INC.
SEABULK XXXXX, INC.
SEABULK PERSISTENCE, INC.
SEABULK PETREL, INC.
SEABULK RAVEN, INC.
SEABULK SERVICE, INC.
SEABULK TENDER, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TOWING, INC.
SEABULK VERITAS, INC.
SEABULK ALKATAR, INC.
SEABULK CLIPPER, INC.
SEABULK CONSRUCTOR, INC.
SEABULK HABARA, INC.
SEABULK JEBEL ALI, INC.
SEABULK MAINTAINER, INC.
SEABULK SAPPHIRE, INC.
SEABULK XXXX, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK HERON, INC.
SEABULK JASPER, INC.
SEABULK LINCOLN, INC.
SEABULK MALLARD, INC.
SEABULK PLOVER, INC.
SEABULK SWIFT, INC.
SEABULK OFFSHORE U.K. LIMITED
SEABULK TOWING SERVICES, INC.
OFFSHORE MARINE MANAGEMENT
INTERNATIONAL, INC.,
SEABULK TANKERS, LTD.
By its general partner Seabulk Transport, Inc.
SEABULK TRANSPORT, INC.
SEABULK MARINE INTERNATIONAL, INC.
SEABULK OCEAN SYSTEMS HOLDING CORPORATION
SEABULK OFFSHORE INTERNATIONAL, INC.
SEABULK OFFSHORE OPERATORS, INC.
SEABULK OFFSHORE GLOBAL HOLDINGS, INC.
SEABULK OFFSHORE HOLDINGS, INC.
SEABULK TANKERS, INC.
SEABULK OFFSHORE OPERATORS
TRINIDAD LIMITED,
each a Subsidiary Guarantor
By:
-------------------------------------------
Address: 0000 Xxxxx Xx., Xxxx Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
APPENDIX A DEFINITIONS
"Adjusted EBITDA" means, with respect to the Borrower for any period,
an amount equal to EBITDA for each of the Borrower's most recently ended four
fiscal quarters, as reported in the financial statements most recently
delivered to the Agent, minus that portion of EBITDA attributable to the
Lightship Tanker Entities plus an amount equal to the dividends received during
such period from the Lightship Tanker Entities.
"Adjusted Funded Debt" means, with respect to the Borrower for any
period, the average of the Borrower's Consolidated Funded Debt less any
Indebtedness relating to the Lightship Tanker Entities for each of the
Borrower's most recently ended four fiscal quarters, as reported in the
financial statements most recently delivered to the Agent; provided, however,
until the completion of four full fiscal quarters following the Closing Date,
the Consolidated Funded Debt for the fiscal quarters ending prior to the first
full fiscal quarter after the Closing Date shall be determined as if the
Existing Indebtedness were repaid and the Facility had been entered into as of
the first day of such four full fiscal quarter period.
"Adjusted Funded Debt Ratio" means as of any date of determination the
ratio of (x) the Adjusted Funded Debt to (y) the Adjusted EBITDA.
"Adjusted Interest Expense" means, with respect to the Borrower for
any period, the Consolidated Interest Expense less any such Consolidated
Interest Expense relating to the Lightship Tanker Entities for each of the
Borrower's most recently ended four fiscal quarters, as reported in the
financial statements most recently delivered to the Agent; provided, however,
until the completion of four full fiscal quarters following the Closing Date,
the Adjusted Interest Expense for the fiscal quarters ending prior to the first
full fiscal quarter after the Closing Date shall be determined as if the
Existing Indebtedness were repaid and the Facility had been entered into as of
the first day of such four full fiscal quarter period.
"Adjusted LIBOR" means, for each Interest Period in respect of a LIBOR
Loan, an interest rate per annum (rounded upward to the nearest 1/16th of one
percent (0.0625%)) determined pursuant to the following formula:
Adjusted LIBOR = LIBOR
------------------------------------
1.00 - Reserve Percentage
The Adjusted LIBOR shall be adjusted automatically as of the effective date of
any change in the Reserve Percentage.
"Adjusted Tangible Net Worth" means with respect to the Borrower, as
of any date of determination, the Consolidated Tangible Net Worth of the
Borrower less any Consolidated Tangible Net Worth relating to the Lightship
Tanker Entities.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person, or (ii) that directly or indirectly
owns more than 10% of the voting securities of such Person. A Person shall be
deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract
or otherwise. For purposes of this definition, the terms "controlling,"
"controlled by" and "under common control with" have correlative meanings.
"Agent" has the meaning set forth in the initial paragraph of the
Agreement.
"Agent-Related Persons" means the Agent, together with its Affiliates
and the officers, directors, employees, agents and attorneys-in-fact of the
Agent and its Affiliates.
"Aggregate Loan Commitment" means the sum of the Aggregate Tranche A
Loan Commitment and the Aggregate Tranche B Loan Commitment.
"Aggregate Tranche A Loan Commitment" means the aggregate of the
Tranche A Loan Commitments for the Lenders, which on the Closing Date shall
equal $100,000,000.00, subject to adjustment as set forth in Sections 2.06 and
2.07 of the Credit Agreement.
"Aggregate Tranche A Loan Commitment Reduction Amount" shall have the
meaning set forth in Section 2.06(a) of the Agreement.
"Aggregate Tranche B Loan Commitment" means the aggregate of the
Tranche B Loan Commitments for the Lenders, which on the Closing Date shall
equal $80,000,000.00, subject to adjustment as set forth in Sections 2.06 and
2.07 of the Credit Agreement.
"Agreement" means the Credit Agreement, dated as of September 13,
2002, among the Borrower, the Subsidiary Guarantors, the Lenders, the Agent and
the Arrangers, as modified, supplemented or amended from time to time.
2
"Applicable Margin" means, with respect to each Loan, the margin set
forth below if the Adjusted Funded Debt Ratio determined as of the most recent
fiscal quarter is:
------------------------------------------------------------------------------------------------------------------
ADJUSTED FUNDED DEBT RATIO LIBOR MARGIN BASE RATE MARGIN
------------------------------------------------------------------------------------------------------------------
REVOLVING TERM REVOLVING TERM
LOANS LOANS LOANS LOANS
------------------------------------------------------------------------------------------------------------------
equal to or greater than 3.75 3.50% 4.00% 2.50% 3.00%
------------------------------------------------------------------------------------------------------------------
equal to or greater than 3.00, but less 3.00% 3.50% 2.00% 2.50%
than 3.75
------------------------------------------------------------------------------------------------------------------
equal to or greater than 2.00, but less 2.50% 3.00% 1.50% 2.00%
than 3.00
------------------------------------------------------------------------------------------------------------------
less than 2.00 1.75% 2.25% 0.75% 1.25%
------------------------------------------------------------------------------------------------------------------
Notwithstanding the above, the Applicable Margin shall be subject to adjustment
as set forth in Section 2.03(e) of the Credit Agreement.
"Appraiser" means any of Fearnleys A.S., X.X. Xxxxxx Shipbrokers A.S.,
Bassoe Offshore A.S., X. Xxxxxxxx Ltd., Xxxxxxx Xxxxxx Xxxxx Ltd., Xxxxxxx
Xxxxx Xxxxx & Xxxxx, Inc., Compass Maritime Services LLC, Xxxxxxxxx Stemoco
Shipbrokers A.S., Braemar Shipbrokers Ltd., Xxxxx Xxxxxxxx Xxxxxx, Poten &
Partners, Inc., Xxxxxx Xxxxxx & Sons, XxXxxx Xxxxxx & Xxxxxxx, Inc. and Nobel
Xxxxxx Marine, together with any other Person not affiliated with the Borrower
and acceptable to the Agent engaged in the business of appraising vessels,
including tug and supply service vessels.
"Approved Jurisdiction" means United States of America, Republic of
Liberia, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx xx Xxxxxxxx, Xxxxxx Xxxxxxx, St.
Xxxxxxx and the Grenadines, Panama or such other jurisdiction as may be
acceptable to the Requisite Lenders.
"Arranger" and "Arrangers" have the meaning set forth in the initial
paragraph of the Agreement.
"Asset Coverage Ratio" means, at any time, the ratio of (x) the
aggregate Fair Market Value of the Vessels (excluding laid-up Vessels, Vessels
held for sale and the Second Lien Vessels other than the Seabulk Trader and the
Seabulk Challenge) at such time to (y) the aggregate outstanding principal
amount of the Term Loans, Revolving Loans and Stated Amount of the Letters of
Credit then outstanding.
"Assignee" shall have the meaning provided in Section 10.11(a) of the
Credit Agreement.
"Assignment and Acceptance" shall have the meaning provided in Section
10.11(a) of the Credit Agreement.
3
"Assignment of Earnings and Insurances" means an assignment between
the Borrower or a Subsidiary Guarantor and the Agent, on behalf of the Lenders,
as the same from time to time may be amended, restated, modified, supplemented
or renewed, in each case in accordance with the terms thereof, pursuant to
which the Borrower or such Subsidiary Guarantor assigns to the Agent, on behalf
of the Lenders, all of its right, title and interest in, to and under the
Earnings and Insurances with respect to its Vessel.
Assignment of Insurances" means an assignment between Seabulk Towing,
Inc. and the Agent, on behalf of the Lenders, as the same from time to time may
be amended, restated, modified, supplemented or renewed, in each case in
accordance with the terms thereof, pursuant to which Seabulk Towing, Inc.
assigns to the Agent, on behalf of the Lenders, all of its right, title and
interest in, to and under the Insurances with respect to such Vessels.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such
lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as in effect from time to time.
"Base Rate" means for any day, a rate per annum equal to the greater
of (a) the Prime Rate and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective from and
including the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Base Rate Loan" means any Loan designated as such by the Borrower in
the related Drawdown Request at the time of the incurrence thereof, conversion
or continuation thereto, which Loan shall bear interest based on the Base Rate.
"Borrower" has the meaning set forth in the initial paragraph of this
Agreement.
"Business Day" means any day which is not a Saturday, Sunday or legal
holiday or any other day on which banking institutions in New York, The
Netherlands, Norway or Germany are authorized by law or executive order to
close.
"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance
with GAAP.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as same may be amended from time to time.
"Change of Control" means a "change of control" or similar event under
the Existing Indenture.
4
"Change in Law" means (a) the adoption of any law, rule or regulation
after the Closing Date, (b) any change in law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
Closing Date or (c) compliance by any Lender with any request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the Closing Date.
"Closing Date" means September 13, 2002.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of the
Agreement and any subsequent provisions of the Code amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" means the Vessels, the Earnings on the Vessels (other
than the Second Lien Vessels so long as MARAD is the first mortgagee and the
Vessels owned by Seabulk Towing, Inc. so long as MARAD is the first mortgagee
on a Second Lien Vessel owned by Seabulk Towing, Inc.), the Insurances on the
Vessels (other than the Second Lien Vessels), the Mortgages, any Hedging
Agreements, the Equity Interests from time to time subject to the Pledge
Agreement and any other property in which a security interest is created in
favor of the Agent for the benefit of the Lenders to secure the payment and
performance of the Obligations of the Borrower and the Subsidiary Guarantors
under the Credit Agreement.
"Commitment" means either of and "Commitments" means both of the
Tranche A Loan Commitment and the Tranche B Loan Commitment.
"Commitment Fee" means, for the time period commencing on the Closing
Date to and including the Maturity Date (or such earlier date as the Aggregate
Loan Commitments shall have been terminated entirely), a commitment fee
computed at the rate per annum equal to the Commitment Fee Percentage on the
average daily excess amount of (a) the Aggregate Loan Commitments on such date
over (b) the sum of, without duplication, (i) the aggregate principal amount of
the Loans outstanding on such date, (ii) the aggregate amount available for
drawings under the Letters of Credit, and (iii) the aggregate unpaid amount of
all Reimbursement Obligations due and payable as of such date in respect of
previous drawings made under the Letters of Credit. The Commitment Fee shall be
calculated on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) in the
period for which such Commitment Fee is payable.
"Commitment Fee Payment Date" the last Business Day of means each
December, March, June and September, commencing on the Closing Date and ending
on the Maturity Date.
5
"Commitment Fee Percentage" means the percentage set forth below if
the Adjusted Funded Debt Ratio (expressed as a percentage) determined as of the
most recent fiscal quarter is:
------------------------------------------------------------------------------------------------------
ADJUSTED FUNDED DEBT RATIO COMMITMENT FEE PERCENTAGE
------------------------------------------------------------------------------------------------------
equal to or greater than 3.75 0.875%
------------------------------------------------------------------------------------------------------
equal to or greater than 3.00, but less than 3.75 0.750%
------------------------------------------------------------------------------------------------------
equal to or greater than 2.00, but less than 3.00 0.625%
------------------------------------------------------------------------------------------------------
less than 2.00 0.500%
------------------------------------------------------------------------------------------------------
"Company" means any corporation, limited liability company,
partnership or other business entity.
"Compulsory Acquisition" means, with respect to a Vessel, the
requisition for title or other compulsory acquisition of such Vessel (otherwise
than by requisition for hire), capture, seizure, detention or confiscation of
such Vessel by any government or by Persons acting or purporting to act on
behalf of any government or Governmental Authority.
"Consolidated Funded Debt" means, with respect to any Person as of any
date of determination, the sum, without duplication, of (i) the total amount of
Indebtedness of such Person and its Subsidiaries, plus (ii) the total amount of
Indebtedness of any other Person, to the extent that such Indebtedness has been
Guaranteed by such Person or one or more of its Subsidiaries, plus (iii) the
aggregate value of all Disqualified Shares of such Person, in each case,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the sum of:
(A) the total interest expense of the Borrower and the
Subsidiary Guarantors plus, to the extent not
otherwise included in such interest expense (without
duplication), and to the extent incurred by the
Borrower or the Subsidiary Guarantors:
(1) interest expense attributable to Capital
Lease Obligations, the interest expense
attributable to leases constituting part of
a sale and leaseback transaction and the
interest portion of rent expense associated
with Attributable Debt in respect of the
relevant lease giving rise thereto,
determined as if such lease were a
capitalized lease in accordance with GAAP
and the interest component of any deferred
payment obligations;
(2) amortization of debt discount but not debt
issuance costs;
(3) non-cash interest expense;
6
(4) amortization of commissions, discounts and
other fees and charges owed with respect to
letters of credit and bankers' acceptance
financing;
(5) interest accruing on any Indebtedness of
any other Person to the extent such
Indebtedness is Guaranteed by (or secured
by the assets of) the Borrower or any such
Subsidiary Guarantor;
(6) net costs associated with Hedging
Obligations (excluding amortization of fees
paid at the time or entering into such
Hedging Obligations); plus
(B) all dividends, whether paid or accrued and whether
or not in cash, on any series of Preferred Shares of
a Person or any of its Subsidiaries payable to a
Person other than the Borrower or a Subsidiary
Guarantor; plus
(C) cash contributions to any employee stock ownership
plan or other trust for the benefit of employees to
the extent such contributions are used by such plan
or trust to pay interest or fees to any Person
(other than the Borrower and the Subsidiary
Guarantors) in connection with Indebtedness incurred
by such plan or trust to purchase share capital of
the Borrower.
"Consolidated Net Income" means, for any period for any Person, the
net income (loss) of such Person and its consolidated Subsidiaries determined
in accordance with GAAP; provided, however, that there shall not be included in
determining such Consolidated Net Income:
(A) any net income (or loss) of any Subsidiary if at the
date of determination the making of distributions or
the payment of dividends by such Subsidiary are not
permitted without any prior governmental approval
(that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter
or other organizational document or any agreement,
instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that
Subsidiary or its stockholders except:
(i) subject to the limitations contained in
Clause (2) and (3) below, the Borrower's
equity in the net income of any such
Subsidiary for such period shall be
included in such Consolidated Net Income up
to the aggregate amount of cash distributed
by such Subsidiary during such period to
the Borrower or a Subsidiary as a dividend
or other distribution (subject, in the case
of a dividend to a Subsidiary, to the
limitation contained in this clause); and
(ii) the Borrower's equity in a net loss of any
such Subsidiary for such period shall be
included in determining such Consolidated
Net Income;
7
(B) any gain or loss, together with any related
provision for taxes on such gain or loss, realized
upon (i) a sale or other disposition of any assets
of the Borrower, its consolidated Subsidiaries or
any other Person (including pursuant to any sale and
leaseback transaction) which is not sold or
otherwise disposed of in the ordinary course of
business, (ii) the sale or other disposition of any
securities of any Person not sold or otherwise
disposed of in the ordinary course of business or
(iii) the extinguishment of any Indebtedness of any
Person;
(C) any extraordinary gain or loss, together with any
related provision for taxes on such extraordinary
gain or loss.
"Consolidated Tangible Net Worth" of any Person, as of any date of
determination, means the consolidated shareholders' equity of such Person as
determined in accordance with GAAP less (to the extent included) amounts
attributable to Disqualified Shares of such Person plus (i) all expenses or
charges incurred as a result of the transactions contemplated in conjunction
with the Facility plus (ii) US $4,100,000 the amount associated with the
premium and indemnity club charge booked retroactively in July 2002 against the
quarter ended December 31, 2001) less (iii) an amount equal to US $4,100,000
amortized over a period of 24 months beginning with the month of July 2002.
"Contract" shall have the meaning provided in Section 3.04(a) of the
Credit Agreement.
"Counterparty" means any Lender or any Affiliate of a Lender who
enters into a Hedging Agreement with the Borrower.
"Credit Event" means the making of any Loan or the issuance of any
Letter of Credit.
"Credit Party" means either of and "Credit Parties" means both the
Borrower and each Subsidiary Guarantor.
"Customary Permitted Liens" means
(A) Liens for taxes, assessments or charges of any
government authority or claims not yet due or which
are being contested in good faith by appropriate
proceedings and with respect to which adequate
reserves or other appropriate provisions are being
maintained in accordance with the provisions of
GAAP;
(B) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens
imposed by law created in the ordinary course of
business for amounts which are not past due for more
than 30 days or which are being contested in good
faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate
provisions are being maintained in accordance with
GAAP or which in the aggregate do not detract from
the value of the Borrower or any Subsidiary's
property or assets or materially impair the use
thereof in the operation of the business of the
Borrower or such Subsidiary;
8
(C) licenses, leases or subleases granted to other
Persons in the ordinary course of business not
materially interfering with the conduct of the
business of the Borrower and its Subsidiaries taken
as a whole;
(D) easements, rights-of-way, restrictions (including
zoning restrictions), encroachments, protrusions and
other similar charges or encumbrances, and minor
title deficiencies, in each case whether now or
hereafter in existence, not securing obligations for
the payment of borrowed money and not materially
interfering with the conduct of the business of the
Borrower or any of its Subsidiaries;
(E) rights of tenants, subtenants, franchisees or
parties in possession (other than a debtor in
possession, trustee in bankruptcy or receiver of the
Borrower), or options or rights of first refusal,
whether pursuant to leases, subleases, franchise
agreements, other occupancy agreements or otherwise,
if such rights were vested on the Closing Date or
created thereafter in the ordinary course of
business in transactions permitted under the Credit
Agreement;
(F) any interest or title of a lessor, sublessor,
licensee or licensor under any lease or license
agreement permitted by the Credit Agreement;
(G) Liens in favor of a banking institution arising as a
matter of law encumbering deposits (including the
right of set-off) held by such banking institutions
incurred in the ordinary course of business and
which are within the general parameters customary in
the banking industry;
(H) Liens in favor of customs and revenue authorities
arising as a matter of law to secure the payment of
customs duties in connection with the importation of
goods;
(I) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for
the purchase or sale of goods entered into by the
Borrower or any of its Subsidiaries in the ordinary
course of business in accordance with the past
practices of the Borrower and its Subsidiaries;
(J) deposits made to secure statutory obligations in the
form of excise taxes; .
(K) Liens incurred or deposits or pledges made in the
ordinary course of business in connection with
workers' compensation, unemployment insurance and
other types of social security, old age or other
similar obligations, or to secure the performance of
tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts,
performance and return-of-money bonds and other
similar obligations (exclusive of obligations for
the payment of borrowed money); and
(L) Liens resulting from operation of law with respect
to any judgments or orders not constituting a
Default.
9
"Default" shall mean an Event of Default or any condition or event
which, with notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement Date" shall have the meaning provided in Section 3.02 of
the Agreement.
"Disqualified Shares" means any Share Capital that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Share Capital),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Share Capital, in whole or in part, on or prior to the
date that is 91 days after the Maturity Date.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States (expressed in dollars).
"Drawdown Date" means each Business Day designated by the Borrower in
a Drawdown Request, as the day on which a Revolving Loan or a Term Loan, as the
case may be, subject to the terms and conditions of the Agreement, is requested
to be made by the Lenders to the Borrower; provided, however, a Drawdown Date
with respect to a Revolving Loan shall not occur later than the day immediately
preceding the Maturity Date and a Drawdown Date with respect to a Term Loan
shall not occur later the date that is the four month anniversary of the
Closing Date.
"Drawdown Request" means, with respect to any borrowing, conversion or
continuation of a Loan, a written request, substantially in the form of Exhibit
C to the Credit Agreement executed by an Executive Officer of the Borrower
wherein the Borrower indicates, among other things, (a) the proposed Drawdown
Date, (b) the amount of such Loan, (c) the initial Interest Period for such
Loan, (d) whether the Loan is a Revolving Loan or a Term Loan, (e) whether such
Loan is a Base Rate Loan or a LIBOR Loan, (f) in the case of a borrowing, the
disbursement instructions therefore and (g) in the case of the borrowing of a
Term Loan, that (i) the proceeds thereof are being used to purchase Existing
Senior Notes, (ii) the seller of such Existing Notes and (iii) the purchase
price and principal amount of such Existing Notes.
"Earnings" means and includes all present and future moneys and claims
which are earned by or become payable to or for the account of the Borrower or
the Subsidiary Guarantors in connection with the operation or ownership of the
Vessels, including but not limited to freights, passage and hire moneys,
remuneration for salvage and towage services, demurrage and detention moneys,
all present and future moneys and claims payable to the Borrower or the
Subsidiary Guarantors in respect of any breach or variation of any charterparty
or contract of affreightment in respect of the Vessels, and all moneys and
claims payable to the Borrower or the Subsidiary Guarantors in respect of the
requisition for hire of the Vessels; provided, however, that the use of this
term shall create no security interests with respect to the earnings of the
Second Lien Vessels owned by the Borrower so long as MARAD is the first
mortgagee thereon or on any Vessels now or in the future owned by Seabulk
Towing, Inc. so long as MARAD is the first mortgagee on any Second Lien Vessel
owned by Seabulk Towing, Inc.
10
"EBITDA" means, with respect to the Borrower and the Subsidiary
Guarantors for any period, the Consolidated Net Income of such Person for such
period plus the following to the extent deducted in calculating such
Consolidated Net Income:
(A) all Federal, state and local and all foreign income
tax expense;
(B) Consolidated Interest Expense;
(C) depreciation expense and amortization expense;
(D) the sum of any non-cash costs, charges or expenses
attributable to the accrual of or reserve for cash
charges in any future period for pension liabilities
of the Borrower and the Subsidiary Guarantors;
(E) an amount equal to any non-cash loss or gain
realized in connection with an asset sale;
(F) an amount equal to the fees, expenses and other
costs incurred by the Borrower and the Subsidiary
Guarantors in connection with the transactions
contemplated in conjunction with the Facility; and
(G) to the extent the Borrower's accounting policy with
respect to the capitalization of dry-docking costs
is changed, an amount equal to any expensed
dry-docking cost.
Notwithstanding the foregoing, amounts relating to a Subsidiary Guarantor shall
be added to Consolidated Net Income to compute EBITDA only to the extent (and
in the same proportion) that the net income (or loss) of such Subsidiary
Guarantor was included in calculating Consolidated Net Income.
"Eligible Lender" means and include a commercial bank, financial
institution or other institutional "accredited investor" (as defined in
Regulation D of the Securities Act).
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating
in any way to any Environmental Law or any permit issued, or any approval
given, under any such Environmental Law (hereafter, "Claims"), including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any
and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.
"Environmental Law" means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy or rule of common
law now or hereafter in effect and in each case as amended, or any binding
judicial or administrative interpretation thereof, including any judicial
11
or administrative order, consent decree or judgment, to the extent binding on
the Borrower or any of its Subsidiaries, relating to the environment, employee
health and safety or Hazardous Materials, including, without limitation,
CERCLA; RCRA; the Federal Water Pollution Control Act, 33 USC. ss. 1251 et seq.;
the Toxic Substances Control Act, 15 USC. ss. 2601 et seq.; the Clean Air Act,
42 USC. ss. 7401 et seq.; the Safe Drinking Water Act, 42 USC. ss. 3803 et seq.;
the Oil Pollution Act of 1990, 33 USC. ss. 2701 et seq.; the Emergency Planning
and the Community Right-to-Know Act of 1986, 42 USC. ss. 11001 et seq.; the
Hazardous Material Transportation Act, 49 USC. ss.1801 et seq.; and the
Occupational Safety and Health Act, 29 USC. ss.651 et seq. (to the extent it
regulates occupational exposure to Hazardous Materials); any state and local or
foreign counterparts or equivalents, in each case as amended from time to time.
"Equity Interests" means Share Capital and all warrants, options or
other rights to acquire Share Capital (but excluding any debt security that is
convertible into, or exchangeable for, Share Capital).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of the Agreement, and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Event of Default" means any of the events described in Article IX of
the Agreement.
"Excluded Taxes" any tax imposed on or measured by the net income or
profits of a Lender, or any franchise tax based on the net income or net
profits of a Lender, in either case pursuant to the laws of (a) the United
States of America, (b) any jurisdiction (or political subdivision thereof) of
which the Agent, any Arranger, the Issuing Lender or any other Lender, as the
case may be, is a citizen or is resident or in which such Lender has a
permanent establishment (or is otherwise engaged in the active conduct of its
banking business through an office or a branch) which is such Lender's
applicable Lending Office, (c) the jurisdiction (or any political subdivision
thereof) in which the Agent, any Arranger, the Issuing Lender or any other
Lender is organized, and (d) any jurisdiction (or political subdivision
thereof) in which the Agent, any Arranger, the Issuing Lender or any other
Lender is presently doing business which taxes are imposed solely as a result
of doing business in such jurisdiction..
"Executive Officer" means, with respect to a Person, any officer
having the authority to bind such Person pursuant to the terms of the
constitutive documents of such Person.
"Existing Credit Agreement" means the Credit Agreement, dated as of
December 15, 1999, together with the various amendments and supplements
thereto, among Seabulk International, Inc. (formerly known as Hvide Marine
Incorporated), a corporation existing under the laws of Delaware, as borrower,
Bankers Trust Company, as administrative agent for the
12
lenders from time to time parties thereto, Deutsche Bank Securities, Inc., as
lead arranger and book manager, and MeesPierson Capital Corp., as syndication
agent and co-arranger, and the lenders a party thereto.
"Existing Indebtedness" means the Indebtedness incurred under the
Existing Credit Agreement and the Existing Indenture.
"Existing Indenture" means the Indenture, dated December 15, 1999,
between Seabulk International, Inc. (formerly known as Hvide Marine
Incorporated) and State Street Bank and Trust Company of Connecticut, N.A., as
trustee, as the same may be modified, amended, restated, supplemented or
renewed from time to time in accordance with the terms hereof and thereof.
"Existing Senior Notes" means the Borrower's senior secured second
lien notes, issued pursuant to the Existing Indenture, as the same may be
modified, supplemented, restated, amended or renewed from time to time pursuant
to the terms hereof and thereof.
"Facility" means the $180,000,000 senior secured credit facility
created pursuant to the Agreement consisting of the Revolving Loans, the Term
Loans and the Letters of Credit.
"Facing Fee" shall have the meaning provided in Section 2.16(b) of the
Credit Agreement.
"Fair Market Value" means, with respect to a Vessel, the fair market
sale value as of a specified date of such Vessel determined on a standalone
basis free and clear of any Liens and charters and with no value given to
pooling arrangements that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy, as determined by an
Appraiser selected by the Agent at the expense of the Borrower; provided,
however, that the Borrower shall have the option to select an additional
Appraiser to make such determination and, in such case, the "Fair Market Value"
shall be the average of the fair market sale value determined by the Agent's
Appraiser and the fair market sale value determined by the Borrower's
Appraiser. The Fair Market Value of the Seabulk Trader and the Seabulk
Challenge shall be an amount equal to the excess of (a) 50% of the fair market
value determined as described in the immediately preceding sentence over (b)
the discharge amount of the first priority mortgages thereon.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day of such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
13
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"Fortis" has the meaning set forth in the initial paragraph of the
Agreement.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America consistently applied, except
as disclosed in the financial statements of the Borrower.
"Governmental Authority" means any government, parliament,
legislature, regulatory authority, agency, commission, tribunal, department,
commission, board, instrumentality, court, arbitration board or arbitrator or
other law, regulation or rule making entity (including a Minister of the Crown)
having or purporting to have jurisdiction on behalf of, or pursuant to the laws
of, any country in which any Credit Party is organized, continued, amalgamated,
merged or otherwise created or established or in which any Credit Party carries
on business or holds property, or any province, territory, state, municipality,
district or political subdivision of any such country or of any such state,
province or territory of such country.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," "dangerous goods," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority under
Environmental Laws.
"Hedging Agreement" means any agreement entered into by and between
the Borrower and any Lender or any Affiliate of any Lender pursuant to which
the Borrower has the ability to reduce exposure to currency or interest rate
risks, as any such Hedging Agreement from time to time may be amended,
restated, modified, supplemented or renewed.
"Hedging Obligations" means, with respect to any specified Person, the
net amount of the obligations of such Person under interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements,
foreign currency exchange agreements, commodity price
14
protection agreements and other agreements or arrangements designed to protect
such Person against fluctuations in interest rates, foreign currency exchange
rates and commodity prices.
"Indebtedness" means, with respect to a Person, any indebtedness of
such Person, whether or not contingent:
(A) in respect of borrowed money;
(B) evidenced by bonds, notes, debentures, promissory
notes, loan agreements or similar instruments or
letters of credit (other than obligations with
respect to letters of credit securing obligations
entered into in the ordinary course of business of
such Person to the extent such letters of credit are
not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of
credit)(or reimbursement agreements in respect
thereof);
(C) in respect of bankers' acceptances;
(D) representing Capital Lease Obligations;
(E) representing the balance deferred and unpaid of the
purchase price of any property, except any such
balance that constitutes an accrued expense or trade
payable;
(F) representing any Hedging Obligations; or
(G) representing the maximum fixed repurchase price of
Disqualified Shares;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of
the specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(A) in the case of any Indebtedness issued with original
issue discount, the accreted value of the
Indebtedness; and
(B) in the case of any other Indebtedness, the principal
amount of the Indebtedness, together with any
interest on the Indebtedness that is more than 30
days past due.
"Indemnified Liabilities" shall have the meaning provided in Section
3.06 of the Credit Agreement.
15
"Indemnified Party" means each of and "Indemnified Parties" means
collectively the Agent, each Arranger and each Lender and each of their
respective directors, officers, employees and agents and any Person who
controls any of them within the meaning of the federal, state and foreign
securities laws.
"Indemnified Taxes" means any Taxes (including, without limitation,
income taxes withheld at source) other than Excluded Taxes.
"Initial Loan" means the first Loan made pursuant to Article II of the
Credit Agreement.
"Insurances" includes all policies and contracts of insurance
whatsoever (which expression includes all entries of the Vessels in a
protection and indemnity or war risks association) which are from time to time
taken out or entered into in respect of the Vessels and their Earnings or
otherwise in connection with the Vessels; provided, however, that the use of
this term shall create no security interests with respect to the insurances
relating to the Second Lien Vessels so long as MARAD is the first mortgagee
thereon.
"Interest Payment Date" means the last day of each Interest Period;
provided, however, that if any Interest Period exceeds three (3) months,
interest shall also be paid on the last day of each three (3) month period
during such Interest Period.
"Interest Period" means (a) with respect to any Loan, the one, three
or six-month period (or, if agreed to by all of the Lenders, any other period),
selected by the Borrower pursuant to Article II of the Credit Agreement,
commencing on the Drawdown Date, with respect to the first Interest Period for
such Loan, and on the termination of the prior Interest Period, with respect to
all other Interest Periods; provided, however, that notwithstanding Article II
of the Credit Agreement, the Borrower shall not select an Interest Period for
any Loan, which includes and extends beyond the Maturity Date; and provided
further, that any Interest Period which would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day unless such
next succeeding Business Day is in the following calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day.
"Interest Rate" means either (a) a rate per annum equal to the Base
Rate for the relevant Interest Period plus the Applicable Margin (computed on
the basis of a year of 365 days for the actual number of days--including the
first day but excluding the last day--occurring in the period for which such
interest is payable) or (b) a rate per annum equal to the Adjusted LIBOR for
the relevant Interest Period plus the Applicable Margin (computed on the basis
of a year of 360 days for the actual number of days--including the first day
but excluding the last day--occurring in the period for which such interest is
payable).
"Investment" means any direct or indirect advance, loan or other
extension of credit (including by way of guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of capital stock (or other equity
interest), Indebtedness or other similar instruments.
"ISM Code" shall have the meaning provided in Section 6.20(b) of the
Credit Agreement.
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"Issuance Date" means a Business Day designated by the Borrower in an
Issuance Request as the day on which a Letter of Credit, subject to the terms
and conditions of the Credit Agreement, is requested to be issued by the
Issuing Lender or an existing Letter of Credit is requested to be extended;
provided, however, an Issuance Date shall not occur later than thirty (30) days
immediately preceding the Maturity Date.
"Issuing Lender" means Fortis Capital Corp. or one of its Affiliates,
in its capacity as issuer of any Letter of Credit, or any successors thereto.
"Issuance Request" means, with respect to a Letter of Credit, a
written request, substantially in the form of Exhibit D to the Agreement
executed by an Executive Officer of the Borrower wherein the Borrower
indicates, among other things, (i) the Issuance Date, (ii) the Stated Amount of
the Letter of Credit, (iii) the Stated Expiration Date, it being expressly
agreed that unless the Issuing Lender otherwise agrees no Letter of Credit
shall contain a provision for the automatic renewal or extension thereof, (iv)
the beneficiary of such Letter of Credit, (v) whether such Letter of Credit is
a Standby Letter of Credit or Trade Letter of Credit and (vi) the terms and
conditions, if any, required for draws thereunder.
"L/C Commitment" means the Issuing Lender's obligation to issue
Letters of Credit for the account of the Borrower in an aggregate amount not to
exceed $10,000,000.
"L/C Obligations" means on any date, an amount equal to the sum of (i)
the aggregate Stated Amount of all issued and outstanding Letters of Credit,
plus (ii) the then aggregate amount of all unpaid Reimbursement Obligations.
"L/C Participant" means all Lenders other than the Issuing Lender.
"Lender and Lenders" have the meanings set forth in the initial
paragraph of the Agreement.
"Lending Office" means, with respect to any Lender, the office or
offices of the Lender specified opposite its name on the applicable signature
page to the Loan Agreement, or such other office or offices of the Lender as it
may from time to time notify the Borrower and the Agent.
"Letter of Credit" means a Standby Letter of Credit or Trade Letter of
Credit issued pursuant to an Issuance Request; provided, that the aggregate
amount available to be drawn under all such Letters of Credit shall not exceed
the L/C Commitment.
"Letter of Credit Fee" shall have the meaning provided in Section
2.16(b) of the Credit Agreement.
"LIBOR" means, with respect to an Interest Period and any Loan to be
made, continued as or converted into a LIBOR Loan, the rate for a period of
time comparable to the numbers of days in such Interest Period which appears on
the Telerate Page 3750 (or such other page as may replace the page on that
service for the purpose of displaying London inter-bank market rates) at or
about 11:00 a.m., London time, on the date that is two London Banking Days
preceding the date of calculation. If, at any time of determination, two such
offered rates appear on the
17
Telerate Page 3750, LIBOR will be the arithmetic mean of such offered rates
(rounded to the nearest.0001 percentage point). If, at any time of
determination, the Telerate Page 3750 or any replacement page is not available,
LIBOR will be calculated as the average (rounded upward, if necessary to the
next higher 1/16 of 1%) of the respective rates per annum at which deposits in
United States dollars are offered to each of three reference banks of
internationally recognized standing selected by the Agent in the London
interbank market for Dollar deposits of amounts comparable to the principal
amount of the LIBOR Loan to which such LIBOR rate is to be applicable with
maturities comparable to the Interest Period for which such LIBOR rate will
apply at approximately 11:00 a.m., London time, on the date that is two London
(US$) Banking Days preceding the date of calculation. The determination of
LIBOR by the Agent shall be conclusive in the absence of manifest error.
"LIBOR Loan" means a Loan that bears interest based on Adjusted LIBOR.
"Lien" means mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other applicable personal property security legislation in any jurisdiction
or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Lightship Tanker Entities" means Lightship Tanker Holdings, L.L.C.,
Lightship Partners, L.P., Lightship Tankers I, L.L.C., Lightship Tankers II,
L.L.C., Lightship Tankers III, L.L.C., Lightship Tankers IV, L.L.C., Lightship
Tankers V, L.L.C., Delaware Tanker Holdings I, Inc., Delaware Tanker Holdings
II, Inc., Delaware Tanker Holdings III, Inc., Delaware Tanker Holdings IV, Inc.
and Delaware Tanker Holdings V, Inc.
"Loan" means either of, and "Loans" means both of the Term Loans and
the Revolving Loans.
"London Banking Day" means any day on which dealings in deposits in
United States dollars are carried on in the London interbank market and on
which commercial banks are open for domestic and international business
(including dealings in United States dollar deposits) in London and New York.
"Loss Date" means with respect to a Vessel and a Total Loss, the
Business Day following the earlier of (a) receipt by the related Subsidiary
Guarantor of insurance, condemnation or other proceeds with respect to such
Total Loss and (b) 180 days after the occurrence of such Total Loss.
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"MARAD" means the United States Maritime Administration.
"Material Adverse Change" means any circumstance or event or any set
of circumstances or events which (a) has or could reasonably be expected to
have any material adverse effect
18
whatsoever upon the validity or enforceability of any Transaction Document, (b)
is or could reasonably be expected to be material and adverse to the condition
(financial or otherwise) or business operations of the Borrower or any
Subsidiary Guarantor, each individually or taken together as a whole, (c)
materially impairs or could reasonably be expected to materially impair the
ability of the Borrower or any of the Subsidiary Guarantors to perform their
respective obligations under the Transaction Documents, or (d) materially
impairs or could reasonably be expected to materially impair the ability of the
Agent to enforce any of the Transaction Documents or any Lender to enforce its
Note.
"Maturity Date" means the fifth (5th) anniversary of the Closing Date
or if such date is not a Business Day, the Business Day immediately preceding
such date.
"Minimum Borrowing Amount" means (a) for Revolving Loans, $1,000,000
and integral multiples of $100,000 thereafter and (b) for Letters of Credit,
$50,000.
"Mortgage" means, with respect to a Vessel, the first registered ship
mortgage (or, in the case of the Second Lien Vessels, a second registered ship
mortgage) on such Vessel substantially in the form of Exhibit E-I (or, in the
case of the Second Lien Vessels, Exhibit E-II) to the Agreement, granted by the
related Subsidiary Guarantor to the Agent, on behalf of the Lenders, as such
Mortgage from time to time may be amended, restated, modified, supplemented or
renewed in accordance with the terms of such Mortgage.
"NIB" has the meaning set forth in the initial paragraph of the
Agreement.
"Note" means either of, and "Notes" means both of, a Revolving Loan
Note and a Term Loan Note, as the same from time to time may be amended,
restated, modified, supplemented or renewed.
"Obligations" means any and all of the obligations of the Borrower and
each of the Subsidiary Guarantors, whether due or to become due, matured or
unmatured, liquidated or unliquidated, contingent or non-contingent, and all
covenants and duties regarding such amounts, of any kind or nature, present or
future, whether or not evidenced by any note, agreement or other instrument, in
each case arising under the Agreement or under any Note, Hedging Agreement,
under any of the Transaction Documents or under any currency hedging agreement
arranged by a Lender or an Affiliate of a Lender. This term includes, without
limitation, all principal, interest (including interest that accrues after the
commencement by or against the Borrower or any Subsidiary Guarantor of any
action under the Bankruptcy Code), L/C Obligations, fees, including, without
limitation, any and all arrangement fees, loan fees, agent fees and any and all
other fees, expenses, costs or other sums (including attorney costs) payable by
the Borrower or the Subsidiary Guarantors under any of the Transaction
Documents.
"Originating Lender" shall have the meaning provided in Section
10.11(d) of the Credit Agreement.
"Other Taxes" means any and all current or future stamp or documentary
taxes or other excise or property taxes, charges or similar levies arising from
any payment made hereunder or under the Notes or from the execution, delivery,
registration, enforcement, of or otherwise with respect to, any Transaction
Document.
19
"Overdue Rate" means, with respect to a Note, a rate per annum for
each day from the date of a default in any payment hereunder until such payment
shall be paid in full equal to (a) in the case of any LIBOR Loan, the rate that
would be applicable under Section 2.06(a) to such LIBOR Loan plus 2% per annum,
and (b) in the case of any other overdue amount, the rate that would be
applicable under Section 2.06(a) to a Base Rate Loan, plus 2% per annum.
"Participant" shall have the meaning provided in Section 10.11(d) of
the Credit Agreement.
"PBGC" means, the Pension Benefit Guaranty Corporation.
"Permitted Encumbrances" means: (a) liens or rights in rem for current
crew's wages, for general average or salvage (including contract salvage) or
for wages of stevedores employed by the charterer, the operator, agent or
master of a Vessel which in each case (i) are unclaimed or (ii) shall not have
been due and payable for ten (10) days after termination of a voyage; (b) liens
or rights in rem for repairs or incident to current operations of a Vessel
(other than those referred to in clause (a) above) or with respect to any
change, alteration or addition made to such Vessel, but only to the extent in
each case that such liens are based on claims not yet delinquent and do not
involve any risk of a sale, forfeiture, hindrance to operation or loss of such
Vessel; (c) liens for amounts that are not delinquent or that are due and
unpaid for not more than thirty (30) days after such amounts shall become due
that do not involve any risk of a sale, forfeiture, hindrance to operation or
loss of a Vessel; (d) liens for amounts being contested by the applicable
Subsidiary Guarantor in good faith by appropriate procedures, diligently
prosecuted or appealed which do not involve any risk of a sale, forfeiture,
hindrance to operation or loss of a Vessel; (e) liens covered by valid policies
of insurance held with respect to a Vessel and meeting the requirements of the
related Mortgage; (f) the lien of the Mortgages and the other Transaction
Documents; (g) any other liens expressly permitted by any of the Transaction
Documents; and (h) liens and security interests in existence as of the Closing
Date granted in favor of the United States of America, represented by the
Secretary of Transportation, acting by and through the Maritime Administrator,
pursuant to the first priority mortgages, security agreements and other
documents so long as such liens and security interests relate solely to the
Second Lien Vessels.
"Permitted Pledge Liens" means:
(A) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being
contested in good faith by appropriate action or
proceedings and with respect to which adequate
reserves are being maintained;
(B) Liens resulting from operation of law with respect
to any judgments or orders not constituting a
Default; and
(C) Liens created by the Pledge Agreement and the other
Transaction Documents.
"Person" means an individual, a corporation, a partnership, an
association, a trust, a limited liability company or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
20
"Plan" means any pension plan, as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an obligation to
contribute of), the Borrower or a Subsidiary of the Borrower or an ERISA
Affiliate, and each such plan for the five year period immediately following
the latest date on which the Borrower, a Subsidiary of the Borrower or an ERISA
Affiliate maintained, contributed or had an obligation to contribute to such
plan.
"Pledge Agreement" means the pledge agreement from the Borrower to the
Agent on behalf of the Lenders as may be amended, restated, modified,
supplemented or renewed from time to time in accordance with the terms thereof
pursuant to which the Borrower pledges all of the issued and outstanding Equity
Interests in the Subsidiary Guarantors to the Agent on behalf of the Lenders.
"Preferred Shares" of any Person means any Equity Interests of such
Person that have any rights which are preferential to the rights of any other
Equity Interests of such Person with respect to dividends or redemptions or
upon liquidation.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Fortis Financial Services LLC as its prime rate in effect
at its principal office in New York, New York; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"Proportionate Share" means (a) with respect to the Tranche A and a
Lender, a fraction expressed as a percentage, the numerator of which shall be
the amount of such Lender's Tranche A Loan Commitment and the denominator of
which shall be the Aggregate Tranche A Loan Commitment or, if the Aggregate
Tranche A Loan Commitment is terminated, a fraction expressed as a percentage
the numerator of which is such Lender's outstanding Tranche A Loan Commitment
and the denominator of which is the amount of the then outstanding Revolving
Loans and Stated Amount of the then outstanding Letters of Credit and (b) with
respect to the Tranche B and a Lender, a fraction expressed as a percentage,
the numerator of which shall be the amount of such Lender's Tranche B Loan
Commitment and the denominator of which shall be the Aggregate Tranche B Loan
Commitment or, if the Aggregate Tranche B Loan Commitment is terminated, a
fraction expressed as a percentage the numerator of which is such Lender's
outstanding Tranche B Loan Commitment and the denominator of which is the
amount of the then outstanding Term Loans.
"Qualified Substitute Vessel" means a vessel which (a) has a Fair
Market Value which is equal to or greater than that of the Vessel for which it
is being substituted and (b) is of a similar type and classification as the
Vessel for which it is being substituted.
"Real Property" means all of the right, title and interest of any
Person in and to land, improvements and fixtures, including leaseholds.
"Reduction Amount" means either of the Tranche A Reduction Amount or
the Tranche B Reduction Amount.
"Reduction Date" means any Tranche A Reduction Date or Tranche B
Reduction Date.
21
"Register" shall have the meaning provided in Section 2.10(a) of the
Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Reimbursement Obligation" shall have the meaning provided in Section
3.04 of the Agreement.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Reportable Event" means an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27, or .28 of Section 4043 of the Pension Benefit Guaranty
Corporation Regulations.
"Required Currency" shall have the meaning provided in Section 11.22
of the Credit Agreement.
"Restricted Payment" shall have the meaning provided in Section 7.07
of the Credit Agreement
"Requisite Lenders" means any combination of Lenders whose combined
Proportionate Share (and voting interest with respect thereto) of all amounts
outstanding under the Credit Agreement is greater than 50% of all such amounts
outstanding.
"Reserve Percentage" means with respect to Adjusted LIBOR and an
Interest Period, the maximum reserve percentage (expressed as a decimal,
rounded upward to the nearest 1/100th of one percent (0.01%)) in effect on the
date LIBOR for such Interest Period is determined (whether or not applicable to
any Lender) under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding having a term comparable to such Interest Period.
"Responsible Officer" means, with respect to a Credit Party, the Chief
Financial Officer, the Chief Executive Officer (or any person having a similar
capacity), any senior vice-president, director of treasury and finance and any
other officer designated by the Chief Financial Officer of such Credit Party
acceptable to the Agent.
"Returns" shall have the meaning provided in Section 4.09 of the
Credit Agreement.
"Revolving Loan" means an extension of credit pursuant to Section
2.01(b) of the Credit Agreement. The Revolving Loans shall not include any L/C
Obligations.
"Revolving Loan Note" shall have the meaning provided in Section
2.01(f) of the Credit Agreement.
22
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Second Lien Vessels" means the Seabulk Challenge, Seabulk Trader,
Condor, Eagle II and Hawk.
"Security Documents" means all contracts, instruments and other
documents now or hereafter executed and delivered in connection with the Credit
Agreement, pursuant to which liens and security interests are granted to the
Agent for the benefit of the Lenders, including without limitation, each
Mortgage, each Assignment of Earnings and Insurances and each Pledge Agreement.
"Share Capital" means:
(A) in the case of a corporation or a company, any and
all shares, interest, participations, or other
equivalent (however designated and whether or not
voting) of share capital or corporate stock;
(B) in the case of an association or business entity,
any and all shares, interests, participations,
rights or other equivalents (however designated) of
share capital or corporate stock;
(C) in the case of a partnership or limited liability
company, partnership or membership interests
(whether general or limited); and
(D) any other interest or participation that confers on
a Person the right to receive a share of the profits
and losses of, or distributions of assets of, the
issuer of such share capital.
"Shareholder Agreements" means all agreements entered into by the
Borrower or any of its Subsidiaries governing the terms and relative rights of
their capital stock.
"Standby Letter of Credit" means any irrevocable standby letter of
credit for the account of the Borrower issued by the Issuing Lender in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender.
"Stated Amount" of each Letter of Credit means the maximum amount
available to be drawn thereunder, determined without regard to whether any
conditions to drawing could then be met, as such amount may be reduced from
time to time in accordance with the terms of such Letter of Credit (determined
without regard to whether any conditions to drawing could then be met).
"Stated Expiration Date" means, with respect to a Letter of Credit,
the stated expiration date thereof which shall not exceed one year; provided,
however, the Stated Expiration Date shall in no event be later than the
Maturity Date.
"Stock Holders Agreement" means that certain Stockholders' Agreement,
dated as of the date hereof, among Seabulk International, Inc., Nautilus
Acquisition, L.P., C/R Marine Domestic
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Partnership, L.P., C/R Marine Non-U.S. Partnership, L.P., C/R Marine
Coinvestment, L.P., C/R Marine Coinvestment II, L.P. and Xxxxxxx Xxxx.
"Stock Purchase Agreement" means that certain Sock Purchase Agreement,
dated as of June 13, 2002, by and among Seabulk International, Inc. and each of
the investors listed on Schedule 1 thereto.
"Subsidiary" means any corporation, partnership, limited liability
company or other entity, the majority of the voting interests (including
interests arising out of securities or other interests convertible, at the
option of the holder, into interests of voting stock) of which is owned by a
Person either directly or through Subsidiaries.
"Subsidiary Guarantee Agreement" means the Guarantee by each of the
Subsidiary Guarantors set forth in the Agreement or a supplement to the
Agreement substantially in the form of Exhibit G to the Agreement pursuant to
which a Subsidiary Guarantor becomes subject to the applicable terms and
conditions of the Agreement, in each case as such supplement to the Agreement
from time to time may be amended, restated, modified, supplemented or renewed.
"Subsidiary Guarantee Obligation" shall have the meaning provided in
Section 8.01(a) of the Credit Agreement.
"Subsidiary Guarantor" means each of the Borrower's Subsidiaries as
identified on the signature pages of the Credit Agreement or to a Subsidiary
Guarantee Agreement.
"Tax Sharing Agreements" means all tax sharing, tax allocation and
other similar agreements entered into by the Borrower and/or any of its
Subsidiaries.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, withholdings, fees, assessments or other charges of
whatever nature, together with any and all assessments, penalties, fines,
additions thereto and interest thereon, in each case, now or hereafter imposed
by any governmental jurisdiction or other taxing authority.
"Term Loan" means an extension of credit pursuant to Section 2.02(b)
of the Agreement.
"Term Loan Note" shall have the meaning provided in Section 2.02(d) of
the Agreement.
"Termination Date" means with respect to each Letter of Credit (x) if
no drawing is made thereunder, the final expiration date thereof or such
earlier date on which such Letter of Credit was cancelled and returned to the
respective Issuing Lender or (y) if a drawing or drawings are made thereunder,
the date of payment of the final drawing thereunder as provided by the terms
thereof.
"Total Loss" means, with respect to a Vessel, (a) an actual or
constructive or compromised or arranged total loss of such Vessel, (b) a
Compulsory Acquisition of such Vessel or (c) a requisition for hire of such
Vessel for a period in excess of 180 days.
"Total Loss Proceeds" means all compensation, damages and other
payments (including insurance proceeds other than certain liability insurance
proceeds) received by the Agent, on
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behalf of the Lenders, from any Person, including any governmental authority,
with respect to or in connection with a Total Loss.
"Trade Letter of Credit" means any irrevocable letter of credit for
the account of the Borrower and for the benefit of the sellers of goods and
services to the Borrower or any of the Subsidiary Guarantors issued by the
Issuing Lender in a form customarily used by such Issuing Lender or in such
other form as has been approved by such Issuing Lender.
"Tranche" means the respective facility and commitments utilized in
making Loans and issuing Letters of Credit hereunder, with there being two
separate Tranches. "Tranche A" consists of the Revolving Loans and the Letters
of Credit and "Tranche B" consists of the Term Loans.
"Tranche A Loan" means a Revolving Loan or Letter of Credit.
"Tranche A Loan Commitment" means, for each Lender, the amount set for
the opposite such lender's name in Schedule I hereto directly below the column
entitled "Tranche A Loan Commitment", as same may be reduced from the time
pursuant to Sections 2.06 and/or 2.07 of the Credit Agreement or adjusted from
time to time as a result of assignments to or from such Lender pursuant to
Section 10.11(a) of the Credit Agreement.
"Tranche A Reduction Amount" shall have the meaning provided in
Section 2.06(c) of the Credit Agreement.
"Tranche A Reduction Date" means each of the dates contained in the
table set forth in Section 2.06(a) of the Agreement.
"Tranche B Loan" means a Term Loan.
"Tranche B Loan Commitment" means, for each Lender, the amount set for
the opposite such lender's name in Schedule I hereto directly below the column
entitled "Tranche B Loan Commitment", as same may be reduced from the time
pursuant to Sections 2.06 and/or 2.07 of the Credit Agreement or adjusted from
time to time as a result of assignments to or from such Lender pursuant to
Section 10.11(a) of the Credit Agreement.
"Tranche B Reduction Date" means each of the dates contained in the
table set forth in Section 2.06(b) of the Agreement.
"Tranche B Reduction Amount" shall have the meaning provided in
Section 2.06(c) of the Credit Agreement.
"Transaction Document" when used in the singular and "Transaction
Documents" when used in the plural means any and all of the Agreement, the
Notes, the Subsidiary Guarantee Agreements, the Assignments of Earnings and
Insurances, the Hedging Agreements (if any), the Mortgages and the Pledge
Agreements, as the same may from time to time be amended, restated, modified,
supplemented or renewed.
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"UCC" means the Uniform Commercial Code as from time to time in effect
the State of New York, or if the Uniform Commercial Code in any other State of
the United States is mandatorily applicable with respect to any particular
matter, the Uniform Commercial Code as from time to time in effect in such
other State of the United States.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the value of the accumulated plan benefits under the Plan determined on a
plan termination basis in accordance with actuarial assumptions at such time
consistent with those prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds the fair market value of all plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).
"United States" and "US" shall each mean the United States of America.
"Vessel" means any of, and "Vessels" means all of the vessels owned by
the Subsidiary Guarantors, other than the vessels owned by the Lightship Tanker
Entities and the Seabulk Nebraska, the Seabulk St. Xxxxxxx and the Seabulk
America, that are or will be security for the Obligations.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any
corporation, 100% of whose capital stock (other than directors' qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any limited liability company,
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
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