EXHIBIT 10.33
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment")
is made as of the 4th day of February, 1999 by and between (i) SEACOR SMIT INC.,
a corporation organized and existing under the laws of the State of Delaware
(the "Borrower"), (ii) the financial institutions listed in Schedule A (the
"Lenders") to that certain Credit Agreement dated November 17, 1998 (the
"Original Agreement"), among the Borrower, the Lenders and the Agent (as
hereinafter defined) and (iii) DEN NORSKE BANK ASA, a banking corporation
organized and existing under the laws of Norway, as agent for the Lenders (the
"Agent") and amends and is supplemental to the Original Agreement.
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the Original Agreement, the Lenders
made available to the Borrower a credit facility in the maximum principal amount
of U.S.$100,000,000 (the "Loan"), the proceeds of which were made available for
the purposes of repaying outstanding advances under the Existing Credit Facility
(as defined in the Original Agreement) and for general corporate purposes and
WHEREAS, in connection with the assignment and assumption
of a portion of the original Lender's commitment under the Original Agreement to
certain new Lenders, the parties desire to amend certain provisions of the
Original Agreement.
NOW, THEREFORE, in consideration of the premises and such
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
1. Definitions. Unless otherwise defined herein, words and
expressions defined in the Original Agreement shall bear the same meanings when
used herein.
2. Representations and Warranties. The Borrower hereby
reaffirms, as of the date hereof, each and every representation and warranty
made thereby in the Original Agreement and the Note (updated mutatis mutandis).
3. No Defaults. The Borrower hereby represents and warrants
that as of the date hereof there exists no Event of Default or any condition
which, with the giving of notice or passage of time, or both, would constitute
an Event of Default.
4. Performance of Covenants. The Borrower hereby reaffirms
that it has duly performed and observed the covenants and undertakings set forth
in the Original Agreement and the Note on its part to be performed, and
covenants and undertakes to continue to duly perform and observe such covenants
and undertakings, as amended hereby, so long as the Original Agreement, as the
same is amended hereby and may hereafter be amended or supplemented, shall
remain in effect.
5. Amendment to the Original Agreement. Subject to the
terms and conditions of this Amendment, the Original Agreement is hereby amended
and supplemented as follows:
(a) all references to "this Agreement" shall be deemed to refer to
the Original Agreement as amended hereby;
(b) Section 1.1 shall be amended by:
(1) deleting the existing definition of "Agent's Exchange
Rate" and inserting the following in place thereof:
"means the exchange rate offered by the Agent (or in
the case of the calculation of amounts drawn or
otherwise payable under Letters of Credit denominated
in currencies other than Dollars, the Letter of
Credit Issuer) of Dollars for a particular foreign
currency or vice versa in accordance with its normal
practices on the relevant date, in either case,
including any costs associated with the relevant
exchange contract or, if it does not then offer such
exchange rates in respect of such foreign currency,
such exchange rate in respect of such currency as the
Agent or the Letter of Credit Issuer, as the case may
be, deems reasonable;"
(2) amending the definition of "Credit Period" by
inserting "and all commitments to extend credit under
this Agreement have been terminated" at the end
thereof;
(3) amending the definition of "Dollar Equivalent" by
deleting "Foreign Currency" and inserting "foreign
currency" in place thereof;
(4) deleting the existing definition of Letter of Credit
Issuer and inserting the following in place thereof:
"means, with respect to each Letter of Credit, the
Lender which, at the request of the Borrower, issues
the same;"
(5) amending the definition of "LIBOR" by
i) replacing "Banking Day" and "Banking Days"
with "LIBOR Reference Day" and "LIBOR
Reference Days" in each instance that they
appear; and
ii) replacing on the eighth through thirteenth
lines thereof:
"Telerate page 3750 (British Bankers'
Association Interest Settlement Rates), in
the case of Dollars or Pounds Sterling, or
Telerate page 3740 (British Bankers'
Association Interest Settlement Rates), in
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the case of Dutch Guilders or French Francs
(or such other page as may replace such page
3750 or such page 3740,"
with:
"page LIBOR01 of the Reuters screen, in the
case of Dollars, Pounds Sterling, or, if
applicable, euros, or page LIBOR02 of the
Reuters screen, in the case of Dutch
Guilders or French Francs (or such other
page as may replace such pages LIBOR01 and
LIBOR02,";
(6) Inserting a new definition of "LIBOR Reference
Day(s)" which shall read:
"days on which banks in the London interbank market
generally will provide quotations for deposits in the
relevant currencies;"
(7) amending the definition of "Majority Lenders" by
inserting at the end thereof:
"or, if all Commitments have been terminated
hereunder, two (2) or more Lenders, the aggregate
outstanding Advances made by which exceed two thirds
of the aggregate Advances then outstanding;"
(c) Section 3.1 shall be amended by inserting the following at the
end thereof:
"The obligation of each Lender to advance its
respective portion of any Advance shall be several
and not joint with the other Lenders. With respect to
each Advance, no Lender shall be obliged to advance
to the Borrower (a) with respect to each Advance, an
amount in excess of such Lender's pro rata share of
such Advance and, (b) in the aggregate Credit
Facility Balance outstanding at any time, an amount
in excess of its Commitment."
(d) Section 3.6 shall be amended by:
(1) deleting "Foreign Currency" from the eighth line
thereof and inserting "currency other than Dollars"
in place thereof;
(2) inserting "or the Letter of Credit Issuer, as the
case may be," after "Agent" on the tenth line
thereof;
(3) inserting "and the Lenders" after "Borrower" on the
eleventh line thereof; and
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(4) inserting after "Foreign Currency Advances" on the
thirteenth and penultimate lines thereof:
"(together with the Dollar Equivalent of the
aggregate Stated Amount of Letters of Credit then
outstanding and denominated in currencies other than
Dollars)"
(e) Section 3.7(b) shall be amended by deleting "and the Agent may
consent in its sole absolute" on the ninth line thereof and
inserting "and the Letter of Credit Issuer, the Agent and the
Majority Lenders may consent, in their respective absolute" in
place thereof;
(f) Section 3.9(a) shall be amended by:
(1) inserting the following after "Advance" on the third
line thereof:
"in Dollars (amounts paid or disbursed in currencies
other than Dollars or Foreign Currencies shall be
converted to Dollars at the Agent's Exchange Rate as
of the date of payment or disbursement) or the
Foreign Currency in which such Letter of Credit was
denominated"
and
(2) inserting the following after "disbursement" on the
penultimate line thereof:
"and the amount thereof in, as applicable, (x)
Dollars, (y) the relevant Foreign Currency or (z), if
such payment or disbursement was in a currency other
than Dollars or a Foreign Currency, the Dollar
Equivalent of such payment or disbursement (together
with the sum thereof in the relevant foreign currency
and the applicable Agent's Exchange Rate)".
(g) Section 3.10(c) shall be amended by deleting "(or in the
currency of issuance if issued in a currency other than
Dollars)" from the fourth and fifth lines and inserting the
following in place thereof:
"(or if the Letter of Credit was (x), issued in a
Foreign Currency, the currency of issuance or (y)
issued in a currency other than Dollars or the
Foreign Currencies, in Dollars, based upon the Dollar
Equivalent of the deemed advance as calculated
pursuant to Section 3.9(a))"
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(h) Section 6.1 shall be amended by inserting the following after
"6.2" on the fourth line thereof:
"plus (c) any applicable margin or eurocurrency
liability reserve requirement imposed on any Lender
as a result of the operation of Regulation D (Title
12, Code of Federal Regulations, Chapter II, Part
204) as in effect from time to time constituting a
sum payable by the Borrower under Section 12.2"
(i) Section 9.1(h) shall be amended by:
(1) inserting "or indebtedness" after "Funded Debt" on
the fifth line thereof;
(2) inserting "(x)" after "entitled to" on the fifth line
thereof and
(3) deleting "unless such default" from the seventh line
thereof and inserting the following in their place:
"or (y) any party becomes entitled to accelerate and
accelerates such Funded Debt or indebtedness, unless
such default, acceleration"
(j) Section 10.1 shall be amended by inserting the following after
"and so long as" on the second line thereof:
"(x) any commitments to advance credit hereunder
remain in effect or (y)"
(k) Section 10.1A.(v) shall be amended by inserting "(in
sufficient number of copies to provide one to each Lender)" on
the first line thereof after "Agent";
(l) Section 10.2 shall be amended by inserting (1) "and/or the
Majority Lenders" after the word "Agent" in the first line
thereof, (2) "or the Majority Lenders'" after "Agent's" on the
seventh line thereof;
(m) Section 10.3 shall be amended by inserting "and/or the
Majority Lenders" after the word "Agent" in the first and
third lines thereof.
(n) Section 11 shall be amended by adding the following at the end
thereof:
"Anything contained in this Section 11 to the
contrary notwithstanding, any Lender may at any time
pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of
any Note) to any of the twelve Federal Reserve Banks
organized under ss.4 of the Federal Reserve Act, 12
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U.S.C. ss.341. No such pledge or the enforcement
thereof shall release the pledgor Lender from its
obligations hereunder."
(o) Adding the following new Section 14.6:
"14.6 Indemnification. Neither any Lender nor the
Agent nor any director, officer, agent or employee of
any thereof shall be liable to the Borrower for any
action taken or not taken by it in connection
herewith in the absence of its own gross negligence
or willful misconduct. The Borrower hereby agrees to
indemnify each of the Lenders and the Agent, their
respective affiliates and the respective directors,
officers, agents and employees of the foregoing (each
an "Indemnitee") and hold each Indemnitee harmless
from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including,
without limitation, the reasonable fees and
disbursements of counsel, which may be imposed on,
incurred by or asserted against, any Indemnitee in
any way relating to or arising out of this Agreement
and the Notes or any action taken or omitted by any
Indemnitee hereunder or thereunder provided that (i)
no Indemnitee shall have the right to be indemnified
hereunder for such Indemnitee's own gross negligence
or willful misconduct and (ii) to the extent
permitted by law, the Indemnitee shall provide the
Borrower with prompt notice, but not later than sixty
(60) days after it becomes aware, of any claim giving
rise to any such indemnified liability."
(p) Section 16.6 shall be amended by adding the following to the
end thereof:
"(c) Reports and Notices. Promptly upon receipt
thereof by the Agent, the Agent shall furnish each
Lender with a copy of all financial reports, vessel
valuations and survey or inspection reports, and
notices delivered to it by the Borrower hereunder."
and
(q) Section 18 shall be amended by inserting the following new
Section 18.6 at the end thereof:
"18.6 Adjustments. If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all
or any part of the Advances made by such Lender, or
interest thereon, or receive any collateral in
respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or
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proceedings of the nature referred to in Section
9.1(i) or (k), or otherwise) in a greater proportion
than any such payment to and collateral received by
any other Lender in respect of such other Lender's
Advances, or interest thereon, such Benefitted Lender
shall purchase for cash from each of the other
Lenders such portion of each such other Lender's
Advances, and shall provide each of such other
Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause
such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with
each of the Lenders, provided, however, that if all
or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees
that each Lender so purchasing a portion of another
Lender's Borrowings may exercise all rights of
payment (including, without limitation, rights of
set-off, to the extent not prohibited by law) with
respect to such portion as fully as if such Lender
were the direct holder of such portion.
6. No Other Amendment. All other terms and conditions of
the Original Agreement shall remain in full force and effect and the Original
Agreement shall be read and construed as if the terms of this Amendment were
included therein by way of addition or substitution, as the case may be.
7. Promissory Note. By the execution and delivery of this
Amendment, the Borrower and the Lenders hereby consent and agree that all
references in the Note to the Original Agreement shall be deemed to refer to the
Original Agreement as amended by this Amendment.
8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
9. Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts each of which, when so executed, shall
be deemed to be an original but all such counterparts shall constitute but one
and the same agreement.
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10. Headings; Amendment. In this Amendment, section
headings are inserted for convenience of reference only and shall be ignored in
the interpretation of this Amendment. This agreement cannot be amended other
than by written agreement signed by the parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Amendment by its duly authorized representative on the day and year first
above written.
SEACOR SMIT INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Executive Vice President
By special authority for DEN
NORSKE BANK ASA, New York Branch,
as Agent for the Lenders and as a
Lender
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
First Vice President
and
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
Vice President
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00382.068 #61701
